Fundamental rights Flashcards
Melloni
Concerned right to fair trial. Melloni convicted in absenta, EU arrest warrant issued for him to be returned. Can you go beyond protection laid down in situation. Advocate general sugguested that article 47 (right to fair trial) was more than rights in EU convention so charter should take precedence. However, when it went to court of justice held denied, the effect of provisions is that you should ensure complete compatibility between charter and convention as such you should not have a higher standard under EU law, can have a higher standard under national law.
Gardella
G sought to rely on article 15 which is freedom to choose an occupation and work. However, what is the scope of article 15, found the explanations to the charter refer to the free movements right in article 45 in TFEU. Found that this meant that article 15 cannot be interpreted more widely than this. It could not apply to a chOose of occupation within their own member state because not connected with free movement.
Delvigne
– French restrictions on the right to vote in European Parliament elections (CJ silent on ECHR) – restricted prisoners voting that led to the 3 justifications being applied.
Léger
French ban on blood donations from gay men. This concerned an EU directive concerning blood donations. France imposed a ban on blood donations from gay men, they refused to accept L’s blood. He chalenneged that it was incompatible of non-discrimination. France argued that there was a high risk of disease by gay men. Protection against injection was a legitimate objective which might defy article of non-discrimination IF it was shown there was a high risk. It would ojnly apply if medical data supported the belief. Thirdly it is necessary because of the high risk. Held: providing those criteria are meet then there is a ban but there needs to be constant review.
Laval un Partneri [2007]
Above two cases concerned exercise of industrial actions which was lawful under eu law in dispute concerning the use of workers frm other countries to carry out tasks within member state. Issue was the workers would be paid between trade unions which was lower than they would have been paid in their country. There was a clash on the treaty provisions concerning free movement of services, a contract to perform a building contract is a service. This is a fundamental freedom within the unions, the unions were exercising a lawful right under article 28 of the charter, a right of workers to take industrial action subject to national law. There was a treaty right and a charter right. Found fundamental right to take industrial action but this was limited as it had to be proportionate for worker’s interest. If form of instruction action was too restrictive then it would be unlawful. As they could not build the school, this was a disproportionate measure. Lavel un Partneri was criticised because the charter right is an individual right.
Pringle
led to the establishment of ESM. This was established by a treaty between member states in Euro area, this treaty was only possible because article in the TFEU article 136 was amended to allow for this procedure to be used. However, the basic point was that this did not amount to implementing EU law because the agreement was between the states as a separate treaty. The treaty was between member states outside scope of treaty. It creates no new obligation on member states so not possible for Pringle.
AMS
concerned dispute between two private parties, but article 27 did not have a horizontal effect because article 27 is of a general nature, it provides that workers must be guaranteed information and consultation under conditions provided by national law. There is an EU directive 2002 no 14 provides for workers to have information affecting them where there is a certain number of employees. The French implementation of this directive did not count certain workers as employees. This meant that within this company there was not information rights because it fell below this threshold. The Court of Justice found that it was within scope of EU law because EU directive was applied. However, it could not be used by private individuals because unlike article 21, article 27 does not give specific expression to this law. The directive did not provide further expression not in a way that conferred a right to individuals. Critised as a narrow interpretation as it is worded as a “right”, but this was not deemed to be specific enough.
Kücükdeveci
duty on national court to disapply provision in a Directive (that had passed its implementation date) that was contrary to that general principle of law – principle of non-discrimination and specifically Art 21 of the Charter – had an indirect horizontal application to a dispute between two private parties – K was 28 and was working in a private factory, she was then given notice of dismissal and she was given a period of notice based on her being employed for 3 years even though she had been employed for 10 years. However, german law says that period of notice is only counted past the age of 25. However, the EU anti discrimination direction 2000, no 78 provides for non discrimination in relation to employment including age discrimination. K argued she was being discriminated against due to her age and Court of Justice found provisions were application because directive had past implementation date which put an obligation on national courts to declare any provision against provision invalid. The state had not correctly applied the directive, this is not unlimited, it applied in particular because it ran contrary to article 21 of the charter
lida
Lida concerned an EU citizen who was german but she lives in Austria, her parents was seeking a right of residents in Germany. She was the EU citizen the farther was not. Argument: did Germany have a duty based on right of family life, to have farther within member state, should this be applied? Found: this was a matter of national law it was true that eu citizen had gone to another member state but the farther had stayed within Germany so it was an internal situation. Therefore, no cross boarder dimension because EU is about free movement between member states but he hadn’t moved. Had he gone to Austria and applied there, then it would have applied as there would have been a cross boarder dimension.
