EU Law - EU Charter and Accession to the ECHR Flashcards
What does CJEU preference for Charter echo wariness of?
EU human rights being tied too closely to ECHR
Bosphorous Airways v Ireland
Members can rely on EU obligations as defence of HR violation, as equivalent system of protection
Article 52(5) Charter
Seeks to distinguish principles, which are ‘judicially cognisable’ only once implemented
Horizontal clauses in Charter
Articles 51 - 53
What does the solidarity chapter in the Charter reflect?
Provisions already integrated into EU law in European Social Charter
What distinction is made in the Charter, between two concepts?
Rights and principles
Akerberg Fransson general
Taxes, VAT but Directives irrelevant
Test-Achats v Conseil des Ministres general
Car insurance
What case shows Protocol (No.30) Article 1 EU Charter is not an ‘opt out’?
NS and ME
What Article of what Treaty gives a sanction mechanism for serious and persistent breaches of human rights by Members?
Article 7 TFEU
What FMW case shows dislike for ECtHR case law/
Dereci
What are the six assessment stages in Schecke v Land Hessen?
Identify right, interference, reflected in ECHR, permissible limitations, compliance with limitations and proportionality
What is a criticism of Melloni?
Unequivocal reassertion of EU primacy, rather than pluralist coexistence with other human rights systems
Melloni judgment
Article 53 does not question EU supremacy - no higher standard of protection allowed
How have the ECJ reviewed EU Treaty indirectly?
Through general principles - believe lack of protection is due to oversight
What case shows a retreat from Akerberg Fransson?
Counterterrorism Database judgment
What case shows ECtHR have already reviewed EU primary law?
Matthews
Nada v Switzerland
ECtHR followed CJEU lead
Who suggested EU attention to HRs is no more than self-serving instrumentalism?
Williams
Counterterrorism Database judgment
Members not bound by Charter if national rules only within abstract scope of EU law, or purely factual effect on EU law
EU Ombudsman on EU as human rights actor
Opened investigation into compliance of HR standards by Frontex
Name at least two problems ECJ highlighted with the DAA
Mutual trust, review of EU primary law, xo-respondent mechanism and prior involvement procedure
What case showed a very low threshold of ‘implementing in Union law’?
Akerberg Fransson
What case enforced that Article 53 Charter does not question EU supremacy?
Melloni
What case showed ECtHR reviewing law of same rank as founding treaties?
Matthews
Taxes, VAT but Directives irrelevant
Akerberg Fransson
What two cases show mutual influence between CJEU and ECtHR prior to accession?
Nada v Switzerland; Dhabi v Italy
CJEU on Opinion 2/94
Accession to ECHR would have ‘fundamental institutional implications’, so Treaty amendment needed
Article 6(2) TEU
EU ‘shall accede’ to the ECHR
Eeckhout on Bosphorous
Need mutual sensitivity for respective roles CJEU and ECtHR play, although Bosphorous may go too far upon accession
Protocol (No.30) Article 1 EU Charter
CJEU/court/tribunal in UK/Poland can’t find Polish/UK action to be inconsistent with fundamental rights, freedoms and principles, and no justiciable rights from Title IV unless provided in national law
How many years did the Draft Agreement on Accession take to complete?
3 years
Car insurance
Test-Achats v Conseil des Ministres
What does Eeckhout argue in response to problem of prior-involvement procedure?
No distinction between interpretation and compatibility as CJEU need to rule on the former to tule on the latter
What investigation suggested EU is not a significant human rights actor?
EU Ombudsman into Frontex
Members not bound by Charter if national rules only within abstract scope of EU law, or purely factual effect on EU law
Counterterrorism Database judgment
AMS general
Right to be consulted, private employer
Circular definition of ‘implementing in Union law’, so if EU law applies, so do fundamental rights
Akerberg Fransson
Name at least two reasons why accession may still be desirable today?
Signal credibility of EU, ECtHR has expertise, possibility of conflict on same issue and desirability of challenging EU acts before ECtHR
AG in Opinion 2/94
Accession unnecessary as EU about economic integration
What case shows EU development on equal treatment on grounds of sex?
Test-Achats v Conseil des Ministres
Akerberg Fransson judgment
Circular definition of ‘implementing in Union law’, so if EU law applies, so do fundamental rights
Article 6 TEU
Three sources of fundamental rights protection
How long was the Convention to draft the EU Charter?
1 year
Article 53 Charter
Nothing in the Charter affects HRs or fundamental freedoms adversely
NS
CJEU accepted MSS of ECtHR
When the ECtHR say they would review in Bosphorous?
If there were a manifest deficiency
Who suggested CJEU sometimes ‘manifestly’ prefers the Charter?
Burca
What case Left open if sufficiently precise provision of Charter would have horizontal application against an individual?
AMS
Article 7 TFEU
Sanction mechanism for serious and persistent breaches of human rights by members
Who questions if mutual trust even clearly trumps protection of fundamental rights?
Eeckhout
What was the effect of the EU Charter
Made ECHR rights ‘visible’
What, under Article 52(5), is only judicially cognisable once implemented by the Member?
Principles
Eeckhout on Melloni
Shows potential conflicts between EU and national law can be resolved from within
Field of application of the Charter
Article 51 Charter
Schecke v Land Hessen general
Data protection of farmers
Name the six chapter rights given in the Charter
Dignity, freedoms, equality, solidarity, citizens’ rights and justice
Article 51 Charter
Field of application of the Charter
What showed dislike of possibility of superior review in Opinion 2/94?
‘Fundamental institutional implications’
Article 52 Charter
Scope and interpretation of rights and principles
What was the main issue with the prior-involvement procedure in DAA?
Limited to compatibility of EU law
Why can EU not be a defendant in Strasbourg?
