¹ C-29/69, EU:C:1969:57. For the sake of simplicity, reference is made throughout to the EU and related concepts and institutions, regardless of whether the EEC, EC, or EU was in existence at the relevant time.

² Internationale Handelsgesellschaft v Einfuhr C-11/70, EU:C:1970:114, § 4 (common constitutional traditions provided inspiration), and Nold v Commission C-4/73, EU:C:1974:51 (international human rights treaties supplied guidelines).

³ ERT v Pliroforissis C-260/89, EU:C:1991:254, § 41.

⁴ See the address by the President of the CJEU, Koen Lenaerts, on the occasion of the opening of the judicial year, ‘The ECHR and the CJEU: Creating Synergies in the Field of Fundamental Rights Protection’, Strasbourg, 26 January 2018, https://www.echr.coe.int/Documents/Speech_20180126_Lenaerts_JY_ENG.pdf.

⁵ Article 6 TEU.

⁶ See, eg, Melloni C-399/11, EU:C:2013:107, § 63.

⁷ See, eg, M and Co v Germany (Application no 13258/87) Decision of the Commission of 9 January 1990.

⁸ See Bosphorous Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland (Application no 45036/98) 2005-VI ECHR 107; recently confirmed, following the entry into force of the Treaty of Lisbon and therefore the legal recognition of the Charter of Fundamental Rights of the EU, in Avotiņš v Latvia (Application no 17502/07) 23 May 2016.

⁹ See, eg, Jeunesse v the Netherlands (Application no 12738/10) 3 October 2014, § 110.

¹⁰ See NS C-411/10; C‑493/10, EU:C:2011:865, and MSS v Belgium and Greece (Application no 30696/09) 2011-I ECHR 255.

¹¹ See Åklargen v Åkerberg Fransson C- 617/10, EU:C:2013:280. Two subsequent ECtHR Grand Chamber judgments—Zolothukin v Russia (Application no 14939/03) 2009-I ECHR 291, and A and B v Norway (Application no 24130/11 and 29758/11) 15 November 2016—and a recent Luxembourg Grand Chamber judgment—Menci C-524/15, EU:C:2018:197—are further steps in this ongoing judicial dialogue.

¹² See Digital Rights Ireland v Minister for Communications, Marine and Natural Resources C-293/12; C-594/12, EU:C:2014:238; Schrems v Data Protection Commissioner C-362/14, EU:C:2015:650; Tele2 Sverige and Watson C-203/15; C-698/15, EU:C:2016:970; and Big Brother Watch v UK (Application nos 58170/13; 62322/14; 24960/15) (the oral hearing in this case was held in Strasbourg on 7 November 2017).

¹³ See Bulmer (HP) Ltd v J Bollinger SA (1974) Ch 401 at 418–19.

¹⁴ See further D Grieve, ‘What Price Sovereignty? Brexit and Human Rights’, 2018 Mackenzie-Stuart Lecture, Centre for European Legal Studies, Faculty of Law, University of Cambridge, 1 March 2018.

¹⁵ See Article 8 ECHR and Article 7 of the Charter. See also Article 52(3) of the Charter which provides that ‘in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR’. It is accepted, both in the explanations accompanying the Charter and in the case law of the CJEU that ‘Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case law of the European Court of Human Rights’ (McB v LE C-400/10, EU:C:2010:582).

¹⁶ See Articles 9 ECHR and 10 (freedom of thought, conscience and religion) and 21 (non-discrimination) of the Charter. The explanations accompanying the Charter indicate that ‘the right guaranteed in [Article 10] paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR’ and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) ECHR. Article 21 of the Charter is said to ‘draw on’ 14 ECHR and, in so far as it relates to Article 14 ECHR, it applies in compliance with it.

¹⁷ Bosphorous, see note 8 above, § 156, citing Loizidou v Turkey (App. No. 15318/89) March 1995, pp. 27–28, § 75.

¹⁸ See Hirst v the United Kingdom (Application no 74025/01) 2005-IX ECHR 187, and Joint Committee on Human Rights, Enhancing Parliament’s Role in Relation to Human Rights Judgments, Fifteenth Report of Session 2009–10, 26 March 2010, pp 32–37. See also, Greens and MT v the United Kingdom (Application nos 60041/08 and 60054/08) 2010-VI ECHR 57. See also Moohan v the United Kingdom (dec.) and Gillon v the United Kingdom (Application nos 22962/15 and 23345/15) 13 June 2017, which concerned prisoners’ voting rights in the Scottish independence referendum. The applications were deemed inadmissible as Article 3 of Protocol No 1 is not considered to apply to referenda. In November 2017 the Lord Chancellor indicated in a speech to Parliament that administrative changes to address the points raised in the Court’s 2005 judgment were envisaged, allowing those on temporary licence to vote while maintaining the bar on convicted prisoners in custody from voting. See the proposal as submitted to the Committee of Ministers (https://rm.coe.int/1680763233) and approved in December 2017 by that body.

