It’s not about pluralism. It’s about power politics!

von Marten Breuer

Much has been said already on Daniel Halberstam’s blog entry and his corresponding article. Therefore, I may be brief.

To begin with, I have problems with Daniel’s concept of ‘constitutional pluralism’. If I understand it correctly, this concept has been developed by him in order to explain the ECJJ’s Kadi judgment. Analysing the relationship between the ECJ and the UN Security Council is one thing – but the EU acceding to the European Convention on Human Rights is definitely something different. In the case of the Convention, the demand for pluralism has found an in-built mechanism, namely, the margin of appreciation doctrine. Apart from that, the Convention aims to secure a Europe-wide minimum standard in human rights. As a matter of principle, this leaves no room for pluralism. One might argue that a particular judgment of the ECtHR has not duly respected the margin of appreciation. However, this does not call into question the general principle that the minimum standard as established by the ECtHR has to be respected by all States Parties.

According to Daniel, the outcome of Opinion 2/13 was predictable against the background of Kadi. I have argued in an article to be published in issue 3 of Europarecht (as now Thomas Streinz does on this blog independently) quite to the opposite. It would have been in line with the ECJ’s dualistic reasoning in Kadi to hold that any indirect finding of the ECtHR on questions of Union law is restricted to the international law sphere and has no binding effect within the Union legal space. This is true for the plausibility check as part of the co-respondent mechanism: Becoming a co-respondent produces effects for the EU only on the Convention plane. A plausibility check by the ECtHR does not affect the ECJ’s last word in terms of Union law. This is equally true for the ECtHR’s power – criticised by the ECJ – to define the responsible party under the co-respondent mechanism ...

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