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MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION…
This may also be the approach of the ECtHR. Accordingly, the latter may partially
or completely revisit the
Bosphorus
doctrine and abandon the presumption of
compliance with the requirements stemming from the ECHR. If this is the case, the
EU and the ECJ will be in the same position as other Council of Europe Members and
their supreme courts. They will be subject to a judicial review by the ECtHR that will
dispose of an effective mechanism of enforcement of its conception of fundamental
rights within the Union legal order. The Court of Justice will no longer determine the
final interpretation of the scope and content of fundamental rights, which will affect
the sovereign and autonomous nature of the Union. This is, however, the price to pay
for more cohesion of protection of fundamental rights in Europe.
IV. Concluding remarks
The Treaty of Lisbon and the accession of the EU to the ECHR lead to a three-
level hierarchical system of protection of fundamental rights in the scope of EU law
(ECHR system, EU system and national systems). Such a hierarchy is replacing the
current two-level system (ECHR and EU systems being on the same level),
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and it
remains a hierarchy of interpretation, which means that a “higher” system has the
last word on the scope and content of fundamental rights. This hierarchy is however
relative for four reasons.
Firstly, the hierarchy between the ECHR and EU systems does not prevent the
Union from providing a more extensive protection of fundamental rights.
Secondly, as regards the EU system and the national systems, the ECJ reaffirmed
in
Melloni
that there is a hierarchy between them. However, such a hierarchy is not
unconditionally recognised by the national constitutional courts. Some of these
courts continue to consider, even after the Treaty of Lisbon, that there is not a real
hierarchy between these systems. Similarly, no hierarchy exists, in their view, between
them and the Court of Justice, their relationship being rather based on a dialogue
between equivalent partners who respect each other and whose respective judicial
activities are complementary and not competing.
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Thirdly, the relationship between the three systems is changing at present. For
several years, it has been based, in particular, on the
Solange II
and
Bosphorus
doctrines,
which provided certain immunity for the EU system from scrutiny of the other
systems. However, these doctrines are currently eroding. On the national level such
a doctrine is not respected by certain constitutional courts and, in particular, by the
Polish Constitutional Tribunal, which began to review directly the constitutionality
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In addition, each of these systems takes account of the international law. In this respect, the Court of
Justice already held in
Nold
that “international treaties for the protection of human rights on which the
Member States have collaborated or of which they are signatories, can supply guidelines which should
be followed within the framework of Community law.” (paragraph 13). However, the international law
cannot be regarded as a system of protection of fundamental rights which is comparable to the three
mentioned as it lacks effective enforcement mechanisms.
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See, for example,
Lisbon I ruling
, paragraph 197.