Fundamental Rights in the European Union
Language of the course: English
No. of Hours: 30
Hours per week: 3
ECTS: 5
Principal Lecturer: Siniša Rodin
Lecturers: Tamara Ćapeta, Iris Goldner Lang, Tamara Perišin
Table of Contents
Fundamental Rights in the European Union
1
I. Course description
2
II. Teaching units and learning objectives
2
III. General and specific learning outcomes
1. General learning outcomes
Application of law and problem solving
Sources and research
Analysis, synthesis, critical judgment and evaluation
Independence and ability to learn
Communication and literacy
Other general learning outcomes
2. Specific learning outcomes
Knowledge of law and legal skills
Analytical and generic skills
4
4
4
4
5
5
5
5
5
5
7
IV. Course delivery
7
V. Examination
8
VI. Reading
General Reading
Class materials
8
8
8
VII. Quality Assessment
10
2
I. Course description
The main objective of the course is to develop advanced understanding of
methodology and practice of protection of fundamental rights in the European
union. Within this general objective students will learn about the theoretical
foundation of fundamenal rights, their normative ordering and how are they
incorporated into the law of the EU. The course will present evolution of judicial
protection of fundamental rights before the European Court of Justice, how are
they crystallized in its case law and codified by the Founding Treaties and
secondary legislation. The course will explore tension between fundamental
rights and market freedoms and how it is resolved by the judiciary, particularly
through development and application of judicial doctrines of proportionality and
margin of appreciation. While the course is focused on the law of the EU, it will
also address issue of relationship between the European Court of Justice, the
European Court of Human Rights and national courts of EU Member States. The
course is organized in 10 three-hour units.
II. Teaching units and learning objectives
Unit 1 – Life, Liberty, Property …
Learning objectives: to get acquainted with liberal doctrine of fundamental
rights and how it is integrated into the basic constitutional texts such as the US
Constitution (the Bill of Rights) and Declaration of Independence, the European
Convention on Human Rights and Fundamental Freedoms, the EU Charter of
Rights, and constitutions of European States, notably Germany. To acquire basic
knowledge about different systems of judicial review and how the courts protect
fundamental rights in the United States and Europe. To acquire ability to
distinguish different models of judicial review and critically discuss their
theoretical and practical differences.
Unit 2 – Legal Frameworks of Protection
Learning objectives: To understand the three distinctive legal frameworks of
protection of fundamental rights in Europe – national, supranational and
international. To get acquainted with legal mechanisms of legal protection, on
national level, before European Court of Human Rights and before the European
Court of Justice. To develop ability to place a factual situation within one or more
of the three frameworks, depending on facts of the case and applicability of a
legal framework.
Unit 3 – Human Rights Framework of the EU
Learning objectives: To understand how protection of fundamental rights
developed in the legal system of the EU and how the substantive criteria were
incorporated. To understand the legal basis for protection of fundamental rights
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in the EU and to be able to discuss why the EU should or should not accede to the
European Convention for protection of Human Rights and fundamental
freedoms.
Unit 4 – Protection of Fundamental Rights as a principle of EU law
Learning objectives: To understand in which situations fundamental rights can
be invoked being aware of their recognition as fundamental principles of EU law.
To understand the scope of application of EU law in protection of fundamental
rights and to be able to determine limits of national regulatory autonomy in
areas falling within and outside scope of EU law.
Unit 5 – Judicial Quest for Supremacy and Constitutional Pluralism
Learning objectives: To get acquainted with differences in understanding of
supremacy of EU law that exist between the ECJ and national courts. To
understand national arguments that challenge supremacy of EU law and
counterarguments that contend the opposite. To familiarize with the major
national judicial decisions that challenge supremacy of EU law, particularly the
doctrine of the German Bundesverfassungsgericht. To get acquainted with
emerging theories of constitutional pluralism that conceptualize the quest for
and balance of power in the EU.
Unit 6 – Margin of Appreciation and Proportionality
Learning objectives: To understand concepts of margin of appreciation and
proportionality as applied in judicial reasoning of the European Court of Human
Rights. To understand how margin of appreciation is defined in different
situations and how public interest is interpreted by the EctHRts and under what
circumstances restrictions of fundamental rights can be justified. To understand
