¹ Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and entered into force on 3 September 1953, UNTS, vol. 213, 221.Google Scholar

² As is commonly known, the process of European integration (apart from sector-based treaties, such as the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community) started with the Treaty of Rome (Treaty Establishing the European Economic Community, adopted Rome 25 March 1957 and entered into force 1 January 1958, UNTS, vol. 294, 17), then coupled with the Treaty on European Union, adopted Maastricht 7 February 1992, OJ 1992 C 191/1, both lastly modified by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed Lisbon, 13 December 2007, OJ 2007 C 306/1.Google Scholar

³ Judgment of the Italian Constitutional Court of 27 December 1965, no. 98, Acciaierie S. Michele, Il Foro italiano, vol. I, 8 (1966). On this point, see Villani, Ugo, I diritti fondamentali tra Carta di Nizza, Convenzione europea dei diritti dell'uomo e progetto di Costituzione europea, Il Diritto dell'Unione Europea, 73 (2004), now in Ugo Villani, Studi su La protezione internazionale dei diritti umani 131, 132 (2005).Google Scholar

⁴ Case 29–69, Erich Stauder v. Stadt Ulm – Sozialamt, 1969 E.C.R. 419.Google Scholar

⁵ See Villani, Ugo, Principi democratici e diritti fondamentali nella “Costituzione europea,” la Comunità Internazionale 643 (2005).Google Scholar

⁶ See decision of the representatives of the Member States meeting in the Council relating to the Act concerning the election of the representatives of the Assembly by direct universal suffrage, 76/787/ECSC, EEC, Euratom, OJ 1976 L 278/1.Google Scholar

⁷ Article F(2) of the Maastricht Treaty reads, “[t]he Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”Google Scholar

⁸ See, at the outset, European Commission, Memorandum on the accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, COM (79) 210 final 2 May 1979, Bulletin of the European Communities, 1 (Supplement 2/79).Google Scholar

⁹ The Charter of Fundamental Rights of the European Union was solemnly proclaimed at Nice by the EP, the Council, and the Commission on 7 December 2000 (OJ 2000 C 364/1). A second version of the Charter (with few modifications) was then again proclaimed by the same institutions at Strasbourg on 12 December 2007 (OJ 2007 C 303/1), with a view to the entry into force of the Lisbon Treaty, whose Article 1(8) has replaced Art. 6 TEU so as to make the Charter binding (“[t]he Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties,” (emphasis added)).Google Scholar

¹⁰ Article 6(2) TEU reads: “[t]he Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.” On alternative (and then set aside) solutions, different from the accession, see Jean Paul Jacqué, The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms, Common Mkt. L. R. 995, 998 (2011).Google Scholar

¹¹ See Advisory Opinion 2/94 of 28 March 1996, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1996 E.C.R. I-1759.Google Scholar

¹² See supra footnote 10.Google Scholar

¹³ See Gragl, Paul, The Accession of the European Union to the European Convention on Human Rights 50 (2013).Google Scholar

¹⁴ Case C185/95, Baustahlgewebe GmbH v. Commission of the European Communities, 1998 E.C.R. I–8417.Google Scholar

¹⁵ Case C–7/98, Dieter Krombach v. André Bamberski, 2000 E.C.R. I–1935.Google Scholar

¹⁶ According to which “[a] judgment shall not be recognised: 1) if such recognition is contrary to public policy in the State in which recognition is sought.”Google Scholar

¹⁷ Case C–60/00, Mary Carpenter v. Secretary of State for the Home Department, 2002 E.C.R. I–6279.Google Scholar

¹⁸ Joined Cases C–584/10 P, C–593/10 P, and C–595/10 P, European Commission and Others v. Yassin Abdullah Kadi, 2013 E.C.R 518.Google Scholar

¹⁹ Eur. Court H.R., Marckx v. Belgium, Judgment of 13 June 1979, Series A, No. 31.Google Scholar

²⁰ Eur. Court H.R., Pellegrin v. France, Judgment of 8 December 1999, Reports of Judgments and Decisions 1999–VIII.Google Scholar

²¹ Eur. Court H.R., Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, Judgment of 30 June 2005, Reports of Judgments and Decisions 2005–VI, and, quite before it, Eur. Comm. H.R., M. & Co. v. Germany, Decision of 9 February 1990, Decisions and Reports 64. On this issue see Gianelli, Alessandra, L'adesione dell'Unione europea alla CEDU secondo il Trattato di Lisbona, Il Diritto dell'Unione Europea 678, 681 (2009); Napoletano, Nicola, L'evoluzione della tutela dei diritti fondamentali nell'Unione europea, in La tutela dei diritti umani in Europa 3, 40 (Andrea Caligiuri, Giuseppe Cataldi, & Nicola Napoletano eds., 2010).Google Scholar

