¹ We use the term Luxemburg Court to connote any instance of the Court of Justice of EC/EU.Google Scholar

² We use the term Strasbourg Court to connote any instance of the European Court of Human Rights.Google Scholar

³ E.g. Shelton, Dinah, The Boundaries of Human Rights Jurisdiction in Europe 13 Duke J. Comp. & Int'l L. 95 (2003)Google Scholar

⁴ View how the Luxembourg Court, the EU member states’ courts and the Strasbourg Court manage to cooperate, at Charles Sabel & Oliver Gerstenberg, Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order 16(5) Eur. L. J. 511–550 (2010); see a more general overview of the relationship between the two European courts, at Paul Craig & Gráinne de Búrca, EU Law: Text, Cases and Materials 418–426. (2008).Google Scholar

⁵ Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98 (Eur. Ct. H. R. 30 June 2005), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-69564 (last accessed: 16 June 2012); see, for a commentary, Frank Schorkopf, The European Court of Human Rights’ Judgment in the Case of Bosphorus Hava Yollari Turizm v. Ireland, 6 Germ. L.J. 1255 (2005), available at: http://www.germanlawjournal.com/pdfs/Vol06No09/PDF_Vol_06_No_09_1255-1264_Developments_Schorkopf.pdf (last accesssed: 16 June 2012).Google Scholar

⁶ See, for instance Joseph Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights Within the Legal Order of the European Communities, 61 Wash. L. Rev. 1103, 1110 (1986).Google Scholar

⁷ The term EU – used here, and where applicable – refers to the European Communities of that time.Google Scholar

⁸ It is worth recalling that the responsibility to deal with human rights from the European Union side – and accordingly to construe human rights law – was first built with the Van Gend en Loos case of the Luxembourg Court. The Luxembourg Court, nevertheless, self-managed to further its competence to deal with human rights and to wear the EU with human rights obligations with the Internationale Handelgesellschaft case, and later with Nold KG case, where it made an explicit reference for the first time to the international human rights treaties ratified by the member states of the EU. This was later advanced with Hauer v. Land Rheinland-Pfalz, where the Luxembourg Court for the first time openly referred to the ECHR. The human rights catalogue of the EU was later proclaimed for the first time with the Charter of Fundamental Rights in 2000, as a domestic list of rights and freedoms. The Lisbon Treaty, on the other hand, provided for the first time a treaty ground for the legal effect of the Charter of Fundamental Rights, making the EU regime of human rights have a treaty ground for its human rights law. (See Van Gend en Loos v. the Netherlands, case 26/62 [1963] ECR1; Internationale Handelgesellschaftmbh v. Einfuhr und Vorratsstelle für Getreide und Futtermittel (case 11/70), 1970, ECR 1125; Nold KG v. Commission, case 4/73 [1974] ECR 491; Hauer v. Land Rheinland-Pfalz, Judgment of the Court of 13 December 1979, case 44/79 [1979] ECR 3727.)Google Scholar

⁹ See a broader view on this, at Antoine Jacobs, The European Constitution. How it was created. What will change 119 (2005).Google Scholar

¹⁰ This ‘merit’ rests mainly and mostly with the Luxembourg Court. See Witte, Bruno de, The Past and Future Role of the European Court of Justice in the Protection of Human Rights, in The EU and Human Rights 866 (Philip Alston ed., 1999).Google Scholar

¹¹ See for instance Confederation Francaise Democratique du Travail v. the European Communities, ECtHR, Decision on Inadmissibility, No. 8030/77, D. 10.07.1978.Google Scholar

¹² X v Federal Republic of Germany, ECHR, No. 235/56, Dec. 10.6.1958, Yearbook 2, 256 (300).Google Scholar

¹³ Compare and see this in light of: Article 4 of the Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at: www.un.org/law/ilc (last accessed: 16 June 2012).Google Scholar

¹⁴ BVerfGE 73, 339 2 BvR 197/83 Solange II-decision, paragraph f, available at: http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=572 (last accessed: 16 June 2012).Google Scholar

¹⁵ M. & Co. v. Federal Republic of Germany, European Commission of Human Rights, Decision on Admissibility, No. 13258/87, Dec. 9 February 1990.Google Scholar

