Nina-Louisa Arold Lorenz

Background of the Paradox (Looking Inside the Paradox Box) – History, Procedure, Symbols and the Family

This chapter provides the historical, procedural backgrounds of the Courts, their particularities and their inner logics in order to analyse the paradox of human rights protection in Europe. It focuses on the aspects of procedure relevant for the later analysis. The chapter looks at the structure and procedure of the CJEU to unveil the administrative frame forming the daily interaction of the members of the Court. It aims at understanding CJEU judges and the European Human Rights Culture, and focuses on looking inside the CJEUs black box. Throughout this book comparisons are made to the ECtHR, because of the close ties of both institutions and the shared features as European regional courts. The ECtHR judges deal with a range of possible human rights violations. The ECtHR is built on a common law system, where separate opinions flow and deliberations are internally open to clerks and translators.Keywords: CJEU; Courts; ECtHR; European Human Rights Culture; human rights protection

The Margin of Appreciation in Strasbourg and Luxembourg

This chapter is divided into three sections: The first section makes some general points on the doctrine of margin of appreciation. The second section focuses on the doctrine of margin of appreciation in the Strasbourg legal order. The third section analyses the development of this doctrine in the EU legal order. The doctrine of margin of appreciation has been applied extensively by the Strasbourg Court, in particularly in cases related to limitations of fundamental rights by the contracting parties to the Convention. The first use of the margin of appreciation doctrine by the Strasbourg organs was seen in the Cyprus case. The states may invoke the legitimate aims and purposes laid down in Articles 8 to 11 of the Convention and Article 2 of Protocol 4 to the Convention. The visible use of the margin of appreciation doctrine increases the legitimacy of any court.Keywords: appreciation; doctrine; legitimate aim; Strasbourg

Europe’s Rich Diversity – 27 Different Countries on the Bench: How Differences Matter in the Decision Making

This chapter helps to understand the inner workings of the CJEU and how the differences are moulded together in order to come to one common legal finding. It is divided in to two parts. In the first part, it looks at the individual backgrounds of the members of court and how they affect the decision making. In its second part, it looks at the general influence of different legal families. Prior vocation affected the work of the Court more than legal family. The statement of being nationality blind is true for the composition of benches and seems to hold true as regards the influence of national legal background to the discussions. CJEU judges are highly sensitive towards outside reception and acceptance of their legal understanding. It was one of sincerely interested judges that are engaged and curious and rather passionate about their work.Keywords: CJEU judges; decision making; legal families; legal traditions

The European Human Rights Culture - A Paradox of Human Rights Protection in Europe?

The European Human Rights Culture – A Paradox of Human Rights Protection in Europe? analyses the political term “European Human Rights Culture”, a term first introduced by EU Commission President Barroso. Located in the fields of comparative law and European law, this book analyses, through first-hand interviews with the European judiciary, the judicial perspective on the European human rights culture and sets this in context to the political dimension of the term. In addition, it looks at the structures and procedures of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), and explains the embedding of the Courts’ legal cultures. It offers an in-depth analysis of the margin of appreciation doctrine at both the CJEU and ECtHR, and shows its value for addressing human rights grievances.

The Relationship between the Two European Courts and the Accession to the European Convention on Human Rights

After decades of discussion, the Lisbon Treaty has placed on the Union an obligation to accede to the European Convention on Human Rights (ECHR) and has given an explicit competence to the European Union (EU) institutions to accede to this system. After accession, the relationship between the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) will be formal based on system of direct complaints and indirect complaints. The first section of this chapter traces the origins and the long path followed by the EU to accede to the ECHR. The second section focuses on the relationship between the two Courts, i.e. the ECtHR and the CJEU, in light of the Strasbourg case law and Luxembourg case law. The Draft Accession Agreement provides that the procedure before the CJEU is to be conducted in accordance with internal rules of the EU.Keywords: CJEU; Draft Accession Agreement; ECHR; ECtHR; European Convention; European Union (EU); human rights; Luxembourg case law; Strasbourg case law