EU fundamental rights

Question 1

What are the legal foundations of
EU fundamental rights today?

Answer 1

*General principles of Union law, Art. 6(3) TEU
◦ECHR
◦Constitutional traditions of the Member
States
*EU Charter of Fundamental Rights (primary
law)

Question 2

A and B applied for compensation for their
deceased husbands’ paid annual leave, which
was not taken due to their deaths. A’s
husband was employed in the public sector,
while B’s husband worked in a private
company. German legislation had excluded
such claims by spouses of deceased workers.
Can they both rely on Article 31(2) Charter of
Fundamental Rights?

Answer 2

*C-569/16 and C-570/16, Bauer
◦Direct horizontal effects of fundamental
rights
◦Possible if it results directly from the
nature of the fundamental right
◦Direct third-party effect of Art. 31(2)
Charter of Fundamental Rights possible

Question 3

Development on EU level
- Early stage

Answer 3

• No codified fundamental rights instrument
• Cases 36/59 et seq. – Ruhrkohlenverkaufsgesellschaften:
  fundamental rights as an issue of MS law
• MS reaction: BVerfG (Solange I): As long as (‘so lange‘) EEC
  law did not guarantee sufficient protection of fundamental
  rights, the BVerfG reserved its right to conduct its own review
  of EEC legal acts for conformity with fundamental rights
  (which would have denied their primacy over German law)
• Problem: deficit of legal protection in light of supranational
  EU law: direct effect and primacy

Question 4

Development on EU level
Intermitten stage

Answer 4

• No codified fundamental rights instrument
• Fundamental rights as general principles of EU
  law resulting from the constitutional traditions
  common to the MS and the ECHR (Case 11/70 –
  Internationale Handelsgesellschaft)
• MS response: BVerfG (Solange II): As long as (‘so
  lange‘) EEC law does guarantee sufficient protection
  of fundamental rights, the BVerfG will not exercise
  an ultimate fundamental rights review of EEC acts.

Question 5

Can the EU join the ECHR?

Answer 5

*Art. 6(2) TEU: political objective
*CJEU has already rejected it twice
(Opinion 2/94 and 2/13)
➢Main problem: autonomy of EU law
because the ECHR (and the case law of
the ECtHR) may take precedence over
both EU primary law and CJEU
jurisprudence

Question 6

Development on EU level
Current stage

Answer 6

*Charter of Fundamental Rights (CFR)
drawn up by the European Convention
on Fundamental Rights in the context of
European constitutionalisation process
(2000)
*Binding part of primary law with the
Treaty of Lisbon (2009)

Question 7

Basis of fundamental rights protection
in the EU today

Answer 7

1. General principles of Union law, Art.
   6(3) TEU
   *ECHR
   *Constitutional traditions of the
   Member States
2. Charter of Fundamental Rights
   (primary law)

Question 8

Types of fundamental rights CFR

Answer 8

Liberal and
political rights
(1st generation)
◦Human dignity
◦Freedom
rights
◦Equality rights

Fundamental
social rights
(2nd
generation):
e.g.,
employment
services,
social security

Collective
rights (3rd
generation):
e.g.,
environmental
protection

Question 9

CFR: Adressees (Art. 51 (1))

Answer 9

*Institutions, bodies, offices and agencies
of the European Union
*Member States only when applying
Union law
➢“in all cases governed by Union law” = in
the scope of EU law (C-617/10 –
Åkerberg Fransson)
*Private parties? (C-569/16 and C-570/16,
Bauer)

Question 10

CFR: Beneficiaries

Answer 10

Natural persons
➢Sometimes
only Union
citizens’ rights,
e.g., right to
work, right to
vote

Legal persons
≠ highly personal
fundamental
rights, e.g.,
human dignity,
right to life