The Doctrine of Equivalent Protection: Its Life and Legitimacy Before and After the European Union's Accession to the European Convention on Human Rights

Abstract

The relationship between the Court of Justice of the European Union (henceforth: Luxembourg Court) and the European Court of Human Rights (henceforth: Strasbourg Court) has been one of the prevailing issues in the human rights debate in Europe. The main crater in the relationship between the two courts is the fact that Strasbourg could not call directly into responsibility the Luxembourg Court due to the fact that EU is not a party in the ECHR, whereas the Luxembourg Court is not likely to obey a Strasbourg ruling without having any international legal obligation to do so. This situation has thus far led to many observations that have called for the accession of the EU to the ECHR, a step that would legalize the relationship between the EU and the Council of Europe, offering critics of human rights an assurance that the EU's human rights regime will become externally controlled by a specialized human rights court.

The Lack of Effective Remedies at the European Court of Human Rights after Opinion 2/13

“…However, the applicant may rebut this presumption by proving that the IO's judicial system is manifestly deficient. 47 In cases of combined action and failure to act, when the IO commits an allegedly wrongful act but the Member State does nothing to prevent or stop such action, the ECtHR lacks jurisdiction ratione personae because it is the IO that commits the unlawful act, rather than the Member State. 48 This interpretation focuses only on the IO's conduct and does not take into account the responsibility of the Member State for its failure to prevent an unlawful act.…”

The European Court of Human Rights Facing the Security Council: Towards Systemic Harmonization

“…However, the presumption in question is rebuttable. 54 It can be rebutted if it is considered that the protection of ECHR rights was 'manifestly deficient'. In such cases, the ECtHR considers that the ECHR, as a 'constitutional instrument of European public order', should prevail over the interests of international cooperation.…”

European Union accession to the European Convention on Human Rights. Regulating the multi-layered European human rights space and pushing for more international liability for the Union

“…See, for instance: 10.07.1978, 8030/ 26 With the judgment, the Strasbourg Court because of its determination that the Luxembourg Court and the human rights law at the EC/EU level provide protection equivalent to that of the ECHR law. 27 . The Court also restated in Bosphorus Airways that the ECHR is a "constitutional instrument of European public order" 28 despite the latter not being a party to the convention.…”