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MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION…
towards the EU and took into consideration its specific characteristics (supranational
character and the fact that it protects fundamental rights at a supranational level).
In particular, the ECtHR held that the protection of fundamental rights by EU law
could be considered to be equivalent to that of the ECHR system. Consequently,
a presumption arises that an EUMember State does not depart from the requirements
of the ECHR when it implements legal obligations flowing from its membership of
the EU. Such a presumption can be rebutted if, in a particular case, it is considered
that the protection of ECHR rights is manifestly deficient.
73
Even after the Treaty of
Lisbon, the
Bosphorus
doctrine is still fully valid, the ECtHR having given rulings in
which it confirmed this.
74
Furthermore, the ECtHR demonstrates a respect, more specifically, towards the
Court of Justice, as it has referred to its case-law in several recent cases.
75
This results
in a cross-fertilisation between these courts and contributes to a coherent protection
of fundamental rights in Europe.
Finally, the ECtHR has recently strengthened the mechanism of preliminary
ruling, which is essential for the EU legal order. It recalled that when a question
relating to the interpretation of EU law is raised in proceedings before a national
court against the decisions of which no appeal may be brought in national law, that
court must refer the matter to the Court of Justice for a preliminary ruling. Then, it
recognised that exceptions from this obligation, as set out in the ECJ’s case-law, are
limited. In these circumstances, the ECHR imposed a very important obligation on
national courts of last resort, by virtue of Article 6(1) ECHR, to provide grounds for
the decision by which they refuse to refer preliminary questions.
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2. Change of relationship after the accession of the EU to the ECHR
Pursuant to Article 6(2) TEU, which was inserted to the TEU by the Treaty of
Lisbon, the Union is obliged to accede to the ECHR. The principal advocate of the
accession of the EUto this convention (“accession”) has been the EuropeanCommission.
This could seem surprising, as its role is to defend the general interest of the Union,
which should include, as well, the defence of a sovereign and autonomous nature of the
Union, this nature being affected by the accession (see
infra
). Furthermore, the ECtHR
is currently overloaded and faces a legitimacy crisis.
77
Nevertheless, the Commission
transferring competences to the Community, and they remained therefore responsible for infringements
of the ECHR even after such a transfer.
73
Bosphorus
, paragraphs 155 to 165.
74
See, for example, Judgment of 6 December 2012,
Michaud v. France
, Application No. 12323/11.
75
See, for instance, Judgment of 12 September 2012
Nada v. Switzerland
, Application No. 10593/08,
paragraphs 176 and 212; Judgment of 25 June 2013
Gáll v. Hungary
, Application No. 49570/11,
paragraphs 19, 39 and 69; Judgment of 2 July 2013,
R.Sz. v. Hungary
, Application No. 41838/11,
paragraphs 18 and 59.
76
Judgment of 20 September 2011,
Ullens de Schooten and Rezabek v. Belgium
, Application Nos. 3989/07
and 38353/07.
77
See more detail in Christoffersen J. and Rask Madsen M. (eds.), “The European Court of Human
Rights Between Law and Politics”, Oxford University Press, 2011, Part II.