Chapter 8: The law of the ECHR and human rights in the EU
In this chapter, we discuss how the dynamic relationship between EU human rights and ECHR law has affected the EU human rights jurisprudence. The law of the European Convention has been a major influence on the development of EU human rights law. It has served as an inspirational source for judicial interpretation and a source of borrowing law. The relationship between the two legal orders affected the entire EU jurisprudence which manifested in dynamic interpretative practices that governed the complementary considerations of divergence, alignment and flexibility. Divergence stands for the interpretative pressure on EU courts to avoid developing human rights law in breach of ECHR requirements. It is responsible, in part, for the interpretative reaction of alignment to the ECHR in EU human rights law which takes the form of borrowing directly from ECHR law or of considering in judicial interpretation the framework offered under the ECHR for the interpretation and application of human rights. The interpretative consideration of flexibility refers to the possibility for the EU to develop autonomous human rights law under the flexible ECHR framework and to adjudicate autonomously interferences with human rights, which pursue interests specific to the EU environment, within the margin of appreciation available for the EU in ECHR law. The dynamic interpretative practices following the considerations of divergence, alignment and flexibility assume a relationship of mutual observation between the parallel systems for the protection of human rights in the EU and under the ECHR.
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