Domniemanie równoważnej ochrony, a margines działania państwa na tle wyroku europejskiego trybunału praw człowieka w sprawie O'Sullivan McCarthy Mussel Development Ltd przeciwko Irlandii

Abstrakt

The case of O’Sullivan McCarthy Mussel Development Ltd v. Ireland is one of the increasing number of cases which indicate the complexity of cooperation between states under the auspices of international organizations, at least one of which is transnational. Such situations raise questions of how to assess the relationship between the legal systems of relevant organizations, that is between the European Convention for the Protection of Human rights and Fundamental Freedoms of 1950 (Convention) and various legal sources created within the European Union (EU). In the case-law concerning the Convention, it has been found that the basic rating test in such cases is the presumption of equivalent protection. However, as decided in the case under discussion, this presumption may berevoked when the state has a choice as to the measures to be taken in order to fulfill the obligations arising from EU membership.