Chapter

Diplomatic Intrusions, Dialogues, and Fragile Equilibria: The European Court as a Constitutional Actor of the European Union

Laurent Scheeck

in The European Court of Human Rights between Law and Politics

Published in print June 2011 | ISBN: 9780199694495
Published online September 2011 | e-ISBN: 9780191729782 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199694495.003.0009
Diplomatic Intrusions, Dialogues, and Fragile Equilibria: The European Court as a Constitutional Actor of the European Union

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The role of the ECtHR in the EU is a paradoxical case of asymmetrical inter-institutional power relations. This chapter argues that, contrary to the intuitive assumption, ECHR norms have progressively been superimposed over EU norms — even within the EU itself and in the absence of any formal institutional linkage between the EU and the Council of Europe. The EU's legal system is much more powerful than the Council of Europe's human rights regime, but the most powerful institutions do not necessarily prevail over more fragile, yet sophisticated and highly institutionalized, normative entrepreneurs. The evolution is a direct result of the ECtHR's ‘diplomatic intrusions’ into the EU system and its high-profile dialogue with both EU judges and political actors. Nonetheless, many political and legal uncertainties have resurfaced since the EU's new treaty has come into force, and doubts can be raised whether the future role of the Court in the EU will be comparable to its recent past.

Keywords: ECHR; European Court of Human Rights; Court of Justice of the European Union; European Union; EU; fundamental rights; dialogue of judges; political jurisprudence; international socialization; EU accession to the ECHR

Chapter.  9062 words. 

Subjects: Public International Law

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