Judicial comity overstretched: the Bosphorus presumption as an attempt to channel the opposing tides of European fundamental rights protection

Abstract

Far from channelling opposing tides, the Bosphorus presumption of equivalent protection is an example of judicial comity overstretched: with a distorting effect on fundamental rights protection. This thesis will contextualise Bosphorus against a background of concerns about the ‘fragmentation’ of international law: querying, but ultimately refuting, the idea that judicial comity can be framed as a legal concept in international law. By employing a comparative analysis with the Solange doctrine of the German Federal Constitutional Court, this thesis will rebut the assumption underlying Bosphorus. Where a substantive and procedural comparison between German law and EU law is justified as a comparison between two polities with similar political structures, the same procedural comparison of equivalence cannot be made between the EU and Council of Europe. The latter lacks constitutional traits. The insufficiently robust scrutiny of potential rights violations and lack of clarity surrounding the dynamic between EU law and the ECHR will lead to the conclusion that Bosphorus should be abandoned upon accession of the EU to the ECHR. This conclusion is reinforced by the importance of the EU, a self-referential legal system like any other Council of Europe state, being subject to an external control mechanism upon accession; without any presumptive benefit. The ECtHR can, however, continue to show comity: by deploying the margin of appreciation, with a particular mind to the nature of EU acts as the product of the negotiations of 27 member States.