concept of being "necessary in democratic society" and to develop ability to
apply proportionality analysis in new hypothetical and actual situations and to
be able to develop argumentation in cases involving such analysis.
Unit 7 – Balancing Human Rights and Fundamental Freedoms
Learning objectives: To understand relationship between market freedoms and
fundamental rights in the EU and how are they balanced by the ECJ. To acquire
ability to critically assess the balance between market freedoms and
fundamental rights in the legal order of the EU. To understand different sources
of fundamental rights and how to interpret and apply them in the legal order of
the EU. To understand how national measures restricting market freedoms can
be justified. To be able to perform basic proportionality analysis, based on the
facts of a case.
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Unit 8 – Horizontal Effect of Fundamental Rights
Learning objectives: To understand why, how and under what circumstances
fundamental rights may have horizontal direct effect and/or horizontal indirect
effect. To get acquainted with the German doctrine of Drittwirkung. Do develop
skill to identify situations in which national judges have a legal duty to give effect
to fundamental rights guarantees under EU law and law of the ECHR. To be able
to determine scope of EU law within which fundamental rights operate.
Unit 9 – The ECJ and the ECtHrts – Who Protects Better?
Learning objectives: To identify differences in approach to protection of
fundamental rights before the ECJ and EctHRts, particularly in areas of
protection of privacy and non-discrimination. To understand different
approaches to indirect discrimination and theoretical underpinning of those
differences. To develop skill to argue different approaches related to nondiscrimination. To understand concepts of privacy, direct discrimination and
indirect discrimination and to be able to apply them in hypothetical and practical
situations.
Unit 10 – Solange Progeny and overview of the course
Learning objectives: To understand different situations of subsidiary judicial
protection and how the ECJ and EctHRts understand their own and each other's
position within the broader European and global framework. To understand how
the ECJ applies international law standards and how it understands the role of
EU law within the global arena, particularly related to international restrictive
measures. To receive the general overview of the course and to develop systemic
and cross-issue understanding of protection of fundamental rights in the EU.
III. General and specific learning outcomes
1. General learning outcomes
Application of law and problem solving
Students will have demonstrated basic skills in application of knowledge at
situations of limited complexity in order to reach reasoned solutions to real or
hypothetical problems.
(examination: discussion in class, short student paper, end-term exam, oral
exam)
Sources and research
Student will have demonstrated basic ability to identify legal issues, to find and
retrieve legal sources in paper and electronic format, to use relevant primary
and secondary legal sources.
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(examination: discussion in class, short student paper, end-term exam, oral
exam)
Analysis, synthesis, critical judgment and evaluation
Student will have ability to identify sources and problems and to rank the
materials as to their relevance and importance, to gather information from a
variety of sources, to demonstrate synthesis of relevant doctrinal problems, to
critically evaluate arguments, to choose among several possibilities and to
explain the choice.
(examination: discussion in class, oral exam)
Independence and ability to learn
Student will have demonstrated basic capacity to implement student research
supervised by a professor, regardless whether the area of research was
previously discussed in class or not, to reflect upon process of learning and to be
able to ask for and use advice of his or her supervisor.
(examination: short student paper and its presentation)
Communication and literacy
Student will have been able to use professional language and to present
information in a way that is comprehensible to others, to read and discuss legal
materials written in technical and complex language, and to write a student
essay and be able to present it in appropriate way.
(examination: discussion in class and/or at oral exam. Short student paper and
its presentation)
Other general learning outcomes
Student will have ability to use internet, including e-mail, to work in a group and
to contribute to achievement of group goals.
(examination: discussion in class and/or at oral exam. Short student paper and
its presentation)
2. Specific learning outcomes
Knowledge of law and legal skills
After having completed the course students will have developed:
(1)
basic knowledge about liberal doctrine of fundamental rights;
(2)
ability to identify how fundamental rights are integrated in constitutional
instruments of liberal democratic states;
(3)
basic understanding of major legal instruments for protection of
