Future Perspectives: Developing a Coherent System of Fundamental Rights Protection in Europe
The complex legal framework which governs the relations between the national, supranational and international dimensions have been assessed taking into account the status of the ECHR in the domestic legal order, the obligations deriving from EU membership as well as the relevant case law of the ECJ and the Strasbourg Court.
In this regard, judicial interaction certainly reveals the struggle between the need to preserve the autonomous nature of the respective legal orders, but also shows the prioritization of coherence in the protection of human rights. Mutual acknowledgement, though, is not sufficient. The expansion of EU competences, combined with the binding effect of the Charter, is likely to increase the number of human rights cases brought before the EUCJ and, by consequence, the risk of divergences with respect to the jurisprudence of the ECtHR.
The Lisbon Treaty successfully addresses the need to develop a comprehensive approach to fundamental rights protection in Europe, although the process will be complete only when the Union accedes to the ECHR, and this may take some time. The complementary nature of the newly binding Charter and the ECHR, with the Strasbourg Court having the final word on cases strictly concerning “human rights violations” and the EUCJ preserving its role of Constitutional / Supreme Court will ensure that at all levels the individual is allowed the highest possible standard of protection, in asystem where the work of the courts is harmonized and ultimately more consistent, efficient and effective.
The binding nature of the Charter, which in principle provides for a more extensive protection with respect to the ECHR, will guarantee the respect of fundamental rights acquis in the elaboration and implementation of EU law. In this sense, some authors have suggested that the UK and Polish Protocol on the Charter is not capable of impacting significantly on the application of the Charter in these two countries. On the other hand, it
can be said that accession would lessen the risk of contrasting decisions between the two courts (curing the amnesia which on some occasions seems to affect the Court of Justice in referencing the relevant counterpart’s jurisprudence200) and eliminate the shortcomings of the equivalent protection doctrine. Strasbourg could carry out a full and effective judicial review of EU directly applicable acts such as regulations and assess whether the EUCJ stroke the correct balance between human rights and other public and private interests, or failed to decide “within a reasonable time” pursuant to Art. 6 ECHR. The expected (and feared) increase in the workload in Strasbourg undoubtedly is cause for concern but it should not be forgotten that the entry into force of Protocol No 14 of the ECHR will allow for a less cumbersome handling of clearly inadmissible complaints and manifestly well-founded cases.201
However, accession should not generate dangerous misunderstandings. The new multilevel system of protection resulting from the Lisbon Treaty does not affect the relation between the national and international level, neither does it impinge on the primacy of EU law, which now comprises a binding catalogue of fundamental rights. The fact that the Charter has become effective prior to accession is believed to prevent national courts from erroneously viewing Strasbourg as the primary guarantor of fundamental rights. On the contrary, the Union will progressively become the reference point in this domain. On the one side, its impetus in the promotion of the common values enshrined in Arts. 2 and 6 TEU will hopefully be supported by a more pro-active attitude on the part of the Fundamental Rights Agency; on the other, individuals, which are increasingly aware of the administrative and judicial remedies available to them under EU law, will exploit the existence of a Bill of rights applicable to both the EU institutions and national authorities when implementing or otherwise giving effect to, or derogating from, EU law.
In conclusion, the Lisbon Treaty allows the creation of a more complete, coherent and consistent legal framework. How things will evolve in the future is of course open to speculation and a careful monitoring of the progress in this area, jurisprudential and normative, is therefore an unavoidable necessity.
200. See Case C-50/00P UPA  ECR I-6677; Case C-263/02 Jégo Quéré  ECR I-3425 where the ECJ made no reference to the latest and relevant case law on Art. 6 ECHR, Appl. No 27824/95, Posti & Rahko v. Finland, (2002) Reports 2002-VII.
201.See G. Cohen-Jonathan, J.-F. Flauss, La réforme du système de contrôle contentieux de la Convention européenne des droits de l_homme (Bruylant, 2005); S. Greer, ‘Protocol 14 and the Future of th European Court of Human Rights’, (2005) Public Law 83; B. Nascimbene, ‘Le Protocole n. 14 à la Convention Européenne des droits de l’homme à la lumière de ses travaux préparatoires’, (2006) 67 Revue Trimestrielle de droits de l_homme 531.