THE BOSPHORUS AND OTHER PRINCIPLES – A EUROPEAN BRIDGE TOWARDS PROTECTION OF THE FUNDAMENTAL RIGHTS IN THE CJEU AND IN THE ECTHR?

Abstract

When in 2005 the ECtHR ruled on the case of Bosphorus Airways Tourism and Commerce
Anonymous v. Ireland1, no one even assumed that the Bosphorus will become a major guiding
principle in the process of protection of the fundamental rights in the ECtHR and in the CJEU.
Just a decade later, the Grand Chamber of the ECtHR, in its decision on the case Avotiņš
v. Latvia2
, gave for the first time a detailed assessment for the Bosphorus principle as a rule for
regulating the relations between the EU law and the ECHR, i.e. between the Luxemburg and the
Strasbourg Courts, in the presence of a negative Opinion 2/133 adopted by the CJEU, which
rejected the draft ECHR accession treaty.
This decision also contains the ECtHR's first views on the EU law and the principle of mutual
trust, a principle which has been particularly respected by the CJEU in recent years.
Many believed that the ECtHR will modify the Bosphorus principle following the negative
opinion of the CJEU. Although this did not happen, analysts warn that the main victims of this
opinion will be the citizens whose rights will be violated by the EU acts. The responsibility for
this situation will not fall on the Court in Luxembourg, but on the Court in Strasbourg, which
will have to do everything it can when protect the rights of the citizens from the negative effects
of this opinion.
In the ECtHR decision concerning the case of Avotiņš v. Latvia, we can clearly see that the
Bosphorus principle is not dead. It is still alive and very dynamic. In the opinion of the
Strasbourg Court, any action taken by a State must comply with the legal obligations of the State,
and it will be deemed justified only if it seeks to protect the fundamental rights, such as the
guarantees offered, as well as with regard to the mechanisms for controlling their protection, in a
way that can be considered equivalent to that of the Convention.