HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

the autonomy of EU law may no longer exist” . 33 This interrelationship underscores the challenges of preserving the independence of EU human rights law when it is intrinsically linked to the standards set by the ECHR. Given the significant interdependence between the Charter and the ECHR, I find it unconvincing to argue that EU law’s autonomy would be compromised if the ECtHR remained solely responsible for interpreting the ECHR. Even now, it is evident that a decision by the ECtHR can substantially influence the interpretation of EU law through its impact on the Charter. In my view, this current dynamic poses a greater challenge, as the relationship between the two institutions has not been formally settled. A scenario in which there is a clear and formal delegation of competence from the Union to the Strasbourg Court regarding the interpretation of the ECHR could offer greater legal certainty. So, what can I conclude with certainty? I can confidently assert that the ECtHR is the sole authoritative interpreter of the ECHR. Allowing any other judicial body to interpret the Convention would lead to confusion, undermine legal certainty, and threaten the legitimate expectations of the signatory States. Furthermore, if the EU were to accede to the Convention, it is crucial that the Convention be integrated into European law, with direct effect and supremacy over national laws. Failure to achieve this would jeopardize the protection of individuals within the EU, as they would not be able to invoke the Convention before judicial authorities. In this context, the very objectives of accession – namely, enhancing the protection of human rights – would be undermined. Article 216(2) of the Treaty on the Functioning of the European Union (TFEU) clearly specifies that agreements concluded by the EU are binding on its institutions and Member States. It is essential to find a compromise that enables the Convention to be integrated into EU law without granting the CJEU the prerogative to provide binding interpretations. In terms of the relationship between the two courts, I propose adopting an advisory opinion mechanism similar to that already established within the ECHR framework. 34 If a case before the CJEU requires an interpretation of the Convention that is not clearly established in the existing jurisprudence of the ECtHR, the CJEU should be required to submit a preliminary question to the ECtHR for a binding interpretation. This approach would preserve the ECtHR’s role as the primary authority on the interpretation of the Convention, while also ensuring that the CJEU is able to operate within the context of EU law. Once again, I do not view this as a threat to the autonomy of EU law. Voluntarily delegating a portion of competences to another entity does not equate to relinquishing 33 LENAERTS, K. Exploring the Limits of the EU Charter of Fundamental Rights. European Constitutional Law Review 8, no. 3 [online]. 2012, p. 394. Available at: https://doi.org/10.1017/S1574019612000260. 34 For more detail, see: MCCRUDDEN, Ch. The Future of the EU Charter of Fundamental Rights, p. 19. Available at: https://ssrn.com/abstract=299639 or http://dx.doi.org/10.2139/ssrn.299639.

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