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HUMAN RIGHTS BETWEEN STRASBOURG AND LUXEMBOURG …

the exclusive position of the court among EU agencies and bodies.

The ECtHR, on

the other hand, will remain the supreme and final arbitrator when assessing quality

of protecting individuals and the CJEU, when deciding on so-called market rights of

the European Union, will be able to reflect full scope of human rights protection. For

now, however, it seems that the EU is

“above the law”

when it comes to human rights

protection. The relation between the CJEU and ECtHR should not be that of a trial

and appellate courts. The CJEU should have a position similar to national courts.

Furthermore, ECtHR judgments can never have the force to change legal acts of the

EU or decisions of the Court of Justice or in any way interpret EU law.

Conclusion

The existing system is not perfect and it frequently gives rise to inequality or

injustice. Since the EU is not a party to the Convention, the ECtHR cannot formally

assess the legality of EU acts. In spite of that, if an EU Member State ratifies the

Convention (all 28 current members have) and the Strasbourg tribunal finds a violation

of the Convention based upon EU law, it will be the Member State, rather than the

EU, who will continue to be responsible for such violation of the Convention by the

Union with all related consequences.

Regardless of that, the European Union undoubtedly has the ability to develop its

own system of human rights protection, especially by making its court review system

more accessible to individuals. This has been the truth especially since adoption of

the Charter of Fundamental Rights, which became a part of primary law thanks to

the Treaty of Lisbon.

The CJEU will want to play a key role in the process and the

court has already established a foothold in its new field of competence.

The Council

of Europe headed by the ECtHR, however, will remain the chief regional player,

unless the effectiveness of its operation is seriously threatened. Both the mentioned

international organizations have been developing in different directions for many

years; however they have shared a similar goal for several decades. Their goal has been

the unification of human rights protection in Europe. In spite of that, the EU has

been focusing more on the creation of the internal market with all its rules, including

the so-called market rights, namely the freedom of movement of goods, services,

A Report on the Protection of Fundamental Rights in Europe: A reflection on the relationship between

the Court of Justice of the European Union and the European Court of Human Rights post Lisbon,

pp. 8, 9 (Available at http://www.coe.int/en/web/dlapil/-/-reflections-on-the-architecture-of-the-european-

union-after-the-treaty-of-lisbon-the-european-approach-to-fundamental-rights-?inheritRedirect=true).

HAMUĹÁK, O., STEHLÍK, V. European

Union Constitutional Law. RevealingThe Complex Constitutional

Systém of The European Union

. Olomouc: Palacký University Olomouc, 2013, 204 s.

CJEU decision

Melloni,

C-399/11 and

Åkerberg Fransson,

C-617/10.For doctrinal response and

forecasts see MALENOVSKÝ, J., VILÍMKOVÁ, V. Co vyvodí Soudní dvůr ze svých rozsudků Åkerberg

Fransson a Melloni pro svou budoucí judikaturu? (How will Åkerberg Fransson and Melloni decisions

influence the case law of the Court of Justice?) . Soudní rozhledy 11-12, 2014, p. 386

et seq