COUNCIL OF EUROPE VS EU
• https://www.youtube.com/watch?v=h3lUR8L
1niY
• Differences in level of protection of human
rights between the Council of Europe & EU
• Court of Justice of the EU (CJEU) vs European
Court of Human Rights (ECtHR)
Fundamental rights are now part of the EU legal
order.
the original Treaties did not contain provisions relating to basic
human rights.
The European Economic Community was limited to economic
matters, and the CJEU first developed protection for
fundamental rights in economic and commercial interests,
rights to property and the freedom to pursue a trade or
profession.
Moreover, the Court was impelled to include fundamental
rights in the EU legal order so as to defend the principle of
supremacy of EU law. The threat to the supremacy of EU law
over national law arose when national constitutional courts
resisted Community action, insofar as they considered it as
violating fundamental rights protected in national
constitutions.
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FURTHER DEVELOPMENT
On the one hand, the CJEU emphasizes that
fundamental rights as general principles of
Community law are autonomous from specific
principles protected by the constitutional laws of
individual Member States.
On the other hand, these fundamental rights as
general principles of EU law are rooted in the
national legal cultures and reflect the constitutional
traditions of the Member States.
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C-29/69 Stauder v. City of Ulm
• the applicant who received vouchers for cheap butter
under EU scheme for recipients of certain social
benefits maintained that he was humiliated by the
requirement to write his name and address on the
coupon.
• The Court held that the measure of EU law did not
require for these details to be included on the coupon,
but it was the German interpretation of the law.
C-29/69 Stauder v. City of Ulm
• Fundamental rights were first recognised by the ECJ
based on arguments developed by the German
Constitutional Court in Stauder in relation to a EC
scheme to provide cheap butter to recipients of welfare
benefits.
• When the case was referred to the ECJ the ruling of the
GCC, the EC could not "prejudice the fundamental
human rights enshrined in the general principles of
Community law and protected by the Court".
C-11/70 Internationale Handelgesellschaft
(1970) – Chapter I of Solange story
• the applicant claimed that the system which was put in place to control
the market in certain agricultural products was invalid as being
contrary to fundamental human rights (proportionality) which is one
of the rights protected by the German Basic Law.
• On facts the Court held that there was no violation of the
fundamental rights of trade in this case but in its dictum it stated
• ‘(…) 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 [Union]…’
C-11/70 Internationale Handelgesellschaft (1970) –
Chapter I of Solange story
• In this judgment, the Court supplements the Stauder
precedent by stating that
• respect for fundamental rights forms an integral part
of the general principles of law protected by the Court
of Justice and that 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
C-11/70 Internationale Handelgesellschaft
(1970) – Chapter I of Solange story
• Despite all its efforts, the ECJ was not immediately able to head
off a rebellion by the German courts.
• The Internationale Handelsgesellschaft pursued the matter
further, before the General Constitutional Court which
challenged the supremacy of EU law by ruling that it was the
fundamental rights set in Basic Law that would prevail over EU
law as at the time there was no catalogue of fundamental rights
in EU and the EU Parliament did not have legislative powers.
• This view was supported by Italian Constitutional Court in
Frotini v Ministero delle Finanze.
PROPORTIONALITY
• In this case the European Advocate General provided an
early formulation of the general principle of
proportionality in stating that
• "the individual should not have his freedom of action
limited beyond the degree necessary in the public
interest".
PROPORTIONALITY
• the general principle in European Union law of
proportionality entails a three-part test:
• 1) is the measure suitable to achieve a legitimate
aim,
• 2) is the measure necessary to achieve that aim or
are less restrictive means available, and
• 3) does the measure have an excessive effect on the
applicant's interests.
Chapter II of Solange story (1986)
• the German Constitutional Court considered the
protection of fundamental rights by the Court of
Justice to be of the same level as that granted by
the German Basic Law – Solanage II (Wünsche
Hadelsgesellschaft (Solenage II) [1987] 3 CMLR
225)
SOLANGE STORY
•
Contrary to its position in Solange I, the CJEU in its Solange II decision did not
insist on the existence of a written Charter of Rights in Europe as a
precondition for recognizing equivalence of human rights protection on the
European level.
