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Protection of Fundamental Rights in the EU

Article 6 TEU

1. The Union recognises 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 provisions 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.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Such accession shall not affect the Union's competences as defined in the Treaties.

3. Fundamental rights, as 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.

Art. 2 TEU values/ art. 49 EU membership

Art. 7 TUE sanction mechanism for serious and persistent breaches of HR

Art. 19 TFEU anti-discrimination measures

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Fundamental rights protected as general principles of EU law è ground-breaking judgments

26/62 van Gend en Loos / individuals as subject of the new legal order of international law, direct effect

6/64 Costa v ENEL/ primacy of EU law

29/69 Stauder v City of Ulm/ human dignity, privacy/ subsidized butter scheme for welfare recipients

Decision of the Commission „contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court”

11/70 Internationale Handelsgesellschaft (1970)/ validity of EU measures can only be judged in the light of EU law, Costa v ENEL and Stauder confirmed

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CJEU

11/70 Internationale Handelsgesellschaft v Einfuhr und Vorratstelle für Getreide und Futtermittel / 1970

3 Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law. In fact, the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called in question. Therefore, the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure. 4 However, an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community. It must therefore be ascertained, in the light of the doubts expressed by the Verwaltungsgericht, whether the system of deposits has infringed rights of a fundamental nature, respect for which must be ensured in the Community legal system.

ð The case returned to German administrative court èthe court was

of the opinion that the principle of proportionality had been violated by the EU deposit system è referred to German Federal Constitutional Court

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BVerfGE 37, 271 2 BvL 52/71 Solange I-Beschluß 29 May 1974

proceedings i.a. for consideration of constitutionality of the obligation to export, established in Article 12 (1) (iii) of EEC Council Regulation 120/67, of 13 June 1967 lined with the lodging of a deposit and its forfeiture if the export has not been processed during the period of validity

As long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Basic Law, a reference by a court of the Federal Republic of Germany to the Federal Constitutional Court in judicial review proceedings, following the obtaining of a ruling of the European Court under Article 177 of the Treaty, is admissible and necessary if the German court regards the rule of Community law which is relevant to its decision as inapplicable in the interpretation given by the European Court, because and in so far as it conflicts with one of the fundamental rights of the Basic Law.

DECISION:

No fundamental right of the Basic Law does poses an obstacle to the application by the authorities and courts of the Federal Republic of Germany of Article 12 (1) (iii) of EEC Council Regulation 120/67, of 13 June 1967, and Article 9 of EEC Commission Regulation 473/67, of 21 August 1967, in the interpretation given them by the European Court of Justice.

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Sources of fundamental rights/ general principles of EU law

4/73 Nold v Commission

- CJEU is bound to draw inspiration from constitutional traditions common to the MSs, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States

- international treaties for the protection of human rights to which the MSs have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law

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ECHR as a special source of inspiration

CJEU asserts the autonomy and supremacy of EU law

- not bound by ECHR but special significance è art. 6 para 3 TEU

- retained the freedom to go beyond the ECHR

- art. 52 para 3 Charter FR:

Insofar 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.

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CJEU goes beyond the ECHR

155/79 AM & S Europe v Commission

Legal professional privilege of correspondence/ confidentiality of the documents exchanged between lawyer-client

C-550/07 P Akzo Nobel Chemicals Ltd v Commission (2010) - the requirement of independence/ the role of lawyers in

administration of justice/

- 155/79 AM confirmed/ no predominant trend may be discerned in the legal systems of the Member States

C-465/07 Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie Refugee law /directive 2004/83/EC/ person eligible for protection/ real risk of suffering serious harm – independent interpretation of Article 15(c) – serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict – proof)

C-28/08 P Commission v Bavarian Lager Access to documents/ EU institutions are to refuse access to a document where disclosure would risk undermining the protection of the private life of the individual/ personal data protection CJEU sets aside the judgment of the CFI in so far as it annuls the Commission’s decision rejecting an application for access to the full minutes of the meeting, including all the names

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CJEU only occasionally draws on other international instruments

