European Human Rights Flashcards
Three methods of obtaining bills of rights in the EU (Art 6 TEU)
- General principles
- The Charter of Fundamental Rights
- The ECHR
General principles
Neither Paris nor Rome mentioned human rights – they were found in subsequent jurisprudence. In Stork the Germans argued that the EU inherited human right protection, ECJ rejected this.
Stauder v City of Ulm
The ECJ found human rights inherent in the treaties in Stauder v City of Ulm.
Internationale Handgelsdessellschaft
Internationale Handgelsdesellschaft recognised the inherit value of human rights from the constitutional traditions of MS’s, upheld by the ECJ. This was clarified in Nold, where it reocnigsed human rights coming from national constitutions and international treaties.
National minimum or national maximum standard?
The courts rejected both a national minimum or maximum standard to be applied across the EU as it would undermine supremacy (Hauer v Land Rheinland-Pfalz).
Refusal to join the ECHR
The ECJ refused to join the ECHR in Opinion 2/94 for judicial autonomy. It was noted that it was de facto incorporated into EU law but this was rejected (Schmidberger). Art 6(3) TEU now sets the ECHR as a minimum standard.
Absolute rights
Absolute rights were recognised in Schmidberger and restrictions (and their proportionality) were recognised in Hauer. A limitation must never undermine the substance of a fundamental right and they must be limited for publc interest (Nold).
The ECJ recognises the untouchable substance of a right similar to the essential core doctrine (Zambrano).
UN and European rights
The UN provides no external limit to human rights and EU human rights would have to be applied when implementing UN law (Bosphorus). This was reinforced in Kadi which showed the importance of EU human rights. There was thus no limit to EU general principles as human rights.
The bill of rights (the charter)
Signed in 2000 but with no legally binding status. It was given equal status to treaties in Lisbon and is placed outside the constitutional structure.
Classes of rights
The rights are divided into 6 classes (dignity, freedoms, equality, solidarity, citizens’ rights, justice).
Title VII
Title VII contains principles on the interpretation and application. The charter contains hard rights and soft principles (which cannot be invoked against MS’s or the Union, e.g. Art 37 which is environmental protection).
Derogations from rights
Rights can be derogated from where provided by law, respecting the essence of the right, respecting proportionality, necessary and genuine to meet objectives of the EU or to protect rights of others.
Requiring a legal prescription to limit rights excludes the executive from breaching rights.
Charter and the ECHR relationship
Even though the charter has overlapping rights with the ECHR, the charter rights provide a higher form of protection, setting the ECHR as a protective floor of rights.
The incorporation doctrine (EU rights and the ECHR)
The union is not a member of the ECHR and despite art 6 providing that the EU shall accede to it, Opinion 2/13 determined that it cannot.
The ECHR cannot scrutinise EU acts because it is not a member to the convention but a state could be held responsible for powers transferred to the EU (M&Co v Germany).
Bosphorus
It was reasoned by the ECHR in Bosphorus that the ECHR presumes that the EU upholds high standards of HR protection and therefore the ECHR would only interfere where a manifest deficiency in HR upkeep is made. This is a lower standard of protection of human rights to protect its autonomy, and provides something of a gap in human rights protection.
Direct EU acts cannot be adjudicated on by the courts, only ones with national implementing measures. Acceding to the ECHR would widen the scope of protection thus.