Not a member of the ECHR
Williams on EU as human rights actor
EU attention to HRs is no more than self-serving instrumentalism
NS and ME
Protocol (No.30) is not an opt out - no exemption from obligations to comply with Charter, or ability to prevent court from ensuring compliance
What does Eeckhout argue in response to problems of corespondent mechanism?
ECJ need not look intrusively, just at discretion to determine responsibility
Right to be consulted, private employer
AMS
What did the two separate concurring opinions by 7 judges in Bosphorous express?
Reservations about majority approach - concern about largely abstract general system of ‘equivalence’ replacing case-by-case analysis
ECtHR found failure to make a preliminary reference to ECJ violated Article 6(2) ECHR
Dhabi v Italy
Articles on citizens’ rights
Articles 20 - 25 TFEU
Douglas-Scott on Bosphorous?
Would need to abandon it upon accession to the ECHR
AMS judgment
Left open if sufficiently precise provision of Charter would have horizontal application against an individual
What does Eeckhout point to to suggest mutual trust does not trump protection of fundamental rights?
Opening provision in TFEU on AFSJ requires respect for fundamental rights
ECtHR followed CJEU lead
Nada v Switzerland
Dereci general
Austria, Turkey, daughter
What case shows indirect review of EU acts by ECtHR prior to accession?
Bosphorous
What is an example of ECJ reviewing EU Treaty indirectly?
No action by EU P against other institutions
Data protection of farmers
Schecke v Land Hessen
AG Jacobs in Bosphorous
For ‘practical purposes’, ECHR is part of EC law and ‘can be invoked as such both in this Court and in national courts’
What G argued against inclusion of social and economic rights in EU Charter?
UK
Julian Hernandez
Fundamental rights review of Member action ensures EU law supremacy
What section gave three sources of fundamental rights protection?
Article 6 TEU
Bosporus showed presumption of what?
Compliance with ECHR by equivalent protection of EU on fundamental human rights
Amnesty International on EU as human rights actor
Criticised EU for neglecting and undermining HR concerns
What case started the EU development on equal treatment on grounds of sex?
Test-Achats v Conseil des Ministres
Why does Eeckhout suggest ECtHR review of primary law could be to ECJ’s interest?
CJEU barring from reviewing CFSP may breach right to an effective remedy
Test-Achats v Conseil des Ministres judgment
Gender Directive allowed discrimination of prohibited criteria indefinitely, not allowed
Matthews judgment
EU primary law violated Protocol 1 ECHR right to vote
What Treaty entered the EU Charter into force?
Lisbon Treaty 2009
What was attached to the Bosphorous judgment?
Two separate concurring opinions by 7 judges
What is the reasoning in Julian Hernandez the same as?
Reasoning for fundamental rights review of EU action in Handelsgesellschaft
What AG stated that ECHR is part of EC law ‘for practical purposes’, and in what case?
AG Jacobs in Bosphorous
EU ‘shall accede’ to the ECHR
Article 6(2) TEU
What is the Bosphorous case an example of?
Solange principle
Criticised EU for neglecting and undermining HR concerns
Amnesty International
Eeckhout on problem of mutual trust under Opinion
Does mutual trust even clearly trump protection of fundamental rights?
Who opened an investigation into compliance of HR standards by Frontex?
EU Ombudsman
Why does Douglas-Scott think Bosphorous would need to be abandoned upon accession to the EU?
EU should not be privileged
What Protocol of what means no court can find UK/Poland to be inconsistent with fundamental rights?
Protocol (No.30) Article 1 EU Charter
What case shows ECtHR enforcing EU law?
Dhabi v Italy
How does Dereci show ECJ dislike for ECtHR case law?
Barely mentioned Article 8 ECHR
Who are Frontex?
EU border agency
What case gives a model for how CJEU analyse cases for violation of Charter?
Schecke v Land Hessen
Name the two cases showing CJEU reviewing EU legislation through Charter
Schecke v Land Hessen; Test-Achats v Conseil des Ministres
What kind of rights are lacking in the ECHR, but present in the Charter?
Social and economic rights
What are the three sources of fundamental rights protection?
EU Charter, ECHR and general principles of EU law
Why is Protocol (No.30) Article 1 EU Charter primarily declaratory?
Doesn’t overturn ECJ case law on various instrumental sources
gibraltar citizens vote in EU p
Matthews
Matthews general
gibraltar citizens vote in EU p
Dhabi v Italy
ECtHR found failure to make a preliminary reference to ECJ violated Article 6(2) ECHR
Why did Eeckhout find the concerns over prior-involvement procedure surprising?
Informally agreed in a joint press communication
Melloni general
EU arrest warrant, surrender, in absentia
What is the most controversial amendment by Lisbon to the ECHR?
Article 52(5)
Schecke v Land Hessen judgment
Regulation struck down for infringement of fundamental right to protection of personal data
MSS v Belgium and Greece general
EU asylum, Dublin, exceptions
What does Article 52(5) Charter try to introduce?
Introduce traditional distinction between negatively-oriented civil and political rights, and positively-oriented economic and social rights
What do limitations need to be under Article 52 Charter?
‘Provided for by law’, necessary, meet objective of general interest/need to protect rights of others AND proportionality
What Article states that overlap between Charter and ECHR means scope and meaning the same?
Article 52 Charter
What is the difference in position between Bosphorous and Handelsgesellschaft
Seems every individual can try to rebut presumption in Bosphorous as only manifest deficiency, as opposed to systematic
Opinion 2/94 Accession to ECHR was based on what proposal?
Treaty requiring all Members and EU to agree to accede to ECHR
Fundamental rights review of Member action ensures EU law supremacy
Julian Hernandez
How many chapters does the Charter have?
7
MSS v Belgium and Greece judgment
Discretion meant it should have been exercised and not sent back
