In was manifestly deficient.18 What the ECtHR

In the example of Bosphorus, then, the two courts came to
different conclusions, even though they agreed on the facts of the
case and both relied on well-established human rights principles in
formulating their decisions. The opposing results were therefore due
to differing interpretations of the issues at stake. While the ECJ
prioritised the importance of maintaining a sanctions regime that
was designed to impede a brutal civil war, the ECtHR focused on the
disproportionate effects that the sanctions regime had inflicted on an
innocent third party (the applicant company).

To overcome this impasse, the ECtHR chose to invoke the
doctrine of equivalent protection (which is now widely referred to as
the ‘Bosphorus presumption’) in order to recognise that the state had
acted in accordance with a legitimate general interest in its
implementation of EU law. However, the presumption does not
completely absolve EU Member States of their ECHR responsibilities,
as it is dependent on the provision of adequate protection and is
rebuttable in cases of ‘manifest deficiency’.17 Thus,

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If such equivalent protection is considered to be provided
by the organisation, the presumption will be that a State
has not departed from the requirements of the Convention
when it does no more than implement legal obligations
flowing from its membership of the organisation. However,
any such presumption can be rebutted if, in the

Jen Neller with Sonia Morano-Foadi

17 See Matthews (n 14).


Birkbeck Law Review Volume 4(1)

circumstances of a particular case, it is considered that the
protection of Convention rights was manifestly deficient.18

What the ECtHR created, then, was a potential justification
for EU Member States whose actions might otherwise have been
found to have breached the ECHR. This was controversial due to the
‘two-tier’ human rights system that this was deemed to create, where
the ECtHR would apply different standards to EU and non-EU
Member States. This issue was assuaged by the prospect that the
presumption could be rebutted, but this perpetuated the risk that EU
Member States could face contradictory obligations, which would
cause the credibility of both the CJEU and the ECtHR as human
rights authorities to be compromised.19

Article 6(2) of the Treaty of Lisbon sought to resolve this issue
by stating that the EU shall accede to the ECHR, as this would
‘complete’ the coverage of ECHR protection and thereby release
Member States from the possibility of conflicting obligations. Here,
however, a further challenge arises through the concern that all
parties to the ECHR should be treated equally. This would most
likely require the presumption of equivalent protection – even as
modified by Bosphorus – to be revoked in order to allow for
meaningful judicial review by the ECtHR.20 Almost seven years later,
though, the question of how to accede while meeting the
requirements of both the EU and the CoE institutions remains an
unsolved riddle.