C-149/77 Defrenne v Sabena (No.3) Elimination of sex discrimination is a fundamental EU right è to support this conclusion è Moreover, the same concepts are recognized by the European Social Charter of 18 November 1961 and by Convention No 111 of the International Labour Organization of 25 June 1958 concerning discrimination in respect of employment and occupation. (pkt 28)

C-249/96 Lisa Jacqueline Grant v South-West Trains Ltd (1998)

46. Furthermore, in the communication referred to by Ms Grant, the Human Rights Committee, which is not a judicial institution and whose findings have no binding force in law, confined itself, as it stated itself without giving specific reasons, to noting (…) that in its view the reference to sex in Articles 2, paragraph 1, and 26 is to be taken as including sexual orientation. 47. Such an observation, which does not in any event appear to reflect the interpretation so far generally accepted of the concept of discrimination based on sex which appears in various international instruments concerning the protection of fundamental rights, cannot in any case constitute a basis for the Court to extend the scope of Article 119 of the Treaty. That being so, the scope of that article, as of any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context. It follows from the considerations set out above that Community law as it stands at present does not cover discrimination based on sexual orientation, such as that in issue in the main proceedings. CJEU`s emphasis on the EU`s constitutional autonomy and its relative disconnection from the wider international human rights system is criticized

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CJEU draws only occasionally on national constitutional traditions/ ECHR much safer ground

44/79 Hauer v Land Rheinland-Pfalz 20 Therefore, in order to be able to answer that question, it is

necessary to consider also the indications provided by the constitutional rules and practices of the nine Member States. One of the first points to emerge in this regard is that those rules and practices permit the legislature to control the use of private property in accordance with the general interest. Thus some constitutions refer to the obligations arising out of the ownership of property (German Grundgesetz, Article 14 (2), first sentence), to its social function (Italian constitution, Article 42 (2)), to the subordination of its use to the requirements of the common good (German Grundgesetz, Article 14 (2), second sentence, and the Irish constitution, Article 43.2.2°), or of social justice (Irish constitution, Article 43.2.1°). In all the Member States, numerous legislative measures have given concrete expression to that social function of the right to property. Thus in all Member States there is legislation on agriculture and forestry, the water supply, the protection of the environment and town and country planning, which imposes restrictions, sometimes appreciable, on the use of real property.

CJEU relied as well on the ECHR è the right to property is not

absolute

ð restrictions imposed by the regulation correspond to objectives of general interest pursued by the Community and that they do not constitute a disproportionate and intolerable interference with the property rights of the owner

ð The prohibition of the new planting of vines laid down for a limited period of time by regulation no 1162/76 was justified by the objectives of general interest pursued by the Community, namely the reduction of production surpluses and the restructuring of the European wine industry. It did not therefore infringe the substance of the right to property.

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C-36/02 Omega Spielhallen v Oberbürgermeisterin der Bundesstadt Bonn (2004) protection of fundamental values laid down in the national constitution – ‘Playing at killing’ CJEU held: - respect for human dignity is a general principle of law/ the

objective of protecting human dignity is thus compatible with Community law

- since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to provide services

- restrictions on the freedom to provide services may be justified on public policy grounds only if they are necessary for the protection of the interests which they are intended to guarantee and only in so far as those objectives cannot be attained by less restrictive measures

37 It is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected. (…)

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Challenges to EU legislation – Kadi Saga

On Council regulations imposing restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban

Kadi 2005 T-306/01 Yusuf and Al Barakaat International Foundation v Council and Case T-315/01 Kadi v Council and Commission

CJEU has no jurisdiction to review the validity of the regulation implementing the UN SC sanctions (except in respect of jus cogens)/ given the obligations of the MSs under Article 103 the UN Charter/ the UN Charter prevails over Community law

Kadi 2008 Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission

Set aside the above judgments/ the CJEU has jurisdiction/ primacy of international treaty does not extend to EU primary law

the regulation freezing Mr Kadi and Al Barakaat’s funds, infringes fundamental rights/ regulation annulled in respect to them, but in force for additional three months

