Advisory Opinions of the European Court of Human Rights

Protocol 16 to the European Convention on Human Rights (ECHR) introduces a mechanism enabling certain domestic courts to seek advisory opinions from the European Court of Human Rights (ECtHR) as part of broader reform efforts to enhance the efficiency and legitimacy of the Court. This article provides an overview of the functioning of the Court’s new advisory capacity, explains the context of the initiative and gives examples of its intended implementation at the national level. While the new tool was primarily designed to enhance the relationship between national courts and the ECtHR, the recent opinion of the Court of Justice of the European Union (CJEU) on the accession of the European Union (EU) to the ECHR has revealed a rather unexpected dimension of the mechanism contained in Protocol 16. The CJEU declared the Draft Accession Agreement unlawful, inter alia, due to an alleged threat posed by the advisory mechanism to the autonomy of EU law and its possible interference with the preliminary ruling procedure before the CJEU. In this article, the merits of these arguments are also examined.

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