The interchange should be seen in a broader context, not just between judges including between national judges themselves, but also in the inter-action with legislature and executive, society in general, civil society, law-yers, government agents, NGO-s, bodies of different international
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tions, media and academia. It is vital to talk about the burning issues and look for the division of competences, distribution of workload.
The dialogue between different jurisdictions at least in European level is undoubtedly of great essence towards a more coherent judicial protection for the benefit of whole people living in the legal area of Europe. Commu-nication, openness and compromises are essential elements in this respect.
This dialogue proceeds to a large extent through judgements. Coping with constructive critics is one important aspect of a successful interaction. Dia-logue does not mean automatically to agree with one another, but it is im-portant for the development of the case law and improves the quality of judgments. One vital element of the dialogue which sometimes is underes-timated is the ability to listen. It is also important that the shared responsi-bility will not be blurred among multiple players and that people know which jurisdiction is responsible.
The dialogue between the courts depends upon what is the position of in-ternational law in a particular national law and on both the substantial and procedural level and possibilities for applying human rights and European law.
Essential conditions for an effective dialogue are: good will and “interac-tion mentality” of judges; understanding of each other’s tasks; mutual re-spect and the readiness to accept that different functions and different di-mensions (national/transnational) might inevitably lead to outcomes with differences.
Methods to Avoid/Solve Potential Conflicts
There are various examples of good interaction and also of some methods how to avoid/overcome potential conflicts. They can be both procedural through special institutions (preliminary rulings, advisory opinions) and also substantial via case law, e.g. through the judgments of Pan-European courts that have developed de facto erga omnes case law.
The European Court of Human Rights has endorsed the preliminary rul-ing system of the CJEU by holdrul-ing that national courts whose decisions are not open to appeal under domestic law are required to give reasons, based
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on the applicable law and the exceptions laid down by the CJEU case law for their refusal to refer preliminary question on the interpretation of EU law.2
Furthermore various legal doctrines have been created and applied by the courts such as that of direct applicability and supremacy of application of supranational law, harmonious interpretation of national law with European law, concept of European consensus and exceptions of uniform application of European law for the sake of national identity or due to margin of appre-ciation of national authorities and lastly the doctrine of equivalent protection of fundamental rights.
Another doctrine developed by both the ECtHR and CJEU in a similar way is trying to solve the complexity of relationship between international and European law by permitting the review of lawfulness of European acts implementing international law.3
On the other hand the Strasbourg and Luxembourg courts have also avoided to interfere each other’s terrain: for example the ECtHR has said that it is for national courts to resolve issues of interpretation of domestic law, including to decide the conformity of national law with the EU law, and therefore it does not fall into the competence of the ECtHR.4 The CJEU has in turn stated that the EU law does not govern the relationship between the Convention and the legal systems of the Member States and it does not lay down the consequences to be drawn by national courts in the event of conflict between the rights guaranteed by the Convention and a provision of national law.5
Naturally the case-law of both the ECtHR and CJEU are intertwined, es-pecially on the domain of protection of fundamental rights where they do have different competences and different background, sometimes even di-verse “ideologies”, but they do pay attention at each other’s case law.
2 Most recently in Dhahbi v. Italy, no. 17120/09, April 8, 2014.
3 CJEU judgment of September 3, 2008, joined cases C-402/05 P and C-415/05 P (Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities); ECtHR judgment of September 12, 2012, Nada v. Switzerland [GC], no. 10593/08.
4 Ullens de Schooten et Rezabek v. Belgium, nos 3989/07 and 38353/07, September 20, 2011, § 54.
5 Åklagaren v. Hans Åkerberg Fransson, C-617/10, 26 February 2013, § 49.
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It is to be regretted that the internal obligations of the EU in respect of fundamental rights – the Charter becoming binding, did not coincide with the external obligations – access of the EU to the Convention which has not yet been completed. Nevertheless, the accession is on its way now and we are all looking with great interest for the opinion of the CJEU.
It is not always easy to strike a fair balance between effet utile (be it of the EU law, be it of the Convention system) and subsidiarity; as well as be-tween examining individual cases and fulfilling the role of a Pan-European court with constitutional approach – these are common problems for both the CJEU and the ECtHR.