lecture 2 Flashcards
(15 cards)
Historical overview of- fundamental rights of the EU 1957
1957
It was an economic organisation. There was no reason yet for it to become a human rights organisation, but after time progressed there was more reason for it. Costa/ENEL = supremacy of EU law, that EU law prevails over national law. In the hierarchy of norms, it is higher than domestic constitutions. Many member states and constitutional courts that this was problematic
- No fundamental rights protection in EEC law + supremacy of EEC law = potential conflict: EEC law v. Domestic constitutional rights
Historical overview - fundamental rights of the EU (1970)
1970
Solution CJEU conflict: that they see fundamental rights as general principles of EEC law
➞ there is no hierarchy, so this was good as it was the same level as the treaties. BUT, there was no document to rely on
Other sources of fundamental rights as inspirations:
- Domestic constitutions
- International treaties
Still: there were worries, e.g. German FCC (Solange II)
Historical overview - fundamental rights of the EU (1992)
1992
Solution of the worries = codification
The case law was codified (Maastricht treaty, article 6(2) TEU)
But still no catalogue of rights. Back then the EU became more and more powerful without being bound by fundamental rights.
Historical overview - fundamental rights of the EU (current)
- the Lisbon treaty binds it. ➞ CFR will have the same legal value as the treaties (so it is now primary law)
- Not only a catalogue of rights, but a binding of human rights documents
- Paragraph 2 of facile 6 TEU: the Union ‘shall’ = so it is obligatory
CFR
The Charter of Fundamental Rights of the EU (CFR)
The Charter of Fundamental Rights of the EU (CFR)
The Charter of Fundamental Rights of the EU (CFR)
Adopted in Nice (2000), non-binding, entry into force in 2009
It combines both civil/political rights and social/economic rights ➞ so therefore also a more modern document, but also for other reasons
Titles I-VI: rights and freedoms (first six being dedicated to different groups of rights)
Title VII ➞ general/horizontal provisions
Article 51(1) CFR: application
Two bodies introduced which are bound:
a. Institutions of the Union
b. The Member States, but only when they are implementing EU law (but what does that mean?)
Implementing Union Law - 51(1) CFR
Situations in which the CFR applies
1. When the member states act as agents of the EU
- Following, implementing, making sure that EU law is followed
- e.g. Digital Rights Ireland (good example of agent) ➞ data directive, but what the MS have to do is make sure that the companies collect and store data. They were implementing this directive, lessening the right to privacy but they also had to protect this right. But this is kind of impossible…
2. Member states derogating for EU law
- Restriction free movement provisions on grounds of public policy/security/health
- e.g. pfleger -> was about the Austrian rules on gambling, they said that they would only hand out a restrictive number of licences to the casino. So, they are restricting EU law (to provide services in EU states). Even when derogating you have to protect the fundamental rights.
What does implementing mean? - art 51(1) CFR
Akerberg Fransson (always write this when talking about implementing)
Mainly relevant to the agent situation
- Facts of the case: was a Swedish fisherman who didn’t want to pay taxes. Criminal and tax enforcement came to him, and he was punished under both Swedish tax and criminal law. Is this problematic? ➞ ne bis in idem, you can’t get punished for the same crime once. Article 50 CFR was infringed, but Sweden said that they aren’t bound by it because they aren’t implementing EU law. Neither the tax or criminal laws were adopted in order to implement EU law. However, the CJEU didn’t agree. You’re implementing EU law when national legislation falls in the scope of EU law
Article 53 CFR: level of protection (What if domestic law provides more protection than the charter? Should they follow the constitution or the charter in such case?)
- This article says that nothing in the charter will restrict the domestic constitutions. So, you can also go beyond the protection of the charter, when reading the charter.
- also look at the CJEU. ➞ CJEU Meloni: Meloni was Italian but was in Spain, there he was convicted of a crime in Italy. They also wanted him to serve his prison sentence. Spain said that they had to have a pre-trail in Italy because he wasn’t in Italy during his trail. The CJEU said that when looking at article 47 he didn’t have the right to a pre-trail, so Spanish law provided a higher level of protection than the CFR. But, this article says that you should go for the highest level of protection. However, the court of justice said that this article does confirm this, but there is an exception: only higher level of protection when the level of protection of provided in the CFR wouldn’t be compromised by the national rule. ➞ so, in case an area is harmonised by the EU, you have to use the level of protection that the charter provides.
Article 52(5) CFR: rights and principles
Rights: are justiciable
Principles: are not justiciable
Justiciable = when you vanish rely on a provision before a judge
Principes are norms that the EU can achieve, but first needs steps in order to achieve them. You can only rely on them before a judge in order to review the legislation that was adopted ➞ to challenge legislation that is implemented for that
Article 51(2) CFR: effect
The EU only has powers when the MS have given it power. This article says that the Charter doesn’t give the EU any additional rights
The CFR and the ECHR members and meaning
All EU member states are member of the council, and therefore the ECHR
➞ art 52(3) CFR: rights that you find both in the CFR and ECHR should have the same meaning and scope. These are corresponding rights
Is the CJEU bound by the ECHR?
➞ no. they have to wait until excision happened, and only after this will they be bound says the ECHR
➞ but, article 6(3) TEU
Is the CJEU bound by the ECtHR case law?
the meaning and scope can’t just be deterred by the rights, but also by the case-law. But if you aren’t bound by the treaty, than also not by the case law
