The CJEU and the EU ‘Due Process’ Rights: Challenging the ECHR Standards?
The CJEU and the EU ‘Due Process’ Rights: Challenging the ECHR Standards?

Summary/Abstract: The role of the European Convention on Human Rights (ECHR) within the EU legal order seems to have changed significantly after the Treaty of Lisbon, especially in the sensitive area of the EU ‘due process’ rights captured by Articles 47-50 of the Charter of Fundamental Rights of the European Union (CFREU). These provisions are crucial for the functioning of the EU internal market, and often applied in conjunction with other Charter rights drafted specifically for the EU legal order. Hence the risk of diverging interpretations of corresponding provisions of the CFREU and the ECHR is higher than in other areas of overlap. The author argues that the binding legal force of the EU Charter facilitated the creation of autonomous standards of the ‘due process’ rights protection in EU Law, due to the increased use of CFREU provisions by the Court of Justice of the European Union (CJEU). To illustrate these developments, firstly, an attempt is made to analyse the CJEU jurisprudence employing Article 52(3) CFREU to raise the level of human rights protection. Secondly, this paper looks into existing CJEU case law shaping the EU-specific derogations from the European Convention standards on the basis of Article 52 (1) CFREU, using Articles 47-50 of the Charter as a study case. The claim of this paper is that the developing body of the CJEU case law on the EU ‘due process’ rights is quite capable of (at least) undermining legal certainty in this field or (at most) runs the risk of weakening the overall protection offered by the ECHR system in cases where the corresponding provisions of the CFREU are to be applied.

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