Lecture 5

Question 1

Is there always room for justification? (For violation of a fundamental right?)

Answer 1

➞ it depends
You need to realize the right that you are looking at first

Question 2

ECHR - difference in rights

Answer 2

• absolute / non-derogable rights
• relative ➞ specific for the right that you are looking at
• relative ➞ the same form, so a general limitation clause
• realtime ➞ implied limitation clauses, they aren’t actually there but added by the court and case law

Question 3

Absolute / non-derogable rights

Answer 3

You don’t need the three steps (scope, interference, justified). The moment that a complaint falls within the scope, there is an interference and there is no room for justification
E.g. prohibition of torture / inhumane punishment

Question 4

Do absolute rights have a limitation clause?

Answer 4

No
They are absolute. In a limitation clause you can find justifications for an interference, and for absolute rights there aren’t justifications

Question 5

Relative / derogable rights with specific limitation clauses e.g.

Answer 5

Article 2 & 5(1) ECHR

Question 6

Relative / derogable rights with general limitation clauses

Answer 6

➞ articles 8-11 ECHR (the same type of limitation for these articles)
- public aim
- legitimate
- proportionate (necessary)

➞ article 2 protocol no 4 ECHR

Question 7

Relative / derogable rights with implied limitation clauses

Answer 7

➞ e.g. article 2 protocol 1 ECHR: this one sounds like an absolute right, but if you look at it in a certain way, you can see that this can’t be an absolute right and that the state should be able to step in (to regulate)

Question 8

ECHR in times of emergency

Answer 8

➞ article 15 ECHR
States can derogate from the convention under this article (to take away or swerve)

Question 9

What does it take to derogate? (Article 15 ECHR)

Answer 9

4 needs:
1. When can you?: in times of war, or other public emergencies threatening the lives of the nation (pandemic for example) ➞ something exceptional
2. Derogation needs to be strictly required because of the situation
3. Even in times of war or other emergencies, you can’t derogate from the absolute rights (see 2nd paragraph)
4. States should inform the council of Europe that they are derogating from the convention (Secretary General of the CoE)

Question 10

Will the ECtHR’s review of a case be less strict in times of war than in times of peace?

Answer 10

Generally yes ➞ easier to measure that it was proportionate
BUT, it will really depend on what the court will do. You have to derogate if you want the court to be less strict

Question 11

CFR limitation clause

Answer 11

➞ there is one limitation clause: article 52(1) CFR

Question 12

Could it be problematic that there is only one limitation clause for the CFR?

Answer 12

Yes, because you have absolute rights. With this you could argue that you could justify an absolute right
But… you have article 52(3) CFR

Question 13

Article 52(3) CFR

Answer 13

That the meaning and the scope of the charter shall be the same as the laws laid down in the ECHR. So, then you can not justify torture since you also have to look at the ECHR.

From a lawmakers perspective, it is will a weird choice

Question 14

Justification requirements (articles 8-11 ECHR)

Answer 14

a. Provided for by law?
b. Pursues a legitimate aim?
c. Necessary to achieve the aim (and proportionate to the aim?)

Question 15

Article 52(1) CFR requirements

Answer 15

1. Provided for by law?
2. Respects the essence of the right?
3. Genuinely meets objectives of a general interest recognized by the union or the need to protect the rights of freedoms of others?
4. Necessary and proportionate?

Question 16

What is the most important difference between limitation clauses in the ECHR and CFR?

Answer 16

• in the CFR there is only 1 justification clause
• core of the rights formula is in art 51 CFR, and not in articles of ECHR but in case law
• effectiveness of CFR
• wider set of legitimate objectives

Question 17

“Provided for by law” ➞ as justification requirement

Answer 17

• no procedural requirements
• incl case-law or policy regulation
• ECJ follows the ECtHR

Law = acts adopted by parliament + other rules adopted
- should be accessible ➞ they usually are
- foreseeable ➞ if you can understand what you can and can’t do based on the laws that you have

Question 18

“Legitimate aim ECHR & CFR” ➞ as justification requirement

Answer 18

➞ e.g. art 8(2) ECHR
➞ art 52 CFR
It’s hard to know whether the aim that the state puts forward is the actual aim

In Sanchez v France it was to prevent hate dispute on the internet for example

Question 19

Necessary / proportionate ECHR ➞ as justification requirement

Answer 19

➞ usually discussed at length and especially with articles 8-11
If it is necessary within a democratic society
- necessary = its more than something being useful. You need a pressing social need
- the court can come up with lists of viewpoint to take into consideration

Question 20

Necessary / proportionate CFR ➞ as a justification requirement

Answer 20

Article 52(1) CFR ➞ also refers to it + case law

Case law e.g. = Sky Osterreich: deals with two questions
1. Appropriate? = yes because then the information could spread
2. Necessary? = you could have done other tings, but not as effective, so yes

Question 21

CFR sky osterreich

Answer 21

Company had exclusive rights to broadcast all football matches ➞ this is very expensive. Under EU law, it had to share fragments of these matches with other broadcast companies

Question 22

Variation in justification, why is this the case?

Answer 22

➞ there are different tests, therefore sometimes it isn’t as strict
- Subsidiarity
- national authorities better placed
- 27/46 different opinions on constitutional values, sensitivities
Doctrine: margin of appreciation

Question 23

“How” is there a variation in justification review?

Answer 23

Margin of appreciation ➞ by the ECtHR
ECJ has no explicit doctrine: digital rights Ireland

Question 24

Variable intensity (variation in justification review)
- deferential review
- strict review

Answer 24

Question 25

Margin of appreciation within the variation of justification review

Answer 25

Question 26

To which stage of a human rights case is the margin of appreciation mainly of relevance?

Answer 26

➞ justification Before determining whether it is proportionate, you have to see if its within the broad or narrow margin of appreciation

Question 27

Case study: vavricka and others v the Czech Republic - scope, interference, justified?

Answer 27

➞ about compulsory vaccination for children. The parent can get a fine, and then the children can’t come to pre-school Art 8 **Scope**? ➞ yes because the scope is very broad. **Interference?** ➞ parties even agreed on this. There was an interference, but they disagree with the question of justification Can the interference be **justified**? - provided for by _law_?: not a big issue - Pursue a _legitimate aim_?: yes protection of health _Necessary_ to achieve the aim?: here is where things got difficult - Margin of appreciation?: neutral point ➞ its a claim when you would force someone, but this is indirect. There is general consensus (very successful for health - vaccination), but when you look at a more specific level there is no specific model ➞ eventually a broad margin of appreciation - Pressing social need? - Relevant and sufficient reasons? - proportional? ➞ look at the case

Question 28

general limitation clause CFR

Answer 28

= article 52(1) CFR the general conditions under which it can be limited ➞ essentially for all rights within the charter

Question 29

homogeneity clause CFR

Answer 29

= article 52(3) CFR meaning and scope of charter should be the same as those laid down in the ECHR ➞ for consistency