The EU and the European Convention of Human Rights after Lisbon: From 'Bosphorus' Sovereign Immunity to Full Scrutiny?

Abstract

This paper analyses the necessity of fundamental rights protection in EU context as well as its problems in terms of the transfer of sovereignty by the Member States to the EU. It next analyses the approach which the European Court of Human Rights (ECtHR) took in the famous 'Bosphorus' judgment as essentially inspired by considerations of 'sovereign immunity' of the EU from scrutiny, from which the immunity of scrutiny of Member State behaviour which is prescribed by EC/EU legislative measures derives. Although it is commonly expected that the abdication of judicial scrutiny by the ECtHR in Bosphorus will take an end when the EU becomes a party to the European Convention of Human Rights (ECHR), as mandated by the Treaty of Lisbon which reforms the founding EU treaties, the author argues that there is no certainty that it will, as the arguments the ECtHR uses in Bosphorus still apply after EU accession to the ECHR. The author next argues why the ECtHR should abandon its approach in Bosphorus.

Keywords: EU, sovereignty, human rights, ECHR, European Court of Human Rights

JEL Classification: K10, K19, K30, K39