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The European Court of Human Rights holds that the Bosphorus presumption of equivalent protection cannot apply to the European Economic Area (EEA) Agreement – Its reasons focus on EEA Agreement’s lack of primacy, direct effect and adequate enforcement mechanisms – Not applying Bosphorus presumption to EEA Agreement results in the indirect review of EU law by the Strasbourg Court, given that EEA and EU law are substantially identical – Court’s arguments are open to strong criticism – However, its conclusions are correct – They are substantiated by two considerations, which were overlooked by the Court – First, EEA law is to be considered ‘freely entered into’ international law under the Matthews case law – Second, the EFTA Court lacks the power to strike down EEA law breaching upon fundamental rights – Both these consideration are the corollary of the fundamental premises of the EEA Agreement: the retention by EFTA states of sovereign decision-making powers – Refusal to apply Bosphorus presumption to EEA Agreement will likely determine a growing inconsistency between the Convention, EU and EEA law – This entails serious systemic problems
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