human rights in eu law- summer school cagliari

• Article 6 TEU indicates three sources for EE Human
rights law.
• 1) EU Charter of Fundamental Rights, Which was
proclaimed in Nice in 2000 and was incorporated in the
treaties in 2009 (entry into force of the Lisbon treaty)
• 2) The ECHR (1950), which is now not legally binding
the EU, but it will when the EU will decide to adhere to it
• 3) the general principles of EU law: a body of legal
principles, including human rights, which have been
articulated and developed by the ECJ over the years
• These sources of law overlap, since the Nice charter has
been written taking inspiration from the European
convention of human rights and from the general
principles of EU law.
No Human rights provisions in the
EEC treaty
• 1) Originally the EEC was focused on the
creation of a common market, rather than on the
protection of human rights (no human rights
catalogue in the treaties).
• 2) In 1950s and 1960s, the Court of justice
resisted to the attempts of litigants to invoke
rights and principles recognized by domestic law
(e.g. legitimate expectations, proportionality,
natural justice)
Costa c. Enel and Stauder
• The debate on the Human rights
protection in the EU started with the Costa
v ENEL decision (case 6/64 Costa v ENEL
1964), that affirmed the supremacy of EU
• In 1969, the first case in which ECJ
recognized a fundamental right
Stauder 3 slides
• In the Stauder case, the source of a
fundamental right (human dignity) is found
in the general principles of EU law, built up
by the common constitutional traditions.
• Mister Stauder was a war mutilated who had been
included in a group of people to which the European
Commission recognized some benefits. In order to do
some purchasing, the members of this group of people
had to show a personal tag. In Germany, the tag
provided to these persons indicated the particulars (full
name). Stauder went to a German Court, affirming that
the German administrative measure had violated his
right to human dignity, which is protected by art. 1 GG.
The Court declared that fundamental rights of the person
are part of the general principles of EU law, and their
respect must be assured by the Court.
• In this case, though, the ECJ concluded that there had
not been any violation of the right to human dignity.
STAUDER – general principles of
eu law as a source of human rights
• General principles of European Union law
may be inferred both by the Eu laws and
regulations and by the national
constitutional common traditions of the
members states.
• In this case, the general principles we talk
about are deduced from the constitutional
common traditions.
National constitutional court
decisions on eu and human rights
• 1) Frontini (Italian Constitutional Court,
• 2) Solange I (German Constitutional
• These decisions evoke the possibility of a
constitutional control on the EU acts by the
national constitutional courts, in order to
preserve the national constitutional
fundamental rights and principles
(against frontini and solange I)
• The European Court of justice affirmed that “the
question of the eventual violation of human
rights by a European community act must be
estimated within the framework of EU law.
• The introduction of evaluation criteria, inferred
by the national constitutions, might threaten the
unity of the common market and the
cohesiveness of the community”.
• 1) German Constitutional tribunal decision
Solange II: since the ECJ has assumed a
commitment to guarantee the fundamental
rights, the German Constitutional tribunal
renounces to judge the legitimacy of EU acts.
• 2) Maastricht Urteil e Lisbona Urteil: the German
constitutional Court reaffirms the positions of the
Solange I
• the German constitutional Tribunal affirms
its competence to judge on violations of
the national constitutional rights only if the
EU provides a lower protection of human
rights in general terms.
• (ordinance 7 giugno 2000, EuZW 2000)
Second phase: the European
Charter of Fundamental rights(2 s.)
• From Nice (2000) to Lisbon (2008): the
Charter was proclaimed in Nice as a
political document, that could be used as
an interpretative tool be the ECJ in order
to reconstruct the European fundamental
• With the Lisbon treaty, the Charter
acquires the same legal value of the EU
treaties (art. 6, par. 1 TEU)
Third phase: the Lisbon treaty and
the new art. 6 TEU
• “1. The Union recognizes the rights, freedoms and
principles set out in the Charter of Fundamental Rights
of the European Union of 7 December 2000, as adapted
at Strasbourg, on 12 December 2007, which shall have
the same legal value as the Treaties.
• The provision of the Charter shall not extend in any way
the competences of the Union as defined in the treaties.
• The rights, freedoms and principles in the Charter shall
be interpreted in accordance with the general provisions
in Title VII of the Charter governing its interpretation and
application and with due regard to the explanations
referred to in the Charter, that set out the sources of
those provisions.
