Bosphorus as a Broken Sword of Damocles : on the need to institutionalise the EU-ECHR relationship

The overlap in competences between the European Court of Human Rights and the EU has been regulated by the European Court of Human Rights since its 2006 Bosphorus ruling. With the "presumption of equivalent protection", the goal was to ensure that sufficiently high standards of fundamental rights would be upheld in the EU while safeguarding the autonomy of the EU legal order. This article critically evaluates this doctrine and its consequences for European human rights law. It finds that this approach can neither prevent fragmentation, nor is it sufficient to ensure that the EU upholds sufficiently high standards, in particular with the current rule of law crisis. It concludes that the institutionalisation of the relationship between the two legal orders by way of accession of the EU to the ECHR is preferable and should not be postponed any longer.