A Strasbourg Story of Swords and Shields: National Courts’ Motives to Request an Advisory Opinion from the ECtHR Under Protocol 16

Abstract

Abstract This article aims to answer the question: what motivates national courts (not) to make a request for an advisory opinion from the European Court of Human Rights under Protocol 16 (P16)? An initial answer is given based on literature on the echr and the EU preliminary ruling procedure. This article also conducts a case study on a most likely case for the use of P16 given the prominent role of the echr: the Netherlands. We conclude that the potential eagerness of national courts to use P16 is limited. The three identified different motives (legal, pragmatic, and politico-strategic) all point in the direction of timid courts foregoing a request based on P16. We therefore call on Strasbourg to sharpen the sword offered by P16 and discourage the inclination of national courts to arm themselves with sizeable shields to resist Strasbourg’s involvement.