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will select the legal system most favorable in the given situation. Halberstam calls this
situation plural constitutionalism . This model of a forum shopping can be advantageous
especially for legal entities (bigger or supranational corporations) aiming to gain
protection of their so-called market human rights. Individuals will continue to be
free to use the Strasbourg human rights protection, if that system remains effective.
The problem of overload and financial problems still remain and it is widely known
that the difficult situation of the ECtHR was meant to be relieved by EU financial
contributions foreseen by the draft agreement of EU accession to the Convention.
Even though the EU did not accede to the Convention in the end, citizens of
member states of the Council of Europe will continue to turn to their national courts
and, consequently, to the ECtHR to enforce their individual human rights, regardless
of whether a dispute also concerns EU law derived rights. From the point of view
of international law, EU Member States remain responsible not only for individual
compliance with the Convention but also for compliance of powers transferred to a
supranational organization such as the EU. All powers of EU Member States will still
have to be exercised in compliance with the European Convention of the Council of
Europe in the protection of human rights.25
It is the continuing dialogue between the two courts, which will form the basis
for future settlement of European relations in the matter of human rights – and not
only because of the migration waves, which are a European, rather than a EU, issue.26
The European Union and the Council of Europe, each with its own tribunal, will still
be expected to create an effective and consistent system of human rights protection in
the big Europe. The way to formulate a special “minimum-maximum” human rights
standard must be kept open, including the relation between the Convention and
the Charter of Fundamental Rights of the EU. Such standard will call for a careful
creation of equilibrium between the “autonomy” and “authority” of the Strasbourg
court and the Luxembourg court.
Till this day, both courts have evaded any material conflict by accepting the
premise of a sort of constitutional consensus about there being just one minimal
standard for Europe. If this dialogue continues, the series of objections expressed in
the last opinion given by the CJEU can be overcome via facti without threatening
the European Union: Five Years After or is one catalogue of human rights enough?”, organized by the Czech
Spciety of European and Comparative Law ) and the Ministry of Foreign
Affairs of the Czech Republic ).
25 M. & Co. v. Germany (complaint no. 13258/87); Piermont v. France (complaint no. 15773/89 and
no. 15774/89); Cantoni v. France (complaint no. 17862/91); Matthews v. United Kingdom (complaint
no. 24833/94); Senator Lines GmbH v. 15 EC Member States (complaint no. 56672/00); T. I. v. United
Kingdom (complaint no. 43844/98).
26 SVOBODA, P.: Úvod do evropského práva (Introduction into European Law). Prague: C.H. Beck,
2013, p. 140