Suzanne Kingston BL
PILA, 7 February 2013
skingston@lawlibrary.ie
The EU Charter: A “new” source of
EU human rights law for Ireland
 Status
 Charter has “the same legal value” as the Treaties (Art
6.1 TEU, Lisbon amendment) – SO
Interpretative tool for EU/Irish law within scope of EU law
 Including to justify MS actions that might otherwise
contravene EU law (eg Omega)
AND
 Ground of invalidity of all EU actions and all MS actions
within scope of EU law
 Whether MS is interpreting/applying EU law…
 Or even restricting EU rights (eg Carpenter, Ruiz Zambrano)

 A minimum level of protection (Art 53, Charter)
What kind of rights does the
Charter protect?
 Thematic titles
 Dignity (Title I)
 Freedoms (Title II)
 Equality (Title III)
 Solidarity (Title IV)
 Citizens’ rights (Title V)
 Justice (Title VI)
 Rights/freedoms vs principles (Charter Preamble, Art. 6.1 TEU)
 Principles: “may” be implemented by EU/MS when implementing
EU law, “judicially cognisable only in the interpretation of such
acts and in the ruling on their legality” (Art 52.5, Charter)
 Interpreted in line with Title VII (Art 6.1 TEU)
 “Due regard to” explanations (Art 52.7, Charter)
Comparing Charter rights to
Ireland’s other HR obligations
 Charter vs ECHR?
 Some rights identical (eg Art 3 ECHR = Art 4 Charter)
 Some rephrased (eg Art 8.1 ECHR, to Arts 3, 7 and 8 Charter
(integrity of person, respect for private/family, life, data
protection)
 Some rights go further eg



Non-discrimination – Art 21
Right to a fair hearing – Art 47
Data protection – Art 8, Commission v Bavarian Lager
 Special provision for interpreting these rights
 Art 52.3 – same meaning and scope BUT EU right may give “more
extensive protection”
 Viz ECtHR in Bosphorus – EU protection of HR generally equivalent
to ECHR
Comparing Charter rights to
Ireland’s other HR obligations
 Charter vs other EU law rights?
 Fundamental rights as general principles of EU law (eg
Wachauf, Omega, ERT…)

NB: General principles also bind private parties
 Citizenship rights (eg Ruiz Zambrano)
 Greater clarity but doesn’t prevent extension of CJEU
case-law
 Charter rights also provided for in EU Treaties are
subject to conditions and limits set out in Treaties – Art.
52(2), Charter
Comparing Charter rights to
Ireland’s other HR obligations
 Charter vs Irish Constitution?
 Many rights in Constitution have broadly similar right in Charter

eg equality Art 40.1, liberty Art. 40.4.1°, freedom of expression Art.
40.6.1°…)
 Some Charter rights not found in Constitution as such - although
may be implied or part of unenumerated rights

eg right to data protection Art. 8 Charter, right to asylum Art 18 Charter,
Workers’ rights, Title IV Charter
 Greater emphasis in Constitution on family as “fundamental unit
group of Society” Art 41.1°
 Also: Constitutional reference to God Art. 44.1…
 Interpretation of constitutional and Charter rights likely to
converge
 National law can go further than Charter (Art 53, Charter)
→ Does the Charter make any
difference to Irish HR protection?
 For rights already recognised by CJEU
 Adds weight
 Doesn’t prevent recognition of new rights by CJEU as general
principles of EU law in normal way (see Art 6.3 TEU)
 For rights recognised in ECHR
 Charter rights may go further (Art 52.3)
 Adds weight
 Changes legal force in national legal systems – review of
legality of primary national law (in principle)
 For “new” rights
 Expands substantive scope of EU fundamental rights law
Use of the Charter to date: CJEU
 Strong role in reviewing validity of EU acts
 Eg Test-Achats C-236/09 – exemption allowing profemale discrimination in 2004 Insurance Directive
invalid
 eg C-540/03 Family Reunification Directive – pre-Lisbon
 Has provided evidence for categorisation as “general
principles” of EU law
 Far-reaching implications of this viz. Directives
 Eg Kücükdeveci C-555/07; Viking C-438/05
Use of the Charter to date: CJEU
 Has provided support for expanding scope of EU
citizenship law
 Central issue: Is the “genuine enjoyment” of citizenship
rights respected? Ruiz Zambrano, Dereci, McCarthy
 Even where “national laws” caveat applies, CJEU has
used Charter to strengthen pro-rights interpretation
where a Directive applies
 ANGED C-78/11: right to paid annual leave means sick
days while on annual leave can be claimed back
Use of the Charter to date: ECtHR
 “Boomerang” effect
 Persuasive authority
 Has been used to support changes in ECtHR
jurisprudence
 Eg Scoppola (No 2) – Art 7 ECHR extends to
retrospective application of more lenient penalty
 Positive dialectic between Luxembourg and Strasbourg
 To be reinforced by EU’s ECHR accession
Use of the Charter to date: Ireland
 Overview
 Numerous referrals to CJEU – many, though not all,
from Superior Courts
 Expedited procedure has been requested successfully
(Arts 105, 107, Rules of Procedure CJEU)
 Widespread use in other (non-referred) cases to bolster
interpretation of ECHR, constitutional rights
Use of the Charter to date: Ireland
 Many asylum cases
 Joined UK and Irish cases in NS (C-411/10)
 MM v Minister for Justice (C-277/11, November 22, 2012)


