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Third working session — The future prospects
For the individual, the choice of forum can make a difference.
Here some questions arise: What order of priority, if any, is to be followed
when a case involving fundamental rights arises? Is there any precedence to be
observed between internal and external controls? Which judge should decide
first?
As a matter of principle, relationships between national courts and the
European Court of Strasbourg are governed by Article 35(1), which requires
that all domestic remedies be exhausted before resorting to the European
Court. On the other hand, relationships between national courts and the
ECJ in matters of fundamental rights are governed by Article 51, and in par-
ticular by the principle of incorporation, meaning that the European Court
of Justice has the power to examine the compatibility of national legislation
with European fundamental rights only when such legislation falls within the
scope of European Union law (
16
).
Notwithstanding these principles, experience shows that in many cases
the competences of different judges may overlap, and that sometimes the posi-
tions of some of these are not fully respected, mainly because of the practice
of ‘forum shopping’, i.e. of bringing the case before the forum which is consid-
ered to be the most convenient for the stakeholder; or because of the practice
of bringing the case in several different forums to multiply the chances of
winning the dispute.
The principles governing the relations among judicial authorities in
Europe may be quite clear, but the practice is somewhat confusing. I dare say
that in reality, the risk of conflicts between courts depends more on the lack
of order between judicial remedies than on the merits of the individual case.
6. With the entry into force of the Lisbon Treaty, the European system of
protection of fundamental rights entered a ‘new age’, or at least a ‘new stage’.
(
16
) The principle is well established in the case-law of the ECJ since its judgment of 18 June 1991
in Case C-260/89,
ERT,
and recently confirmed in judgment of 26 February 2013 in Case
C-617/10,
Åkerberg Fransson
, paragraph 19. It is worth noting the decision of the German
constitutional court 1 BVG of 24 April 2013, Case 1215/07 that reacted to the expansion of
the EU competence in human rights protection to areas only remotely touched upon by EU
law.