Kadi 2010 T-85/09 Yassin Abdullah Kadi v Commission

The regulation was adopted in breach of Mr Kadi’s rights of defence and constitutes an unjustified restriction of his right to property (information and evidence disclosed by the UN Sanctions Committee has not been sufficient)

Kadi 2013 C-584/10 P, C-593/10 P and C-595/10 P Commission, Council, United Kingdom v Yassin Abdullah Kadi

Upheld the CFI decision but pointed some errors

Individual must be able to obtain the summary of reasons provided by the UN Sanctions Committee/ the EU authority is obliged to seek assistance of the Committee/careful and impartial examination to establish that the reasons relied on against the person concerned are well founded/ the Courts have to base their decisions solely on the material disclosed/if the material is insufficient – disregard that reason/overriding considerations of the EU o MSs security or the conduct of their international relations may preclude disclosure of some information or evidence to the person concerned

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For follow up see e.g. ECtHR judgment of 2016 in Al-Dulimi v. Switzerland

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Challenges to EU administrative action

EU staff regulations cases

Civil Service Tribunal/ Commission proceedings involving suspension of or withholding of pay are not judicial/ art. 6 ECHR do not apply/ but rights of defence apply/ CHFR applies

130/75 Prais v Council

13 When the competition is on the basis of tests, the principle of equality necessitates that the tests shall be on the same conditions for all candidates, and in the case of written tests the practical difficulties of comparison require that the written tests for all candidates should be the same. (…) 16 If a candidate informs the appointing authority that religious reasons make certain dates impossible for him the appointing authority should take this into account in fixing the date for written tests, and endeavour to avoid such dates. 17 On the other hand if the candidate does not inform the appointing authority in good time of his difficulties, the appointing authority would be justified in refusing to afford an alternative date, particularly if there are other candidates who have been convoked for the test.

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C-404/92 P, X v. Commission

23 However, the right to respect for private life requires that a person' s refusal be respected in its entirety. Since the appellant expressly refused to undergo an Aids screening test, that right precluded the administration from carrying out any test liable to point to, or establish, the existence of that illness, in respect of which he had refused disclosure. However, it is apparent from the findings made by the Court of First Instance that the lymphocyte count in question had provided the medical officer with sufficient information to conclude that the candidate might be carrying the Aids virus. 24 In those circumstances, the contested judgment must be annulled to the extent to which it held that, in view of the abnormalities found in the anamnesis and clinical examination, the medical officer was entitled to request that a T4/T8 lymphocyte count be carried out and therefore dismissed the applicant' s claim that the Commission decision of 6 June 1989 be annulled, without its being necessary to consider the other pleas in law advanced by the applicant.

CJEU annulled the Commission decision informing the appellant that he did not satisfy the conditions as to physical fitness for recruitment

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C-274/99 P Connolly v Commission

Mr Connolly, a high-ranking Community official published a book entitled The Rotten Heart of Europe The Dirty War for Europe's Money while he was on leave, not asking for the permission required under staff regulations

CJEU è Community officials clearly enjoy right to freedom of expression, which, is circumscribed, subject to judicial review, by observance of the duties and responsibilities implicit in their work

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Competition proceedings

Joined Cases 46/87 & 227/88 Hoechst AG v. Commission (1989)

Corporate privacy protection was considered a fundamental principle of Community law/ art. 8 ECHR does not apply to business premises

CJEU è there was a general principle of Community law that any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and provide protection against arbitrary or disproportionate intervention

CJEU criticized by not taking into account Chappell v. The United Kingdom 10461/83/ ECtHR judgement of 30 March 1989 C-94/00 Roquette Frères SA and Directeur général de la concurrence, de la consommation et de la répression des fraudes v Commission 29. For the purposes of determining the scope of that principle in relation to the protection of business premises, regard must be had to the case-law of the European Court of Human Rights subsequent to the judgment in Hoechst. According to that case-law, first, the protection of the home provided for in Article 8 of the ECHR may in certain circumstances be extended to cover such premises (see, in particular, the judgment of 16 April 2002 in Colas Est and Others v. France, not yet published in the Reports of Judgments and Decisions, § 41) and, second, the right of interference established by Article 8(2) of the ECHR might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case (Niemietz v. Germany, cited above, § 31).