¹⁹ (Application nos 46852/13 and others) 12 October 2017.

²⁰ See the pilot judgment in Ivanov and others v Ukraine (Application no 40450/04) 15 October 2009.

²¹ See, for a comparative survey, Popelier, P et al (eds), Criticism of the European Court of Human Rights: Shifting the Convention System: Counter-Dynamics at the National and EU Level (Intersentia, 2016)CrossRefGoogle Scholar.

²² See, for a brief explanation of some fundamental differences, the Supreme Court judgment in YY v Minister for Justice and Equality [2017] IESC 61, § 31.

²³ See, for example, Roberts v the United Kingdom (Application no 59703/13) 5 January 2016, §§ 40–43; Peacock v the United Kingdom (Application no 52335/12) 5 January 2016, §§ 32–38; Bahmanzadeh v the United Kingdom (Application no 35752/13) 5 January 2016, §§ 49–55; and Gadd v the United Kingdom (dec.) (Application no 181/14) 5 September 2017.

²⁴ Melloni, see note 6 above; Åkerberg Fransson, see note 11 above; and Opinion 2/13, EU:C:2014:2454, §§ 179–200.

²⁵ See, in particular, Articles 5 and 12 TEU and Protocols Nos 1 and 2, and one of the first judicial reactions to the then newly introduced principle in United Kingdom v Council C-84/94 EU:C:1996:431, §§ 47, 55–56.

²⁶ Only 1.8% of applications against the United Kingdom in the first decade of this century have resulted in a judgment finding at least one violation. See Equality and Human Rights Commission, The United Kingdom and the European Court of Human Rights (Research Report 83, 2012) pp 42-43.

²⁷ See further the explanatory memorandum on Protocol No 16.

²⁸ See further S O’Leary and T Eicke, ‘Some Reflections on Protocol n° 16’ (2018) EHR Law Review 220.

²⁹ See Article 36 ECHR and Rule 44 of the Rules of Court.

³⁰ Twenty-seven judgments were handed down by the Grand Chamber in 2016. In seven cases—(Karácsony and others v Hungary (Application nos 42461/13 and 44357/13) 17 May 2016; Avotiņš v Latvia, see note 8 above; Al Dulimi et Montana Management Inc v Switzerland (Application no 5809/08) 21 June 2016; Magyar Helsinki Bizottság v Hungary (Application no 18030/11) 8 November 2016; Dubska et Krejzova v Czech Republic (Application nos 28859/11 and 28473/12) 15 November 2016; A and B v Norway (Application nos 24130/11 and 29758/11) 15 November 2016; VM and others v Belgium (striking out) (Application no 60125/11) 17 November 2016—governments other than those parties to the case were authorised to intervene on the basis of Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court. In one other case, Paposhvili v Belgium (Application no 41738/10) 13 December 2016, Georgia (which was the State whose nationality the applicant possessed) exercised its right to intervene under Article 36 § 1 of the Convention and Rule 44 § 1 a. In 2017, only six States intervened in cases decided by the Grand Chamber (see Chiragov and others v Armenia (just satisfaction) (Application no 13216/05) 12 December 2017; Sargsyan v Azerbaijan (just satisfaction) (Application no 40167/06) 12 December 2017; Naït-Liman v Switzerland (Application no 51357/07) 15 March 2018; Bărbulescu v Romania (Application no 61496/08) 5 September 2017; Regner v the Czech Republic (Application no 35289/11) 19 September 2017; and Lopes de Sousa Fernandes v Portugal (Application no 56080/13) 19 December 2017.

³¹ See the declaration of the High Level Conference meeting in Copenhagen on 12 and 13 April 2018 at the initiative of the Danish Chairmanship of the Committee of Ministers of the Council of Europe, § 34.

³² The former President of the CJEU, V Skouris, was often quoted as emphasising this. See recently the suggestion by D Sarmiento in ‘A Court that Dare Not Speak its Name: Human Rights at the Court of Justice’ (EJIL: Talk!, 7 May 2018) that it is high time the CJEU stopped disavowing its fundamental rights jurisdiction and mandate.

