CYIL Vol. 4, 2013

DAVID PETRLÍK CYIL 4 ȍ2013Ȏ Moreover, the Court of Justice has implicitly indicated that respecting this case- law does not mean “blindly” following all principles mentioned in the judgments of the ECtHR. This stems from the approach it adopted in cases such as Åkerberg Fransson in which it did not mechanically apply the principles deduced by the ECtHR. 69 In this context, it must be stressed that, by virtue of Article 52(3) of the Charter, the Court of Justice can depart from the ECtHR’s case-law in order to guarantee a higher level of protection. However, such a situation will be less probable as the ECtHR provides protection at a very high level, and the Court of Justice was in general less protective in cases in which it departed from its case-law in the past. In addition, the ECJ can decide not to apply some principles of the ECtHR case-law, for the latter does not concern the ECHR itself but its Protocol, which is not binding for all the Member States. This was the case in Åkerberg Fransson, in which the Court of Justice was called to rule on interpretation of the ne bis in idem principle that is enshrined in Protocol No. 7 to the ECHR, which was not ratified by Germany, Belgium, the Netherlands and the United Kingdom. Such an approach is confirmed by the future Agreement on the accession of the Union to the ECHR, which provides for an accession only to the ECHR itself, to the Protocol of the ECHR and to Protocol No. 6 to the ECHR. 70 Finally, it must be noted that the ECtHR’s judgments essentially always constitute case-specific judicial decisions and not the rules of the ECHR themselves, and it would therefore be wrong to regard its case-law as a source of interpretation with full validity in connection with the application of the Charter. 71 These considerations do not however change the fact that the ECJ respect, in principle, the ECtHR’s case-law. This respect is mutual, as the ECtHR has largely taken account of the EU system in its case-law as well. It is true that in Matthews this court held that Member States were responsible for violation of the ECHR by the Community (Union), which subjected the latter, to a certain extent, to the ECHR even if it was not its Contracting Party. 72 However, in Bosphorus , the ECtHR adopted a more favourable approach 69 See also the Special Section “EU and ECHR: Conflict or Harmony?” in Utrecht Law Review, Volume 9, Issue 1, January 2013, pp. 78-192. Even before the Treaty of Lisbon, the ECJ kept a certain margin of appreciation in applying the ECtHR’s case-law, which led to certain divergences in the approaches of these two courts (see Spielmann D., “Human Rights Case Law in the Strasbourg and Luxembourg Courts: Conflicts, Inconsistencies and Complementarities” in Alston P. (ed.), The EU and Human Rights, Oxford University Press, Oxford 1999 and Philippi N., “Divergenzen im Grundrechtsschutz zwischen EuGH und EGMR”, Zeitschrift für europarechtliche Studien [2000] 97). 70 See Article 1 of the Agreement on the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Agreement on the accession”). The Draft Revised of this agreement is set out in Annexe I to the document of the Council of Europe 47+1(2013) 008. Available at http://www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/ dv/5thmeeting_finalrep_/5thmeeting_finalrep_en.pdf. 71 Opinion of Advocate General Trstenjak in N.S. , paragraph 146. 72 Judgment of 18 February 1999, Matthews v. United Kingdom , Application No. 24833/94, ECHR 1999-I. The main reason for this approach was that the Member States could not escape responsibility by