¹⁶ See also, Scheeck, Laurent, The Relationship between the European Courts and Integration through Human Rights, 65 ZaöRV 837 (2005).Google Scholar

¹⁷ Although M. & Co. continue to hold that: ‘Under Article 1 of the Convention the member States are responsible for all acts and omissions of their domestic organs allegedly violating the Convention regardless of whether the act or omission in question is a consequence of domestic law or regulations or of the necessity to comply with international obligations.’ (M. & Co. v. Federal Republic of Germany, No. 13258/87, Dec. 9 February 1990., at 145.)Google Scholar

¹⁸ Hauer v. Land Rheinland-Pfalz, Judgment of the Court of 13 December 1979, case 44/79 [1979] ECR 3727.Google Scholar

¹⁹ Waite & Kennedy v. Germany and Beer & Regan v. Germany, [1999] ECHR (Ser. A), at 13.Google Scholar

²⁰ The Strasbourg Court had the chance to decide the Bosphorus standards even before in DSR Senator Lines GmBH and Ermesa Sugar v. The Netherlands, but it did not. (See ECHR, DSR Senator Lines GmbH v. the 15 member states of the EU, App. No. 56672/00, 2004). 10 March 2004, (2004) E.H.R.R. SE 3; ECHR, Ermesa Sugar v. The Netherlands, App. No. 62023/00, 13 January 2005 (2005).Google Scholar

²¹ Bosphorus Hava Yollari Turizm v. Ireland, Application no. 45036/98 ECtHR 30 June 2005. (Judgement, Grand Chamber).Google Scholar

²² Bosphorus Hava Yollari Turizm v. Ireland, Application no. 45036/98 ECtHR 30 June 2005. (Judgement, Grand Chamber), at para. 155.Google Scholar

²³ Hoffmeister, Frank, Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98, 100 (2) Amer. J. of Int'l L. 442, 447, 449 (2006).Google Scholar

²⁴ Bosphorus seems a rather high level of ‘privileging’ Union law and the member states law implementing it. See Sumner, Geoff, We'll Sometimes Have Strasbourg: Privileged Status of Community Law Before the European Court of Human Rights, 16 Irish Stud. L. Rev. 127 (2008).Google Scholar

²⁵ Wildhaber, Luzius, The Coordination of the Protection of Fundamental Rights in Europe, Address by the President of the ECtHR (8 Sept. 2005).Google Scholar

²⁶ Matthews v. United Kingdom, App. No. 24833/94, ECtHR 18 February 1999 (Judgement, Grand Chamber).Google Scholar

²⁷ That being said, the Strasbourg Court continues to apply the X v Federal Republic of Germany standard on all legal acts of the EU that could not be brought under the observance of an EU judicial mechanism, whereas it immunizes those legal acts that could and are observed by the EU judicial mechanisms with the presumption of the Doctrine of Equivalent Protection. (See, for instance: Cathryn Costello, The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe, 6(1) Hum. Rts. L. Rev. 87, 103 (2006).Google Scholar

²⁸ ECtHR, Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98, 30 June 2005. (Judgement, Grand Chamber), at para. 72.Google Scholar

²⁹ See this confirmation reiterated also in ECHR, M.S.S. v. Belgium and Greece, App. No. 30696/09, 21 January 2011 (Judgment, Grand chamber), at para. 338.Google Scholar

³⁰ ECHR, Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98, 30 June 2005 (Judgement, Grand Chamber), at para. 117.Google Scholar

³¹ However, it is clear that the Doctrine does not immunize a member state action aimed at implementing an obligation deriving from EU law, where the state had and used discretion. The Strasbourg Court has, in many cases such as Van de Hurk v. the Netherlands, reviewed state discretion when member states where implementing EU law, acknowledging that state discretion in the implementation of EU law is not immunized from its review by the Doctrine of Equivalent Protection. See ECHR, Van de Hurk v. the Netherlands, App. No. 16034/90, judgment of 19 April 1994).Google Scholar

³² Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98, 30 June 2005 (judgement, Grand Chamber), at para. 124.Google Scholar

