CYIL Vol. 4, 2013

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), 82 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. 83 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 82 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. 83 See, for example, Lisbon I ruling , paragraph 197.