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Summary

- In the period 1970s – 2009 (adoption of the ChFR) the two main sources of inspiration – MSs constitutional traditions, ECHR

- No “maximum universal standard” based on the highest level of protection nor “lowest common denominator” è case-by-case approach to identify the scope and content of particular rights

- EU is not bound by the ECHR, but respects the rights/ more and more references to the ECtHR case-law

- Rights-based review of EU legislation è anti-terrorism measures/ and administrative action (staff disputes, competition law)

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CJEU review of MSs action a/ MSs applying EU act which is based itself on human rights

36/75 Roland Rutili v Minister of the Interior/ free movement of workers/ limitations

Taken as a whole, the limitations on the right of Member-States to restrict the freedom of entry, residence and movement within their territory of Community nationals which are found in Articles 2 and 3 of Directive 64/221 and Article 8 of Regulation 1612/68 are a specific manifestation of the more general principle, contained in Articles 8, 9, 10 and 11 of the European Convention on Human Rights and Article 2 of its Protocol 4, which provide in identical terms that no restrictions in the interests of national security or public safety shall be placed on those rights other than such as are necessary for the protection of those interests ‘in a democratic society’. [32]

Any person enjoying the protection of the procedural provisions of Directive 64/221 must be entitled to the double safeguard of (a) notification to him of the grounds on which a measure restrictive of his free movement has been adopted and (b) the availability of a right of appeal. Consequently, the authorities, when notifying an individual of a restrictive measure taken against him, must give him a precise and comprehensive statement of the grounds for the measure, so as to enable him to take effective steps to prepare his defence. [37] & [39]

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222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary/equal treatment for men and women - armed member of a police reserve force

The principle of effective judicial control laid down in Article 6 of Council Directive 76/207, a principle which underlies the constitutional traditions common to the Member States and which is laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and fundamental freedoms, does not allow a certificate issued by a national authority stating that the conditions for derogating from the principle of equal treatment for men and women for the purposes of protecting public safety are satisfied to be treated as conclusive evidence so as to exclude the exercise of any power of review by the courts. The provision contained in Article 6 to the effect that all persons who consider themselves wronged by discrimination between men and women must have an effective judicial remedy may be relied upon by individuals as against a Member State which has not ensured that it is fully implemented in its internal legal order.

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b/ MSs as agents of the EU

MSs when implementing or enforcing EU measures are bound by the same general principles of the EU law which bind institutions in their action.

5/88 Wachauf [1989]/ milk quota scheme which confused ownership of land and entitlement to subsidies for milk production/ whether he was entitled to compensation under the German version of the 1984 scheme (…) Community rules which, upon the expiry of the lease, had the effect of depriving the lessee, without compensation, of the fruits of his labour and of his investments in the tenanted holding would be incompatible with the requirements of the protection of fundamental rights in the Community legal order. Those requirements are also binding on the Member States when they implement Community rules. In the context of the transmission, on expiry of the lease of a tenanted holding, of reference quantities attached to the holding and exempt from the additional levy on milk, Regulation No 857/84 leaves the competent national authorities a sufficiently wide margin of appreciation to enable them to ensure that that regulation is applied in a manner consistent with the requirements of the protection of fundamental rights, either by giving the lessee the opportunity of keeping all or part of the reference quantity if he intends to continue milk production, or by compensating him if he undertakes to abandon such production definitively.

