1.

ECHR and ECJ in the Absence of Accession

In the absence of the accession, the ECHR’s involvement in the review of legality of
EU’s acts is rather indirect. Acts of the EU have been reviewed by the ECHR in individual
applications lodged against one or all Member States1. The situation differs depending on an
act that should be subjected to judicial review of the ECHR. From the case-law of the ECHR,
we can derive the following acts that could be subjected to the Strasbourg’s review of
legality2:
1. An act of the EU (e.g., a directive) that leaves discretion in implementation by the
Member State (Cantoni),
2. An act in question is an international instrument concluded under the EU and
freely entered into by the Member States3 (Matthews),
3. An act of the EU (e.g., a regulation) leaves no discretion in implementation to the
Member States (Bosphorus),
4. An act of the EU adopted by EU’s institutions (e.g., a decision) that does not
require any implementation by the Member States [“self-executing act“] (Senator
Lines).
The first category of acts can be demonstrated on the case of Cantoni4. The ECHR
reviewed French rules governing the sale of medicinal products that implemented EC
Directive 65/65 on the approximation of laws relating to medicinal products. Although the
ECHR held that there was no violation of Article 7 of the Convention, the ECHR did not
refuse to review the implemented French rules, despite the fact that the Directive was
transposed almost word for word5.
The second category can be demonstrated on the case of Matthews6. This case was
about a refusal of voting rights in Gibraltar for European Parliament elections. Such a refusal
was based on the EC Act on Direct Elections of 1976. This act was in fact an international
agreement concluded by all the Member States. The ECHR held that acts of the EC as such

1
This however does not mean that the ECHR actually carried out judicial review of the act in question as I will
indicate bellow.
2
See mutatis mutandis Bosphorus v. Ireland, Judgment of the ECHR of 30 June 2005, App. No. 45036/98, §
157.
3
Such an act was therefore an atypical act of EU’s primary law.
4
Cantoni v. France, Judgment of the ECHR of 15 November 1996, App. No. 17862/91.
5
The ECHR held that „the fact…that Article L 511 of the Public Health Code is based almost word for word on
Community Directive 65/65 does not remove it from the ambit of Article 7 of the Convention” (Cantoni v.
France, Judgment of the ECHR of 15 Novemebr 1996, App. No. 17862/91, § 30).
6
Matthews v. the UK, Judgment of the ECHR of 18 February 1999, App. No. 24833/94.
cannot be challenged before it unless the EC becomes a Contracting Party to the Convention.
The transfer of competences to the EC, however, does not absolve the Contracting States from
their responsibility to ensure Convention rights. The ECHR ruled that Contracting States are
responsible under the Convention for the consequences of their international commitments
and therefore their responsibility continues even after such a transfer of competences. The
ECHR therefore found that there was a violation of Article 3 Protocol No. 1 of the
Convention by the UK’s government.
The third category can be assessed based on the facts of the Bosphorus7 case. Irish
authorities seized an aircraft of Bosphorus Airlines which had been leased by them from
Yugoslavia Airlines. The seizure was carried out under an EC Regulation which implemented
the UN sanctions against former Yugoslavia. Bosphorus challenged the seizure before Irish
courts and they referred for a preliminary ruling to the ECJ. The ECJ held that the aircraft in
question falls within the Regulation and that the impounding of the aircraft in question cannot
be regarded as inappropriate or disproportionate8. The ECJ balanced the interests and ruled
that the general interest in putting an end to the state of war outweighed the individual rights
of Bosphorus. The Irish Supreme Court had to comply with the ECJ’s judgment and denied
the appeal of Bosphorus. Bosphorus subsequently lodged a complaint with the ECHR against
Ireland for the alleged violation of its property (Article 1 of Protocol 1 of the Convention).
The ECHR concluded that the EU’s system of protection for fundamental rights is sufficient
in order to presume 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 in the
EU. This presumption of compliance can be, however, rebutted if, in the circumstances of a
particular case, it is considered that the protection of Convention rights was manifestly
deficient9. The “Bosphorus presumption” gave the EU (EC) a very privileged position among
other subjects of international law. I agree with some dissenters who rather proposed a case-
by-case review of compliance, because I do not believe that the EU’s system for the
protection of human rights is more sophisticated than that existing in legal systems of, e.g.,
Germany. On the other hand, without such a presumption the ECHR might become
overwhelmed by applications that would have to be decided on the merits. The Bosphorus
presumption further demonstrates a status of mutual acceptance and trust of the both Courts.
The practical consequences of the Bosphorus presumption are, in my opinion, that if the