³³ BVerfGE 37, 271 2 BvL 52/71 Solange l-Beschluß. Available at: http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=588 (last accessed: 16 June 2012). It can be argued that this reasoning shows that even while the human rights advocates view the Doctrine as something that could be used to undermine human rights at the level of EU law, the EC would have the Doctrine sustained for opportunistic reasons– to save the EU law's primacy and direct effect from challenges. This reasoning suggests that, even following the accession of the EU to the ECHR the Strasbourg Court should remain deferential to the Luxembourg Court – more so than it would be with respect to an ordinary state – in order to protect the EU's foundational characteristics and save its law from member states’ defiance. The Italian Government advanced a similar argument in submission to Bosphorus case, that ‘any imposition of an obligation on a State to review its United Nations and European Community obligations for Convention compatibility would undermine the legal systems of international organizations and, consequently, the international response to serious international crises.'(Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98, 30 June 2005 (judgement, Grand Chamber) at para. 129). This argument made by the Italian Government suggests that the importance of the ECHR should be outweighed by the need of international organizations to perform their role, a proposition that seems simply naïve in the face of modern approaches to human rights. Moreover, it conflicts with the principle of construing rights and freedoms broadly, established in Loizidou (ECHR, Loizidou v. Turkey, (1997) 23 E.H.R.R. 513 ECHR App. No. 15318/89, and Loizidou v Turkey (Preliminary Objections) A 310 (1995), ECtHR; see also Concurring opinion of Judge Jambrek in Fischer v Austria A 312 (1995), ECtHR. In this case, the Strasbourg Court decided that the ECHR's role as a constitutional document for Europe cannot be outweighed by the need of the international organizations to cooperate and perform their function.)Google Scholar

³⁴ ECHR, M.S.S. v. Belgium and Greece, App. No. 30696/09, 21 January 2011 (judgment, Grand chamber), at para. 338.Google Scholar

³⁵ ECHR, M.S.S. v. Belgium and Greece, App. No. 30696/09, 21 January 2011 (judgment, Grand Chamber).Google Scholar

³⁶ ECHR, Bosphorus Hava Yollari Turizm v. Ireland,App. No. 45036/98, 30 June 2005 (judgement, Grand Chamber), at para. 156.Google Scholar

³⁷ See a very general criticism at Kathrin Kuhnert, Bosphorus – Double standards in European human rights protection? 2(2) Utr. L. Rev. 177, 185 (2006).Google Scholar

³⁸ See a general view on this, at: Hoffmeister, Frank (2006) 'Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98', The American Journal of International Law, Vol. 100, No. 2, pp. 442–449 (p. 447).Google Scholar

³⁹ Kunhert, supra note 37, at 189.Google Scholar

⁴⁰ DSR Senator Lines GmBH and Ermesa Sugar v. The Netherlands, supra note 20.Google Scholar

⁴¹ See Hoffmeister, supra note 23, at 448. Consider finding an answer for this by reviewing the outline presented broadly at: Costello, supra note 27, at 87–130.Google Scholar

⁴² ECHR, Bosphorus Hava Yollari Turizm v. Ireland, Application no. 45036/98, 30 June 2005, (judgement, Grand Chamber), at para. 166.Google Scholar

⁴³ SocDivagsa v Spain (1993) 74 DR 274, ECHR, and Fritz and Nana v France, Admissibility Decision of 28 June 1993, ECHR, App. No. 15669/89.Google Scholar

⁴⁴ Joint Concurring Opinion of Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky & Garlicki, Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98, 30 June 2005, (judgement, Grand Chamber), at para. 4.Google Scholar

⁴⁵ For instance, see Costello, supra note 27, at 87, 102.Google Scholar

⁴⁶ BVerfGE 73, 339 2 BvR 197/83 Solange II-decision, paragraph f, available at: http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=572 (last accessed: 16 June 2012).Google Scholar

⁴⁷ Saadi v. The United Kingdom, Application no. 13229/03, Grand Chamber, ECtHR, 29 January 2008.Google Scholar

⁴⁸ See also Bosphorus Hava Yollari Turizm v. Ireland, App. No. 45036/98, supra note 44.Google Scholar

⁴⁹ See a more general approach to this, at Costello, supra note 27, at 103.Google Scholar

⁵⁰ The Luxembourg Court had in its Opinion 2/94, regarding the accession of EU to ECHR, inter alia, ruled: ‘Accession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order.'(ECJ, Opinion 2/94 [1996] ECR I-1759, at paras. 34 & 35).Google Scholar

