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DAVID PETRLÍK
CYIL 4 ȍ2013Ȏ
Admittedly, by this statement, the Czech Constitutional Court makes clear that it
reserves the right to control, to a certain extent, whether EU law respects the national
standard of fundamental rights. Nonetheless, it does not specify what intensity such
review would have and whether it adopts the second or the third above-mentioned
approach of constitutional review.
That said, it might be important that the Czech Constitutional Court found the
Charter compatible with the Czech Constitution because the content of the catalogue
of human rights expressed in it is fully “comparable” with the content protected
in the Czech Republic.
52
Moreover, the court referred to the
Bosphorus
ruling
53
of
the ECtHR.
54
In these circumstances, it seems that this court follows an approach
according to which there is a presumption that the EU protection is sufficient, but
that such a presumption can be rebutted if, in a particular case, this protection is
considered as manifestly deficient (see infra).
III. EU system and the ECHR system
Already for a long time the EU system has adopted a cooperative stance towards
the ECHR system. However, this cooperation has been rather conditional so far (1).
Conversely, it may become unconditional after the accession of the EU to the ECHR (2).
1. Interaction between the systems before the accession of the EU
to the ECHR
As before the Treaty of Lisbon, the ECHR remains a material source of EU
fundamental rights that are expressed in the form of general principles of law, because
Article 6(3) TEU states that “[f ]undamental rights, as guaranteed by the [ECHR],
shall constitute general principles of the Union’s law”. However, this treaty has also
increased the binding force of the ECHR and it strengthened the position of the
ECHR and the ECtHR in the Union legal order.
First of all, the Court of Justice has become formally bound both by the provisions
of the ECHR and by the case-law of the ECtHR by virtue of Article 52(3) of the
Charter, which requires that the meaning and scope of fundamental rights set out
in the Charter shall be the same as those laid down by the ECHR, unless a more
extensive protection is provided.
In this respect, it must be recalled that, already before theTreaty of Lisbon, the ECJ
respected the ECHR and the ECtHR’s case-law. Since 1989 it has stressed repeatedly
that the ECHR had special significance for the interpretation of fundamental rights,
whose protection the Court of Justice ensured.
55
As of 1996 it began to consistently
52
Lisbon I ruling
, paragraph 197.
53
Judgment of 30 June 2005
Bosphorus Hava Yollari Turizmve Ticaret Anonim Şirketi v. Ireland
, Application
No. 45036/98, ECHR 2005-VI.
54
Lisbon I ruling
, paragraph 197.
55
Joined Cases 46/87 and 227/88
Hoechst v. Commission
[1989] ECR 2859, paragraph 13 and
ERT
,
paragraph 41.