EU Fundamental Rights

Question 1

The fundamental human rights enrished in the general principles of Community law and protected by the Court.
The Court made clear that:
1. It considered fundamental human rights unwritten general principles applicable
2. It would protect these rights - acts against them would be void.
3. If multiple interpretations would be possible that which did not infringed human rights was to be adopted.

Answer 1

Stauder

Question 2

Sources of inspiration for human rights principles: constitutional traditions of the member states and the ECHR.

Answer 2

Nold v Commission

Question 3

ECHR as a source of inspiration for human rights.

Answer 3

Johnston v Chief Constable

Question 4

Constitutional traditions of the member states as inspiration, in this given case right to property.

Answer 4

Hauer v Land Rheinland-Pfalz

Question 5

Human rights as a challange to EU acts
Respect for human rights is a precondition for the legality of any act.
European institutions cannot escape their human rights obligations.

Answer 5

Kadi

Question 6

Human rights as challanges to acts of Member States

When Member states implement EU law (implementation having a broad sense Aklagaren v Hans), or act within its scope by limiting one of the rights granted by treaty they have to comply with all the constitutional principles of EU law, human rights included.

Answer 6

N.S case - Familiapress

Question 7

Allows the Court to go beyonf the rights contained in the charter should the need arise.

Answer 7

6(3) CFREU

Question 8

Respect for human rights is a precondition for accession to the EU

Answer 8

Art. 49 TEU

Question 9

Omega
Human dignity

Nold
Economic rights

Razzouk
Non-discrimination

Answer 9

Omega
Human dignity

Nold
Economic rights

Razzouk
Non-discrimination

Question 10

I Dignity, II Freedoms, III Equality, IV Solidarity, V Citizen’s rights, VI Justice

Answer 10

Structure of the ECFR

Question 11

Austrian legislation prohibited the sale of periodicals containing prize
competitions. The effect was that foreign publications containing such competitions, while lawful in their country of origin, could be banned in Austria. The Austrian restriction was challenged on a reference from the Vienna Commercial Court as incompatible with the free movement of goods. The Court of Justice held that, in considering the justification for the restriction, it was necessary to take account also of fundamental rights, including freedom of expression, as enshrined in Article 10 E.C.H.R. (the same fundamental right as was invoked in ERT ).

Answer 11

Familiapress v. Bauer Verlag.(to be contrasted with Kremzon)

Question 12

Since those requirements [the requirements of the protection of fundamental rights in the Community legal order] are also binding on the Member States when they implement Community rules, the Member States must … apply those rules in accordance with those requirements.”

The Court’s judgment, as I have mentioned, took a similar line; it stated, although somewhat incidentally, that the requirements of the protection of fundamental rights “are also binding on the Member States when they implement Community rules … ”.

Answer 12

Wachauf case

Question 13

To return finally to the role of the Court of Justice in the protection of fundamental rights. This is generally seen as positive, and rightly so, I think, especially if one bears in mind that the whole foundations were the work of the Court. One expert report put it as follows:

“The European Court of Justice deserves immense credit for pioneering the protection of fundamental human rights within the legal order of the Community when the Treaties themselves were silent on this matter. It has been the Court that has put in place the fundamental principles of respect for human rights which underlie all subsequent developments”

Answer 13

Human Rights in the EU: the role of the court of justice - Francis Jacobs

Question 14

The Paradox of the EU’s Human Rights Policies The human rights policies of the European Union are beset by a paradox.8 On the one hand, the Union is a staunch defender of human rights in both its internal and external affairs. On the other hand, it lacks a comprehensive or coherent policy at either level and fundamental doubts persist as to whether the institutions of the Union possess adequate legal competence in relation to a wide range of human rights issues arising within the framework of Community policies.

Answer 14

An ‘Ever Closer Union’ in need of a Human rights policy - Alston and Weiler

Question 15

Overall, human rights policy within the Community continues to rely far too heavily on the premise that equipping individuals to pursue existing Community legal remedies (both at the national level and through the possibility of references to the European Court of Justice) is, for the most part, not merely sufficient but is even an effective mechanism to guarantee that rights will not be violated within the Community legal space. We challenge this implicit understanding. Judicial protection at the instance of individuals is an important, even foundational, dimension of an effective human rights regime. But while it is necessary, it is not sufficient.

Answer 15

An ‘Ever Closer Union’ in need of a Human rights policy - Alston and Weiler

Question 16

Its central argument was that the protection of fundamental rights forms part of the very foundations of the Union legal order. Accordingly, all Union measures must be compatible with fundamental rights. The Court reasoned that this does not amount to a review of the lawfulness of the Security Council measures.

Answer 16

The Kadi Case – Constitutional Core Values and International Law – Finding the Balance? - Kokott and Sobotta

Question 17

This is the so-called Solange I decision, derived from the German for ‘as long
as’. Twelve years later, taking account of the positive development of EU fundamental rights protection, the Bundesverfassungsgericht declared that it no longer needed to perform this review, as long as the EU kept to its elevated standard of protection. This is referred to as its Solange II decision.
The European Court of Human Rights (ECtHR) followed comparable reasoning in
its Bosphorus decision where it chose to abstain from exercising control with regard to EU acts.

Answer 17

The Kadi Case – Constitutional Core Values and International Law – Finding the Balance? - Kokott and Sobotta

Question 18

This would undermine the whole concept of integration through law. Also from this perspective Kadi could hardly have been decided differently.

Finding a proper balance between constitutional core values and effective international measures against terrorism is not easy. However, the developments following the Kadi case demonstrate the intention of the relevant actors to find a workable balance.

Already the current system is a huge improvement on the initial mechanism.
Therefore, we are optimistic that the balance will be found.

Answer 18

The Kadi Case – Constitutional Core Values and International Law – Finding the Balance? - Kokott and Sobotta

Question 19

Trevor Hartley divides decisions of the ECJ into three categories: decisions that are within the text of the law, decisions that are beyond the text of the law, and decisions that are against the text of the law.7 The debate on the ECJ’s methods of interpretation largely concerns the legitimacy of decisions that fall within
the second and third of Hartley’s categories; decisions within the first category are generally considered unexceptionable.

Answer 19

The EU Charter of Fundamental Rights and the Member States: an originalist approach - Stephen Brittain

Question 20

My research has uncovered no instance in which the phrase ‘implementing Union law’, or any variant thereof, was used prior to the drafting of the CFR to describe a Member State derogating from EU law. This constitutes strong evidence that the phrase was not understood to encompass such derogations at
the time of the drafting of the CFR.

Answer 20

The EU Charter of Fundamental Rights and the Member States: an originalist approach - Stephen Brittain

Question 21

My objective in this article has been to demonstrate that the phrase ‘implementing Union law’ used in art 51 of the CFR, in its original meaning, refers to situations in which the Member States are acting as
agents of the EU, by giving effect to directives, regulations, decisions, and directly effective Treaty provisions, but that the CFR does not apply to derogations from EU law.

Answer 21

The EU Charter of Fundamental Rights and the Member States: an originalist approach - Stephen Brittain