³³ See further de Búrca, G, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator’ (2013) 20 Maastricht Journal of European and Comparative Law 168, 171 CrossRefGoogle Scholar.

³⁴ Melloni, see note 6 above.

³⁵ See Internationale Handelsgesellschaft, see note 2 above, § 4. Examples of the CJEU adopting Strasbourg type language and reasoning (as distinct from simply referring to Strasbourg case law or extracting principles therefrom) are rare but perhaps increasingly frequent. See, for example, P and S v Cornwall County Council C-13/94. EU:C:1996:178; MP C-353/16, EU:C:2018:276; or the Opinion in Comans C-673/16, EU:C:2018:2. In his Mitchell Lecture in 2014, Judge Vajda spoke of the need for the Luxembourg court ‘to seek to maintain the appropriate balance between the role of the Union and the role of the Member States in keeping watch over the integrity of fundamental rights’, C Vajda, ‘The Application of the EU Charter: Neither Reckless nor Timid?’ (University of Edinburgh, 2014) Europa Working Paper No 2014/09.

³⁶ See further Articles 4 to 6 TEU, outlining the principle of conferral and delimiting both the scope and effects of the Charter. See also Article 51(1) and (2) of the Charter itself.

³⁷ See Opinion 2/13, note 24 above, §§ 174–76.

³⁸ See, for a recent and powerful expression of this interaction between EU and national judges, Associacão Sindical dos Juizes Portugueses C-64/16 EU:C:2018:117.

³⁹ See T Lock, ‘What Future for the Charter of Fundamental Rights in the UK’ (European Futures, 6 October 2017).

⁴⁰ See, for example, the directions to the national judge in Aranyosi and Căldăraru C-404/15 and C-659/15 PPU, EU:C:2016:198, §§ 80, 89, 92, 94–96, 98, 100–03 on respect for fundamental rights and the principle of mutual recognition when executing an EAW, or further the two religious discrimination judgments of the CJEU discussed in detail below.

⁴¹ Article 23 of the Statute of the CJEU provides for the possibility for Member States to intervene as of right in preliminary references originating in other Member States.

⁴² MR and DR & ors v An t-Ard-Chláraitheoir [2014] 3 IR 533.

⁴³ See further M Finck, Case Comment: CD v ST and Z v A Government Department & Ors (C-167/12 and C-363/12), March 2014, available at eutopialaw.com/2014/03/21/case-comment-cd-v-st-and-z-v-a-government-department-ors-c-16712-and-c-36312/#more-2433.

⁴⁴ See MR and DR, note 42 above. The High Court had granted a declaration that the genetic and not the gestational mother was the mother of the twins and that her name should be entered on the Certificate of Birth. See MR & Anor v An t-Ard-Chlaraitheoir & Ors (2013) IEHC 91. The judge had found that questions relating to surrogacy were unregulated in this jurisdiction and what he considered a common law maxim—mater semper certa est—was also a rebuttable one.

⁴⁵ Following the ruling of the Supreme Court in MR and DR, the competent Minister gave a commitment that he would bring a memorandum to Government seeking approval to draft legislation on assisted human reproduction, including surrogacy. The Department of Foreign Affairs has issued guidelines which are not legally binding (see https://www.dfa.ie/media/dfa/.../passportcitizenship/Surrogacy-Guidelines.pdf). The Children and Family Relationships Act 2015 introduced significant changes to Irish law in the areas of guardianship, custody, access, and adoption and regulated the area of donor assisted human reproduction for the first time. Surrogacy remained unregulated. See para 243 of the judgment of Judge O’Donnell in MR and DR, note 42 above, regarding the difficulties to which such a lacuna could give rise.

⁴⁶ See §§ 583–84 of the judgment of McMenamin J in MR and DR, note 42 above.

⁴⁷ See variously Mennesson v France (Application no 65192/11) 2014-III ECHR 255; Labassee v France (Application no 65941/11) 26 June 2014; Foulon and Bouvet v France (Application nos 9063/14 and 10410/14) 21 July 2016; and Laborie v France (Application no 44024/13) 19 January 2017.

⁴⁸ Paradiso and Campanelli v Italy (Application no 25358/12) 24 January 2017.

