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HUMAN RIGHTS BETWEEN STRASBOURG AND LUXEMBOURG …
both approaches into one, thus strengthening the protection of human rights on all
levels of European regional regulation. However, only one of the solutions proposed
was implemented in the end. The Charter of Fundamental Rights of the European
Union was raised to the level of primary EU law (Article 6 paragraph 1 TEU),
which – owing to the supremacy principle as developed by the ECJ/CJEU case law
– stands above the national legal systems of all EU Member States, next to their
own individual human rights catalogues. The Charter of Fundamental Rights of the
European Union is the youngest and most modern of those catalogues, aimed at
protecting natural persons and legal entities from mistreatment by European bodies.
The matter of the EU acceding to the Convention is now, as it seems, unilaterally
settled by the CJEU for some years to follow. This happened in spite of the fact that
the added value of the accession should have been the creation of a homogenous
environment of human rights protection not only within the European Union but
rather throughout the entire Europe. It is true that the European Union has never
been a typical candidate for becoming a party to the Convention. Its nature and powers
should have been taken into account when designing the mechanism of its accession to
the Convention, while at the same time adhering to the principle of equality of all other
parties (non-EU members of the Council of Europe) and equal accession conditions.
By acceding to the Convention, the EU was supposed to demonstrate its growing more
“humane” and end the time when it had been possible to avoid international control
in the field of human rights by referring to the special position of the EU. The same
standard of enforceability and quality of human rights was supposed to have been
valid not only in all of the 28 EU countries and each of the 47 countries of the
Council of Europe, but also in the European Union itself. One of the chief objectives
was to solve the issue of individual governments, agencies and even persons being
subject to binding texts of human rights conventions applied at the same time, in spite
of their standards, structure and terminology being partially different.
Examples of diverging case law of both the European courts
Accession of the EU to the Convention was also to prevent divergent decisions
in the case law of the two European courts, such as we can see today in the matter
of prohibition of discrimination.
3
The views of the ECtHR and CJEU are not quite
compatible when it comes to protection from discrimination, e.g. the interpretation
of Art. 14 ECHR. In
Koua Poirrez v. France,
4
the ECtHR ruled that Art. 14 of
the Convention combined with Art. 1 of Protocol no. 1 was violated by refusing
a social security allowance to a physically handicapped man due to his nationality.
3
Literature frequently cites protection of home (Article 8 ECHR) as an example of incompatible views
of the two courts, because CJEU does not extend the protection to business premises (
Hoechst AG v.
Commission,
C-46/87 a 227/88), while ECtHR does (
Niemitz v. Germany
, application no. 13710/88).
4
Koua Poirrez v. France,
ECtHR decision dated 30. 9. 2003, application no. 40892/98, regarding
discrimination based upon nationality.