Fundamental rights

Question 1

29/69 Stauder v City of Ulm [1969] ECR 419:

fundamental rights -

“fundamental human rights enshrined in the general principles of Community law and protected by the Court.”

Answer 1

the interpretation making the EU law compatible with the national fundamental rights is preferred.

The Decision No 69/71 ECC of the European Commission provided cheap butter for welfare benefits, but required to show a coupon with a person’s name and address.[1] Mr Stauder was entitled to buy butter at reduced prices because he was beneficiary of the welfare scheme for those disabled in the war. However, he considered it illegal to make the appearance of the name of the beneficiary on the coupon mentioned above a condition for buying the butter. He claimed this violated his dignity and challenged it.

Question 2

*11/70 Internationale Handelsgesellschaft [1970] ECR 1125:

Answer 2

see other decks

Question 3

*4/73 Nold v Commission [1974] ECR 491

= in these 2 cases (w/ hauer)ECJ backtrack compared to internationalle .

Answer 3

The criteria imposed by the Commission, established by an administrative act of general application, cannot be considered discriminatory and were sufficiently well-reasoned (justified on
the technical conditions and on the economic difficulties created by the recession in coal production), and the applicant was not treated differently from other undertakings which also failed to meet the requirements laid down under the new rules. The applicant asserts that the decision violates a right akin to a proprietary right and its right to the free pursuit of business
activity, as it jeopardizes its profitability and the free development of its business activity.

The Commission authorised the merger of most of the mining companies of the Ruhr into a single company, laying down new minimum quantities for dealers to directly purchase from the producer which Nold, a German limited partnership, did not meet. Nold applied for annulment of the Commission’s decision, claiming it was discriminatory as it forced them to deal through an intermediary while other dealers would continue to purchase directly from the producer.

Question 4

*44/79 Hauer [1979] ECR 3727

fundamental rights

Answer 4

This case concerned the protection of fundamental rights in the Community legal order, and such analysis could only be conducted, following Internationale Handelsgesellschaft. The introduction of special criteria stemming from the legislation or constitutional law of a particular Member State would damage the substantive unity of Community law and lead to the destruction of the unity of the Common Market and the jeopardising of the cohesion of the Community. Following Nold, fundamental rights form an integral part of the general principles of the law, drawing from the constitutional traditions of MS. Therefore, measures which are incompatible with rights recognised in constitutions of the MS would also be unacceptable to the Community. In terms of the specific right to property, it was deemed to be guaranteed in the Community
legal order, in accordance with ideas common to the constitutions of the Member States and also
reflected in the First Protocol of the ECHR. All the wine-producing countries had restrictive
legislation concerning the planting of vines and so the restriction imposed by the regulation was
not per se unlawful. As such, the restriction was justified by Community objectives of general
interest and did not infringe the substance of the right to property.

The plaintiff sought to challenge the decision of an administrative authority in Germany which had not granted her authorisation in respect of planting new grapes on her land, as the land did not meet the authority’s specifications. The national court she initially started the claim in had stated that EU law by way of a Council Regulation (adopted after the German law) would have had the same effect as the German law, and so her claim could not succeed. The plaintiff
then contended that the provisions of the Regulation infringed her right to property as well as her right to freely pursue a trade or profession, both safeguarded by the German constitution.

Question 5

*5/88 Wachauf [1989] ECR 2609

*C‑260/89 ERT [1991] ECR I-2925

Answer 5

= in this 2 case it is also the MS that must comply with EU fundamental rights when acting in the scope of EU law. It is not enough to observe national fundamental rights.

• implemeting a milk quota system.
• ERT, a Greek radio and TV company, had exclusive rights for broadcasting, and claimed an injunction against Pliroforissis and Kouvelas for setting up a rival TV station without a licence. They claimed they should be allowed to operate under the right to free movement of goods and competition law, and the ECHR article 10 on freedom of expression.

Question 6

*C‑222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651

fundamental rights - new approach

“derogation from an individual right laid down in the directive must be interpreted strictly.’

Answer 6

ECJ: the standard of protection of EU law was higher in regard of equal treatment regardless of gender.

Facts: the govt. Of Northern Ireland takes a measure not to allow woman in the police force to carry guns. There is a provision in their national law: courts can’t question the decisions taken for purposes of national security.

