The Issue of Inconsistency in Decisions Making

The drafting of the yet to be ratified treaty of Lisbon will partly help bring sanity in the making of decisions by the courts which have for along time has been perceived to be lacking consistency. Particularly in cases that involve the protection of fundamental rights of member states citizens. It should be noted that the burden of providing fundamental rights lies squarely on the jurisdiction of the two courts: the Court of Justice as provided for by the European Union law and the Court of Human Rights by the Convention.

The core idea is that, it is the core responsibility of the Court of Human Rights to interpret the European Convention Human Rights and for Luxembourg to interpret the European Union Treaties. However, on several occasions there have been legal-overlaps and therefore creating serious constitutional conflicts. [Borchardt, Klaus-Dieter (2000)]

One of the major distinction between the execution of powers granted to Strasbourg and Luxembourg courts by the Convention and the European Union respectively, is that the Strasbourg seems to rely too much on the member states legal systems to guarantee the protection of the rights contained in the Convention with the Strasbourg institutions acting as back-up protection when a violation is alleged. The concept of margin of appreciation is another phenomenon that puts the provisions of the Convention at disparity because member states only fulfill their Conventional obligations as per the nature of their democracy.

The Luxembourg, on the other hand is guided by an integration of the European Union, forging universal unity that is not subject to self-interest for the purpose of building a strong community values based on the uniform application of its law. In order to achieve this, the European Union legal order has successfully established itself as a strong and independent legal order. [Harman (2002)] So far the relationship between the Strasbourg and the Luxembourg courts can be said to be that of mutual respect and non-interference.

With Strasbourg shying away from reviewing acts in the European Community sphere and has ruled inadmissible cases brought the European Community or member states. However, there are a number of cases that points to the perception that the Court of Human Rights will only keep its distance and respecting the European Union law so long as it honors and duly protects fundamental rights. For instance, in the Cantoni judgment of 1997, the Strasbourg court held that a national provision could be in breach of the European Convention on Human Rights even if it was based on word for word on a European Community law directive.

In arriving at this decision, Strasbourg was following the provisions of customary international law that provides that signatories of a subsequent treaty must adhere to the obligations of the prior one. The same provisions were again used by the Strasbourg court when it found in Matthews’s case of 1999 that a gap in the human rights protection in the European Union Treaties can be indeed reviewed by Strasbourg. [Fischbach (2002)] Currently, there exist a clear legal uncertainty and lack of coherence brought about by lack of consensus between the European Convention on Human Rights and the Community tribunals.

The rights that are established by the European Convention on Human Rights are not in themselves binding as such on Community tribunals whereas they apply as they stand to European Union member countries in those countries’ application of Community law. The European Court of Human Rights case-law provides that states be accountable under the European Convention on Human Rights, for the effects of community law on their domestic legal systems. Mathew v. United Kingdom (1999) and the Cantoni v. France judgment (1966) are examples of cases that explain this notion.

[Fischbach (2002)] Further, the interrelationship between the Union law and the fundamental rights recognized and implemented under the European Convention on Human Rights in 47 Council of Europe countries is ambivalent. Currently, in regards to Union law, the European Union and it institutions are not in any way bound by the European Convention on Human Rights. Article 6(2) of the European Union treaty refers to the European Convention on Human Rights only in respect of general principles of Community law.

For example, the case-law of the Community tribunals refers to the European Convention on Human Rights and Strasbourg case law on a varying basis. [Fischbach (2002)] The impacts of the case law and the Union law have on many times caused untold dilemmas in European Union member countries. Many times the member states have found themselves on very tricky situations of having conflicting international obligations, under the Union law on the one hand and under the European Convention on Human Rights on the other. Such a situation places the country in question in a very awkward position as it does a serious harm on their legal certainty.

For instance, sometimes member countries are required to stand as respondents before the European Court of Human Rights even when the measures in question are as a result of obligations which the Union law has placed the member country. In such a situation, where the Strasbourg court finds a violation of the European Convention on Human Rights, the country in question is then held responsible for measures, even though it cannot change or remedy them since it cannot usurp the role of the Union institutions and bring the offending into line with the European Court of Human Rights judgment.

[Fischbach (2002)] Conclusions The Strasbourg and Luxembourg courts have independent mandates as provided for by the European Convention on Human Rights and the European Union law respectively, and therefore neither should be seen to undermine the autonomy of the other, in fact, if anything, they should be seen to complement each other in their pursuits to serving the fundamental rights of the more than 800 million European Community citizens.

This paper’s views are that, the Court of Justice position and decisions should be analogous to those of the Court of Human Rights. The Court of Justice should continue to be the final court on matters of European Union law while the Court of Human Rights should continue to being the final authority on matters concerning the European Convention on Human Rights: there should be no conflict or inconsistency of any kind whatsoever.


Borchardt, Klaus-Dieter (2000). The ABC of Community law, available online at; http://wwww. europa. eu. int/eur-lex/en/about/abc_en. pdf, accessed on April 20, 2009 Fischbach, Marc (2002). “The European Convention on Human Rights and the European Union Charter of Fundamental Rights – Complimentary or Competing? ”: The Council of Europe’s Convention on Human Rights and the European Union’s Charter of Fundamental Rights: Judges’ Symposium – Luxembourg – September 2002, available online at; http://www. coe. int/T/e/com/files/events/2002-09-Symposium-Judges/Fischbach. asp#TopOfPage