162
Marta Cartabia
Troisième séance de travail — Les perspectives
The Charter of the EU was finally recognised as having the same legally
binding effects as the Treaties, and, consequently, the case-law of the European
Court of Justice on fundamental rights is thriving more than ever. The acces-
sion of the EU to the ECHR is in progress and the new phrasing of Article 6
TEU has stimulated the legal creativity of national judges, with some of them
assuming that Article 6, paragraph 3 TEU – according to which fundamental
rights as guaranteed by the European Convention constitute general princi-
ples of the Union’s law – has ‘incorporated’ the European Convention into
the EU legislation, so much so that national judges are required to apply the
provisions of the European Convention as if they were EU law. Fortunately,
this fancy judicial construction was immediately stopped, since the ECJ has
promptly and clearly replied that Article 6, paragraph 3 TEU does not govern
the relationship between the ECHR and the legal systems of the Member States
and nor does it requires to apply the provisions of the Convention directly, dis-
applying the provisions of national law incompatible with the Convention (
17
).
Anyway, the Treaty of Lisbon has heralded a ‘new age of rights’ in Europe,
a time that calls for adjustments in the European judicial network of protec-
tion of fundamental rights. In this connection, I wish to single out some of
the most significant critical points of the present state of affairs that may be
considered during this time of refinement of the relations between courts.
a. In relation to the European Court of Human Rights, one of the critical
points concerns the place of domestic remedies for invalidation of legislation.
Attention was drawn to this issue during the negotiations for the acces-
sion of the EU to the European Convention of Human Rights. Article 3(6)
of the Draft Agreement proposes an important innovation regarding the
prior involvement of the ECJ in cases where the EU is a co-respondent (
18
).
This provision addresses those situations in which an application is directed
against the EU, and the alleged violation calls into question the compatibil-
ity of a provision of European Union law with the Convention rights. The
(
17
) ECJ judgment of 24 April 2012 in Case C-571/10,
Kamberaj.
(
18
) The co-respondent mechanism is introduced by Article 3 of the Draft Agreement —
Council of Europe CDDH-UE (2011) 16 fin — to allow the EU to become a co-respondent
to proceedings instituted against one or more Member States and similarly to allow one or
more Member States to become co-respondents in proceedings instituted against the EU in
those cases in which the responsibility of the Member States and that of the EU is closely
intertwined.