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c/ MSs derogating from EU rules or restricting EU rights ð extension of the CJEU jurisdiction

1/ Treaty-based derogations C-260/89 ERT [1991] è when a state is derogating from a Community obligation, it must respect human rights standards: 42. As the Court has held (see the judgment in Joined Cases C-60 and C-61/84 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605, para. 25, and the judgment in Case C-12/86 Demirel v Stadt Schwaebisch Gmund [1987] ECR 3719, para. 28), it has no power to examine the compatibility with the European Convention on Human Rights of national rules which do not fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the European Convention on Human Rights. 43. In particular, where a Member State relies on the combined provisions of Articles 56 and 66 in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 56 and 66 only if they are compatible with the fundamental rights the observance of which is ensured by the Court. 44. It follows that in such a case it is for the national court, and if necessary, the Court of Justice to appraise the application of those provisions having regard to all the rules of Community law, including freedom of expression, as embodied in Article 10 of the European Convention on Human Rights, as a general principle of law the observance of which is ensured by the Court.

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2/ Restrictions on free movement rights – public interest justification

C-368/95 Familiapress è German newspapers in Austria/ publications offering readers the chance to take part in games for prizes prohibited in Austria/ free movement of goods

C-370/05 Festersen è German citizen acquired agricultural property in Denmark/ free movement of capital/ restrictions on the acquisition of agricultural property – requirement that the acquirer take up fixed residence/ if not obliged to sell it in 6 months/ whether the residence requirement constitutes a measure which does not go beyond what is necessary to attain such an objective

“In such an assessment account must be taken of the fact that that requirement restricts not only the free movement of capital but also the right of the acquirer to choose his place of residence freely, a right which he is, however, guaranteed by Article 2(1) of Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). (...) Given that the residence requirement thus adversely affects a fundamental right guaranteed by the ECHR, it therefore turns out to be particularly restrictive. The question thus arises whether other measures less restrictive than that requirement could have been adopted.”

Protection of human rights constitutes a legitimate interest which will justify the restriction on free movement rights

C-112/00 Schmidberger v Austria/ closure of trade routes/ Brenner corridor/ between Austria and Italy to allow demonstration/ environmental protection/ conflict between free movement rights and fundamental rights /freedom of expression

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Controversial è „act in the scope of Union law”/ purely internal

situations

12/86 Demirel è MSs are not obliged to comply with the general principles of the EU law in situations which fall outside the scope of EU law

8 (…) although it is the duty of the Court to ensure observance of fundamental rights in the field of Community law, it has no power to examine the compatibility with the European Convention on Human Rights of national legislation lying outside the scope of Community law. In this case, however, as is apparent from the answer to the first question, there is at present no provision of Community law defining the conditions in which Member States must permit the family reunification of Turkish workers lawfully settled in the Community. It follows that the national rules at issue in the main proceedings did not have to implement a provision of Community law. In those circumstances, the Court does not have jurisdiction to determine whether national rules such as those at issue are compatible with the principles enshrined in Article 8 of the European Convention on Human Rights.

C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others / freedom to provide services - prohibition on the distribution of information on clinics carrying out voluntary terminations of pregnancy in other MSs/ students were not exercising an EU freedom,

C-299/95 Kremzov v. Austria [1997]

C-60/00 Mary Carpenter [2002]

C-328/04 Attila Vajnai [2005]

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Two different concepts

C-168/91 Konstantinidis v. Stadt Altersteig, et al/ whether official mistranslation of his name had violated his worker freedom (he had moved from Greece to Germany to work) and his fundamental right of personal identity AG Jacobs advanced an extraordinarily broad view of the CJEU’s role in reviewing MS measures for conformity with fundamental rights è

every EU worker who moves to another Member State for employment is entitled to the full protection of EU fundamental rights—conceived of as a “common code of fundamental values” applying within the EU

C-380/05 Europa 7 [2008] AG Maduro Opinion (para. 22)

Referring to Article 7 of the TEU which allows the Council and the Parliament to suspend certain rights within the EU system of any Member State found responsible for a “serious and persistent” breach of the Article 6(1) principles. AG Maduro argued that the CJEU should subject Member State measures to fundamental rights review only when they involve a serious and persistent breach of fundamental rights:

“Only serious and persistent violations which highlight a problem of systemic nature in the protection of fundamental rights in the Member State at issue, would, in my view, qualify as violations of the rules on free movement, by virtue of the direct threat they would pose to the transnational dimension of European citizenship and to the integrity of the EU legal order.”