• By the mid-eighties, when Solange II was decided German jurisprudence had
developed in the direction of a rationalist human rights paradigm, a
development that was still in its infancy in 1974, when Solange I was decided.
• Lists of rights and their limitations, unless they exceptionally take the form of
clear-cut rules, had simply not contributed to provide much determinacy and
clarity. On the other hand the German Constitutional Court had become quite
comfortable applying the proportionality principle across the board.
• Under those circumstances the Court had become less resistant to the idea that
the ECJ, even without a textual basis, is essentially engaging in the same
practice as the Federal Constitutional Court.
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Chapter III of Solange story
• Happening in CEE countries
• Constitutional courts claim that they are obliged to
protect fundamental rights of their citizens from their
erosion
• Erosion resulting from the supremacy of EU law over
national constitutional orders
• It appears like a return to Chapter I of the Solange novel,
while we have already been through chapter II.
SOLANGE DOCTRINE
• Bruno de Witte: “In most other countries
too, the Constitution is still the
uncontroverted summit of the pyramid of
the sources of law, and Community law is
reluctantly given a para-constitutional
status at most”.
C-4/73 Nold v. Commission (1974)
• the Court cited the inspiration for the general principles
of EU law as comprising:
• i) common national constitutional traditions and
• ii) international human rights agreements.
• Thus fundamental rights have increased in importance
and stature, in no small part due to the development of
the general principles of EU law by the CJEU and
through legislative initiatives in areas such as nondiscrimination.
PROBLEMS AT NATIONAL LEVEL
o Right to life, protection against torture and slavery: Denmark
o Family life: in Poland the constitutional definition of monogamous
heterosexual marriage spills over to the concept of ‘family life’ in national
case law, providing less protection than Article 8 ECHR;….also in Ireland
the scope of the right to family life is less extensive than under 8 ECHR
o Right to marry: not protected by e.g. Maltese and Netherlands
Constitution.
o Status of ECHR: in Hungary the quasi-dualist system is viewed as an
obstacle to provide adequate
protection to ECHR rights, limiting courts to use techniques of consistent
interpretation; but some authors read the new Article Q as granting
primacy of international law over national law, though practice will have to
confirm this.
o Lack of judicial remedies: in the Netherlands courts cannot review the
constitutionality of acts of parliament;
o Croatia and Malta lack strict scrutiny in the context of proportionality
test; the concept of indirect discrimination is unknown in national law
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EXAMPLES OF NATIONALLY MORE
PROTECTED RIGHTS
Ireland: right to life of the unborn child, trial by jury for non-minor criminal
charges, right to reputation
o NL, Germany: absolute prohibition of prior censorship of expressions.
o Netherlands: right to education and educational financial equal
treatment;
o Belgium, Czech Republic, Hungary (and others): rights of ethnic,
linguistic or cultural
minorities
o Slovenia: (details of) procedural rights as compared to the Charter (and
ECtHR).
o Scotland: previously the sanction of nullity of proceedings in case of undue
delay
o Luxembourg: the natural rights of the human person and family
o Slovakia, Czech Republic, Poland, Bulgaria (and others): several social
and economic
rights
o Spain: trial in absentia
o Portugal: right to a good administration
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EXAMPLES OF RIGHTS BELOGING
TO CONSTITUTIONAL IDENTITY
o the core of fundamental rights generally and human dignity
especially (Germany; Estonia) o linguistic rights (Belgium)
o essential elements of democratic state under the rule of law
(Czech Republic, Estonia
and elsewhere).
o linguistic and cultural rights and protection of natural heritage
(Slovenia, Hungary)
o freedom of persons not to be totally recorded and registered
(Germany)13
o right to equal treatment in general, and the equal educational
freedom independent of
denomination in particular (Netherlands)
o Abolition of the nobility and noble titles (Austria; aspects of
this also in Ireland and Italy)
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Mangold C-144/04
• Age discrimination recognized as human right
• Age discrimination becomes a general rule
Kuckudevici C-555/07
• ECJ and age discrimination – expanding direct effect
of directives to horizontal relations
• Legal basis: The ECJ is developing its jurisprudence in
the area of age discrimination; jurisprudence which is
largely based on Articles 12 and 13 of the EC Treaty, and
Directive 2000/78/EC on equal treatment in employment
and occupation.