Question 7

Case C-368/95 Familiapress v Bauer [1997]

Fundamental rights and EU freedoms as converging forces

Answer 7

Article 30 of the EC Treaty does not preclude the application of legislation of a Member State that prohibits the distribution on its territory by an undertaking established in another MS of a newspaper produced in that latter State containing prize puzzles which are lawfully organized in that State, provided that that prohibition is proportionate to maintenance of press diversity and that that objective cannot be achieved by less restrictive means.

Familiapress, an Austrian newspaper publisher, brought proceedings against Bauer, a German newspaper publisher, for an order that the latter should cease to sell in Austria publications offering readers the chance to take part in games for prizes, practice in breach of the Austrian Law of Unfair Competition.In connection with these proceedings, the Commercial Court of Vienna referred for a preliminary ruling whether application of this legislation to an undertaking
established in a different Member State, in which this practice is lawful, would be considered a quantitative restriction on imports or a measure having equivalent effect.

Question 8

C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279

freedoms and fundamental rights as converging forces

Answer 8

Held by the ECJ= his business had an interstate element. The deprtation would restrict his free movement therefore this deportation would have to be proportionate (must comply with the right to private and family life).

=> it is not proportionate bc she has only overstayed for a short period of time.

= this is a very broad judgment

she as an illegal Filipino immigrant is liable to be deported marries a British citizen. She argues that deportation would be a restriction on her husband’s freedom to provide services because she takes care of the children.

Question 9

Remember Omega and Schmidberger, Ireland v Grogan

free movement vs fundamental rights

Answer 9

in the first two cases, the court applies a proportionality test which offers a higher standard of protection.

Question 10

*Joined Cases T-315/01 and T-306/01 Kadi v Council and Commission (Kadi I), [2005] ECR II-3649, reversed on appeal: the accused does not have the panoply of rights that normally accompany the process of criminal prosecution.

= it is not for the EU court to decide on the legality of the UN’s security council decision.

*Joined Cases C-402/05 P & C-415/05 P Kadi I [2008] ECR I-6351 : adamant that he is not involved with Al Qaida.

The ECJ reverses the decision, the MS cannot do something within the scope of EU law that does not comply with EU law

*T-85/09 Kadi II, [2010] ECR II-05177, rvrsd on appeal:

*Joined Cases C‑584/10 P, C‑593/10 P Kadi II, judgment of 18 July 2013

Answer 10

the CJEU pursued a different path. It reviewed the lawfulness of the EU regulation transposing the resolution.4 Its central argument was that the protection of fundamental rights forms part of the very foundations of the Union legal order.5 Accordingly, all Union measures must be compatible with fundamental rights.6 The Court reasoned that this does not amount to a review of the lawfulness of the Security Council measures. The review of lawfulness would apply only to the Union act that gives effect to the international agreement at issue and not to the latter as such.7

Having established that, the review for compliance with fundamental rights was a relatively simple task. The claimant had not been informed of the grounds for his inclusion in the list of individuals and entities subject to the sanctions. Therefore he had not been able to seek judicial review of these grounds, and consequently his right to be heard as well as his right to effective judicial review8 and the right to property9 had been infringed.
=In contrast to the judgment of the GC,10 the judgment of the CJEU in Kadi has been associated with a dualist conception of the interplay between the international and the Union legal order

In the UN Security Council Kadi was identified as a possible supporter of Al-Qaida. Therefore, he was singled out for sanctions, in particular for an assets freeze. The EU transposed this UN sanction by a regulation which Kadi then attacked before the EU Courts. At first instance, the GC refused to review the EU regulation because this would amount to a review of the measure of the Security Council. Nevertheless, the GC examined whether the Security Council had respected ius cogens, in particular certain fundamental rights. But the General Court did not find an infringement of this standard.

Question 11

C-236/09, Association Belge des Consommateurs Test-Achats, judgment of 1 March 2011

CFR - gender discrimination

.

The partial cancellation of the directive => different political outcome.

Answer 11

*Held: Article 5(2) invalid (so the exemption no longer applies) on the ground that it allowed the derogation to persist indefinitely. Such a provision, which enables Member States to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment. So it was a discrimination on grounds of sex

*Directive 2004/113 laid down a framework for combating discrimination based on sex in access to and supply of goods and services. The Directive prohibited the practice of using gender as an actuarial factor in calculating insurance premiums. => It applies mostly to life insurances.

