The impact of ECtHR case-law on the CJEU's interpreting of the EU's return acquis: More than it first seems?

Molnár, Tamás (2021) The impact of ECtHR case-law on the CJEU's interpreting of the EU's return acquis: More than it first seems? HUNGARIAN JOURNAL OF LEGAL STUDIES, 62 (4). pp. 257-280. ISSN 2498-5473 (print); 2560-1067 (online)

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Abstract

After canvassing the CJEU's return-related case-law and identifying the references to the ECHR and the Strasbourg case-law within it, based on empirical research of CJEU rulings, this article explores the possible reasons and motivations for the EU Court's more guarded approach towards ECHR and ECtHR case-law in interpreting and developing the EU's return acquis (as opposed to the EU asylum legislation). Potential explanations are manifold. Nonetheless, one might still argue that, substance-wise, quite a number of human rights protected under the ECHR and ECtHR case-law have been presented in the CJEU rulings as EU law standards. Hence, it is also arguable that ECtHR jurisprudence does play a role behind the scenes in the CJEU's deliberations but does not surface in the judgments themselves.

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