fundamental rights in Europe and the United States;
(4)
understanding of
review;
differences between different systems of judicial
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(5)
ability to distinguish and understand national, supranational and
international levels of protection of fundamental rights;
(6)
ability to apply complex facts to actual or hypothetical situations within
one of the three legal frameworks;
(7)
understanding of evolution of fundamental rights in the EU;
(8)
understanding of the doctrine of incorporation and ability to apply it in
actual or hypothetical situations;
(9)
skill of applying fundamental rights guarantees in practical situations
within framework of EU law;
(10)
ability to determine the scope of application of EU law and limits of
national regulatory autonomy;
(11)
ability to develop arguments challenging supremacy of EU law in general
and in area of protection of fundamental rights and counterarguments
claiming supremacy of national constitutional systems of protection;
(12)
understanding of the basic elements of German doctrine of fundamental
rights that determine relationship of German law with EU law in area of
fundamental rights, such as the untouchable core, the eternity clause and
the ultra vires doctrine;
(13)
ability to identify and apply doctrines of margin of appreciation and
proportionality and understanding of the differences in their application
within the legal framework of EU law and law of the EHRC;
(14)
ability to to determine situations in which such doctrines are applied
from a perspective of national judge, and ability to determine their proper
application, depending on applicable legal framework;
(15)
capacity to develop reasoning leading to resolution of conflicts in
application of these doctrines in context of overlapping EU law and law of
the EHRC;
(16)
ability to identify and apply, as a judicial test, concepts of subsidiary and
proportionality;
(17)
skill of balancing fundamental rights and market freedoms within the
legal framework of EU law;
(18)
capacity to distinguish concepts of horizontal direct effect and horizontal
indirect effect, including the German doctrine of Drittwirkung;
(19)
ability to apply human rights guarantees within scope of EU law and
ability to determine the scope of EU law within which fundamental rights
operate;
(20)
understanding of different concepts of how indirect discrimination is
applied to factual situations and ability to distinguish direct from indirect
discrimination in complex actual or hypothetical cases;
(21)
understanding why and when ECJ and EctHRts defer their jurisdiction and
/ or reasoning to each other and to other national and international
courts or tribunals;
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(22)
understanding of how ECJ applies international law standards of
protection of fundamental rights, and understanding how international
restrictive measures are implemented and applied within the framework
of EU law.
Analytical and generic skills
(1)
To be familiar with the basic terminology of fundamental rights law and
to know how to use it in oral and written form in appropriate and
articulate way;
(2)
To have ability to link complex factual situations with legal norms and
concepts of EU law in area of fundamental rights and ability to articulate
linked factual and legal elements into legal issues. To have ability to
suggest alternative solutions to legal problems;
(3)
To have ability to connect complex facts involving protection of
fundamental rights with concrete legal problems and ability to use such
examples in new actual or hypothetical situations;
(4)
To have ability to express, in form of a commentary of a particular legal
issue, or in form of an answer to a legal question, and to explain it in clear
and concise way, orally or in written, being aware of alternative
approaches to their solving;
(5)
To have ability to argue legal and factual issues, taking into account
broader legal, economic and social context, being aware of alternative and
different opinions and understandings;
(6)
To have ability to solve legal issues from perspective of different actors
and by playing different roles, such as the role of an European
Commission representative, a Member State representative, an Advocate
General, etc.;
(7)
To have advanced skills of searching relevant electronic information
systems, particularly the EUR-LEX. To know how to develop a search
strategy, and to be able to find a required document, even without a full
reference;
(8)
To have ability to analyze a legal source of EU law and to identify its
relevant parts and interpret them in legal, economic and social context.
IV. Course delivery
The course will be delivered in Winter or Summer semester, depending on
student interest. Each of its ten units will comprise three teaching hours, totaling
30 hrs. Lectures will be interactive and students will have to prepare for each
class.
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V. Examination
Final grade comprises the following elements: end term written exam, class
attendance and discussion, short student paper and oral exam.
VI. Reading
General Reading

