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Fundamental Rights Flashcards

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1
Q

what are the learning objectives?

A
  1. Understand the evolution of fundamental rights protection in the EU
  2. Critically analyse whether the EU is a fundamental rights actor
  3. Understand when EU fundamental rights bind Member States
  4. Understand the relationship between the Charter of Fundamental Rights, general principles of law and the ECHR
  5. Understand the impact of the Charter on fundamental rights protection in the EU
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2
Q

what is meant by the 1st obj?

A

1st one – understand r,a,w why is it an evolution, u mayr meebr 1st lec how ti alls atrte. How many fr were there in treaty =0 . But this sic omplety diff tody. Treatietest we have a charter of fr in eu. This is kinda eu blog rights. U may if u read newspaper u would have ehard bout discussion do we need uk blog rights. In the eu we have charter of fr. Next one is

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3
Q

what is meant by the 2nd obj?

A

2nd point – critically annalus r.a.w explain that in sec, what that emans.

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4
Q

what is meant by the 3rd obj?

A

The 3rd understand when eu fundamental right bind r.aw- that itn bit cos obvs in uk we ahev the hr act. So uk gov is bound by hr already hw , eu fundamenta rights can bind ms from certain cirucmstances aswell, and thay lo’s lo understands when that happen relates to that scenario.

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5
Q

what is meant by the 4th obj?

A

as said

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6
Q

what is meant by the 5th obj?

A

-understand impact charter – means charter putting eu binding force in 2009 and after 2009 how ahs iti impacted on fr protection from eu.

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7
Q

overview?

A

Introduction
Part I: Evolution of EU fundamental rights
Part II: The Charter of Fundamental Rights of the EU
Part III: Fundamental rights-based judicial review
Relying on EU FR to challenge validity of EU measures
Relying on EU FR to challenge validity of MS measures
Part IV: The EU‘s accession to the ECHR
Art. 6(2) TEU and reasons for accession
CJEU, Opinion 2/13

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8
Q

what about this overview?

A

Again fundamental rights based judicial review, judicidal review is basically power of ct to assess the validity of an act of parliamant , of act of governemtn. Next week and can already see interesting bit we can clearly rely on eu fundamental rights ot challenge an eu measure if u have an eu measure for e.g if ur ryan air and if u think about eu flightcompensation regulation that basically forces ryan air to gi eu 600 euros in compo and overnight stay I Hilton if they chuck u out of dubai flight bc overbooked. That is when we look at this bc obv ryan air will challenege tha measure and we say this si way too much, this is disporptionate, 600 euros that too much, and 2nd part more controversial one. Spoke when ,looked at learning object how bind ms, again this one look at in 2nd lec next week. After this complex part we will think omg where taking me now , its easier again part 4 and we will speak about the eu excession to the eu convention of hr.

at the moment the eu itself is not part of the eu conven hr. but ti wants to join.a dn why that is and why ct said not possible we will look at end of enxt weeks lecture. What done is also itnegreated 2 exam style q’s into lec sldies. And 1 will be able toc over on lec and depending on tiem hopefully also cover over q in lec aswell. That will be lec next week.

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9
Q

EU fundamental rights (FR) in context -

intro?

A

EU fundamental rights (FR) in context -

  1. Fundamental rights as a limit on EU Law-making [Topic 3]
    CJEU uses EU FR to review legality of EU legislation [= Part III of lecture]
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10
Q

EU fundamental rights (FR) in context -

what about fundamental right as limit of eu law making?

A

So lets start with intro
That basically means where do fundamental rights fit in? why are they relevant for me? U may remember the law making tuttoiral where picture like this, was that was internal market for tabacco, and was rtryign to describe the competence of the eu so lets say that’s th internal market and the eu obvs have competence to regulat in this area. Remember these 2 bpxes here that we ahd when we spoek about limtis of competence. 1 was prpriaonaly other was subsidairty as limits to alw maing power, 3rd one is fundamental rights, emans when eu makes alw. They have to repsect fundamental rights. That is different In the uk, remebr parl can dow hatevr wants to do atleasta ccording to otheodoz thery so that limit in uk doesn’t exist, eu it does.

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11
Q

EU fundamental rights (FR) in context -

what is point 2 on this slide?

A

2.Supremacy of EU law in action [Topic 4]

CJEU uses EU FR to review legality of MS measure [= Part III of lecture]. In case of conflict, EU FR prevail. Consequence: National court must disapply the incompatible MS measure.

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12
Q

EU fundamental rights (FR) in context -

what was meant by point 2?

A

The 2nd point of slide – supremacy eu law inaction, her u see fundamelntal e.g how it relates with supremacy of eu law. The ct of justice also uses fundamental rights to review the validity of ms measures. , so in that spceific case if ct holds, the ms measure ifnrignes eu fundamental rights than what happens, and that’s what supremacy tells u. supremacy tells u in that case bc eu fundamental right law is suprement, the national ct has to disapply the ms measure that breaches eu funfamental reights. So that is supremacy in action.

