The National Judicial Treatment of European Laws: Are National Judges Extending Primacy and Direct Effect to the ECHR?
Giuseppe Martinico
Centro de Estudios Politicos y Constitucionales, Madrid; European University Institute - Department of Law (LAW); Centre for Studies on Federalism (CSF)
Sant'Anna Legal Studies (STALS) Research Paper No. 5/2011
Abstract:
The aim of this study is to answer the question: “Are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights”?
This paper investigates the similarities and differences between the national judicial treatment of the ECHR and EU laws in the context of some selected constitutional experiences. It examines whether or not national judges treat the ECHR and EU law in the same manner, and the extent to which they facilitate the convergence of these laws. In this respect the goal of the project is to study the judicial application of the ECHR and EU law to analyse the vertical relationship between the national judges (both constitutional and ordinary judges) and these forms of external laws. As such, I am not interested in the horizontal convergence between the European Court of Human Rights and the European Court of Justice (ECJ). Rather, my investigation is limited to the vertical dimension of convergence. Obviously these two dynamics are strongly related and both European courts have undergone deep transformations in the last few years, especially after the enlargements of the EU and the Council of Europe.
The aim of this study is to answer the question: “Are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights”?
This paper investigates the similarities and differences between the national judicial treatment of the ECHR and EU laws in the context of some selected constitutional experiences. It examines whether or not national judges treat the ECHR and EU law in the same manner, and the extent to which they facilitate the convergence of these laws. In this respect the goal of the project is to study the judicial application of the ECHR and EU law to analyse the vertical relationship between the national judges (both constitutional and ordinary judges) and these forms of external laws. As such, I am not interested in the horizontal convergence between the European Court of Human Rights and the European Court of Justice (ECJ). Rather, my investigation is limited to the vertical dimension of convergence. Obviously these two dynamics are strongly related and both European courts have undergone deep transformations in the last few years, especially after the enlargements of the EU and the Council of Europe.
Number of Pages in PDF File: 26
Keywords: European Union Law, National Courts, European Convention on Human Rights
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1968971
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