²² To tell the truth, the ECtHR has scrutinized indirectly EU law only in cases where Member States had a certain discretionary power in implementing it. See Eur. Court H.R., Matthews v. United Kingdom, Judgment of 18 February 1999, Reports of Judgments and Decisions 1999–I.Google Scholar

²³ Villani, supra footnote 3, at 152.Google Scholar

²⁴ See, respectively, Joined Cases C–46/87 and C-227/88, Hoechst AG v. Commission of the European Communities, 1989 E.C.R. 2859, and Eur. Court H.R., Niemitz v. Germany, Judgment of 16 December 1992, Series A, No. 251–B.Google Scholar

²⁵ See Case C–159/90, The Society for the Protection of Unborn Children Ireland Ltd v. Stephen Grogan and others, 1991 E.C.R. I–4685; see Eur. Court H.R., Open Door and Dublin Well Woman v. Ireland, Judgment of 29 October 1992, Series A, No. 246–A.Google Scholar

²⁶ See Case C–17/98, Emesa Sugar (Free Zone) NV v. Aruba, 2000 E.C.R. I-665; see Eur. Court H.R., Vermeulen v. Belgium, Judgment of 20 February 1996, Reports of Judgments and Decisions 1996–I.Google Scholar

²⁷ “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”Google Scholar

²⁸ See Villani, supra note 3, at 151.Google Scholar

²⁹ Id. at 159.Google Scholar

³⁰ Draft revised agreement on the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, in Fifth Negotiations Meeting between the CDDH ad hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, Final report to the CDDH, 10 June 2013, 47+1(2013)008rev2, at 4, available at www.coe.int/cddh.Google Scholar

³¹ See Scalabrino, Michelangela, L'irragionevole durata dei processi italiani e la L. 24 marzo 2001, n. 89: un commodus discessus, Rivista internazionale dei diritti dell'uomo 365 (2001); Lana, Anton Giulio, I tempi del processo e l'equa riparazione a quattro anni dall'entrata in vigore della c.d. legge Pinto, in La tutela internazionale dei diritti umani. Norme, garanzie, prassi 496 (Laura Pineschi ed., 2006).Google Scholar

³² See Villani, Ugo, L'occupazione acquisitiva dinanzi alla Corte europea dei diritto dell'uomo, Studi sull'integrazione europea 23 (2006).Google Scholar

³³ Saccucci, Andrea, Obblighi di riparazione e revisione dei processi nella Convenzione europea dei diritti umani, Rivista di diritto internazionale 618 (2002); Pustorino, Pietro, Esecuzione delle sentenze della Corte europea dei diritti umani e revisione dei processi penali: sviluppi nella giurisprudenza italiana, Diritti umani e diritto internazionale 678 (2007); Castellaneta, Marina, La riapertura dei processi penali a seguito di pronunce della Corte europea dei diritti dell'uomo, in Studi in onore di V. Starace vol. I, 59 (2008); Gli effetti del giudicato italiano dopo la sentenza n. 113/2011 della Corte Costituzionale, Roudtable with contributions by Giovanni Canzio, Roberto E. Kostoris, Antonio Ruggeri, Rivista AIC (2011), available at www.rivistaaic.it.Google Scholar

³⁴ Judgment of the Italian Constitutional Court of 28 November 2012, n. 264, Rivista di diritto internazionale, 616 (2013), with a comment of Benedetto Conforti, La Corte costituzionale applica la teoria dei controlimiti (see also Pietro Pustorino, Corte costituzionale, CEDU e controlimiti, Giurisprudenza italiana 769 (2013)); Eur. Court H.R., Maggio and others v. Italy, Judgment of 31 May 2011.Google Scholar

³⁵ 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, 2008 E.C.R. I–6351. On the use of counter-limits by the CJEU see, among others, Juliane Kokott & Christoph Sobotta, The Kadi Case—Constitutional Core Values and International Law—Finding the Balance? Eur. J. Int'l L. 1015, 1017 (2012).Google Scholar

³⁶ According to Article 24(1) TEU, “[…] [t]he Court of Justice of the European Union shall not have jurisdiction with respect to these provisions [in matters of CFSP], with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.” Article 40 TEU refers to the dividing line between CFSP and the remaining competences of the EU (“]t]he implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter”); Article 275 TFEU to the “restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union”—measures whose implementation is devolved upon Article 215 TFEU (“1. Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof. 2. Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities […]”).Google Scholar

³⁷ On this point we take the liberty to refer to our La cooperazione fra Unione europea e paesi del Nordafrica nella lotta all'immigrazione irregolare, in Atlante geopolitico del Mediterraneo 15 (Francesco Anghelone & Andrea Ungari, 2014).Google Scholar

³⁸ Villani, Ugo, Istituzioni di diritto dell'Unione europea 345 (3 ed. 2013).Google Scholar

