European Pluralism on the Protection of Fundamental Rights: The European Convention on Human Rights vis-à-vis the EU Legal Order

歐洲多層級基本權利保障：歐洲人權公約與歐盟法秩序間的關係

This article focuses on the EU legal order vis-à-vis the European Convention on Human Rights (thereafter ECHR) in the context of European multilevel mechanism on the protection of fundamental rights. Though the EU Opinion 2/13 has temporarily suspended the process of EU accession to the ECHR, these two European regimes still have to accommodate each other in order not to confuse their common member states. As to fill the EU’s gaps in the aspects of the lack of competence regarding the protection of fundamental human rights, the Court of Justice of the European Union (thereafter CJEU) has to regard the ECHR as one of the lawful criteria for examining the conventionality of EU Regulations and Directives in the specific field of human rights after the judgment of Rutili delivered in 1975. In the 1980s, the European Convention was not only treated as one source of general principle of the EU law provided by the several Luxembourg decisions, but it was the only “special significance” for the European Community law. This Luxembourg jurisprudence was then recognized by the authors of Maastricht Treaty in 1992 and Lisbon Treaty in 2009. Apart from those, the drafters of the European Charter on Fundamental rights (thereafter EU Charter) borrowed almost all the Convention rights by five technical approaches. Moreover, the Luxembourg judges also referred to Strasbourg case-law under multiple motivations in its dozens of decisions. Ever since the Strasbourg Court defined the European Convention as “the constitutional document in the European public order” in the field of human rights, the Strasbourg judges have been slowly extending its jurisdictional competence to the EU jurisdiction. The Strasbourg Court quite often substantively scrutinizes whether the EU law application by the member states has been compatible with national duty under the European Convention. On the other side, Strasbourg judges usually identify the scope of consensus on the reliance of comparative and international law. Thus, the EU Directives, Luxembourg case-law and the EU Charter have always been invoked as relevant resources or evidence by the Strasbourg Court for interpreting Convention rights and shaping the European Convention in line with the development of human rights legislation in the external legal territory.