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Article 51 (1) Charter FR „The provisions of this Charter are addressed to the 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.”

Explanations to the CHFR „As regards the Member States, it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, Case C-260/89 ERT [1991] ECR I-2925; judgment of 18 December 1997, Case C-309/96 Annibaldi [1997] ECR I-7493). The Court of Justice confirmed this case-law in the following terms: ‘In addition, it should be remembered that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules ...’ (judgment of 13 April 2000, Case C-292/97 [2000] ECR I-2737, paragraph 37 of the grounds). Of course this rule, as enshrined in this Charter, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law.”

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The Charter of Fundamental Rights of the European Union

• In the light of what you already know about the EU approach to fundamental rights, was it necessary to introduce Article 6 TEU?

• Do you think that the Charter of Fundamental Rights (CHFR) as an additional bill of rights is necessary?

• Would you as individual try to seek remedy in the EU or the ECtHR

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The origins of the CHFR

• Why the Charter? Why FUNDAMENTAL rights? • Drafting by a Convention: 1/3 MS representatives, 1/3 EP, 1/3

members of national parliaments, 2 members of the Commission

“The Charter which we are drafting must one day in the not-too-distant future become legally binding .... We should therefore proceed as if we had to submit a legally binding list”

(Roman Herzog, President of the Convention with responsibility for drafting the Charter, December 1999)

• Rights and principles • Content: Dignity, Freedoms, Equality, Solidarity, Citizens’

Rights, Justice • Restatement of existing rights (ECHR and EU Law), adaptation

of some rights according to social evolution; (family, marriage, data protection); new rights; first and second generation rights; principles

PREAMBLE:

“... the rights as they result, in particular, from the constitutional obligations and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case law of the Court of Justice of the European Communities and the European Court of Human rights”

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The characteristic features of the CHFR • Article 1 main concept: Human dignity, an evolutive concept • incorporates the rights guaranteed by the ECHR and sometimes

extend their field of application (ex: ne bis in idem) • responds to and takes in account the evolution of the society

(family, marriage, data protection) • distinguishes between rights and principles (albeit not clearly)

The content of the CHFR

• New rights: ex. good administration, bioethics • For the first time, civil and political rights and social rights are

listed in one single text • Main difficult question: invocability of social rights before a

court • Distinction between rights [respected]/freedoms and

principles [observed (environment, health, consumers)]

A violation of a right can be directly submitted to a court

For a principle, it has first to be implemented by concrete measures

Freedom from interference

The content è see Official Journal (2012/C 326/02)

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How does the CHFR work?

• What does it mean to implement the Charter? • The Charter vis-à-vis other HRs instruments/

ECHR/national constitutions • When will the CHFR apply substantively? The scope of the

application • Does the CHFR apply in the same way to ALL the Member

States of the European Union? è Polish – British Protocol

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Implementation of the CHFR by the EU

• Ensure the respect of the ChFR in all EU policies (impact studies)

• Mainstreaming: human dignity and immigration, treatment of Roma, access to justice, promoting equality (strategy for equality between men and women), data protection package, directives on the presumption of innocence and the right to be present at trial and on special safeguards for children in criminal proceedings etc.

• To control the respect of the CHFR by MSs in the field of EU law is the task of the Commission (infringement procedure) ex. deportation of Roma migrants by France/the Commission in 2010 warned that it may take the legal action

• Judicial control • Annual report on the application of the Charter/ 2015

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Implementation of the CHFR by the MSs

• Article 51 CHFR – “when implementing EU law”/ “within the scope of EU law”

• Article 7 TUE

• Case C-617/10 Åkerberg Fransson:

The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. On the other hand, if such legislation falls within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures

The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.

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• Case C-617/10 Åkerberg Fransson:

(…) where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised.

As regards, next, the conclusions to be drawn by a national court from a conflict between provisions of domestic law and rights guaranteed by the Charter, it is settled case-law that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such a provision by legislative or other constitutional means (Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 and 24; Case C-314/08 Filipiak [2009] ECR I-11049, paragraph 81; and Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667, paragraph 43).

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Swedish judicial practice contrary to EU law -

Any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of European Union law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent European Union rules from having full force and effect are incompatible with those requirements, which are the very essence of European Union law (…).

Furthermore, in accordance with Article 267 TFEU, a national court hearing a case concerning European Union law the meaning or scope of which is not clear to it may or, in certain circumstances, must refer to the Court questions on the interpretation of the provision of European Union law at issue (see, to this effect, Case 283/81 Cilfit and Others [1982] ECR 3415).

It follows that European Union law precludes a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter conditional upon that infringement being clear from the text of the Charter or the case-law relating to it, since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice, whether that provision is compatible with the Charter.

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The Charter vis-à-vis the ECHR

Article 52

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.

Towards autonomy of the Charter vis-à-vis the ECHR:

C-399/11 Melloni case ?

The Charter vis-à-vis other HRs instruments/ national constitutions

Article 53

Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union 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.

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C-399/11 Melloni case

- The interpretation envisaged by the national court at the outset is that Article 53 of the Charter gives general authorisation to a Member State to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard is higher than that deriving from the Charter and, where necessary, to give it priority over the application of provisions of EU law. Such an interpretation would, in particular, allow a Member State to make the execution of a European arrest warrant issued for the purposes of executing a sentence rendered in absentia subject to conditions intended to avoid an interpretation which restricts or adversely affects fundamental rights recognised by its constitution, even though the application of such conditions is not allowed under Article 4a(1) of Framework Decision 2002/584.

Such an interpretation of Article 53 of the Charter cannot be accepted.

- That interpretation of Article 53 of the Charter would undermine the principle of the primacy of EU law in as much as it would allow a Member State to disapply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution.

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- It is settled case-law that, by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order (see Opinion 1/91 [1991] ECR I-6079, paragraph 21, and Opinion 1/09 [2011] ECR I-1137, paragraph 65), rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law on the territory of that State (see, to that effect, inter alia, Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph 3, and Case C-409/06 Winner Wetten [2010] ECR I-8015, paragraph 61).

- It is true that Article 53 of the Charter confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.

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Invocability of social rights

C-176/12AMS

Rights or principles?

Article 27 CHFR

Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.

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Polish British Protocol on the application of the Charter / invocability of social rights

Joined cases C-411/10 and C-493/10 N.S.

Prohibition of inhuman or degrading treatment – Common European Asylum System – Regulation (EC) No 343/2003 – Concept of ‘safe countries’ – Transfer of an asylum seeker to the MS responsible – Obligation – Rebuttable presumption of compliance, by that MS, with fundamental rights) Protocol (No 30) provides, in Article 1(1), that the Charter is not to extend the ability of the Court of Justice or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it affirms. According to the wording of that provision, as noted by the Advocate

General in points 169 and 170 of her Opinion in Case C-411/10, Protocol (No 30) does not call into question the applicability of the Charter in the United Kingdom or in Poland, a position which is confirmed by the recitals in the preamble to that protocol. Thus, according to the third recital in the preamble to Protocol (No 30), Article 6 TEU requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that article. In addition, according to the sixth recital in the preamble to that protocol, the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles.

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Article 1(1) of Protocol (No 30) • explains Article 51 with regard to the scope thereof

• does not intend to exempt Poland or the UK from the obligation

to comply with the provisions of the CHFR • does not prevent a court of one of those MSs from ensuring

compliance with those provisions.

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PROTOCOL No 30 ON THE APPLICATION OF THE CHARTER OF

FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE UNITED KINGDOM

THE HIGH CONTRACTING PARTIES, WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union; WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself; WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article; WHEREAS the Charter contains both rights and principles; WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character; WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles; RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally; NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter; DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom; REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter; REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States; REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the

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Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union: Article 1 1. The Charter does not extend the ability of the Court of Justice of the European Union, or 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. 2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law. Article 2 To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.