Research Handbooks in European Law series
Edited by Frans Pennings and Gijsbert Vonk
Chapter 6: The approaches of the EU Court of Justice and the European Court of Human Rights vis-à-vis discrimination on the ground of nationality in social security
The negotiations on the accession of the European Union to the European Convention on Human Rights (henceforth: ECHR or Convention) raise several complicated questions of a formal nature, e.g. on the relation between Member State(s) and the Union in a particular procedure before the European Court of Human Rights (Court of Human Rights) and on the coordination of the interpretation of EU law by the EU Court of Justice and the Court of Human Rights. Considerable progress was made in this area, but in December 2014 the Court of Justice delivered its opinion on the accession of the EU to the ECHR, and this raised important questions. These issues will not be addressed here, because they are outside the scope of this volume. Instead, I will focus on a material issue, i.e. a comparison of the approaches of both Courts in discrimination cases. This may become important when the EU finally accedes to the ECHR. It is, however, also important now, for academic purposes alone, since it shows alternative approaches and raises the need for explaining differences between the approaches. Currently an instrument of EU law can already be the subject of cases before the Court of Human Rights in so far as a Member State has implemented this instrument. However, after the accession of the EU to the ECHR, EU law itself can be the subject of procedures before the Court of Human Rights.
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