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13
Q

EU fundamental rights (FR) in context - what is point 3?

A
  1. Using EU fundamental rights to interpret EU legislation
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14
Q

what is meant by point 3?

A

3rd point
Is that fundamentsl rights used to interpret eu leg- that actually most common scenario if u read coj judgments, but also scenario wont do in lectures cos that requires u to go into eu driectiuves, and eu regulatiosn, so first 2 points more int ones that’s why we covered them
At botto slide see e.g of eu fr. – come and disccuss e.g later on In lecture.

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15
Q

EU fundamental rights (FR) in context - what is point 4?

A

Examples of EU FR: right to family life, property, equal treatment, etc.

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16
Q

what are the 3 themes to think about?

A

themes to think about

The EU as a human rights actor

To what extent are MS bound by EU fundamental rights?

What is the impact of the Charter on fundamental rights protection in the EU?

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17
Q

THEMES-what is meant by theme 1?

A

1- r.a.w – one of learning o and didn’t explain it the so what does it mena, it basically emans, what is the vision of eu in the 21st centurary with peach established in eu so that was the original diea for eu unio.we NEED Peace now we have peace so what eu for-scholardd say eu there to protect human rights. When rights infringed u can rely on eu – that’s vision of eu – think about what is Americas vision or what was vision of us for logn time, the promoter of democracy in the world, from the eu standpoint could argue whats vision of eu , maybe its promoter of hr or fundamentl right standrda, rthat is theme wnt u to think about and well come back tot hat theme quite often.

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18
Q

THEMES-what is meant by theme 2?

A

The 2nd one is to whate extent are ms bound by eu fundamental rights, that’s one of lo and we will cover that in next week lecture

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19
Q

THEMES- what is meant by theme 3?

A

3 what impact on charter r.a.w- again one of lo and cover this today when look at what does the charter do.

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20
Q

Part I: Evolution of EU fundamental rights (FR)- how it all began?

A

Part I: Evolution of EU fundamental rights (FR)(1) How it all began

Originally: No reference to FR in the Treaties
Why? The EEC in the 1950s was envisaged as an economic grouping, not a political one.

Yet, foundational claim:

Art. 2 TEU: “The Union is founded on […] respect for human rights”.

-Similarly AG Maduro: “the very existence of the European Union is predicated on respect for fundamental rights” (Case C-380/05)
Smismans: political myth

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21
Q

Part I: Evolution of EU fundamental rights (FR)- how it all began?- in other words?

A

how did it all begin- already emntio inbegign there was nothing in treaty bc thought was were gonna have economic unin- 1 st lec, ms could not agree on political union, back then couldn’t agree on fr. And yet if you look at articl2 see this, the union is ofunded on respet for hr

And you would say well this acc not true, bc weren’t any fr in 50’s and 60’s I also mentioned smismans in first lec and eu handout theres further reading this claim, polticla move it is not true but people believe it. And hre u cans ee that little thtem button in action and that basically relates tot heme, the eu as hr actor. Could say well if I think about begging of eu , eu was not hr actor cos weren’t any fr in the treaites and uet, that’s how ti should eb and yet sit way more diff cos we have this, foundantiaoanl claim in the treaties. Okay so start from 0- no fundamental rights
Q is what happens next

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22
Q

(2) CJEU develops EU fundamental rights (FR)- point 2?

A

(2) CJEU develops EU fundamental rights (FR)

When did this process start? Late 1960s/early 1970s -
Answer is- cjeu steps into game as saviour of hr in eu- happened early 60’s and 70’s and ct invented eu fr. Invented eu fr and u can see on slide, that the ct said eu fundamental rights, and integreal oart of general principle of eyu.

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23
Q

(2) CJEU develops EU fundamental rights (FR)- point 2?

A

General principles = unwritten primary law of the EU = developed by CJEU

Q what are geneal rpicnipes of eu law, theyre basically unwritten = but they are primary eu law,

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24
Q

(2) CJEU develops EU fundamental rights (FR)- what does point 3 mean?

A

Process similar to that of the development of the common law by English courts

that means if u look at text of treaties the ct is reading btw the kiens in order to figue out, develop, invent these gernal pricniples, which according to ct are part of rpiamry law they are part of this, whole picture but tehyre just not written. Vaguely equivalent to the common law. Common law is nto written developed by the courts

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25
Q

(2) CJEU develops EU fundamental rights (FR)- what is point 4?

A

And the e.g is given here is right to prop whichc ourt in hauer said, is the fundamental right and is general principl eu law is protected in eu

Example: the right to property = FR = general principle of EU law (CJEU, Case 44/79, Hauer [15, 17])

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26
Q

(2) CJEU develops EU fundamental rights (FR)- what is point 5?

A

But: Is this legitimate?:

‘The European Court […] has utilized general principles of law to cloak the nakedness of judicial law-making’ (Hartley, The Foundations of European Community Law)

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27
Q

(2) CJEU develops EU fundamental rights (FR)- what is meant by point 5?