*Article 5(2) derogation: It allowed Member States to decide “to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data.” => a pressure group challenges the validity of article 5(2).

Question 12

*C-13/94 P v S and Cornwall County Council [1996] ECR I-2143

CFR - discrimination againt transsexuals

Answer 12

Held: this is discrimination between the sex of the same person. The sex before and the gender after.

Facts: The applicant undergoes a gender reassignment surgery and is dismissed from their job. Is it discrimination on grounds of sex.

Reasoning: dentify the relevant comparators/ is there an unequal treatment? / Is there discrimination?
The British govt.: argues that if you are a woman and become a man (and vice versa) you get dismissed anyways.

Question 13

*Joined cases C-122 and C-125/99 D and Sweden v Council [2001] ECR I-4319:

see comparative law on same sex partnership

Answer 13

Held: there is no discrimination on grounds of sex: if you are an unmarried woman or man doesn’t change anything.

No discrimination on grounds of sexual orientation, was there a marriage ceremony? No => then no allowance. A registered partnership is not the same as a marriage.

Facts: D words for the Council and has a registered same-sex partner. The EU gives an allowance to married couples. D is refused. He argues that he is in a registered partnership

NB: very different from P v S.

Cf. Coman, Case C‑673/16, ECLI:EU:C:2018:385

Question 14

C-144/04 Mangold [2005] ECR I-9981

CFR - discrimination on gounds of age

Answer 14

The German law was invalid for infringing the general principle of equal treatment in respect of age in EU law

Under German law, the Employment Promotion Act 1996, fixed term contracts were unlawful unless they could be objectively justified, but this protection did not apply to workers over 52 The Employment Equality Framework Directive required member states to provide protection of workers on fixed term contracts by requiring employers to state objective reasons justifying the renewal of such contracts, the maximum total duration of successive fixed term contracts The implementation period for the directive had not yet expired
Mangold, who was 56 and on a fixed term contract, claimed that the lack of protection under German law was age discrimination

Question 15

*Case C‑555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG, [2010] ECR I-365

CFR - discrimination on grounds of age

Answer 15

= the german civil code
Affirmation of the principle in Mangold that a general principle of EU law, if concretised by a directive, can have horizontal direct effect
In contrast to Mangold, this case suggests that for the general principle to take effect the implementation period for the directive must first expire

German Civil Code provided for a reduced notice period for dismissal of younger workers so that work undertaken before 25 would not be accounted for when calculating the period of notice
As a result, Ms K received a notice of about 40 days rather than 4 months
K brought claim against employer, a private company, arguing that she had been discriminated based on age
Preliminary reference was sought on whether the prohibition of non-discrimination on grounds of age in EU law applied

Question 16

C-83/14 CHEZ

Discrimination by association

Answer 16

Held: there could be ‘indirect discrimination’ by association. It does not matter that the applicant belongs in the protected group. in that case the electricity company argued that they wanted to reduce fraud and protect people’s lives => up to the national courts to decide whether this was proportionate

• Facts: a Bulgarian electricity company. In certain neighbourhoods (where roman lived) they are placed in unreachable places bc there have been observation of thefts.

Question 17

Case C‑303/06 Coleman v Attridge Law

CFR - disablity discrimination

Answer 17

The ECJ concluded that the prohibition on direct discrimination in the Framework Employment Directive is not limited to individuals who are themselves disabled. Where an employer treats a non-disabled employee less favourably than another employee in comparable circumstances, and it is established that the less favourable treatment is based on the disability of the employee’s child, such discrimination will be contrary to the prohibition laid down by the Directive.

Ms Coleman claimed that she had been discriminated against because she is the primary carer for her disabled son. She alleged that the discriminatory treatment included a refusal to allow her to return to her existing job after coming back from maternity leave; the suggestion that she was ‘lazy’ when she sought to take time off to care for her son; a refusal to give her the same flexible working arrangements as her colleagues with non-disabled children; and an allegation that she was using her child to manipulate her working conditions.

While the Disability Discrimination Act 1995 covers only discrimination against ‘a disabled person’ on grounds of his or her disability, the Framework Employment Directive prohibits discrimination ‘on the grounds of religion or belief, disability, age or sexual orientation’.

