Leiden University. The university to discover. The impact of EU fundamental freedoms on diverging fundamental rights standards; a need for (European) regulation?

Leiden University. The university to discover.

The impact of EU fundamental freedoms on diverging fundamental rights standards;

a need for (European) regulation?

the Irish abortion tourism as a case study

Nelleke Koffeman LL.M 2010 Dubrovnik seminar



Structure

Interactions between FR and FF

The Irish abortion tourism case study

Possible future free movement challenges to abortion laws

The interests of the relevant actors involved

Formulation of possible parameters for the research question


Research question

(At what level) should situations in which diverging fundamental rights standards and fundamental freedoms interact, be regulated?


Interaction one

Fundamental freedoms

Fundamental rights

…


New forms of ‘tourism’

Abortion

Euthanasia

Procreative techniques

Import of prohibited books


Interaction two

Fundamental freedoms

Fundamental rights

…


Fundamental rights as deterring

Same sex marriage …


Three actors

StateIndividual Union


Relation FR and FF

Classical case-law: FR as possible derogations to FF

More and more of equal ranking (e.g. Schmidberger)

FF as FR?

Will things change under Lisbon?


Case study: Irish abortion tourism

Jan 1980 - Dec 2008: at least 137,618 Irish women to the UK

Also to and from other Member States


ECJ – Grogan (1991)

Medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of the Treaty

Links between Irish student unions and UK abortion providers ‘too tenuous’

What was behind this?

How to interpret this?


ECJ in Grogan

Why was the ECJ reluctant?

Tridimas (2006)

‘Member States may have felt that national policies reflecting basic philosophical and moral choices were unjustifiably being questioned in the name of economic freedoms.’


Concrete consequences of abortion tourism

Rights to information and right to travel in Irish Constitution

Protocols to Maastricht and Lisbon Treaty


Protocol 35 to the Lisbon Treaty

‘Nothing in the Treaties, or in the Treaty establishing the European Atomic Energy Community, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.’

Legal status?Art 51 TEU


Possible future claims?

Restriction on freedom to provide services or freedom of establishment?

Not very likely, because (in the Irish case) Protocol 35 definition of ‘service’ in Grogan íf restriction, justification?

Suitable and necessary? Consistent and systematic?



Konstantinides claim? AG Jacobs:

A Community citizen who exercises his freedom of movement is entitled to a certain standard of protection of his fundamental rights set by Community law, even if the host State does not guarantee that standard to its own nationals.

Not accepted by the Court

Abortion as Union right?


ECtHR on abortion

No right to abortion recognised

Wide margin of appreciation

Prohibition on abortion information is violation Art 10 ECHR (Open Door, 1992)

If State allows for abortion, then also effective (Tysiac, 2007)


ECtHR on abortion

Currently pendingA,B & C v. Ireland



Compare Maduro in Centro Europa 7 Srl (2007)

Only serious and persistent violations of systemic nature qualify as violations of free movement.

As long as protection not gravely inadequate, ECJ only jurisdiction if within scope of EU law

Abortion tourism as one time movement – deterrent?


StateIndividual

Union


The individual

Protection dependent upon residence

In the abortion tourism case Emotional burden Financial burden Practical burden Medical risks



The State

‘sending’ state National identity National

sovereignty

‘receiving’ state overburdening

‘[..] profound moral values deeply embedded in the fabric of Irish society and arrived at through a wholly democratic process involving in all three referenda.’


The Union

Objectives:

Optimal functioning of the internal market

Respecting national identities (Art 4(2) TFEU)


Effects of the internal market

Case law encourages black/white choices in sensitive issues

States can ‘hide behind’ other States’ regimes

States can ‘export’ their regimes

Individuals have more options


Research question

(At what level) should situations in which diverging fundamental rights standards and fundamental freedoms interact, be regulated?


Possible parameters

The (relative) seriousness of the interests of the individual

The relative burden for individuals

The alternatives available

The overburdening of certain Member States

Documents

Leiden University. The university to discover. The impact of EU fundamental freedoms on diverging fundamental rights standards; a need for (European) regulation?