Fundamental rights in the EU

EU’s fundamental right system should not be mixed up with European Convention of Human Rights ECHR

Fundamental rights in the treaty framework: Art 2, 6, 7 and 49 TEU

In the Lisbon Treaty

Art 2 TEU: defines values and general principles of the EU

Art 6 TEU: The CFR is binding, gives us clearer operational picture and guidance on the exact legal aspects we have → triple protection (general principles of law, protection due to ECHR)

Art 7 TEU: If a member state gravely and continuously violates article 2’s values, the EU can force sanctions

Art 49 TEU: New member states have to respect these values → very thorough inspection before joining

Art & TEU: Fundamental rights as general principles of law

Initial approach

Plenty of principles to make sure that when applying the treaty, it happens equally etc.

GOOGLE V SPAIN 2014: person’s bankrupt was the thing popping up → court: “the right to be forgotten”

EU law must be interpreted in the light of general principles such as the principle of equivalence

If law is contradicting with general principles of law it can’t be applied

National courts were worried that the EU doesn’t protect fundamental rights which is why they were hesitant to accept EU law’s primacy --> EU fixed this by starting to use fundamental rights in its jurisdiction

SCHREMS 2015: Facebook data’s free movement from EU to US → the EU debunked this agreement

ECC treaty has no mentions of fundamental rights (perhaps because it was economical treaty)

STORK 1959 (coal and steel case): court didn’t engage at all, even it was hesitant to apply fundamental rights directly (problematic especially for Germany and Italy)

Defensive use 1: Autonomy v National law

STAUDER V ULM 1969: People on certain social benefits would get cheap butter (probably overproduction on milk products → for people who really need it) → to get the butter you would need to give your name → Mr. Stauder argued that it’s violation of privacy → he won --> Human rights are included in EU law’s general principles and and the court protects them

INTERNATIONALE HANDELSGESELLSCHAFT 1970:

There was an EU agricultural regulation regarding export licenses etc. → does not fit in German constitution, Germany states that its own law has primacy → EU law primacy → its validity cannot be reviewed in the light of German law BUT it can be reviewed in the light of EU law --> The court looks at national law only as inspiration → fundamental rights are protected solely with union law

Due to EU law’s independent nature, putting national laws above it would question its whole legal basis

The competence of EU’s legal organs can only be inspected in the light of EU law → it must be inspected whether there has been violation of rights protected by EU law

Fundamental rights form an essential part of the EU’s general legal principles --> fundamental rights must be protected by EU law

Defensive use 2: Autonomy against international law

KADI 2008:UN respond to 9/11 attacks with a series of resolutions (e.g. gives a list of names of individuals who need to be targeted: members or supporters of al-Qaeda) → EU implements this → Mr. Kadi’s assets etc. are frozen → he argues that it’s violation of his fundamental rights → no-one has heard him at all, they don’t show him evidence and he can’t complain anywhere → case goes to the European court of justice → can the ECJ consider this at all because the initial regulation is from UN security council → the Court says yes it can: EU is based on rule of law and that’s the most important principle: any international agreement cannot have the effect of prejudicing the constitutional principles of the EU treaty, which include the principle that all EU acts must respect fundamental rights...: it’s for the court to review → there has been a violation of Mr. Kadi’s right and member states have 3 months to prove that he is a terrorist or a supporter or take down the sanctions → EU tells UN security council to improve their system --> KEY POINT: The EU’s legal system is independent compared to international legal system

Offensive use: Extending the scrutiny to member state acts AKA using them against member states (controversial)

  1. Agency (Välitys)

WACHAUF V GERMANY 1989: The member state’s job is just to put EU law into effect: very straightforward, not controversial --> works as an agent for EU

  1. Derogations (osittainen kumoaminen)

ERT 1991

When a member state is trying to avoid implementing EU law → typical cases are e.g. free movement cases (e.g. cannabis from Holland to Finland) → the court: whenever a member state is trying to derogate it’s still acting within the EU law and that requires the member states to comply --> Controversial because it really means that EU law affects national law very deeply

