Lecture 22.11.2011
Fundamental Rights
Fundamental Rights
- Fundamental Rights not mentioned in the original Treaty
- Possible rebellion by German courts in the 1960s
- 1969 – Stauder v City of Ulm: fundamental human rights are recognised as a general principle of EU law.
- 1970 Internationale Handelsgesellschaft (and SOLANGE I)
- Exports required export license
- Deposit could be forfeit
- Proportionality principle invoked
o Appropriate
o Necessary (least burdensome)
- Internationale Handelsgesellschaft 1970:
- Respect for fundamental rights forms an integral part of the general principles of law protected by the Court
of Justice
- Goes further that Stauder case:
o Internationale Handelsgesellschaft states that the concept of human rights applied by the court,
while deriving its validity solely from European Union law, is nevertheless ‘inspired’ by national
constitutional traditions
A further step was taken in Nold v Commission
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Nold v Commission 1974:
Fundamental rights form an integral part of the general principles of law
Goes beyond the Handelsgesellschaft case in two respects: (1) a European Union measure in conflict with
fundamental rights will be annulled; (2) a new source of ‘inspiration’ for these rights – international treaties
ECJ: rights are merely ‘inspired’ by the philosophical concepts underlying the national provisions
There is no rule of law that a particular right will be accepted as fundamental by the European Court just
because it is protected in the constitutions of some of the Member States, or even a majority of them
SPUC v Grogan, case C-159/90, [1991] ECR I-4685
Controversial right
Accepted that abortion clinics perform a service for the purpose of EU law
Sources of inspiration for an EU concept of fundamental rights:
o National legislation
o International treaties:
 European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR)
 European Social Charter
 Convention 111 of the International Labour Organization
Political support: 1977
Joint declaration by the Parliament, Council and Commission
The importance they attached to fundamental rights
1989 the European Parliament adopted its own Declaration of Fundamental Rights and Freedoms.
Article 6(2) TEU
General references to fundamental rights in the Preambles to the Single European Act and the Treaty on
European Union
European Convention on Human Rights
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1979, the Commission proposed that the European Union should formally adhere to the ECHR
This proposal was renewed in 1990
Council: is it legally possible for the European Union to become a party to the ECHR?
Treaty of Lisbon finally gives the green light:
As amended, article 6(2) TU now provides for the European Union to accede to the ECHR
Article 6(3) TEU
So, in future two: general principles of law and the ECHR as a binding instrument
Lecture 25.11.2011
Foundations for Fundamental Rights
- General principles of law
- ECHR
- Charter of Fundamental Rights
- Adhesion of the EU to the ECHR might solve conflict between EU law and ECHR
Will this sort of conflict be resolved?
- Matthews v United Kingdom 1999
- UK infringed Convention by not permitting residents of Gibraltar to vote in elections to EP
- Elections governed by an ‘Act’ (former 138 EC)
- Member States ratified ‘Act’ as Treaty
Bosperhos... v Ireland
- Had Ireland violated human rights of a Turkish company by impounding an aircraft which it had leased from
a Yugoslav (Serbian) airline?
- Irish government required by regulation
- Bosporus criteria and the doctrine of equivalent protection
- Double standards?
What happens if EU becomes part to ECHR?
- Probably impossible for Member State to incur liability under ECHR if it carries out obligations under EU law
- EU can itself incur liability
- Individuals will be able to bring proceedings directly before the Human Rights Court in Strasbourg
Charter of Fundamental Rights
- Proclaimed on 7 December 2000, had no force originally, but this was changed by Article 6(1) TEU
- Charter now has the same values as the EU Treaties- Will there be a conflict between the Charter and the ECHR?
Article 52(3) of the Charter
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.
Do human rights bind MS?
- So far applied against the EU
- Member States will be indirectly bound when human rights concept is used to interpret provisions
- Derogations must not violate human rights
- When implementing EU rules, i.e. By passing legislation
Kücükdeveci
- Argument was discrimination on the grounds of age
- 2 questions:
o Compatibility of a national provision with EU law
o Possibility of disapplying national provisions
- Basis for the examination should be general EU principle of non-discrimination
- Directive merely gives ‘specific expression’ to that principle
- Directives cannot be relied on directly
- Obligation to disapply a national provision exists independent of the possibility to refer.
Draft Accession Agreement of 14 October 2011
- Finally natural and legal persons will have protection against EU acts
- Protocol 8: EU accession shall not affect the competences of the Union of the powers its institutions, and the
specific characteristics of the EU and EU law must be preserved.
Legal Issues of Draft Agreement
- Institutional issues – one judge per contracting party
- Potential review of EU primary law!
- Bosporus test?
- Exhaustion of domestic remedies?
Next steps for accession
- Adoption by Committee of Ministers
- 47 ECHR states have to sign agreement
- Council of EU has to agree to adopt with consent of Parliament
- Council decision needs approval by each EU MS
- Approval by 47 existing contracting parties
OH DEAR!
- The ECJ may be asked as to whether the envisaged accession agreement is compatible with EU treaties!
- Workload crisis of ECJ and ECtHR.