Human Rights as an Example of Cooperative Federalism? A Chronology of the Use of the Preliminary Reference Procedure in Human Rights Cases between 1957 and 2023

Frantziou, Eleni

Abstract

This article analyses the role of human rights in the preliminary reference procedure based on a systematic review of the use of fundamental rights in references for a preliminary ruling between 1957 and 2023. It shows that over 30% of preliminary references in the last five years have contained a human rights dimension, compared to only 17% of preliminary references across the span of the Court’s docket. A progressive increase in the use of human rights can be observed across the case law. The CJEU can thus be considered a key regional human rights adjudicator not just normatively, i.e. in terms of the content and implications of its decisions, but also empirically, because of the volume and proportion of its human rights case law within the overall docket. This finding challenges the prevailing narrative that paints EU human rights as a key locus of conflict between courts at the domestic and EU levels. Instead, the case law patterns over time display a more harmonious and gradual approach towards the development of EU human rights, which corresponds to a dialogical and cooperative model of EU federalism, rather than a dualistic or strictly hierarchical one.

Citation

Frantziou, E. (2023). Human Rights as an Example of Cooperative Federalism? A Chronology of the Use of the Preliminary Reference Procedure in Human Rights Cases between 1957 and 2023. European Journal of Legal Studies, 15(CJEU Special Issue), 189-220. https://doi.org/10.2924/EJLS.2023CJEU.007

• Journal Article Type: Article
• Acceptance Date: Nov 6, 2023
• Online Publication Date: Dec 19, 2023
• Publication Date: Dec 1, 2023
• Deposit Date: Mar 10, 2025
• Publicly Available Date: Mar 12, 2025
• Journal: European Journal of Legal Studies
• Electronic ISSN: 1973-2937
• Publisher: European University Institute
• Peer Reviewed: Peer Reviewed
• Volume: 15
• Issue: CJEU Special Issue
• Pages: 189-220
• DOI: https://doi.org/10.2924/EJLS.2023CJEU.007
• Public URL: https://durham-repository.worktribe.com/output/3705851