In some cases a member state’s measures can differ from EU law due to national procedures (fundamental rights still have to be applied)

Limits

KREMZOW 1997: An Austrian judge Kremzow murdered a lawyer → Kremzow thought that his trial was unfair, and he wants it to ECJ → Kremzow argues free movement and right to a fair trial → the court states that this goes too far, and it does not belong in EU law: Austria was just applying its own criminal policies

Key question: is the member state acting within the EU law or not? → there are limits but it's difficult to pinpoint where exactly these limits lie

Charter of Fundamental Rights CFR - Art 6 TEU

Contents

It was originally created in 1999 to make fundamental rights more visible for EU citizens

Lisbon treaty 2008 gave binding legal force to charter of fundamental rights

Chapters

Chapter 1: most fundamental rights such as right to life

Chapter 2: freedoms

Chapter 3: equality

Chapter 4: solidarity (e.g. right to strike)

Chapter 5: citizen rights (only for EU citizens: free movement etc.)

Chapter 6: justice

Modern compilation, no surprising content

Applies to EU and member states when they are implementing EU law --> Problem: different language versions say different things (soveltaa/implement) but all are equally legally binding

Application

Art 52 CFR - ÅKEBERG 2010: Further strengthened article’s regulations --> Fisherman’s tax fraud → court says anything that is done in the scope of EU law is subject to EU and member state (Sweden) must comply (but only when it’s done within the scope of EU law)

Art 51 CFR - Scope and interpretation of rights and principles

This shows that very few fundamental rights are actually binding, most of them are relative (some are: right against inhuman treatment and enslaving)

Mostly: rights are actually binding, principles are not directly protected

Art 52 (1) CFR - DIGITAL RIGHTS IRELAND 2014: Restrictions to fundamental rights must be done by law and respecting the key content of the right (principle of equivalence = suhteellisuusperiaate) --> Digital Rights Ireland: Point was to fight against terrorism → collected data about people → court states that it’s against privacy laws, but there is justification for this: fighting against serious crime and securing people’s lives → any authority could access this data (not just the police for example) → this cannot be justified and the court strikes this directive down

Ratifies the extent of restrictions:

  1. Lailla säätämisen vaatimus 2. Olennaisen sisällön noudattaminen 3. Suhteellisuusperiaate (principle of equivalence) 4. Yleisen edun mukaiset tavoitteet

SCHREMS 2015: quite similar to Digital Rights Ireland

Art 52 (5) CFR - AMS

Two categories: rights and principles

Injunctions including CFR’s principles can be implemented by EU’s regulations or laws given by member states to implement EU law

Not all directives are directly applicable → they need further implementation from lawmakers → EU directives that don’t give subjective rights to individuals and need further implementation are these → these implementation acts can be challenged in court

Art 53 CFR - MELLONI 2013: The CFR gives the minimum level of protection of fundamental rights→ member states can have higher protection --> Spanish constitution gives very high level of protection to some fundamental rights (Spain didn’t give Italy a wanted criminal since it was protecting fundamental rights) → this is against EU rights and Spanish law cannot override it

The ECJ has started using the CFR along with general principles

Art 6 (2) TEU: EU accession to the ECHR (European Convention of Human Rights)

Why do we need to join? --> It’s generally good to have an outside aspect to give a clearer insight onto what’s going on in the EU

Difficulty: All the member states are bound but the EU itself is not

Opinion 2/13 Accession to the ECHR EU:C:2014:2454

Is this agreement lawful? → ECJ states no and strikes it down, it’s not in harmony with Art 6 (2) TEU --> Agreement would affect the EU’s competence

After this the negotiations restart and nowadays, we have a new accession but it’s certainly not in effect yet, but might be in the future → EU has not abandoned this idea completely

Conclusion

The EU has started to use the charter more which has affected fundamental rights cases → huge leap in fundamental rights protection

The EU has shown that fundamental rights are protected and that increases its legitimacy

Why do we need the EU? → EU is an effective protector of fundamental rights

The ECJ develops fundamental rights continuously by seeking inspiration from national constitutions and international law