Legal basis
Age discrimination?
• Age discrimination can appear in different shapes and sizes. It is not
always about ’ageism’ – which one would normally associate with
discriminating people because of their ‘too old’ rather than ‘too
young’ age.
• The German law with which Ms Kucukdeveci had a problem was
refusing to allow people who worked before they reached the age of
25 to calculate this period of employment as part of the period which
was the basis for calculating their notice period for dismissal.
• Ms Kucukdeveci worked for 10 years for her employer (since she was
18), but when she was dismissed she received notice the length of
which corresponded to her working only for 3 years.
ECJ conclusion
• While it is clear that the Equal Treatment Directive does
allow Member States to establish certain limitations on
equality because of age: for instance those relating to
minimum hiring age or minimum experience allowed,
the German law went slightly too far, as rightly
confirmed by the ECJ.
ECJ judgement
• The ECJ condemned the German law as being against
the equality principle, and it also confirmed the
principle of supremacy of EU law and its implications:
the court considering the case was told to set aside the
German law and apply the Directive instead.
• The problem was: the Directive was to be applied
between two non-state entities (one individual, one
firm) – so in a horizontal relationship!
Kucukvedeci is about so much more than
age disrimination.
• It is also about the effect of directives containing fundamental
principles of EU law (here – the concept of non-discrimination
on the basis of age, also established by the Charter of
Fundamental Rights which by the way the ECJ enforced
retrospectively!).
• As we know, directives do not have horizontal direct effects. Or
do they now?
• Here we are dealing with a Directive establishing a
Fundamenal Principle of EU law, and this one WAS HELD TO
BE DIRECTLY EFFECTIVE IN A HORIZONTAL SITUATION!
Kucukvedeci is about so much more
than age disrimination.
• AG Bot said that compensation for damages is
not efficient remedy for those who suffered
discrimination
HORIZONTAL APPROACH (between
private parties) OF THE CHARTER
• Developed through the case law
• LAW is created by the judges of CJEU
• Associate de medation sociale C-176/12–
certain progress in case law (CJEU said that
ART 27 of the Charter doesn’t have horizontal
direct effect)
Main guardians of the human rights in
Europe are
•
•
•
•
•
A) CJEU
B) ECtHR
C) national courts
D) European Convention on Human Rights
E) Charter of Fundamental Rights in the EU
Before the Charter
There was no “bill
of rights” in the EU
Before the Charter
General principles
•Constitutional traditions
International law
Before the Charter
• “unwritten list of fundamental rights”
• “virtual list”
Charter adopted in 2000
• Non-binding
• WHY? Some states were afraid of the
federalisation of the EU
• Clash between sovereignty/supremacy
• 2009 – Art 51 of the Charter….......
• Scope of FR – when implementing EU law
• WHEN?
• When there is an intersection with market
freedoms/not purely internal situations
• However, the idea of FR is to protect HR as
universal
Another problem – “shift of power”
National courts may tend to invoke
Charter rather than ask national
constitutional courts
Decentralized judicial review
CJEU case law
• There is a need to clarify its case law (e.g.
Ackerberg Fransson)
• In its first series of cases – CJEU was very
cautious
• Interply between national legal system and EU
law system
• CJEU “ you can apply both as long as that
doesn’t diminish the system of EU law
standards
GENERAL RULE
• “Apply ‘BETTER’ protection”
• BUT WHAT IS ‘BETTER’ PROTECTION?
• E.g. freedom of speech vs. right to privacy
• E.g. gay marriages in different MS goes on
higher level – CJEU vs ECHR
POSSIBLE SOLUTION?
• Need for judicial dialogue with national courts
CRITICISM OF HORIZONTAL DIRECT
EFFECT
• 1. it creates legal uncertainty
• 2. open dilemma of judicial review