Referred by Hogan J
Irish asylum system criticised – applications for asylum and subsidiary
protection split; application for SP only submitted after Minister
indicates intention to deport


Breach of FHR to be heard before SP application
Hogan J, January 23, 2013 – Minister must come to own view in SP
application and respect right to be heard (esp credibility)
 D v RAT (November 10, 2011, Hogan J)



Use of Art 14 Charter, along with Art 42 of Constitution and Protocol 1,
Art 2 ECHR to emphasise importance of right to education
Denial of education amounts to persecution under s2 Refugee Act 1996
Decision to deport Roma child to Serbia quashed
Use of the Charter to date: Ireland
 Multiple other contexts also
 Family law
 McB (C-400/10, 5 October 2010)


Reference from Supreme Court under urgent FSJ procedure
 2 months from CJEU receipt to judgment
Brussels II bis Regulation, interpreted in light of Art 7 Charter,
doesn’t preclude Irish requirement for agreement or court order in
order for unmarried father to have custody rights
 MN v RN (Finlay Geoghegan J, HC, December 2008)
 Art. 24 Charter used to interpret Brussels II bis such that 6 year old
child has opportunity to be heard in application for return to place
of habitual residence
 Principle subsequently affirmed by SC
Use of the Charter to date: Ireland
 Companies’ rights
 McDonogh v Ryanair (C-12/11, January )



Referred by Dublin Metropolitan District Court
Ryanair relies on Arts 16, 17 Charter (freedom to conduct a
business, right of property) – disproportionate interference?
CJEU rejects argument: need to strike “fair balance” between
competing rights (Art 38 – EU policies to ensure a high level
of consumer protection)
 Digital Rights Ireland (McKechnie J HC; Reference
made June 2012 – pending C-293/12)

Compatibility of 2006 Data Protection Directive with i.a. Art
8, Charter
The Charter’s potential for
Ireland…
 Greater scope of rights
 Workers’ rights?

Limited by references to “national laws and practices” (eg Arts 27, 34, 35,
36 – workers’ rights, social security, health care, access to SGEI)
 Legal aid?





Art.47.3, Charter (“legal aid shall be made available to those who lack
sufficient resources in so far as such aid is necessary to ensure effective
access to justice”) – C-279/09 DEB (if EU rights are affected)
Greater force to rights
Greater weight to rights
Visibility and clarity of rights
Encourages greater Irish opt-in in FSJ field?
 Worries about divergent common/civil law criminal law traditions
may recede
…and its limitations
 Only applies where MS acting within the scope of EU law
 Charter “addressed to institutions, bodies, offices and agencies of the
Union with due regard for the principle of subsidiarity and to the
Member States only when they are implementing Union law” (Art
51.1, Charter)
 Eg Hogan J, DF v Garda Commissioner (January 14, 2013) – jury trial
for false imprisonment

Even taken the broadest possible view of the meaning of the phrase "implementing"
Union law, it is well nigh impossible to see how the Charter could come into play in
relation to events which are wholly internal to this State and in respect of which
Union law plays no role or part.
 Eg where deportation of family member wouldn’t necessitate
deportation of EU citizen (Cooke J, Smith v Minister for Justice,
March 5, 2012)
 Impact of UK-Ireland Protocol on area of FSJ?
 Is measure-by-measure participation within the “scope of” EU law?
…and its limitations
 Doesn’t (Art 51.2 Charter, Art 6.1 TEU) extend the
field of application of Union law beyond the powers of
the Union, establish any new power or task for the
Union, or modify powers and tasks as defined in the
Treaties
 Certain rights qualified by reference to “national law
and practices”
 Eg Workers’ rights, same-sex marriage debate – Art 9
Future key issues and points to
watch
 Don’t be afraid to ask for preliminary reference
 Potential of expedited procedure
 Can be referred from any court or tribunal
 Where does the scope of EU law end?
 Carpenter, Zambrano, Irish government argument in NS
(sovereignty clause in Dublin II Regulation)

Charter clearly applies in situations where MS exercising their
discretion within scope of EU law
 Which situations are wholly internal to a MS?
 Kremzow; Iida C-40/11 on citizenship; pending tax sanctions case
Fransson C-617/10
 NB agreements outside of EU Treaties – Pringle, November
2012
Future key issues and points to
watch
 Interaction between national and Charter rights?
 Art 53 Charter – Melloni (C-399/11, pending) on EAW
 Practical implications of EU ECHR accession?
 EU as potential party to ECHR cases…with own judge
 Will need to get ECJ ruling before challenging EU act
(exhaustion of domestic remedies

If no preliminary reference made by national court:
mechanism to ensure ECJ makes ruling before ECtHR
 If EU and MS implicated: multiple/co-respondent
 ECtHR oversight likely to be as a background presence
more than concrete cases – delays from ECtHR workload
skingston@lawlibrary.ie