⁴⁹ On reliance by the ECtHR on the European consensus in its case law on Article 8, see, variously, Dzehtsiarou, K, ‘Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the European Court of Human Rights’ (2011) Public Law 541–548 Google Scholar; Helfer, L, ‘Consensus, Coherence and the European Convention on Human Rights’ (1993) 23 Cornell International Law Journal 133 Google Scholar; JL Murray, ‘Consensus: Concordance, or Hegemony of Majority’ in Dialogues Between Judges (Council of Europe, 2008). See also MR and DR, note 42 above, for references to the issue of consensus (Macmenamin J § 44 and O’Donnell J § 13). On the consensus in a surrogacy context, see the article by Lady Arden, Justice, ‘Surrogacy Cases Throw Light on the Role of the Court’ in J Casadevall et al (eds), Liber Amicorum for Dean Spielmann (Wolf Publishing, 2016)Google Scholar, where she notes that the consensus is a powerful but not determinative factor in the development of jurisprudence in the social field.

⁵⁰ On the margin of appreciation in the case law of the ECtHR, see, variously, Spielmann, D, ‘Allowing the Right Margin. The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’ (2012) 14 Cambridge Yearbook of European Legal Studies 381 CrossRefGoogle Scholar; Kratochvil, J, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29 Netherlands Quarterly of Human Rights 324 CrossRefGoogle Scholar; Arai-Takahashi, Y, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, 2002)Google Scholar; Yourow, H, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Martinus Nijhoff, 1996)Google Scholar; Letsas, G, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal Studies 705 CrossRefGoogle Scholar.

⁵¹ For a recent application of Articles 51(1) and (2) of the Charter, see Demarchi Gino SAS C-177/17, EU:C:2017:656.

⁵² See Z C-363/12, EU:C:2014:159, and CD v ST C-167/12, EU:C:2014:169.

⁵³ See CD, note 52 above, paras 37–40, and Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, [1992] OJ L348/1.

⁵⁴ See Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), [2006] OJ L204/23.

⁵⁵ See Z, note 52 above, paras 52–57, 78–82, and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, [2000] OJ L303/16.

⁵⁶ See Z, note 52 above, § 64.

⁵⁷ Ibid, §§ 66, 83.

⁵⁸ See generally on the Charter, EU, Sanchez, S Iglesias, ‘The Court and the Charter: The Impact of the Entry into Force of the Lisbon Treaty on the ECJ’s Approach to Fundamental Rights’ (2012) 49 Common Market Law Review 1565 Google Scholar, and Craig, P, ‘The ECJ and Ultra Vires Action: A Conceptual Analysis’ (2011) 48 Common Market Law Review 395 Google Scholar.

⁵⁹ See Grant C-249/96, EU:C:1998:63, §§ 43–50.

⁶⁰ See Vajda, note 35 above.

⁶¹ See, for example, in the social field, the two cases he refers to: AMS C-176/12, EU:C:2014/2, and Dominguez C-282/10, EU:C:2012:33.

⁶² Speech of President Perez de los Cobos at the 2015 opening of the judicial year at the ECtHR, available at www.echr.coe.int/Documents/Speech_20150130_Perez_Cobos_Orihuel_ENG.pdf.

⁶³ Compare also the approach in Z to the scope of application of EU law and the EU Charter and that in Åkerberg Fransson, see note 11 above, Sturgeon C-402/07 and C-432/07, EU:C:2009:716, or Test Achats C-236/09, EU:C:2011:100.

⁶⁴ See, for a variation on this theme, García Avello C-148/02, EU:C:2003:539.

⁶⁵ Opinion 2/13, see note 24 above, §§ 196–98.

⁶⁶ See further O’Leary and Eicke, note 28 above.

⁶⁷ Although addressed to the referring Court, the interpretation in a preliminary ruling such as Z would have provided a conclusive interpretation of EU law applicable equally in all EU Member States. See Wünsche v Germany C-69/85, EU:C:1986:104, § 13. Similarly, as regards a question of validity of an EU act, although a CJEU judgment is directly addressed only to the national court which brought the matter before the Court, it is sufficient reason for any other national court to regard that act as void for the purposes of a judgment which it has to give (see Bela-Mühle C-114/76, EU:C:1977:116, Granaria BV C-116/76, EU:C:1977:117, and Ölmühle Hamburg C-119/76 and C-120/76, EU:C:1977:118, or International Chemical Corporation C-66/80, EU:C:1981:102).

⁶⁸ See, however, Omega C-36/02, EU:C:2004:614, on the free provision of services and a ban on certain forms of computer games simulating violence, the CJEU held that it was not indispensable for measures adopted by Member States to correspond to a conception shared by all Member States as regards the precise way in which a fundamental right or legitimate interest is to be protected.

