Spelling It Out−Convergence and Divergence in the Judicial Dialogue between cjeu and ECtHR

In: Nordic Journal of International Law
Amalie Frese Internationalisation Postdoctoral Fellow, Faculty of Law, University of Vienna, Vienna, Austria; Affiliated Researcher, Centre of Excellence of International Courts (iCourts), Faculty of Law, University of Copenhagen, Denmark

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Henrik Palmer Olsen University of Copenhagen, Denmark

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In this article we investigate the relationship between the Court of Justice of the European Union and the European Court of Human Rights as it manifests in explicit cross-references between the two Courts’ jurisprudence. The analysis detects cross-references, how they are used and indications of converge or divergence in the jurisprudence through their explicit citations and references. Our dataset consists of the entire corpus of judgments from both Courts from 2009 (when the EU Charter on Fundamental Rights came into force and until the end of 2016. On the basis of a content search for references to the other Court in both corpora we detect all their cross-references. We find that 1) the Courts’ use each other’s case law surprisingly little, but when they do, it is 2) primarily within the legal domains of criminal justice and immigration policies, and 3) displaying convergence towards the jurisprudence of the other Court.

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