Question 18

*Case C-193/17 Cresco Investigation GmbHE

Cf the Opinion of Advocate General Bobek

Answer 18

The AG identified three alternatives as comparators

• Employees for whom Good Friday is the most important religious festival of the year (the narrow comparator) => then no claim
• Employees for whom there is a particularly special religious festival not coinciding with any other public holiday already recognised under national law (the intermediate comparator).
• Employees working on Good Friday who are being distinguished from other employees on the basis of religion in relation to remuneration for that day (the broad comparator).

Held: The court chooses the broad comparator. There is discrimination. The members of this church get this benefit just because they say that they celebrate good fiday but there is no proof. Concludes that it’s a breach of religious equality. Until Austria changes its law, employers have to extend the benefit to everyone.

Facts: Under Austrian law, only employees who were members of certain Christian churches could claim Good Friday as a public holiday and be paid extra if they worked on that day. Argues that it favors a religion.

Question 19

*C‑617/10 Fransson

scope of application of the charter - 51(1)

see also C-206/13 Siragusa: objectives-based and effects-based test. Build a massive villa on the coast but breaches environmental rules. He argues that it violates charter rights (property). The link with EU law: some of the environmental rules he breached emanate from EU law.

The Court: rejects the link.
and sets out criteria to find a link with EU law:
5. In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are

1. whether that legislation is intended to implement a provision of EU law;
2. the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also
3. whether there are specific rules of EU law on the matter or capable of affecting it

Answer 19

Held: the Court did not follow the narrow interpretation based on Villalón AG’s model of ‘specific interest’. It held, instead, that the Charter is “applicable in all situations governed by EU law” (C-260/89 ERT); Uncertain criterion bc finding a link with European law is not hard.

: Swedish businessman sentenced to jail for tax evasion (two different types) => argues that he was sentenced twice for the same crime. He relies on Art. 50 (no double jeopardy) because he argues that there’s a link with European Law. The VAT is a EU tax

Question 20

Case C-282/10 Dominguez

scope of application of the CFR - 51(1)

Advocate General Trstenjak read Article 51(1) as precluding the horizontal effect of the Charter relying on an a contrario argument

*Charter may aid the interpretation of both state measures which affect private relations and also private obligations arising from contract

*Courts are bound not to give effect to private obligations which breach fundamental rights

Answer 20

The Court thoughtWhile a directive itself cannot impose obligations on individuals, the
duty of consistent interpretation, the legal status of the respondents as state bodies, and the
principle of state liability all the applicant led to that conclusion. .

Dominguez, a worker on sick leave for over a year, was denied vacation benefits because a French statute required that a worker should work at least 10 days a year before being able to claim vacation benefits. The Working Time Directive, however, requires all employees to be entitled to 4 weeks of paid vacation. The duty of consistent interpretation, coined in Marleasing, requires national courts of Member States to interpret national law consistently with EU law. There are of course limits to this way of remedying discrepancies between EU law and national law such as contra legem interpretation.
The Cour de cassation, one of the highest French courts, in its reference to the Court had informed the Court that it did not see any possibility of interpreting French law consistently with the Working Time Directive.

Question 21

Egenberger Case C-414/16 EU:C:2018:257

scope of application of the CFR - 51(1)

Does the charter apply here ?

*Article 21(1) of the Charter: right to non-discrimination

*Article 17(1) TFEU: The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

Answer 21

Held: the principle of nondiscrimination, as a general principle of EU law and as enshrined in Article 21 of the Charter, is capable of direct horizontal application.
* Under Article 4(2) of the Directive, a church or religious organisation can treat a job applicant differently because of their religion or belief if it can show that a person’s religion or belief constitutes a “genuine, legitimate and justified” occupational requirement of the role.
* where, in a dispute between individuals, a national court cannot interpret a provision so as to be compatible with the dispositions of equal treatment, it must set it aside.

Facts: Mrs Egenberger’s application for fixed term employment by the Evangelisches Werk, a private religious organization, was refused on the ground that she did not belong to the Protestant Church. The Evangelisches Werk had sought to recruit a person to produce a report on the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. The offer of employment provided as a condition membership of a Protestant church.
Evangelisches Werk argued that the right to require membership of a Christian church was, in the view of Evangelisches Werk, covered by the churches’ right of self-determination protected by Article 140 of the GG in conjunction with Article 137(3) of the WRV. Such a right was consistent with EU law, by reason in particular of the provisions of Article 17 TFEU.

