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.