ARTICLE 6 OF TUE (2 slides)
• 2. The Union shall accede to the European
Convention for the protection of Human Rights
and Fundamental freedoms. Such accession
shall non affect the Union’s competences ad
defined in the treaties.
• 3. Fundamental rights, ad guaranteed by the
European Convention for the protection of
Human rights and fundamental freedoms and as
they result from the constitutional traditions
common to the Member states, shall constitute
general principles of the Union’s law
EU and ECHR (art. 6 par. 2)
• Art. 6 par. 2 of TEU has authorized The
accession by the EU to the ECHR, that
would mean that complaints against EU
acts can be brought before the Stasbourg
• .
Three reasons for this accession
• 1) the EU is accused not to have a genuine
commitment to promoting human rights
• 2) The ECJ is accused of using Human rights
discourse in order to extend the EU influence
beyond the competences provided by the
• 3) The ECJ is accused to use human rights as a
tool in order to promote the commercial goals of
the internal market
• 4) the ECJ was not born, and in fact is not, a
Human rights court
The constitutional traditions of the
States after Lisbon
• Art. 6 TEU still provides the common
constitutional traditions as an instrument of the
protection of human rights in EU.
• The common constitutional traditions may in fact
provide for a higher protection than the one of
the charter, that provides only for a minimum
standard protection
• Furthermore, fundamental rights inferred by
common constitutional traditions may be invoked
also against UK and Polonia, since protocol n.
30 of the Lisbon treaty limits the enforcement of
the Charter towards these countries.
Art. 1 of the protocol
• “The charter does not extend the ability of
the Court of Justice of the European
Union, as any Court or tribunal of Poland
or of the United Kingdom, to find that the
laws, regulations or administrative
provisions, practices or action of Poland or
of the United Kingdom are inconsistent
with the fundamental rights, freedoms and
principles that it reaffirms”
Compatibility clause
• Relations between the Nice Charter and
the ECHR (Luxembourg and Strasbourg)
• We are enlightened by art. 52, par. 3 e 53
of the Charter, that provide the
compatibility clause and the
correspondence clause
• 1) compatibility clause: art. 52 par. 3 is
intended to ensure harmony between the
ECHR and the Nice Charter, promoting
deference of the ECJ towards the case
law of ECtHR
Compatibility clause
• Art. 52. par. 3 affirms that “in so far as this
charter contains rights which correspond
to rights guaranteed by the Convention for
the protection of Human rights and
Fundamental freedoms, the meaning and
scope of those rights shall be the same as
those laid down by the said Convention.
This provision shall not prevent Union law
providing more extensive protection”.
Correspondence clause
• 2) correspondence clause: art. 53 provides
for a general “non-regression” clause. The
Nice Charter is conceived as a “minimum
standard” human rights protection tool,
that cannot lower the protection provided
by National Constitutions, EU law,
European Convention of Human Rights
and other international treaties.
Art. 53 Nice Charter
• Art. 53: “Nothing in this Charter shall be
interpreted as restricting or adversely
affecting human rights and fundamental
freedoms are recognized, in their
respective fields of applications, by Union
law and international agreements to which
the Union, the Community or all the
Member States are party , including the
European Convention for the protection of
Human rights and Fundamental freedoms,
and by the member States’ constitutions.
Scope and applicability of the
Charter (art. 51.1 Nice Charter)
• The function of the Charter:
• A) interpretative tool to enlighten the meaning of other
sources of law in EU law.
• B) Parameter of legitimacy of the EU Acts.
• C) parameter of legitimacy of some State Acts, in case
the national Act has been adopted in order to put into
effect a treaty rule or a EU act.
• E.g. implementation of a EU directive
• Individuals, legal persons and states may invoke the
infringement of a fundamental right, protected by the
charter, by a state only in the third hypothesis
Scope and applicability of the
Charter (art. 51 Nice Charter)
• It is necessary for the National Act to be linked
to EU law. The national Act must have
• 1) a EU treaty rule;
• 2) or a EU Act (e.g. a directive)
• 3) or the national Act must be in the scope of the
• U.S. Supreme Court theory of incorporation
• If there is no connection between the EU law
and the National Act, the ECJ cannot affirm its
competence on national acts.
Subsidiarity (art. 51.2 Nice Charter)
• The Charter does note create any new
power or task for the EU non modify any
existing task.
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