³⁹ Id. at 287.Google Scholar

⁴⁰ Id. at 354.Google Scholar

⁴¹ “When deciding upon such a request [to become co-respondent], the Court shall assess whether, in the light of the reasons given by the High Contracting Party concerned, it is plausible that the conditions in paragraph 2 or paragraph 3 of this article are met.” According to para. 2, “[w]here an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the rights at issue defined in the Convention or in the protocols to which the European Union has acceded of a provision of European Union law, including decisions taken under the Treaty on European Union and under the Treaty on the Functioning of the European Union, notably where that violation could have been avoided only by disregarding an obligation under European Union law.” While paragraph 3 reads, “[w]here an application is directed against the European Union, the European Union member States may become corespondents to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the rights at issue defined in the Convention or in the protocols to which the European Union has acceded of a provision of the Treaty on European Union, the Treaty on the Functioning of the European Union or any other provision having the same legal value pursuant to those instruments, notably where that violation could have been avoided only by disregarding an obligation under those instruments.”Google Scholar

⁴² One may refer, for example, to an action for annulment against an act of the Commission on the safeguard of competition.Google Scholar

⁴³ The reference for preliminary ruling is not compulsory in the case of the lower courts and even, in some cases, for the upper courts, although where it is compulsory there is always the possibility that the judge will rule the matter not relevant and therefore not refer it for preliminary ruling. On this point, see Villani, supra note 38, at 373.Google Scholar

⁴⁴ This scenario is most likely to further complicate with the entry into force of the ECHR Protocol No. 16 that allows Constitutional Courts (and, more generally, high courts and tribunals indicated by the High Contracting Parties) to request the Strasbourg Court to give advisory opinions in the context of a case pending before them.Google Scholar

⁴⁵ Opinion 2/13, pursuant to Article 218(11) TFEU, (Dec. 18, 2014), http://curia.europa.eu/. For the first comments, see Sionaidh Douglas-Scott, Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice, U.K. Constitutional Law Blog, available at ukconstitutionallaw.org (2014); Labayle, Henri, La guerre des juges n'aura pas lieu. Tant mieux? Libres propos sur l'avis 2/13 de la Cour de justice relatif à l'adhésion de l'Union à la CEDH, Reseau universitaire europeen dedie a l'etude du droit de l'Espace de liberte, securite et justice, available at www.gdr-elsj.eu (2014); Lock, Tobias, Oops! We did it again—the CJEU's Opinion on EU Accession to the ECHR, VerfBlog, available at www.verfassungsblog.de (2014); Michl, Walther, Thou shalt have no other courts before me, VerfBlog, available at www.verfassungsblog.de (2014); Peers, Steve, The CJEU and the EU's accession to the ECHR: a clear and present danger to human rights protection, EU Law Analysis. Expert insight into EU law developments, available at eulawanalysis.blogspot.it (2014); Rossi, Lucia Serena, Il Parere 2/13 della CGUE sull'adesione dell'UE alla CEDU: scontro fra Corti?, Sidiblog, available at www.sidi-isil.org/sidiblog/ (2014); Scheinin, Martin, CJEU Opinion 2/13—Three Mitigating Circumstances, VerfBlog, available at www.verfassungsblog.de (2014); Vezzani, Simone, “Gl'è tutto sbagliato, gl'è tutto da rifare!”: la Corte di giustizia frena l'adesione dell'UE alla CEDU, Sidiblog, available at www.sidi-isil.org/sidiblog/ (2014).Google Scholar

⁴⁶ Opinion 2/13, 187–195, 189, which reads, “[i]n so far as Article 53 of the ECHR [stating that ‘Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party'] essentially reserves the power of the Contracting Parties to lay down higher standards of protection of fundamental rights than those guaranteed by the ECHR, that provision should be coordinated with Article 53 of the Charter ['Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions'], as interpreted by the Court of Justice, so that the power granted to Member States by Article 53 of the ECHR is limited […] to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised”, emphasis added.Google Scholar

⁴⁷ Id. at 222–25, 224 (“[…] in carrying out that review, the ECtHR would be required to assess the rules of EU law governing the division of powers between the EU and its Member States as well as the criteria for the attribution of their acts or omissions, in order to adopt a final decision in that regard which would be binding both on the Member States and on the EU.”).Google Scholar

⁴⁸ Id. at 229–35.Google Scholar

⁴⁹ Id. at 236–41.Google Scholar

⁵⁰ Id. at 249, 257.Google Scholar

⁵¹ Rossi, supra note 45. On this point see, e.g., Olivier De Schutter, Bosphorus Post-Accession: Redefining the Relationship between the European Court of Human Rights and the Parties to the Convention, in The EU Accession to the ECHR 177 (Vasiliki Kosta, Nikos Skoutaris, & Vassili P. Tzevelekos eds., 2014).Google Scholar