ABSTRACT
International courts today interact with each other, especially by referring to each other’s rulings; the output of this phenomenon has so far been considered by the literature to be a progressive and stable convergence of their respective jurisprudence. The European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR), with their overlapping jurisdictions, are engaged in such interactions. However, their jurisprudence displays examples of convergence (such as the ECJ acknowledging the rights of businesses to privacy, following the ECtHR), but also of divergence (for example, on the possible exceptions to EU asylum laws).
This research will show that both courts use convergence with each other as a legitimacy-enhancing mechanism, in reaction to threats from relevant actors: domestic courts, governments, but also the other European court. Relying on a case study, it explores this dynamic on the matter of the fundamental right of companies, to the protection of their business premises, between 1989 and 2015. It will explain this variation, so far overlooked, by proving that the ECJ and the ECtHR engage strategically with each other to safeguard their authority as policymakers within the European judicial and institutional system.
