Common European Asylum System in a Changing World

Charter, but only those that fall within the scope of EU law. As the president of the CJEU K. Lenaerts said: Metaphorically speaking, the Charter is the “shadow” of EU law. 9 Relation between EU law and ECHR As mentioned above, the primary EU law contains some interpretative provisions concerning relationship of EU law and ECHR. The most important is Article 6 of the TEU (cited above). Article 6(3) TEU confirms that fundamental rights recognized by the ECHR constitute general principles of EU law. The text of the EU Charter contains two specific interpretative provisions regarding the interaction between the EUCharter and the ECHR which aim to ensure the consistency between the EU Charter and ECHR: Article 52(3) of the EU Charter states, that: “ in so far as [the] Charter contains rights which correspond to rights guaranteed by the Convention […], the meaning and scope of those rights shall be the same as those laid down by the said Convention”. Such interpretation shall not prevent a higher level of protection in the EU and ensure consistency of both human right systems without “ adversely affecting the autonomy of [EU] law and … that of the [CJEU]”. As said in the explanations to Article 53 which deals with the level of protection: “This provision is intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law” . Besides these articles - the explanations relating to the EU Charter explicitly list those corresponding fundamental rights. To mention just some of them related to asylum issues: the prohibition against inhuman or degrading treatment, the right to liberty in the context of extradition procedures, the right to freedom of conscience and religion, the right to respect for private and family life. All these provisions aim to avoid divergences in the interpretation of human rights by the ECHR, CJEU, and national courts including those related to asylum law. Apart from these provisions, the Lisbon treaty incorporated the EU obligation to accede to the ECHR (Article 6(2) TEU) with the same aim – to create the necessary consistence between CJEU and ECHR jurisdiction. Following the opinion 2/13 of the CJEU 10 which declared the draft agreement on European Union accession to the ECHR incompatible with the Treaty on European Union, the CJEU tried to clarify the scope of application of the EU Charter in relation to ECHR in its case law. On the other side it is necessary to mention the ECHR decisions that aim to address the relationship between the obligation of the EU Member States to comply with EU law and their obligations as parties to the ERCHR. The two most important decisions for the present relationship between Community law and the ECHR are the cases of Matthews and Bosphorus . 11 9 K. Lenaerts and J.A. Gutiérrez–Fons, ‘The Place of the Charter in the EU Constitutional Edifice’ in S Peers and others (eds), The EU Charter of Fundamental Rights: A Commentary, Oxford, Hart Publishing, 2014 10 Case C-2/13, Opinion 2/13 of the Court, 18 December 2014 11 According to the ECtHR’s decision in Matthews , Member States are responsible if EC primary law (in that case the EC Act on Direct Elections of 1976) violates the Convention, in Bosphorus the ECHR tried to

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