CYIL 2015

HUMAN RIGHTS BETWEEN STRASBOURG AND LUXEMBOURG … both approaches into one, thus strengthening the protection of human rights on all levels of European regional regulation. However, only one of the solutions proposed was implemented in the end. The Charter of Fundamental Rights of the European Union was raised to the level of primary EU law (Article 6 paragraph 1 TEU), which – owing to the supremacy principle as developed by the ECJ/CJEU case law – stands above the national legal systems of all EU Member States, next to their own individual human rights catalogues. The Charter of Fundamental Rights of the European Union is the youngest and most modern of those catalogues, aimed at protecting natural persons and legal entities from mistreatment by European bodies. The matter of the EU acceding to the Convention is now, as it seems, unilaterally settled by the CJEU for some years to follow. This happened in spite of the fact that the added value of the accession should have been the creation of a homogenous environment of human rights protection not only within the European Union but rather throughout the entire Europe. It is true that the European Union has never been a typical candidate for becoming a party to the Convention. Its nature and powers should have been taken into account when designing the mechanism of its accession to the Convention, while at the same time adhering to the principle of equality of all other parties (non-EU members of the Council of Europe) and equal accession conditions. By acceding to the Convention, the EU was supposed to demonstrate its growing more “humane” and end the time when it had been possible to avoid international control in the field of human rights by referring to the special position of the EU. The same standard of enforceability and quality of human rights was supposed to have been valid not only in all of the 28 EU countries and each of the 47 countries of the Council of Europe, but also in the European Union itself. One of the chief objectives was to solve the issue of individual governments, agencies and even persons being subject to binding texts of human rights conventions applied at the same time, in spite Accession of the EU to the Convention was also to prevent divergent decisions in the case law of the two European courts, such as we can see today in the matter of prohibition of discrimination. 3 The views of the ECtHR and CJEU are not quite compatible when it comes to protection from discrimination, e.g. the interpretation of Art. 14 ECHR. In Koua Poirrez v. France, 4 the ECtHR ruled that Art. 14 of the Convention combined with Art. 1 of Protocol no. 1 was violated by refusing a social security allowance to a physically handicapped man due to his nationality. 3 Literature frequently cites protection of home (Article 8 ECHR) as an example of incompatible views of the two courts, because CJEU does not extend the protection to business premises ( Hoechst AG v. Commission, C-46/87 a 227/88), while ECtHR does ( Niemitz v. Germany , application no. 13710/88). 4 Koua Poirrez v. France, ECtHR decision dated 30. 9. 2003, application no. 40892/98, regarding discrimination based upon nationality. of their standards, structure and terminology being partially different. Examples of diverging case law of both the European courts

211