HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

2.4 Coordination between the ECHR and other International Instruments for the Protection of Fundamental Rights In contrast to the original Draft Agreement, the Draft revised Agreement regulates the issue of coordination between the ECHR and other international instruments for the protection of fundamental rights, as well as the exemption of the EU and its Member States from joint responsibility for violations of the ECHR by the EU and its Member States. According to Art. 1 (9) of the Draft revised Agreement, “ Art. 53 of the ECHR cannot be interpreted as preventing the High Contracting Parties from jointly applying a legally binding common level of protection of human rights and fundamental freedoms, provided that it does not fall short of the level of protection guaranteed by the ECHR (and its protocols), as interpreted by ECtHR ”. 52 At the same time it stipulates that the reservations made by the Contracting States on the basis of the Art. 57 of the ECHR remain in force against any High Contracting Party which is a co-respondent to the proceedings. 53 It follows that an EU Member State which has made a reservation under Art. 57 of the ECHR cannot be held responsible for a violation of the Convention by the EU to the extent of this reservation in the proceedings before the ECtHR, in which it has the status of co respondent. 54 Following this revision of the original Draft Agreement, which should also resolve any complications that might arise after the accession of the EU to the ECHR with regard to the Bosphorus 55 case 56 I believe, that the 5 th requirement of the CJEU has been met. Some scholars, however, see this as a potential threat in the situation, where the EU would also have made reservations (as allowed by the Draft revised Agreement), which would then prevent the Co-respondent Mechanism from being applied in some cases and the sole respondent for a violation of the ECHR would be the Member State. 57 The problem would then arise if the alleged violation were to stemmed from a respondent State’s compliance with EU law, because in that situation the ECtHR would be faced with a proceeding similar to that prior to the EU’s accession to the 52 Art. 1, para. 9 of the RA. In the context of the EU, this applies to the Charter and some measures taken in the framework of enhanced cooperation under Art. 20 TEU and Art. 326-334 TFEU. 53 Ibid, Art. 2, para. 3. 54 Draft explanatory report to the RA, point 44. 55 Bosphorus Hava Yolları Turizm in Ticaret Anonim Şirketi v. Ireland , ECLI:CE:ECHR:2005:- 0630JUD004503698. 56 After the Accession of the EU to the ECHR, the privilege stemming up from the Bosphorus case for the Member States of the EU, might no longer be justified. See for instance LOCK, T. Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights . Human Rights Law Review, Vol. 10, no. 3, pp. 545, cited: [2024-02-10]. Available at: https://doi.org/10.1093/hrlr/ngq022. 57 See for instance FRANKLIN, D-L. & TZEVELEKOS, V.P. The 2023 Draft Agreement on the EU Accession to the ECHR: Possible “Gaps” and “Cracks” in the Co-respondent Mechanism and the Implications for the Bosphorus Doctrine, pp. 764–765.

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