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Third working session — The future prospects
same situation may arise in relation to the national legislation of the other
Contracting Parties.
In these situations, if the case has been taken to Strasbourg without the
question having been considered by the Court of Justice, the Draft Agreement
proposes that some mechanism should exist to give the judges in Luxembourg
the opportunity to review the EU provision at issue (
19
). This prior-involve-
ment mechanism appears to be highly desirable, not only for the ECJ but also
for other national supreme courts (
20
), as it responds to the rationale of the
cardinal rule of the Convention, according to which all domestic remedies
must be exhausted before the case is brought before the European courts. The
subsidiarity nature of the intervention of the Court of Human Rights should
allow the contracting parties the right to decide first on possible violations (
21
).
If the rationale is that domestic authorities should have the opportunity to
address any alleged breach of the Convention before the international mecha-
nism is activated, then domestic courts should always be given the opportuni-
ty to invalidate legislation before the Court in Strasbourg decides the case. The
principle of subsidiarity, as well as practical reasons related to the workload of
the ECtHR, would encourage exploration of this innovative solution.
b. As far as the relationship between national supreme courts and the ECJ
is concerned, similar problems arise, although in the different context of the
preliminary ruling procedure: sometimes, a dispute pending before a lower
national court may (and actually do), originate a ‘double preliminary ruling’,
one before the ECJ and one before the national constitutional or supreme
(
19
) ‘In proceedings to which the European Union is co-respondent, if the Court of Justice of the
European Union has not yet assessed the compatibility with the Convention rights at issue
of the provision of European Union law as under paragraph 2 of this Article, then sufficient
time shall be afforded for the Court of Justice of the European Union to make such an
assessment and thereafter for the parties to make observations to the Court. The European
Union shall ensure that such assessment is made quickly so that the proceedings before the
Court are not unduly delayed. The provisions of this paragraph shall not affect the powers
of the Court’ (Article 3, paragraph 6 of the Draft agreement CDDH-UE (2011)16fin5).
(
20
) G. Gaja,
Accession to the ECHR,
in A. Biondi, P. Eeckhout, S. Ripley (eds),
EU Law After
Lisbon
, Oxord Univeristy Press, 2012, pp. 180-196, at p. 193, states that a parallel need for
a prior involvement regard all the parties to the ECHR in order to avoid that the European
Court of Human Rights finds a violation of the European Convention on the basis of a
interpretation of a law of a particular state that would not have been shared by the highest
court in the same state. On the equal status of all the Contracting Parties, with a specific
reference to the prior involvement procedure see the document put forward by 14 States,
dated 21 January 2013 (Council of Europe 47+1(2013)003).
(
21
) J.P. Jacqué,
The Accession
, quoted, p. 1018.