⁶⁹ See Open Door and Dublin Well Woman v Ireland (Application no 64/1991/316/387-388) 29 October 1992, and Society for the Protection of Unborn Children Ireland C-159/90, EU:C:1991:378.

⁷⁰ See Directive 2000/78, note 55 above, in relation with the Z case.

⁷¹ See also Article 2 of Protocol No 1 to the Convention which concerns one specific aspect of freedom of religion, namely the right of parents to ensure the education of their children in accordance with their religious convictions.

⁷² See Ivanova and Cherkezov v Bulgaria (Application no 46577/15) 21 April 2016, § 79, and Eweida and others v the United Kingdom (Application nos 48420/10 and three others) 2013-I ECHR 215 (extracts), §§ 80, 94.

⁷³ See SAS v France (Application no 43835/11) 2014-III ECHR 341 (extracts), § 124.

⁷⁴ Ibid, §§ 153–57.

⁷⁵ Ibid, § 122. The principles established in SAS were subsequently confirmed and applied in Belcacemi v Belgium (Application no 37798/13) and Dakir v Belgium (Application no 4619/12), Judgments of 11 July 2017, in which the Strasbourg court found that Belgium’s 2011 ban on wearing the full-face veil did not violate Article 9 ECHR.

⁷⁶ The Strasbourg court’s reasoning when finding that bans on the wearing of religious symbols by teachers and students did not violate Article 9 of the Convention has been intimately linked to the neutrality of state education, the role of education and teachers in society, the relative vulnerability of pupils, and the impact or influence which religious symbols might have on the latter. See, variously, for teachers, Dahlab v Switzerland (dec.) (Application no 42393/98) 2001-V ECHR 447; Kurtulmuş v Turkey (dec.) (Application no 65500/01) 2006-II ECHR 297, or Karaduman v Turkey (dec.) (Application no 41296/04) 3 April 2007. In only one of these cases, Kurtulmuş v Turkey, the Court expressed itself in broader terms, not apparently limited to the specificities of the educational sector, when it found that the applicant teacher had chosen to become a civil servant and the dress code with which she did not wish to comply applied equally to all public servants, irrespective of their functions or religious beliefs. See variously, for school pupils and university students, Köse and others v Turkey (dec.) (Application no 26625/02) 2006-II ECHR 339; Dogru v France (Application no 27058/05) 4 December 2008; Kervanci v France (Application no 31645/04) 4 December 2008; Gamaleddyn v France (dec.) (Application no 18527/08) 30 June 2009; Aktas v France (dec.) (Application no 43563/08) 30 June 2009; Ranjit Singh v France (dec.) (Application no 27561/08) 30 June 2009; Jasvir Singh v France (dec.) (Application no 25463/08) 30 June 2009; Leyla Şahin v Turkey (Application no 44774/98) 2005-XI ECHR 173, and Osmanoğlu and Kocabaş v Switzerland (Application no 29086/12) 10 January 2017.

⁷⁷ See, for example, Ahmet Arslan and others v Turkey (Application no 41135/98) 23 February 2010.

⁷⁸ Eweida, see note 72 above, §§ 94–95.

⁷⁹ Ibid, §§ 98–100.

⁸⁰ Ebrahimian v France (Application no 64846/11) 26 November 2015.

⁸¹ Lautsi v Italy (Application no 30814/06) 3 November 2009, §§ 70–73.

⁸² See Osmanoğlu and Kocabaş v Switzerland (Application no 29086/12) 10 January 2017, §§ 105–06.

⁸³ See Prais v Council C-130/75, EU:C:1976:142, where the question of the organization of entry competitions for EU officials so as not to prevent candidates of a particular religious persuasion from participating arose. UK v Council C-84/94, EU:C:1996:431, § 37, is an oft-forgotten CJEU foray into questions relating to religion. In that case the Court invalidated a provision of the original Working Time Directive designating Sunday as a day of rest. See also Y and Z C-71/11, EU:C:2012:518, where the Court examined the question of persecution on grounds of religion in the context of asylum.

⁸⁴ Directive 2000/78, see note 55 above. Article 2(1) of the Directive prohibits direct or indirect discrimination on grounds of religion. In language reminiscent of the Convention, Article 2(5) provides that the Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary, inter alia, for the maintenance of public order and for the protection of the rights and freedoms of others. Article 4(1) states further that Member States may provide that a difference of treatment which is based on a prohibited characteristic, such as religious belief, shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement.