Philip Alston (ed.) THE EU AND HUMAN RIGHTS, Oxford University Press,
1999

John Fairhurst, LAW OF THE EUROPEAN UNION, Longman 2006

Mark Janis, Richard Kay and Anthony Bradley, EUROPEAN HUMAN RIGHTS
LAW (3rd edition) Oxford University Press, 2008

Armin Von Bogdandy and Jurgen Bast, PRINCIPLES OF EUROPEAN
CONSTITUTIONAL LAW, Hart Publishing 2006

John Locke – THE 2ND TREATISE ON CIVIL GOVENMENT

Stephen Weatherill, CASES AND MATERIALS ON EU LAW, 7th edition Oxford
University Press, 2006

Treaty on European Union OJ C 115/13

Treaty on Functioning of the European Union, OJ C 115/47

Charter of Fundamental Rights of the EU OJ C 364/01
Class materials
Students have to prepare for each class by reading the assigned class materials.
Unit 1
John Locke – The 2nd Treatise on Civil Govenment
German Constitution - Fundamental Rights
US Constitution - Bill of Rights
EU Charter of Rights
Select Articles of the European Convention for Protection of Human
Rights and Fundamental Freedoms
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Unit 2
Relevant provisions of German Constitution
constitutional Complaint (Verfassungsbeschwerde)
applicable
to
Relevant provisions of the European Convention
Case C-159/90 SPUC v. Grogan
Unit 3
Case 29/69 Stauder v. Ulm Sozialamt
Case 4/73 Nold
Case 5/88 Hubert Wachauf
Opinion of the ECJ 2/94 and relevant provisions of the TFEU
Unit 4
Opinion of AG Sharpston in Case C-427/06 Birgit Bartsch
Case C-144/04 Mangold v. Helm
Case C-267/06 Maruko
Case C-555/07 Kücükdeveci
Unit 5
Case 11/70 Internationale Handelsgesellschaft
Case C-118/08 Transportes Urbanos
Selected pages of decisions of the German Federal Constitutional
Court in cases:
Case Solange I (BVerfGE 37, 271)
Case Solange II (BVerfGE 73, 339)
Case Maastricht (BVerfGE 89, 155)
Case Lisbon (BVerfG, 2 BvE 2/08 vom 30.6.2009)
Unit 6
Unit 7
Cases of the EctHRts
-
Handyside (pornography) Application No. 5493/72
-
Oberschlick (libel, public word) Application No. 11662/85
-
The Observer and Guardian v. The United Kingdom
(Spycatcher, national security) Application No. 13585/88
-
Sunday Times (integrity of judicial proceedings) Application
No. 6538/74
Case 44/79 Liselotte Hauer
Case C-112/00 Schmidberger
Case C-36/02 Omega
Case C-368/95 Familiapress
Opinion of AG Maduro in C-434/04 Leppik
Unit 8
Case Lüth of the German Federal Constitutional Court
Case C-341/05 Laval i Partneri
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Opinion of AG Maduro in C-438/05 Viking (Rosella)
Case C-555/07 Kücükdeveci
Unit 9
Privacy
Joined cases 46/87 and 227/88 Hoechst v. Commission
Case Niemietz ECHR Application No. 13710/88
Case C-94/00 Roquette
Indirect discrimination
Case C-167/97 Seymour-Smith and Perez
Case D.H. v. Czech Republic ECHR Application no. 57325/00
Council Directive 2000/43/EC of 29 June 2000 implementing the
principle of equal treatment between persons irrespective of racial
or ethnic origin
Unit 10
Case C-84/95 Bosphorus
Case Bosphorus ECHR Application No. 45036/98
Council Regulation 1993/990
Joined cases C-402/05 P and C-415/05 P C-Kadi and Al Barakaat
including the opinion of AG Maduro
VII. Quality Assessment
Quality of the course will be assessed by self-evaluation, student evaluation and
institutional evaluation.