⁵¹ See the list of problems being currently discusses by the negotiating groups, at: Draft list of issues to be discussed regarding the accession of the European Union to the European Convention on Human Rights, 1st Working Meeting Of The CDDH Informal Working Group On The Accession Of The European Union To The European Convention On Human Rights (CDDH-UE) With The European Commission, CDDH-UE (2010).Google Scholar

⁵² Proposal by the Meijers Committee, sent to the members of the Informal Group on Accession of the EU to the ECHR (CDDH-UE) of the Council of Europe and the members of the delegation for the negotiations on accession of the EU to the ECHR of the European Commission. See Meijers Committee, Admissibility of claims in the light of accession of the EU to the ECHR (2011).Google Scholar

⁵³ Confederation Francaise Democratique du Travail v. the European Communities, no. 8030/77 (Sept. 10, 1978).Google Scholar

⁵⁴ See a broad analysis on the autonomy concerned at Tobias Lock, Walking on a Tightrope: The Draft Accession Agreement and the Autonomyof the EU Legal Order, 48(4) CMLR 1033 (2011).Google Scholar

⁵⁵ See a general support for this argument, at: Leonard Besselink, The European Union And The European Convention On Human Rights: From Sovereign Immunity in Bosphorus to Full Scrutiny under the Reform Treaty?, in Changing Perceptions of Sovereignty and Human Rights: Essays in Honour of Cees Flinterman 295–309 (2008).Google Scholar

⁵⁶ ECHR, Tyrer v. United Kingdom, App. No. 5856/72 (Apr. 25, 1978).Google Scholar

⁵⁷ See the doubtful view on the accession of EU into ECHR of the Advocate General Francis G. Jacobs, at Francis Jacobs, Accession of the European Union to the European Convention on Human Rights, Hearing organized by the Committee on Legal Affairs and Human Rights (Sept. 11, 2007), available at: http://www.statewatch.org/news/2007/sep/jacobs-eu-echr.pdf (last accessed: 16 June 2012).Google Scholar

⁵⁸ Id. Google Scholar

⁵⁹ Consider some of the general comments of Van Dijk, as regards the use of the Doctrine, at Pieter Van Dijk, Comments on the Accession of the European Union/European Community to the European Convention on Human Rights, European Commission for Democracy through Law, 96 CDL (2007).Google Scholar

⁶⁰ On the sui generis nature of EU, see for instance, Weiler, Joseph & Haltern, Ulrich, The Autonomy of the Community Legal Order – Through the Looking Glass, 37(2) Harv. Int'l L. J. 420 (1996).Google Scholar

⁶¹ CJEU, Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat/Council and Commission, Judgment of 3 September 2008, at para. 316. Emphasis added.Google Scholar

⁶² TFEU, Art. 344; This also follows from the argument in Tobias Lock, The ECJ and the ECtHR: The Future Relationship between the Two European Courts 8(3) L. & Pra.c Int'l Cts. & Trib. 389 (2009).Google Scholar

⁶³ ‘Nothing in the [Accession Treaty] […] shall affect Article 344 of the Treaty on the Functioning of the European Union.’ Art 3 of Protocol No. 8 to the Treaties.Google Scholar

⁶⁴ The Draft Accession Treaty reads: “[w]here an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, notably where that violation could have been avoided only by disregarding an obligation under European Union law.” (Art. 3 (2) of the Draft Accession Agreement; CDDH-UE 009 (2011).Google Scholar

⁶⁵ See for instance a recent case, ECHR, M.S.S. v. Belgium and Greece, App. No. 30696/09, 21 January 2011.Google Scholar

⁶⁶ CJEU, Case 26/62, Van Gend & Loos, Judgment of the Court of 5 February 1963.Google Scholar

⁶⁷ CJEU, Case 6/64, Costa/ENEL, Judgment of the Court of 15 July 1964.Google Scholar

⁶⁸ Schmalenbach, Kirsten, Struggle for Exclusiveness: The CJEU and Competing International Tribunals, in International Law between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner (Isabelle Buffard, James Crawford et. al. eds., 2008).Google Scholar

⁶⁹ The original idea on viewing Strasbourg as a constitutional court stems from a careful reading of Steven Greer, The European Convention on Human Rights: Achievements, Problems And Prospects (2006).Google Scholar