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CYIL 6 ȍ2015Ȏ

with the Convention, while the States are and will remain responsible for fulfilling their

Convention obligations.”

Such a diplomatically formulated opinion of one of the chief representatives

of the court system attached to the Council of Europe cannot be taken lightly. The

lack of trust expressed by the CJEU towards the Council of Europe system can, in

response, result in lack of trust on the part of the Council of Europe towards the EU.

It cannot be ruled out that through its tribunal, the Council of Europe will now focus

more on the quality of protection of human rights in EU countries. A most radical

emerging trend would be abandoning the

Bospohorus

doctrine, i.e. the rebuttable

assumption of equivalent quality and protection of human rights within the EU

system and the Council of Europe system. This means that the CJEU’s conclusion

regarding the adequacy of protection of human rights within the EU when compared

to the quality of Strasbourg protection of human rights could well be reviewed in the

near future. In light of the CJEU’s opinion 2/2013, the assumption of equal quality

of human rights protection in the EU could be abandoned. That would, however, be

an extreme development taking in account the fact that the 28 EU Member States

hold a clear majority in the Parliamentary Assembly, regardless of the fact that even

the Parliamentary Assembly is not authorized to interfere with the decisions of the

Strasbourg court in any manner. Since the

Bosphorus

case, the Strasbourg court has

not in any single case expressed any doubt as to the equality of protection of human

rights by the EU. Nor has the Strasbourg court ever ruled that a violation of the

European Convention on Human Rights would be attributable to the EU. It should,

however, not be forgotten that the ECtHR decided applying the principle of self-

restraint and deference towards the EU Court of Justice as a gesture of

amicus curiae

This double standard of judicial protection thus continues to be a fact criticized

by some judges already in their concurring opinions when the

Bosphorus

doctrine was

first introduced.

Some of them pointed out that there would be a risk of inequality

between the Convention states and stressed that such state would contradict the

goal expressed in the Preamble of the Convention, namely increased unity when

upholding and further implementing human rights.

The CJEU’s opinion from 2014 thus greatly contributed towards the current

uncertainty regarding a genuine and shared interest of European countries to unify

the system of human rights protection. The CJEU’s opinion expresses more an interest

to maintain the autonomy and supremacy of EU law that to unify the protection of

human rights in Europe. In its opinion, the Court of Justice applied not only the

principle of absolute supremacy of EU law, including the Charter of Fundamental

Opening speech President Dean Spielmann Strasbourg, 30 January 2015, at

<http://echr.coe.int/

Documents/Speech_20150130_Solemn_Hearing_2015_ENG.pdf>

Bosphorus Hava Yollari Turizm

Ticaret Anonim Sirketi v. Ireland,

ECtHR decision dated 30. 6. 2005

application no. 45036/98.

Concurring opinion by judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki.