XI
The protection of fundamental rights
in the EU legal order
1. Evolution of the protection of fundamental rights in the EU
The1957 Rome Treaty did not contained an express reference to human rights.
The silence could be explained by its limited scope:
to realize an economic integration.
3
1° Phase
The denial of the protection of fundamental rights in the EEC
Stork & Cie. / ECSC High Authority, case 1/58, Judgment of 4 February 1959:
“the Court is only required to ensure that in the interpretation and application of the
Treaty, and of rules laid down for implementation thereof, the law is observed. It is
not normally required to rule on provisions of national law. Consequently, the High
Authority is not empowered to examine a ground of complaint which maintains
that, when it adopted its decision, it infringed principles of German constitutional
law”.
↓
National fundamental rights
could thus be no direct source of European human rights.
4
2° Phase
The recognition of the protection of fundamental rights in the EEC
Internationale Handelsgesellschaft mbH / Einfuhr- und Vorratsstelle für Getreide
und Futtermittel, case 11/70, Judgment of 17 December 1970:
“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”.
5
•
•
•
“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”.
↓
National constitutional rights only constitute an indirect source
for the fundamental rights in the EU
↓
The reaction by the national constitutional courts:
1973: Italian constitutional Court, Frontini Judgment: the court stated the theory of
controlimiti
1974: German Federal Constitutional Tribunal, Solange I Order: the court stated the
Solange doctrine
6
Nold KG / Commission, case 4/73, Judgment of 14 May 1974:
“As the Court has already stated, fundamental rights form an integral part of the
general principles of law, the observance of which it ensures.
In safeguarding these rights, the Court is bound to draw inspiration from
constitutional traditions common to the Member States, and it cannot
therefore uphold measures which are incompatible with fundamental rights
recognized and protected by the Constitutions of those States.
Similarly, international treaties for the protection of human rights on which
the Member States have collaborated or of which they are signatories, can
supply guidelines which should be followed within the framework of
Community law”.
7
3 May 1974, France ratified the ECHR
↓
Hauer v. Land Rheinland Pfalz, case 44/79, Judgment of 13 December 1979:
“in safeguarding those rights, the Court is bound to draw inspiration from
constitutional traditions common to the Member States, so that measures which are
incompatible with the fundamental rights recognized by the constitutions of those
States are unacceptable in the Community; and that, similarly, international treaties
for the protection of human rights on which the Member States have collaborated or
of which they are signatories, can supply guidelines which should be followed
within the framework of Community law. That conception was later recognized by
the joint declaration of the European Parliament, the Council and the Commission
of 5 April 1977, which, after recalling the case-law of the Court, refers on the one
hand to the rights guaranteed by the constitutions of the Member States and on the
other hand to the European Convention for the Protection of Human Rights and
Fundamental Freedoms of 4 November 1950”.
8
Cinéthèque / Fédération nationale des cinémas français,
joint cases 60 and 61/84, Judgment of 11 July 1985:
“Although it is true that it is the duty of this 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 of national legislation which
concerns, as in this case, an area which falls within the jurisdiction of the
national legislator”.
↓
The ECHR is not
formally integrated into EU law.
9
Wachauf / Bundesamt für Ernährung und Forstwirtschaft,
case 5/88, Judgment of 13 July 1989:
The requirements of the protection of fundamental rights are also binding on the
Member States when they implement Community rules.
10
1989: Community Charter of Fundamental Social Rights of Workers
•
The Charter was adopted by all Member States except the United Kingdom
in accordance with the preamble of the Treaty establishing the European
Economic Community, which recognised the need to continually work towards
“improving the living and working conditions” of European peoples.
↓
The Charter had non-binding legal effect.
•
The Charter was only adopted by the United Kingdom in 1998 because its
objectives were integrated into the Treaty of Amsterdam.
•
The Lisbon Treaty makes reference to this Charter in Title X on social policy
(Article 151 TFEU).
11
3° Phase
Human rights are integrated into the Treaty on the EU
1992: Treaty of Maastricht
Article F TEU
“1. The Union shall respect the national identities of its Member States, whose
systems of government are founded on the principles of democracy.
2. The Union shall respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms signed
in Rome on 4 November 1950 and as they result from the constitutional traditions
common to the Member States, as general principles of Community law. (…)”.
12
1997: Treaty of Amsterdam
Article 6 (ex Article F) TEU
“1. The Union is founded on the principles of liberty, democracy, respect for human
rights and fundamental freedoms, and the rule of law, principles which are common
to the Member States.
2. The Union shall respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms signed
in Rome on 4 November 1950 and as they result from the constitutional traditions
common to the Member States, as general principles of Community law.
3. The Union shall respect the national identities of its Member States. (…)”.
13
2000: Charter of Fundamental Rights of the EU
•
The Charter was drawn up by a Convention consisting of a representative from each
EU Member State and the European Commission, as well as members of the
European Parliament and national Parliaments. It was formally proclaimed in Nice
in December 2000 by the European Parliament, Council and Commission.
↓
The Charter had non-binding legal effect.
14
The conflict between fundamental rights and economic freedoms:
Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt
Bonn, Case C-36/02, Judgment of the Court of 14 October 2004
A German court asked whether the prohibition of an economic activity for
reasons arising from the protection of fundamental values laid down by the
national Constitution, such as, in this case, human dignity, was compatible
with Community law.
↓
“35. 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 (…).
36. However, measures which restrict 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. (…)”.
15
“39. In this case, it should be noted, first, that, according to the referring court, the
prohibition on the commercial exploitation of games involving the simulation of
acts of violence against persons, in particular the representation of acts of homicide,
corresponds to the level of protection of human dignity which the national
constitution seeks to guarantee in the territory of the Federal Republic of Germany.
It should also be noted that, by prohibiting only the variant of the laser game the
object of which is to fire on human targets and thus 'play at killing' people, the
contested order did not go beyond what is necessary in order to attain the objective
pursued by the competent national authorities”.
↓
The particular nature of this case is that the Court first defined a typically
German concept of human dignity as a general principle of EU law, and then,
while applying the proportionality test, it demonstrated a predominantly
Member State-friendly approach.
16
2007: Treaty of Lisbon
Article 6 (ex Article 6 TEU) 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”.
17
According to Art. 6 TEU, there are two sources of law to guarantee the protection
of the human rights within the EU legal system:
a) Charter of Fundamental Rights of the EU
b) General principles of law.
18
Protocol (No 30) on the application of the Charter of Fundamental Rights of the
European Union to Poland and to the United Kingdom
•
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.
•
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.
•
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.
19
Position of Czech Republic
2007:
• Declaration No 53 - Declaration by the Czech Republic on the Charter of
Fundamental Rights of the European Union
2009:
• The Heads of State or Government, meeting within the European Council on 29 to
30 October 2009, agreed that they would, at the time of the conclusion of the next
accession treaty and in accordance with their respective constitutional requirements,
attach to the Treaties a Protocol concerning the application of the Charter to the
Czech Republic.
2013:
• European Parliament resolution of 22 May 2013 on the draft protocol on the
application of the Charter of Fundamental Rights of the European Union to the
Czech Republic (Article 48(3) of the Treaty on European Union): the EP calls on
the European Council not to examine the proposed amendment of the Treaties
20
2. Focus on the Provisions Governing the Interpretation and
Application of the Charter of Fundamental Rights of the EU
Field of application
Art. 51, par. 1: “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.
They shall therefore respect the rights, observe the principles and promote the
application thereof in accordance with their respective powers and respecting the
limits of the powers of the Union as conferred on it in the Treaties.
Limitation clause
Art. 51, par. 2: “The Charter does not extend the field of application of Union law
beyond the powers of the Union or establish any new power or task for the Union,
or modify powers and tasks as defined in the Treaties”. ↔ Art. 6, par. 1, TEU
22
What type of rights are protected by the Charter?
•
Art. 52, para. 2: “Rights recognised by this Charter for which provision is made in
the Treaties shall be exercised under the conditions and within the limits defined by
those Treaties”.
•
Art. 52, para. 3: “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”.
•
Art. 52, para. 4: “In so far as this Charter recognises fundamental rights as they
result from the constitutional traditions common to the Member States, those rights
shall be interpreted in harmony with those traditions”.
23
Article 53
Level of protection
“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”.
24
3. Relationship between EU legal order and ECHR
Before the Treaty of Lisbon
Opinion 2/94 of 28 March 1996 - Accession by the EC to the ECHR
•
“That provision, being an integral part of an institutional system based on the
principle of conferred powers, cannot serve as a basis for widening the scope of
Community powers beyond the general framework created by the provisions of
the Treaty as a whole and, in particular, by those that define the tasks and the
activities of the Community. On any view, [that provision] cannot be used as a
basis for the adoption of provisions whose effect would, in substance, be to
amend the Treaty without following the procedure which it provides for that
purpose” (para. 30).
↓
The Community had no competence to accede to the ECHR
26
After the Treaty of Lisbon
Art. 6, para. 2, first sentence, TEU
“The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms”.
↓
Now a legal basis exists for the accession
↓
Not only a possibility but an obligation for the EU
*
* *
The legal basis for the accession of the EU is provided for by Art. 59, para 2, ECHR
(“the European Union may accede to this Convention”), as amended by Protocol
No. 14 to the ECHR which entered into force on 1 June 2010.
Reasons for the EU’s accession to the ECHR
•
The EU's accession will reinforce the protection of human rights in Europe, by
submitting the EU’s legal system to independent external control.
•
It will also close gaps in legal protection by giving European citizens the same
protection vis-à-vis acts of the EU as they presently enjoy from member states.
Protocol (No 8)
relating to Article 6(2) TEU on the accession of the Union to the ECHR
•
The agreement relating to the accession of the EU to the ECHR shall make
provision for preserving the specific characteristics of the EU and EU law, in
particular with regard to:
(a) the specific arrangements for the Union's possible participation in the control
bodies of the European Convention;
(b) the mechanisms necessary to ensure that proceedings by non-Member States
and individual applications are correctly addressed to Member States and/or the EU
as appropriate.
