Adjudicating Europe

The accession to ECHR may put an end to the logic of ‘presumption of equivalence’ and ‘manifest deficiency’ coined by the Bosphorus case (Decision of 13 September 2001 Application No 45036/98 Bosphorus Hava Yollari Turizm AS v. Ireland). The abandonment of this doctrine in the wake of accession is not, however, such a clear cut issue as many authors have claimed. Before discussing this question, it is worth having a retrospective look at this contested decision. For the ECtHR, State action is justified as long as the EU is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the ECHR provides.  If such equivalent protection is considered to be provided by the EU, the presumption will be that a State has not departed from the requirements of the ECHR when it does no more than implement legal obligations flowing from its membership of the organisation. However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient (see paras. 155-156).

The literature has been critical when it comes to the hands-off approach adopted by the ECtHR in Bosphorus concerning judicial scrutiny and clearly advocates for the rejection of the Bosphorus doctrine in the wake to the EU accession to the ECHR. Many of the criticisms echoed the doubts of the minority judges in Bosphorus. Four main objections to the presumption of equivalence can be distinguished. These objections are based on the so-called arguments of equality, proportionality, comity and uncertainty. The equality and proportionality objections were already reflected very strongly in the concurring opinions. The equality objection displays the danger of double standards which may be the consequence of the application of the presumption of innocence by the ECtHR. The proportionality objection mirrors the general and abstract manner in which the majority found equivalence and stigmatizes the lack of a substantive test of proportionality regarding the breach of the right to property as defined in Article 1 of Protocol 1 of the ECHR.

The third type of objection is based on comity. This argument is founded on the disappearance of comity between the ECJ and the ECtHR after the accession. It is true that the present relationship between the two European courts is often described as based on the principles of cooperation and respect. But the accession will give the last word to the EctHR regarding the interpretation of the ECHR rights in every situations of relationship. As to the uncertainty objection, it is argued here that the Bosphorus case is ambiguous as to the State actions that are exempted from full judicial review. Indeed, for the ECtHR, it seems that if equivalent protection is considered to be provided by the EU, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the EU. What is the exact scope of application of the presumption of equivalence?

In light of these four objections, one should wonder whether the Bosphorus doctrine of presumption of equivalence should be dropped after accession. A positive answer is far from being certain due to one single element: specificity. In fact, most of the reasoning in Bosphorus is based on the specific nature of EU law, both with regard to the limited discretion to which the Member States have when applying and enforcing EU legislation and in establishing and justifying the presumption of compatibility with ECHR standards. The principle of equivalence – based on the rationale of transfer of powers/sovereignty – that lies at the heart of the doctrine of presumption will not disappear and will remain unaffected after the accession. This principle has further been reinforced by the existence of a binding Charter of Fundamental Rights since December 2009 and is now codified in its Article 52(3). Apparently, the presumption of equivalence reflects the specificity of the EU legal order as defined in Protocol 8 of the Lisbon Treaty.

Alors…Bosphorus forever?

Cartesio