Abstract
The European consensus argument has been deployed by the European Court of Human Rights (ECtHR) in its reasoning in a large number of cases. There is European consensus if a significant number of the Contracting Parties to the Convention adopts certain legislation or follows similar legal practice. In such cases it is highly likely that the ECtHR will hold that the law which differs from European consensus violates the European Convention of Human Rights. In order to establish the European consensus, the ECtHR compares laws and practices of the Contracting Parties, including their obligations under international treaties. This paper seeks to answer the question of how the forthcoming EU accession to the ECtHR may impact on identification of the European consensus. To answer this question, the paper outlines three tendencies in the areas of the ECtHR case law and EU-ECHR relations, which illustrate a possible influence of the EU accession to the ECHR on the ECtHR decision-making. The first tendency reveals increasing EU activity in the area of human rights protection and expanding scope of the ECHR through evolutive interpretation of its provisions, which creates a continuously growing overlap between the EU and ECtHR human rights activities. The second tendency emphasises the argument that the accession will change the nature of EU law within the Convention system from international to national (domestic), thus making the consensus, which is established on the basis of national laws or practices, more legitimate than ‘international consensus’. And the third tendency suggests an increasingly mathematical and rigorous approach of the ECtHR to European consensus, where the Court will treat consensus as a more formal, rather than flexible, exercise. The paper concludes by submitting that after the accession the decision-making process of the ECtHR will undergo a possible transformation of which the European consensus can become an even more important and influential medium.