Chapter 12 Flashcards
How was the first approach of the Union with fundamental rights?
Fundamental rights were seen ad an integral part of the general principles of Union law and the Court would be inspired by the constitutional tradition of the MS (Nold), including international agreements which were ratified by all MS such as the European Convention on Human Rights.
What did the Lisbon Treaty say about the ECHR?
That the ECHR is binding on the Union and the rights guaranteed by the convention should serve as ‘general principles of the Union’s law’. But the court doesn’t consider itself to be bound by it, therefore the Union’s standard for fundamental rights remains an autonomous one.
What was the Court’s position about external agreements guaranteeing human rights?
No external agreement guaranteeing human rights (UN Charter for example) would have any primacy over primary European law, it might have some primacy over ‘ordinary’ law.
What about the European Charter of Fundamental Rights?
The idea of a written European bill of rights came in the 1970s from the Council, but it was proclaimed in 2000 (which was not binding at that time). With the 2007 Lisbon Treaty, the Charter came to have the same legal value as the Treaties.
What is the scope of the European Charter of Fundamental Rights?
It doesn’t aim to create new rights, but to codify existing ones.
What are the four structural principles of the European Charter of Fundamental Rights?
1) The Charter is addressed to the Union and will only apply to MS in exceptional cases
2) Not all provisions in it are ‘rights’
3) Restrictions can exist to these rights but within the limits
4) The Charter aim at existing in harmony with the Treaties, the ECHR and the constitutional traditions of the MS
What is the difference between rights and principles?
- Rights are directly effective on Union citizens and can be invoked before a Court.
- Principles require legal concrete action before they can become effective. They aim at giving objectives and guidelines to national administrations, as inspiration by a court when interpreting Union law but they cannot be the base of a claim before a court.
It is clear the division in the Charter between rights and principles?
No, they should be understood as distinct but overlapping concepts. Rights are specific development of principles, which they are derived from.
What does Art.52 of the Charter set out?
It sets out the limitations to all fundamental rights:
- Any limitation of fundamental rights must be provided for ‘by law’
- Any limitation to fundamental rights must respect the essence of the right in question
- Any restriction of fundamental rights must be ‘necessary’ in the light of the general interest of the Union. A codification of the principle of proportionality and obliges the Union to balance the various rights and interest at stake
What is Art.52(2) about?
The Charter adopts the principle of lex specialis derogat lex generalis: the more specific law controls the more general one.
Is the Union part of the 1950 European Convention on Human Rights?
No, the Union is not formally part of the ECHR but the Court takes it very seriously as if it was bound by it. The Union and the Convention protected human rights in an equivalent way, assuming that a MS wasn’t violating the Convention by transferring powers to the Union.
What is the relationship between the Convention and the MS?
The MS were treated as independent contracting parties, without due regard for being MS of the Union
What would happen if the Union would like to become party of the ECHR?
The decision would depend mainly on the MS, the Council would have to agree unanimously after the EP’s consent and the agreement would have to be ratified by all MS.
Selective incorporation of European fundamental rights is given by two models, which ones?
Selective incorporation is given by
- Separation model: European fundamental rights exclusively apply to the Union
- Incorporation model: European fundamental rights are incorporated into national legal order and thus they are binding on all national authorities
The incorporation doctrine is selective in two situations…
1) Implementation situation: European fundamental rights are binding on national authorities when they are implementing Union law
2) Derogation situation: European fundamental rights also apply to national authorities when they derogate from Union law
