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Third working session — The future prospects
rights, and supplementary layers of protections were added within the EU and
the ECHR.
Now that a rich and composite system is well-established, what is the pri-
ority?
A leading principle, embedded both in the ECHR system and in the EU
(Article 35 ECHR and Article 53 of the European Charter), is the principle of
subsidiarity.
Now that the authority of the European courts is uncontested, the idea of
leaving more room for ‘internal controls’ can be taken into consideration, for
more than one reason.
First, a better distribution of the workload among national and supra-
national courts could benefit individuals and the overall system. After all, if
rights can be satisfied at the national level, why overload the European courts?
Moreover, a prior involvement of national supreme or constitutional courts
may be convenient and beneficial for a more complete appraisal of the case by
the European Courts. In fact, national supreme and constitutional courts are,
on one hand, are closer to the case, while at the same time – because of their
own functions – they are in a position that enables them to decide in the light
of a comprehensive approach to the national legal system and the national
social context. They tend to have a ‘non-fragmented’ and a rather systemic
approach to the issues submitted to them of adjudication, so that their previ-
ous decisions may bring arguments also to the European Courts for a richer
appreciation. After all, in other multilevel systems, like the USA, the Federal
Supreme Court let every new question ‘percolate’ before different federal and
state courts, before taking it for decision, so that it has the benefit of the many
judicial decisions by low federal courts and/or state courts on constitutional
issues before it must decide upon. Indeed, unlike the US Supreme Court, the
European Court of Justice does not decide on appeal, but as a ‘quasi-federal’
supreme court has the same need to take into consideration and even to take
advantage of the previous experiences of other national courts in order to
improve the quality of its decisions and to render them more acceptable by
