On 2 October 2013, the Committee of Ministers of the Council of Europe opened for signature Protocol no. 16 to the European Convention on Human Rights. This new Protocol, which has been referred to as the “Protocol of the dialogue” by Dean Spielmann, the President of the European Court of Human Rights (ECtHR), creates the possibility for supreme courts of the Contracting States to the Convention to request an advisory opinion from the ECtHR on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”.
Even though the material scope of Protocol no. 16 is clearly confined to the Convention and its protocols, some concerns have been expressed in the recent past, notably at the recent hearing held by the ECJ on the draft agreement on EU Accession to the Convention (“DAA”), that the use of this new instrument of consultation by courts of the EU Member States might be problematic from the point of view of EU law. More specifically, the question was raised in this context whether Protocol no. 16 would not threaten the autonomy of EU law and the monopoly of the ECJ on the interpretation of EU law, by allowing supreme courts of the Member States to engage in a kind of “forum shopping” between the Luxembourg and Strasbourg courts. This contribution purports to demonstrate that those concerns are unjustified and should not be allowed to undermine the further development of the Convention system initiated by Protocol no. 16.
Scope of the problem
Let us begin by clarifying the scope of the problem. First of all, whilst, through some of its characteristics, the advisory opinion provided for by Protocol no. 16 resembles the preliminary ruling given by the ECJ under Art. 267 TFEU, there are important differences. As part of these differences only “the highest courts and tribunals of a High Contracting Party” will be entitled to request such an opinion; it will be optional for them to do so and not in any way obligatory; and the advisory opinions given by the ECtHR will not be binding.
Thus, the scenario considered as potentially problematic by definition only concerns supreme courts, i.e. those courts entitled to request an advisory opinion from the ECtHR. Moreover, the problem would presumably not arise whenever such a court is under an obligation, pursuant to Art. 267 TFEU, to make a reference for a preliminary ruling to the ECJ. In conjunction with Art. 4 (3) TEU and 344 TFEU, this provision would indeed appear to stand in the way of any “forum shopping” by domestic courts. The actual cause of concern is rather a scenario in which, because of a prior reference to the ECJ by a lower court, under the CILFIT doctrine a supreme court would no longer be bound by Art. 267 TFUE and could therefore come before the ECtHR for a “second” preliminary opinion.
The answer given by some experts, notably Johansen and Streinz, to these concerns has been to suggest that a number of legally binding restrictions should be imposed on the use of Protocol no. 16 by the supreme courts of the EU Member States, for the sake of preserving the autonomy of EU law. In their opinion, such restrictions could be put in place through the ECJ’s case-law or the internal rules designed to complement the DAA. However, those suggestions would appear to be neither proportionate nor justified.
Restrictions on the use of Protocol no. 16 would be disproportionate
First of all, it should be noted that the scope of Protocol no. 16 is not limited to the EU and its Member States but rather covers all Contracting States to the Convention, of which the EU Member States form only a part. Moreover, to the extent that the Protocol applies to the latter, it will apply to all the situations coming under the “jurisdiction” of those States within the meaning of Art. 1 of the Convention, i. e. not just to those which are governed by EU law. The suggestion made by Johansen that EU Member States should be legally precluded from signing and ratifying Protocol no. 16 altogether would therefore appear to be totally disproportionate, as it would also affect situations occurring in the EU Member States which are not governed by EU law.
Furthermore, the scenario which would allegedly open up room for forum shopping between Luxembourg and Strasbourg would appear to be a rather marginal one. In fact, there seem to be only two possibilities: either the specific issue considered by a supreme court to warrant an advisory opinion has been determined by the ECJ in a previous ruling or it has not. If it has, the previous ruling should in principle be binding upon this supreme court as well. If it has not, common sense and the rationale of the CILFIT doctrine would both suggest that the supreme court in question is not dispensed from raising this specific novel issue before the ECJ under Art. 267 TFEU.
Restrictions on the use of Protocol no. 16 would be unjustified
Be that as it may, and in the rather theoretical event of a supreme court not bound to go before the ECJ under 267 TFEU – whatever the reason – and choosing to ask the ECtHR for an advisory opinion, it is clear that the subject matter of a valid request could only be an issue relating to the Convention and not to EU law, as the ECtHR has no competence to interpret EU law. What are the options available to the ECtHR in such a situation?
In answering that question, one should bear in mind that the ECtHR has always been very anxious to respect the autonomy of EU law and to avoid every decision capable of encroaching on it. This is illustrated not only by its case-law but also by its constant efforts to secure the participation of the EU institutions, and notably the European Commission, as a third party in proceedings where EU law is involved. Moreover, one of the key principles underpinning the DAA has been the preservation of that autonomy, in line with Protocol 8 to the Treaty of Lisbon. This philosophy has been explicitly supported all along the negotiations of the DAA by the Council of Europe and the ECtHR, for the obvious reason that the ECtHR has no interest whatsoever in interfering with the autonomy of EU law. It is neither its competence nor its task to do so.
Under these circumstances, one may ask how realistic it is to assume that the panel of the ECtHR in charge of selecting the requests for an advisory opinion would accept a request from a “forum shopping court” in the first place, if it appeared that it raises an issue of EU law.
