A Multilevel System of Protection
Above and beyond the process which led to the current situation, and before we focus our attention on the innovations introduced by the Lisbon Treaty, what should be retained is the emergence of yet another level of protection of fundamental rights.
Although, from a merely functionalist perspective, this was initially dictated by the need to ‘legitimise’ the attainment of specific and market-oriented objectives, the increasing number of competences transferred to the Community, and then to the Union, was matched by an increasing attention, both formal and substantial, towards individuals and their basic rights. This additional layer of protection, which avoided a dangerous legal vacuum, operated independently of, but not in isolation from, the other two.38 The result was an unpalatable complication of legal avenues and a potential growing tension between the different legal orders.
The protection of human rights belongs to the State pursuant to its Constitution. Should it fail to respect the ECHR, individuals will be entitled to bring their case before the Strasbourg Court, provided they have exhausted all the available national remedies. On the other hand, whenever EU law comes into play, the competent domestic authorities must act in compliance with the latter and are thus exposed to the risk that the obligations stemming from their membership might entail liability under the Conventional regime. On its part, the European Union is bound to respect fundamental rights as enshrined in the ECHR and is accountable for possible violations thereof resulting from an act of its institutions or of a decision by the judiciary. Moreover, it follows from the Kadi appeal judgment that the ‘constitutional’ duty to ensure fundamental rights protection equally applies to measures adopted in order to comply with international law obligations, most notably those stemming from the UN Charter.39 But until accession to the ECHR occurs, the EU institutions remain “the only public authorities operating in the Council of Europe member States that are outside the jurisdiction of the European Court of Human Rights.” 40 Thus, although no jurisdiction (i.e. the national courts, the ECJ and the ECtHR) is absolved from applying fundamental human rights, the lack of a comprehensive approach to human rights favours differential standards of protection throughout Europe. Moreover, legal certainty and effectiveness have sometimes proven to be difficult to combine.41 It is suggested that this situation does not necessarily depend on the legal pluralism which characterizes the protection of human rights in Europe, 42 but rather, on the absence of a duly coordinated system of enforcement. As noted by Shany: There is a special urgency to work towards improving the coherence of the international system, inter alia, through the harmonization of the work of international judicial bodies.43 Although elaborated in a much broader context of analysis, this exhortation is certainly valid in the human rights sphere. The following sections are intended to clarify this assumption.
38. Indeed, it should not be forgotten that, concomitantly to the expansion of supranational competences, the Member States were broadening the catalogue of fundamental rights endorsed within their respective constitutional systems (e.g. in 1983 the Dutch Constitution was amended to include, inter alia the prohibition of discrimination, the freedom of expression and demonstration and a general right to privacy; in 1992, the Spanish Constitution was reformed to extend to citizens of the European Union the right
to active and passive suffrage in local elections; in 2001 Greece broadened its constitutional rights with an express reference to the protection of personal data and the access to documents). On the one side, this was certainly a consequence of the developments
which occurred at the supranational level; on the other, the expansion of the domestic bill of rights indirectly imposed a ‘higher’ standard of protection on the part of the EU. This ‘cline-like-progression’ determined a virtual spiral which ultimately relied on the counter-limits doctrine.
39. Joined cases C-402/ and 415/05 P Kadi and Al Barakaat  ECR I-6351. See, inter alia, J.-P. Jacqué, ‘Primauté du droit international versus protection des droits fondamentaux’ (2009) Revue trimestrielle de droit européen 161; A. Gattini, (2009) 46 Common Market Law Review 213; G. Harpaz, ‘Judicial review by the European Court of Justice of UN ‘Smart Sanctions’ against terror in the Kadi dispute’, (2009) 14 European Foreign Affairs Review 65; C. Eckes, ‘Test Case for the Resilience of the EU’s Constitutional Foundations International Sanctions against Individuals: A Test Case for the Resilience of the European Union’s Constitutional Foundations, (2009) 15 European Public Law 351.
40. Parliamentary Assembly of the Council of Europe (PACE), Rec. 1744 (2006), para 4.
41.The Poirrez v. France (Appl. No 40892/98) case provides a good example of how tortuous the road to justice may be in Europe. Here a physically challenged Ivory coast national, had been adopted as an adult by a French citizen. The competent domestic authorities refused to grant him the disability allowance he had applied for on grounds of nationality. His appeal against the decision originated a preliminary reference to the ECJ but the latter was dismissed on account of the fact that the issue at stake fell outside the scope of application of EC law. Having exhausted all the available judicial remedies, Mr. Poirrez turned to the Strasbourg Court which, 13 years after the first legal plea, recognized the discrimination condemning France for a violation of Art. 14 of the ECHR together with Art. 1 of Protocol No 1 and, ruling on an equitable basis, awarded him 20,000 euro for the damages he had suffered.
42. See N. Kirsch, ‘The open architecture of European human rights law’ (2008) 71 Modern Law Review 183.
43. Y. Shany, The competing jurisdictions of international courts and tribunals (Oxford University Press, 2003) at 118.