Normative Approach to the Interplay between the CCC and the CJEU/ECtHR

Judicial Dialogue or a Dictate?

Abstract

The article aims to identify the rules governing the mutual relationships among the European Court of Human Rights, the Court of Justice, the constitutional courts of EU's Member States, and the EFTA Court. Its second goal is to determine to what extent their decisions and interpretive conclusions mutually bind these courts. The third goal is to present the approach taken by the Czech Constitutional Court towards the European Court of Human Rights and Court of Justice, and their decisions, on the one hand, and that of the Court of Justice to rulings made by the European Court of Human Rights and the EFTA Court, on the other hand. To find an answer to these questions, the article first analysis the normative settings and the links among individual legal systems and also among these courts. The second part of the article focuses on the case-law of these courts and thus on the reality of their "mutual" decision-making. The author concludes that there is a significant difference between the decisions of the Court of Justice and the European Court of Human Rights. While the former has the power to determine the binding and, therefore correct interpretation of EU law, the latter does not have comparable competence when it comes to the European Convention. Therefore, European Court of Human Rights decisions are only de facto binding. However, in the case law of the Constitutional Court, the exact opposite is the reality. The European Court of Human Rights judgments are unquestioningly respected and followed, while the approach to the Court of Justice's decisions oscillates between two extremes. Some of its decisions are fully reflected, while others are silently ignored. Similarly, the Court of Justice works differently with the European Court of Human Rights decisions and the EFTA Court. The Czech Constitutional Court and the Court of Justice also have in common that they treat decisions of the European Court of Human Rights (Czech Constitutional Court) and the EFTA Court (Court of Justice) basically like their own.