Strasbourg’s Consideration of Article 267 TFEU and the ECtHR as a Shadow Constitutional Court of the European Union

Abstract

In this Article I argue that the European Court of Human Rights (ECtHR) exercises an under-acknowledged power to shape the constitutional norms of the EU’s legal order—a power that extends beyond that court’s role in influencing the interpretation of fundamental rights. In establishing this claim, I focus, in particular, on the ECtHR’s jurisprudence concerning Article 267 of the Treaty on the Functioning of the European Union (TFEU), which evidences a pattern of increasingly direct dialogue between the Court of Justice of the European Union (CJEU) and ECtHR on issues of EU constitutional law. I argue that this shift has positioned the ECtHR as a shadow constitutional court of the Union’s legal order—a development which now obliges the Union to confront the practical reality that, with or without formal accession by the EU to the European Convention on Human Rights (ECHR), the Union’s constitutional order is fundamentally integrated with the Convention and its court.