Le incognite della nuova competenza consultiva della Corte EDU ispirata al rinvio pregiudiziale alla Corte di Giustizia UE

Starting from an awareness of pluralism in the legal sources within the system of multilevel
protections of fundamental human rights and their interconnections, this paper examines
the relationship between national legal systems and the European Convention on Human
Rights, following the entry into force of Protocol No. 16 to the ECHR. After a brief
analysis of the reforms designed to reduce the workload of the European Court of Human
Rights, special attention is devoted to the Court’s new competence, provided by Protocol
No. 16, to give advisory opinions on questions of principle relating to the interpretation or
application of the rights and freedoms defined in the ECHR or the protocols thereto. The
article looks specifically at the similarities and differences with the preliminary ruling
procedure from the Court of Justice of the European Union. It considers, on the one hand,
the desired goals and risks associated with this new capability for dialogue between the
Courts, including the exemption from responsibility of national tribunals and courts and
the increase in length of trials. On the other hand, it underlines how, in order to avoid
overlapping competences between European judges, it is necessary that the European
Court of Human Rights shows itself rigorously respectful of the principles of subsidiarity
and margin of appreciation.