Question 22

Bauer Joined Cases C-569/16

scope of application of the Charter

Answer 22

*Nonetheless, the Court held that the heirs of a deceased worker could rely directly on Article 31(2) of the Charter against the worker’s private employer.

*Article 7(2) of Directive 2003/88 requires Member States to grant workers the right of a minimum annual leave and provides that, exceptionally, that right may be replaced by a monetary payment only where the employment relationship is terminated.

*The issue in Bauer was whether the right to payment could be claimed by the heirs of a worker where the employment relationship was terminated upon the worker’s death.

*German law provided that the right to annual leave lapsed upon death and thus did not form part of the estate of the deceased. This was found to be incompatible with Article 7(2) of the Directive which imposed a clear, precise and unconditional obligation but German law was unambiguous and it was not possible to interpret it so as to comply with EU law.

Question 23

Case C‑399/11 Melloni v Ministerio Fiscal

the CFR in context- meaning of art. 53 CFR

Must the Framework Decision on the European arrest warrant be interpreted as precluding Spanish courts to make the surrender of Mr Melloni subject to the possibility of judicial review of his conviction (as required by the case-law of the Spanish Constitutional Court) in order to guarantee his the rights of defence?
If yes:

Is the Framework Decision compatible with right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter and from the rights of defence guaranteed under Article 48(2) of the Charter?
Does Article 53 of the Charter allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognised by its constitution?

Answer 23

= The CJEU stressed that where EU law is compliant with the Charter—and it found that the European Arrest Warrant system was compliant—it cannot be overridden by domestic constitutional rights (or, presumably, international obligations) where these give greater protection than the EU rights do. In other words, Melloni seems to suggest that supremacy of all EU law over domestic law (including constitutions) remains as it was before.
higher standard of protection of the spanish constitution cannot be relied upon by the individual to escape an European Arrest Warrant

Mr Melloni, while present in Spain, was facing trial for a bankruptcy fraud before an Italian court. A Spanish court authorized his extradition to Italy in order for him to be tried there but, at the same time, released him on bail. Mr Melloni fled and never appeared before the Italian court. The trial took place in absentia, although in the presence of lawyers that Mr Melloni had himself appointed. Mr Melloni was convicted and sentenced to 10 years imprisonment. The decision was upheld by all levels of Italian judiciary.

Some years later Mr Melloni was arrested by the Spanish police. In 2008, a European Arrest Warrant was issued by the Italian court requesting Spanish authorities to surrender Mr Melloni. The Spanish court authorised the surrender, after which Mr Melloni lodged a petition for a constitutional protection before the Spanish Constitutional Court.

Question 24

*Taricco, Case C‑105/14, EU:C:2015:555

*M.A.S., Case C‑42/17, EU:C:2017:936

Answer 24

*Taricco: A national court must disapply national rules pertaining to limitation periods which make impossible the imposition of dissuasive penalties for countering EU fraud

*M.A.S: if the national court were to come to the view that the Taricco obligation to disapply the provisions of the Criminal Code conflicted with the principle that offences and penalties must be defined by law, it would not be obliged to comply and it would then be for the national legislature to take the necessary measures.

*Under Italian law, where a limitation period for the prosecution of a criminal offence is interrupted, it can only be extended by a quarter of its initial duration. That restriction would have as a result that Mr Taricco, who had been charged witn fraud to escape punishment.

Question 25

*Matthews v United Kingdom, ECHR, 18 February 1999

ECHR vs CFR

see *Bosphorus v Ireland, ECHR, 30 June 2005

Answer 25

As a result of the decision, the UK allowed elections to the European Parliament in Gibraltar by incorporating those voters into a South West of England constituency in 2003

Gibraltar is a dependent territory of the UK8. Although it is not part of the UK, Gibraltar is part of the European Union (EU) under Article 299(4) Treaty on the Functioning of the European Union 1957 (EC Treaty) 9. The 1976 Act on Direct Elections, which was annexed to a decision by the EU10, excluded Gibraltar from any elections of the European Parliament.

Denise Matthews, a Gibraltar resident, complained to ECtHR that this denied her the right to vote in the European Parliament election of 1994, even though she was a UK citizen. She claimed that this violated her rights under Article 3 Protocol 1 ECHR.

Question 26

Opinion 2/13 of the ECtHRs: the autonomy of EU law

Answer 26

the court rejected the draft accession agreement arguing that it did not comply with the auonomy of EU law.