This volume, published in the Routledge Research in Human Rights Law series, contains the edited proceedings of a workshop held in June 2012. Its stated aim is to assess the dual protection of human rights in Europe by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). Its contributions do so by considering the parallel institutional framework of European human rights law, by comparing the protection of substantive rights protection by both courts and by considering the two courts’ respective approaches towards each other's output. The book effectively contains nine chapters which are divided into two parts. The first part groups together four chapters on the institutional relations between the EU and the ECtHR as well as their relations with stakeholders. The second part of the volume concerns the protection of procedural and substantive human rights and contains five chapters. Moreover, there are also a foreword by ECtHR president Spielmann, an introduction of each part of the book by two of the four editors and an excellent synopsis by current ECtHR judge (and former EU Civil Service Tribunal president) Mahoney. Its target audience is students and researchers of European law and human rights law.
The first part of the book focuses on various forms and methods of cooperation between the EU and the Council of Europe generally, and their courts particularly. Like many authors in the volume Gragl takes the EU's obligation to accede to the ECHR, and the specific implications of the draft accession treaty, as a starting point. His contribution is interesting as he identifies some issues with regard to inter-State complaints under the ECHR as a potential threat to the autonomy of Union law. Of course, this analysis, like all others in the book, will now be read in the light of CJEU Opinion 2/13 on EU accession of 18 December 2014. Incidentally, Gragl's analysis turned out to be visionary now that we know how strongly the CJEU's views leaned on its reading of Union law's autonomy. Tzevelekos offers an interesting reading of the ECtHR's approach in its 2005 Bosphorus ruling. Here the Strasbourg Court developed its ‘equivalent protection’ doctrine with regard to (former EU first pillar) Union law, effectively lowering the intensity of its scrutiny if (such) Union law (leaving no discretion to Member States) is implemented. Tzevelekos argues that it is possible to read this ruling not as a conventional act of judicial comity from ‘Strasbourg’ toward ‘Luxembourg’, but as concerned principally with safeguarding the authority of UN Security Council Resolutions (which, in this case, were also implemented in Union law). This is an interesting take, particularly now that the ECtHR may want to consider its line after Opinion 2/13. Other chapters in this part by Bode-Kirchhoff and Petkova deal with the significance of the Council of Europe's Venice Commission for the EU and the way in which precedents are formed by both courts. The second part of the book zooms in on various substantive areas of human rights protection, such as fair trial (Kargopoulos), the right to strike (Ludlow), asylum issues (Ippolito and Velluti) and equality (Kapotas). Each of these pieces compares the case law of the ECtHR and the CJEU, and aim to point out possible tensions. A contribution by Mason takes EU labour law as a starting point but is less consequential in nature and suggestions.
This is a volume with two faces. On the one hand, taken as a whole, it has some weaknesses of coherence and editing. Reading through it chapter by chapter there is an almost constant sense, particularly in the second part of the book that some (sections of) chapters ought to be in a different part of the book (particularly Kargopoulos (102–12) and Ippolito and Velluti (180–4)). This may suggest either that the division of labour between the two groups of editors has led to repetition, or that the book's basic distinction between ‘institutional’ and ‘substantive’ issues may not have been the best way to divide contributions. It distracts unnecessarily from the highly relevant practical, yet strangely under-researched, core research questions to which the volume essentially seeks to contribute. These are (1) do the two courts, on close and careful analysis, really offer different solutions to the same substantive problem, or do their respective basic interpretational approaches in one way or another lead to a real risk to that effect (Part II of the book)? And (2), if so, what could or should the courts themselves or other actors do about such actual or potential tensions and contradictions (Part I of the book)?
Seen from that perspective, the reader may on the one hand be left with a sense of potential not having been fully realized, and of synergy lost. On the other hand, it contains some really excellent innovative pieces advancing the legal and policy debate (Tzevelekos, Gragl), contributions providing noteworthy overviews and summaries (Ludlow, Ippolito and Velluti, Mahoney) and interesting thoughts and suggestions (eg the analysis by Spielmann that accession by the EU to the ECHR would not appear to infringe the CJEU's autonomy in the interpretation of the substantive provisions of Union law (xix), and the analysis by Mahoney of the original reasons underlying the ECtHR's reasons to grant leeway to the EU in Bosphorus (222)). These contributions would justify purchasing the volume. They remain of relevance even after the CJEU's Opinion 2/13, which has shed new light on the basic research questions this book addresses.