Secondly, even assuming that the Panel would nonetheless accept such a request, for example because it also involves other issues which are unrelated to EU law, how realistic is it to assume that, if it proved necessary for its reasoning, the ECtHR would not rely in its opinion on the views expressed by the ECJ in its first ruling? And should the ECtHR have any doubts on this score, how realistic is it to assume that it would not decline altogether to touch on any EU law issue being raised, whilst potentially addressing the others?
In fact, this appears to be nothing but another level where the classical distribution of labour between the two European Courts – the Convention issues are for the ECtHR, the EU law issues for the ECJ – should come into play. In practice, however, things are often mixed or intertwined and the dividing lines sometimes blurred. Supreme courts may have difficulties in coming to terms with the resulting complexity. What is needed, therefore, in such situations, is not a general ban on the use of Protocol no. 16 but straightforward coordinated cooperation between the two European Courts. What is decisive here is not so much which of the two European Courts speaks first but what it says, i.e. whether it remains within the limits of its own competence. If this is the case, it becomes rather irrelevant whether Luxembourg or Strasbourg is being interrogated first by a domestic supreme court, as in their respective fields of competence, each European court would always be the only one and therefore the first to speak.
Thirdly, and for the sake of argument: even if the ECtHR pronounced itself – by mistake – on an EU law issue among other issues not related to EU law, its opinion – which, by definition, is not binding – would be even less binding in respect of the EU law issue involved, for lack of competence. Nothing would then prevent a supreme court from going again before the ECJ as regards the EU law issues involved in the case.
How much autonomy can there be in the field of fundamental rights?
That being said, a distinction should be made between EU law autonomy in the field of fundamental rights and elsewhere. Quite apart from the general question whether all fundamental rights lend themselves to being the subject of interpretations varying from one legal system to another, the fact remains that there is one area where, by virtue of Article 52 § 3 of the Charter of Fundamental Rights, EU law has itself limited the scope of its autonomy, namely as regards those rights which the Charter has borrowed directly from the Convention.
This provision indeed reads: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”. Thus, insofar as, in pursuance of this provision, the Charter refers to the Convention in determining the minimum level of protection of a right enshrined therein, EU law itself agrees not to interpret this right completely autonomously and, in contrast, relies indirectly on the ECtHR. Moreover, after EU-accession the Convention will become part of EU law.
Consequently, in this limited area, EU law issues can also be Convention issues and vice versa. Here again, two scenarios should be distinguished. First, in all cases where Art. 267 TFUE applies, no threat to EU law autonomy is to be feared as this provision would preserve the ECJ monopoly on the interpretation of EU law, including on the fundamental rights protected by EU law. On the other hand, in the rare instances where this provision would not apply and the ECtHR would be asked to give an advisory opinion nonetheless, such an opinion – if the ECtHR accepted to give it – would by definition be confined to “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”.
Thus, in keeping with the principle according to which the Convention only defines minimum standards which Contracting Parties are free to raise in their domestic legal system (Art. 53 of the Convention), such an opinion would be given without prejudice for EU law to go beyond the Convention protection level, a scenario explicitly considered by Art. 52 § 3, second sentence, of the Charter. In other words, such an opinion could not affect the (limited) EU law autonomy in this field either, as it would only determine the minimum Convention requirements which EU law itself accepts as binding; at the same time, EU law would remain free to surpass them. Consequently, domestic courts would still have to interrogate the ECJ about the specific level of protection to be applied under EU law in light of the Strasbourg minimum.
As a result, it might certainly make sense for the supreme courts of the EU Member States to be reminded in an appropriate way, when considering applying Protocol no. 16, of their duties under Art. 267 TFEU and of the supreme authority of the ECJ as regards the interpretation of EU law. However, legally binding restrictions on the use of that Protocol would appear to be both disproportionate and unjustified. They would be a threat to the further development of the Convention system as a whole, much more than the Protocol could ever represent a threat to the autonomy of EU law. Contrary to what some may think, this is not a purely internal EU law matter.
The author is Deputy Grand Chamber Registrar at the European Court of Human Rights and professor at the Universities of Speyer and Louvain. This contribution, written in a strictly personal capacity, is taken from a conference which the author recently gave at the European Law Academy of Trier.
 On this Protocol see, inter alia, David Milner, “Protocols no. 15 and 16 to the European Convention on Human Rights in the context of the perennial process of reform: a long and winded road”, Zeitschrift für europarechtliche Studien, 2014, p. 19; Linos-Alexandre Sicilianos , “L’élargissement de la compétence consultative de la Cour européenne des droits de l’homme – A propos du Protocole n° 16 à la Convention européenne des droits de l’homme”, Revue trimestrielle des droits de l’homme, 2014, p. 9.
 See the Explanatory report to Protocol no. 16, §§ 7-8 and 25-27.
 Compare, mutatis mutandis, with the ECtHR case-law on the application of the presumption of equivalent protection of fundamental rights under EU law. What matters in this context is whether the ECJ has effectively dealt with the specific question at issue in Strasbourg (see ECtHR 6.12.2012, Michaud v. France, 12323/11, §§ 114-115).
 “The Court emphasises that, under the terms of Article 19 and Article 32 § 1 of the Convention, it is not competent to apply or examine alleged violations of EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention. More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention” (ECtHR 3.10.2014 [GC], Jeunesse v. The Netherlands, 12738/10, §110).
 On this, see Johan Callewaert, “The accession of the European Union to the European Convention on Human Rights”, Council of Europe Publishing, Strasbourg, 2014, at p. 62 et seq.
 Protocol no. 16, Art. 2.