Gevaarlijk spel: machtenscheiding en de interventies van het Hof van Justitie bij de toetreding van de EU tot het EVRM

Abstract

This paper argues that the ECJ may be understood to have transgressed the line separating the Court from the political decision-makers by judging, before it was called to do so. This concerned statements by or on behalf of the Court on the negotiation of an accession agreement, more particularly a special procedure for referring cases from the Strasbourg Court (ECtHR) to Luxembourg (ECJ) if the compatibility of EU acts with the ECHR has not previously been referred to the ECJ. While negotiations were ongoing, the Court and its president have declared that the absence of such a reference procedure would be incompatible with EU law. In this paper it is submitted that such a procedure may set an example for introducing such a reference procedure also for similar situations for the other parties to the ECHR, thus reducing the case load in Strasbourg and honouring the principle of subsidiarity.