⁸⁵ Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV C-157/15, EU:C:2017:203, and Asma Bougnaoui, Association de défense des droits de l’homme v Micropole SA C-188/15, EU:C:2016:553.

⁸⁶ Article 16 of the EU Charter provides simply that ‘The freedom to conduct a business in accordance with Community law and national laws and practices is recognized’. This freedom has no direct equivalent in the ECHR. It is, according to the explanations accompanying the EU Charter, a freedom derived from EU (economic) law.

⁸⁷ Achbita, see note 85 above, §§ 40–43.

⁸⁸ Bougnaoui, see note 85 above, § 40. It is important to note that the CJEU appears to have rejected—implicitly but in quite categoric terms—the interpretation which had been put forward by Advocate General Kokott in that case of what could constitute a genuine and determining occupational requirement in Article 4(1) of Directive 2000/78. See §§ 37–40 of the judgment.

⁸⁹ See further McCrea, R ‘Singing from the Same Hymn Sheet? What the Differences between the Strasbourg and Luxembourg Courts Tell Us About Religious Freedom, Non-Discrimination and the Secular State’ (2016) 5 Oxford Journal of Law and Religion 183–210 CrossRefGoogle Scholar.

⁹⁰ See, in particular, Achbita, note 85 above, §§ 41–43, for this referencing back technique but also Bougnaoui, note 85 above, § 32.

⁹¹ See Feryn C-54/07, EU:C:2008:397.

⁹² See also JHH Weiler, ‘Je Suis Achibita!’ (2017) 28(4) European Journal of International Law 989.

⁹³ See, in this regard, my partially dissenting opinion in Ebrahimian, note 80 above.

⁹⁴ See McCrudden, C, ‘Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared’ (2013) 15 Cambridge Yearbook of European Legal Studies 383 CrossRefGoogle Scholar, and de Búrca, note 33 above.

⁹⁵ The Bosphorous presumption of equivalent protection was developed in Michaud v France (Application no 12323/11) 6 December 2012 and confirmed recently in Avotiņš v Latvia, see note 8 above. It is based on two pillars—the substantive guarantees offered by the international organisation in question and the procedural mechanisms available for controlling their observance. The EU is considered to benefit from the presumption because, on the one hand, it offers equivalent protection of substantive guarantees, as demonstrated, according to the court in Bosphorous, § 159, by its extensive reference to the ECHR and ECtHR case law as well as, according to the court in Avotiņš, note 8 above, § 102, the crucial ‘pegging’ or ‘harmonizing’ clause in Article 52(3) of the Charter.

⁹⁶ See further S O’Leary, ‘Courts, Charters and Conventions: Making Sense of Fundamental Rights Protection in the EU’ (2016) LVI Irish Jurist 4–41 for an explanation as to why, for a period post-Lisbon the CJEU may not have been referring to Strasbourg case law to the extent it has done previously and since.

⁹⁷ See R McCrea, ‘Faith at Work: The CJEU’s Headscarf Rulings’ (2017), available at http://eulawanalysis.blogspot.fr/2017/03/faith-at-work-cjeus-headscarf-rulings.html.

⁹⁸ Advocate General Kokott in her Opinion in Achbita, EU:C:2016:382, § 99, was clearly aware of this difference and the resulting difficulty.

⁹⁹ This limited experience is unlikely to remain the case for long, see, for recent CJEU forays into legal questions touching on religion, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and others C-426/16, EU:C:2017:926 (EU legislation on the protection of animals in the context of methods of slaughter for an Islamic feast); Opinion of Advocate General Mengozzi in Jehovan todistajat C-25/17, EU:C:2018:57 (collection of personal data by Jehovah’s Witnesses); or Egenberger C-414/16, EU:C:2018:257 (occupational activities within churches and other organisations the ethos of which is based on religion or belief).

¹⁰⁰ See further Nussberger, A, ‘The European Court of Human Rights and the Freedom of Religion’ (Chapter 9) in R Uerpmann-Wittzack, E Lagrange and S Oeter (eds), Religion and International Law. Living Together (Brill, 2018), pp 130–156 Google Scholar.

¹⁰¹ See Sarmiento, note 32 above, and de Búrca, note 33 above.

¹⁰² Opinion 2/13, see note 24 above, §§ 196–98.

¹⁰³ See D Halberstam, ‘It’s the Autonomy Stupid. A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’ (2015) 16 German Law Journal 105.