7
Bosphorus v. Ireland, Judgment of the ECHR of 30 June 2005, App. No. 45036/98.
8
Case C-84/95 Bosphorus v. Minister for Transport [1996] ECR I-03953, Judgment of the ECJ of 30 July 1996,
§ 26.
9
Bosphorus v. Ireland, Judgment of the ECHR of 30 June 2005, App. No. 45036/98, § 156.
applicant does not provide the ECHR with sufficient grounds to rebut the presumption, his or
her application will be held inadmissible pursuant to Article 35 (3) of the Convention.
The Bosphorus presumption might remind the Solange presumption adopted by the
German Constitutional Court in response to the Internationale Handelsgesellschaft10 ruling.
The difference, however, remains. Whereas the Solange presumption requires a proof of
structural shortcomings in the protection of fundamental rights in European law in order to be
rebutted, the Bosphorups presumption can be rebutted on a case-by-case basis11.
The fourth category of acts (self-executing acts) has not yet been completely resolved.
In Senator Lines the ECHR had the opportunity to review decisions of European courts taken
in the area of competition law12. Senator Lines argued that it was a victim of a breach of the
right to a fair trial (Article 6 of the Convention) by the CFI and the ECJ. The application was
directed against all Member States of the EU. The applicant advocated the view that the
Member States may be held collectively responsible for violations of the Convention by
Community institutions. Unfortunately, the ECHR declared the application inadmissible on
factual grounds and therefore did not answer to this question. Because the decision in Senator
Lines had been delivered before the Bosphorus ruling, one might argue that the ECHR could
adopt the presumption if it assessed the case on the merits. The situation here, however, must
be distinguished from the circumstances in Bosphorus. It was the Luxembourg decisions that
were challenged and should have had invoked the Member States’ collective liability. By
holding the application inadmissible on factual grounds, the ECHR avoided answering
whether it would presume the compatibility of EU’s protection of human rights with the
Convention when it comes to the review of an autonomous EU’s act, such as the ECJ’s
decision taken under its jurisdiction of an administrative court in European competition law.
In my opinion, the Bosphorus presumption would lead to the inadmissibility decision (on
different than factual grounds) provided that the ECHR had been willing to formulate a
landmark ruling adjudicating on such a self-executing act. In other words, I believe that the
Bosphorus presumption can be applied even in cases of such self-executing acts. However,
one could also argue by Matthews in which the ECHR ruled that “acts of the EC as such
cannot be challenged before it unless the EC becomes a Contracting Party to the

10
Case 11-70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel
[1970] ECR I- 01125, Judgment of the ECJ of 17 December 1970.
11
Wouters, J.; Nollkaemper, A.; de Wet, E. The Europeanisation of International Law: The Status of
International Law in the EU and its Member States. T.M.C Asser Press : 2008, page 122.
12
Case T-191/98 R, DSR Senator Lines GmbH v. Commission, [1999] ECR II-2531 and Case C-364/99 P, DSR
Senator Lines GmbH v. Commission, [1999] ECR I-8733.
Convention”13. The ECHR might have had in mind especially these self-executing acts of the
EU. Be it as it may be, the ECHR so far has not been willing to extend the Bosphorus
presumption and has avoided answering the question. Therefore in the relatively similar case
Emesa Sugar14, decided soon after the ruling in Bosphorus, there is still no clear answer to the
possibility of judicial review of the “self-executing” Union’s acts. The ECHR has so far
declared all such applications for the review inadmissible, albeit on different grounds than
those formulated in Bosphorus.
It therefore seems that the ECHR has successfully managed not to engage in highly
controversial jurisdictional tensions with the ECJ. It appears, however, that even when the EU
is not a party to the Convention, the ECHR is willing to review legality of European acts. It is
either in applications against a particular Member State that was involved in the
implementation of an act in question (either with discretion on part of the Member State or
without it), or against all Member States when it comes to the “self-executing” acts15. The
Bosphorus presumption places the EU in a privileged position which will, in the majority of
cases, eliminate the involvement of the ECHR in judicial review of EU’s acts. The Bosphorus
privilege therefore establishes a system of silent cooperation and mutual respect between
Strasbourg and Luxembourg which can be further demonstrated on references of both courts
to each other’s case-law16. Such an “idyllic relationship” might be, however, disrupted by the
EU’s accession to the Convention in the future.

13
Matthews v. the UK, Judgment of the ECHR of 18 February 1999, App. No. 24833/94, § 32.
14
Emesa Sugar N.V. v. Netherlands, Decision of the ECHR of 25 January 2005, Application no. 62023/00. In
this case, the Dutch court decided the case according to a preliminary ruling issued by the ECJ [Case C-17/98
Emesa Sugar NV v. Aruba [2000] ECR I-665]. Emesa argued that the Dutch court should not have followed the
decision of the ECJ, because it did not have the opportunity to respond to the AG’s opinion. This refusal of
response the AG’s opinion, according to Emesa, violated Article 6 (1) of the Convention. The ECHR ruled that
the application was inadmissible ratione materiae, because it concerned custom duties which are excluded from
the scope of Article 6 (1). It is interesting, however, that the review of admissibility ratione materiae pre-dated
the review of admissibility under Article 35 (3) of the Convention.
15
The ECHR has never answered whether such a collective complaint against all the Member States is
unacceptable, because it ruled on inadmissibility of such complaints on factual grounds or ratione materiae. The
question therefore remains unanswered.
16
For such references, see examples given by Tobias Lock in The ECJ and the ECtHR: The Future Relationship
Between the Two European Courts. The Law and Practice of International Courts and Tribunals, Volume
8, Number 3, 2009, page 380.