ABSTRACT
Having started this section by stressing the fundamental distinction between the ECJ and the ECtHR, it is necessary to end it by blurring it and pointing out the various ways in which the EC, and then Union, have expressly recognised the rights provided in the ECHR and the decisions made by the ECtHR. Thus, in a joint declaration delivered in 1997, the European Parliament, the Council and the Commission emphasised the prime importance they attached to the protection of fundamental rights:
Article 6 (formerly Art F(2)), which was introduced by the Maastricht Treaty, expressly states that:
The ECJ, in the same way as English courts, has equally been guided by the Convention where Community law is silent. It still remains possible, however, for cases to be brought to either or both judicial forums. Issues relating to discrimination are an ideal case in point, by being potentially both in breach of employment law regulated by the EC, and fundamental human rights regulated by the ECHR. It is also an unfortunate fact that it is possible for at least a degree of incompatibility between the decisions of the two courts in relation to very similar matters (for example, see SPUC v Grogan (1991) and Open Door and Well Women v Ireland (1992)). Such possibilities would be precluded if, following the recent action of the UK, the EU, as a body, were formally to incorporate the Convention. The likelihood of such a course of action was indicated with approval by the current President of the ECtHR, Luzius Wildhaber, in this opening address at the commencement of the judicial year in January 2003. As he said:
UK law is now subject to Community law in particular areas. In practice, this has led to the curtailment of parliamentary sovereignty in
those areas.