PPU J McB [2010]
Member State had considerable discretion over ‘rights of custody’ of children under Regulation 2201/2003 on jurisdiction and the recognition and enforcement of foreign judgments in matrimonial matters and matters of parental responsibility. Although the concept of ‘rights of custody’ was autonomous EU concept independent of the law of the Member States and was subject to the interpretation of the Court of Justice, the conditions of custody were solely a matter for the Member States and were therefore to be determined by national law. Discretion needed to be excerised. Must be within scope of EU law.
N.S. [2011]
where UK was proposing to return asylum seekers to Greece, this is a rule which is laid down in EU regulations and under the Dublin regulation if there is an asylum seeker, which goes through another member state first, it can return the seeker to the state. ECHR conditions in asylum detentions were inhumane and contrary to EU convention. Court of Justice found term implementing EU law includes discretion by member state, it was found that they can assert discretion if fundamental rights were being abuse.
Åklargen v Åkerberg Fransson
Concerned a breach of article 50 of the Charter, article 50 concerns the rule “someone cannot be tried twice for an offence”. Mr Frannsson was found to be guilty of not doing his VAT properly, he received a cviil penalty and then subjected to an administrative penalty. He argued that being subjected to both penalties was him being tried twice. However, these were the national rules. However, there is a VAT directive of EU which sets general rules of Vat levels across member states, but leaves penalties to the member states. The courts held that because vat is regulated by EU and because VAT resources help fund the EU, there is an article 325 which puts an obligation upon all member states to counter illegal activities countering EU finances. Court of Justice held this general obligation means that member states need to be effective in collecting VAT in order to fund the EU.
Schrems
Schrems was a law student who did research into the way in which Facebook was carrying out its practises of transferring personal data from its headquarters in Ireland to the United States. Because Facebook had its headquarters within European Union, Schrems brought a complaint Held: rule the data going over to united states was lawful because there had been an EU decision which found the US has an adequate level of protection of personal data. Schrems argued it was not safe especially after Edward Snowdon. Therefore, when data protection ruled it was lawful, he went to the Irish courts. The Irish courts then used article …. The court of justice found the decision was invalid because it was incompatible with right of privacy and protection of data. Invalid because commission had a duty to guarantee that a third country ensures and adequate level of protection. There has to be an ongoing review. Held: interference with interference with life and privacy. Article 47 concerned the right to effective protection by courts.
Digital Rights Ireland
EU data retention directive was annulled, directive which allowed member states to retain data for certain reasons (security relatied) found that directive disproportional restricted the guarentees in the charter
Test-Achats [2011]
An EU directive on insurance which allowed for gender discrimination until 2012, because insurance companies showed that woman are typically safer drivers than men. Argued incompatible under charter of discrimination. Found that the provision which allowed for potential extension beyond 2012 was unlawful there was a clause which said the eu could decide to extend the law beyond 2012. Article 10 TFEU. Provision allowing for discrimination not allowed past 2012
Gender equality directive for insurance schemes where actuariary factors concerning woman (Safe drivers) were allowed to be applied until 2012, then clause allowing period to be extended, this period clause was found to be unlawful because it increases gender inequality. This was an EU legal act, highlights charter was being applied against eu institutions.
CJ held: Express reference to the Charter in the Directive required the validity of Art 5(2) ‘to be assessed in the light of those provisions’. EU legislature must exercise its competence in accordance with the aims of the EU, Art 3(3), and its duty to promote equality between men and women, Art 8 TFEU.
