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DAVID PETRLÍK
CYIL 4 ȍ2013Ȏ
of EU acts in specific cases. Even the founder of the
Solange II
doctrine, the German
constitutional court, may have relativized it. As for the European level, the accession
of the EU to the ECHR may result in abandonment of the
Bosphorus
doctrine. Such
a development is a paradox, as the Treaty of Lisbon has strengthened the role of the
fundamental rights in the EU system, which should lead to more respect for this
system from the other systems.
That said, it must be stressed, fourthly, that while these tensions are important
for systemic relationships between the ECHR, EU and national legal orders,
they have a limited impact on day-to-day legal practice. In the latter, the spirit of
mutual respect and cooperation is omnipresent, as none of these systems defends an
autonomous conception of human rights. The relationship between them is rather
characterised by a cross-fertilisation, even a “higher” system taking account of the
scope and content of fundamental rights as defined by a “lower” system, in order to
ensure a coherent protection of these rights in Europe.
It is to be seen whether such a cross-fertilisation avoids open conflicts between
these systems in the future or, conversely, whether it leads to “blind” flattening of
standards of fundamental rights, the judicial bodies applying a sort of a “copy/paste”
approach. For the moment, it seems that neither of these scenarios will occur, at least
in relationship between the EU and national systems. In this respect, it appears that
the national constitutional courts will not abandon their “emergency brake” control.
They will prefer to respect the EU system by avoiding possible conflicts by a means
of an interpretation consistent with EU law. Conversely, it may be presumed that the
ECtHR will subject the EU, after its accession to the ECHR, to the same control
which it carries out in respect of other Council of Europe Members.