An Examination of the Interaction between Protocol No. 16 to the ECHR and the Article 267 TFEU Preliminary Reference Procedure, in light of the Principle of Sincere Cooperation

AuthorClodagh Hunt-Sheridan
Pagespp 92 -115
Published date12 January 2022
Date12 January 2022
92
An Examination of the Interaction between
Protocol No. 16 to the ECHR and the Article
267 TFEU Preliminary Reference Procedure, in
light of the Principle of Sincere Cooperation
CLODAGH HUNTSHERIDAN*
I. Introduction
Every Member State in the EU is a High Contracting Party to the European
Convention on Human Rights (‘ECHR’ or the ‘Convention’). e individual
complaints procedure of the European Court of Human Rights (‘ECtHR’ or the
Strasbourg Court’) has been considered a successful enforcement mechanism
for many years.1 For individuals, it is a court of last resort, whereby appeals can
be made to the court in Strasbourg provided that domestic remedies within the
domestic legal order of the High Contracting Party have been exhausted. It is the
responsibility of the High Contracting Party in question to execute a judgment
of the ECtHR.2 However, an increasing caseload burden led to the adoption
of Protocol No. 16 ECHR (‘Protocol No. 16’). is Protocol, which came into
force on 1 August 2018, was devised to provide national courts with guidance
on the interpretation and application of the ‘rights and freedoms dened in the
Convention or the protocols thereto’, ‘in the context of a case pending before it’.3
As at the date of this article, sixteen High Contracting Parties have ratied the
Protocol, and four requests have been made.4 It took its inspiration from the EU’s
preliminary reference procedure, but has been adapted for the Convention system.
* B.C.L (Law with French Law), UCD, LL.M cum laude (European Union Law), University of
Amsterdam. e author wishes to thank Dr omas Vandamme (University of Amsterdam) for
earlier feedback on this article, and her family for their unwavering support and encouragement.
Any views or opinions expressed in this article are the personal views and opinions of the author.
1 Article 34 ECHR.
2 Article 46 ECHR; Council of Bars and Law Societies of Europe (‘CCBE’) ‘e European Court
of Human Rights: uestions and Answers for Lawyers’ (2014), Council of Bars and Law Societies
of Europe, <https://www.echr.coe.int/Documents/Guide_ECHR_lawyers_ENG.pdf> accessed 10
November 2020.
3 Article 1(1) and 1(2) Protocol No. 16.
4 e rst of these references was made by the French Cour de cassation in 2018: Request No.P16-
2018-001. Advisory Opinion Concerning the Recognition in Domestic Law of a Legal Parent-
Child Relationship Between a Child Born rough a Gestational Surrogacy arrangement Abroad
and the Intended Mother [2019] 69 EHRR SE1. e second request was made by the Armenian
Constitutional Court: Request no. P16-2019-001 (Unreported, ECtHR, Grand Chamber, 29
May 2020). e third request from the Supreme Court of Slovakia was not accepted: Request no.
P16-2020-001. A fourth request from the Supreme Administrative Court of Lithuania has been
accepted, but no opinion has been handed down by the Court to date: Request no. P16-2020-002.
Interaction between Protocol No. 16 to the ECHR and Article 267 TFEU 93
e preliminary reference procedure can be found in Article 267 of the Treaty on
the Functioning of the European Union (‘TFEU’) and is a fundamental mechanism
within EU law. It has been essential to European legal integration, allowing
national courts to ask the Court of Justice questions relating to the interpretation
and validity of EU law. When the European Court of Justice (‘ECJ’) hands down
a judgment in the preliminary reference procedure, the national courts are obliged
to take measures to ensure the fullment of their obligations owing from EU law.
is duty ows from the principle of sincere cooperation, laid down in Article 4(3)
of the Treaty on European Union (‘TEU’).
is article will consider whether the use of Protocol No. 16 by EU Member States
will interfere with the operation of the preliminary reference procedure, in light of
the principle of sincere cooperation. is interaction will be examined in the light
of rights with comparable protection under both the ECHR and the Charter of
Fundamental Rights of the European Union (the ‘Charter’). While many scholars
have considered how this Protocol will interact with the autonomy of the EU legal
order, this issue has not been adequately addressed in the literature to date.5
is article will rst examine the operation of the advisory opinion procedure
under Protocol No. 16, in particular as regards to who can request an advisory
opinion as well as the nature of the advisory opinions themselves, before in its
second section examining the EU’s preliminary reference procedure. While the
two procedures may appear prima facie similar, this article highlights a number of
their distinguishing features.
Next the article will focus on the principle of sincere cooperation as a central
constitutional principle in the EU legal order. It will outline how this principle
imposes a number of duties upon the Member States, including the proper
implementation and application of EU law, respect for the doctrine of primacy, the
doctrines of direct and indirect eect as well as the appropriate use of preliminary
references, and how it can also act as a brake on the national procedural autonomy
of the Member States.
In turn, the potential procedural and substantive conicts between the two
procedures, in light of the principle of sincere cooperation, will be considered. e
article will outline how courts competent under both the preliminary reference
procedure and Protocol No. 16 will be in a procedural ‘conict zone’. is will
be followed by an analysis of the substantive areas of conict between the two
procedures. In Stauder, the ECJ recognised that fundamental rights formed
part of the ‘general principles of Community law’.6 e ECJ, in the protection
of these rights, draws inspiration from ‘the constitutional traditions common to
the Member States’ and international human rights treaties of which the Member
5 Research end date: 23 April 2021.
6 Case 29/69 Erich Stauder v City of Ulm – Sozialamt [1969] ECR 00419 (‘Stauder’), para 7.

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