•
This agreement shall ensure that accession of the EU shall not affect the
competences of the Union or the powers of its institutions.
•
This agreement shall ensure that nothing therein affects the situation of Member
States in relation to the ECHR, in particular in relation to the Protocols thereto,
measures taken by Member States derogating from the ECHR in accordance with
Article 15 thereof and reservations to the ECHR made by Member States in
accordance with Article 57 thereof.
29
•
Nothing in this agreement shall affect Article 344 TFEU (“Member States undertake not
to submit a dispute concerning the interpretation or application of the Treaties to any
method of settlement other than those provided for therein”).
↓
↓
On 5 April 2013, negotiators of the 47 Council of Europe member States and the European
Union have finalised the draft accession agreement of the European Union to the
European Convention on Human rights.
↓
According to Art. 218, para. 11, TFEU, the EU Court of Justice will now be asked to
give its opinion on the compatibility of this accession agreement with the
constitutive Treaties of the EU. The Council of the EU will have to adopt
unanimously the decision authorising the signature of the accession agreement. All
EU Member States will have to complete their internal procedure to ratify the
agreement. The EU will have to ratify the agreement.
30
Current situation:
the point of view from the Court of Justice
Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano
(IPES) et al., Case C-571/10, Judgment of the Court of 24 April 2012
In case of conflict between the provision of domestic law and the ECHR, does the
reference to Art. 6, para. 3, TEU oblige the national court to apply the
provisions of the ECHR directly, disapplying the incompatible source of
domestic law?
↓
“62. (…) Article 6(3) TEU does not govern the relationship between the ECHR and
the legal systems of the Member States and nor does it lay down the consequences
to be drawn by a national court in case of conflict between the rights guaranteed by
that convention and a provision of national law.
63. (…) the reference made by Article 6(3) TEU to the ECHR does not require the
national court, in case of conflict between a provision of national law and the
ECHR, to apply the provisions of that convention directly, disapplying the
provision of national law incompatible with the convention”.
31
•
The CJEU regularly refers to the ECHR and the Strasbourg case-law in its
judgments but applies them only indirectly, as part of the general principles of the
Union’s law.
↓
• As long as the European Union has not acceded to it, the ECHR does not constitute
a legal instrument which has been formally incorporated into European Union law.
The rights enshrined in the ECHR are not legally binding on the EU and its
institutions.
↓
However, the rights enshrined in the ECHR do apply to the EU member States,
even when the latter are applying or implementing EU law.
↓
This can lead to uncertainty and confusion about who, ultimately, is responsible
for any breaches of ECHR rights.
32
Current situation:
the point of view from the European Court of Human Rights
Bosphorus v. Ireland case [2005]
Facts
The Bosphorus Turkish company claimed a breach of its right to property,
guaranteed by Article 1 of Protocol No. 1 of the ECHR and denied, it said, by
Ireland. Ireland, in fact, in compliance with Regulation (EEC) 990/93, which
implemented the Security Council resolution 820 (1993) in the field of economic
sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro),
prevented the Bosphorus to take possession of the airplane leased by the Yugoslav
national airline (JAT), which at that time was in the territory of Ireland.
33
•
“152. The Convention does not, on the one hand, prohibit Contracting Parties from
transferring sovereign power to an international (including a supranational)
organisation in order to pursue co-operation in certain fields of activity (…).
Moreover, even as the holder of such transferred sovereign power, that organisation
is not itself held responsible under the Convention for proceedings before, or
decisions of, its organs as long as it is not a Contracting Party (…)”
34
•
“153. On the other hand, it has also been accepted that a Contracting Party is
responsible under Article 1 of the Convention for all acts and omissions of its
organs regardless of whether the act or omission in question was a consequence of
domestic law or of the necessity to comply with international legal obligations.
Article 1 makes no distinction as to the type of rule or measure concerned and does
not exclude any part of a Contracting Party's “jurisdiction” from scrutiny under the
Convention (…)”
35
•
“155. In the Court's view, State action taken in compliance with such legal
obligations is justified as long as the relevant organisation is considered to protect
fundamental rights, as regards both the substantive guarantees offered and the
mechanisms controlling their observance, in a manner which can be considered at
least equivalent to that for which the Convention provides (…). By “equivalent” the
Court means “comparable”: any requirement that the organisation's protection be
“identical” could run counter to the interest of international co-operation pursued
(…). However, any such finding of equivalence could not be final and would be
susceptible to review in the light of any relevant change in fundamental rights'
protection”
36
•
“156. If such equivalent protection is considered to be provided by the
organisation, the presumption will be that a State has not departed from the
requirements of the Convention when it does no more than implement legal
obligations flowing from its membership of the organisation. However, any such
presumption can be rebutted if, in the circumstances of a particular case, it is
considered that the protection of Convention rights was manifestly deficient. In
such cases, the interest of international co-operation would be outweighed by the
Convention's role as a “constitutional instrument of European public order” in the
field of human rights (…)”
•
“157. It remains the case that a State would be fully responsible under the
Convention for all acts falling outside its strict international legal obligations. (…)”
37