A

What can see bottom here- is this acc legitlmate and that relates to the role of cts in state, or if your more of private lawyer and think about this as a contract, then u would say general principles fr, are implied terms if think about as contract, q of course is ct implies them but is that actually correct. And here have ct according to Hartley it is not, it is jduciial law making. So ct in thelate 60’s earl 70’s developed unwritten eu fundamental rights, why?

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28
Q

Why did the CJEU develop EU fundamental rights (FR)?

A

Why did the CJEU develop EU fundamental rights (FR)?
Case 11/70, Internationale Handelsgesellschaft

Why didn t it do thatand answer here case – intenrnale

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29
Q

Why did the CJEU develop EU fundamental rights (FR)- intenernationale point 1?

A

– u wil remebr from supremacy of eu law. Er, sp tp[c no.4 so see facts on slide. And ct simply said the validity of eu law can only be jusge r.a.w

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30
Q

Why did the CJEU develop EU fundamental rights (FR)- Case 11/70, Internationale Handelsgesellschaft

A

Facts of case: German company argued that EU Regulation breaches its human rights protected under the German constitution. [See Topic 4]

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31
Q

Why did the CJEU develop EU fundamental rights (FR)- what was held in intnernationale?

A

“The validity of [EU law] can only be judged in the light of [EU law]” and not in the light of national law

Problem: EU law back then did not mention FR protection  Danger that EU law may undermine national fundamental rights
Solution: CJEU developed EU FR

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32
Q

Why did the CJEU develop EU fundamental rights (FR)- what does the case bring?

A

And that bovs brings u to problem in light of eu law if don’t have eu fundamental rights there si no light just darkeness- so cts need eu fr. In order to put flesh onto bone of this claim and that’s why it developed eu fundamental rights, that was basically solution

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33
Q

Case 11/70, Internationale Handelsgesellschaft

-what do we take home from case?

A

TAKE HOMEE: Developing EU FR = guarantee that national FR will not be infringed despite the supremacy of EU law

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34
Q

Case 11/70, Internationale Handelsgesellschaft- why is this?

A

Why? Because secondary & tertiary EU law is only valid if it complies with EU fundamental rights [Part III of lecture].
Developing EU FR = protects EU from challenges to supremacy by national constitutional courts [read German CC, Solange I + II (slides Topic 4)]

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35
Q

Case 11/70, Internationale Handelsgesellschaft- criticsm of this case?

A

Criticism: Was the CJEU concerned with protecting FR or with protecting supremacy of EU law?
In Internationale Handelsgesellschaft, both go hand in hand.

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36
Q

Case 11/70, Internationale Handelsgesellschaft- so what does it not matter?

A

So doesn’t matter what dinsticion is but nomal eu diretors, regulations are either secondary or tertiary and they ahev toc ompyl with primary eu lw, and what count as primary eu law = eu fr.

So if eu regulation or eu directive does not comply it canbe declared invalid by cjeu.

This how it works and this si why ivne ting new primary eu law-

new fr, ensures that toehr eu law doesn’t breach national fr , that was the thinking.

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37
Q

Case 11/70, Internationale Handelsgesellschaft- what conclusion does it lead to?

A

And that leads to another condlusionp if I develop as ct if I develop eu fr, im protecting eu from challenges coming from Germany against supremacy of eu law. So longer 1- discussed in supr lecture- ill give u ct again what german ct said.

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38
Q

Case 11/70, Internationale Handelsgesellschaft- as long as the eu doesnt provide what?

A

As long as eu foesnt provide hr protection similar to tha of german basic law the geemran consittuonal ct will review an eu measure, according to german fr standard. And that bovs udnermiens supremacy of eu law.

As logn as eu doesn’t provide necc protection, which is why ct then provided that rptoection in order to protect the supremacy of eu law. Remebre the theme, the eu as hr sector, why did the ct of justice invent fr, 1 because it wants to potect fr or option b actuall doesn’t careabout fr, what really care about is supremacy of eu law, fr simply means to reach that end.

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39
Q

Case 11/70, Internationale Handelsgesellschaft- so again what do i need to think about here?

A

So again tat soemyhing want u to think about when u think about eu as the hr actor. Fortunately for eu, in that case both go hand In hand, you protect fr and at same time also portect suprema of eu alw. We will come to other examples in next weeks lecture where we can see that’s not always the case.

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40
Q

(2) CJEU develops EU fundamental rights (FR)- what about this?

A

(2) CJEU develops EU fundamental rights (FR)

Fundamental rights do not fall from the sky. The original treaties are silent, so where do they come from?

  • Sources of EU fundamental rights as general principles-Case 4/73, Nold [13]
    1. International human rights treaties of which the MS are signatories (on left side)-E.g. ECHR (Case C-260/89, ERT [41])
    2. Constitutional traditions common to the MS
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41
Q

(2) CJEU develops EU fundamental rights (FR)- which part of this slide answered the why question?

A

So this answerd why question? Why did court create fr- next q ask is what fr? Don’t just fall from sky, we don’t know what coutns fr in eu cos not int ext of teaty need to have source that tells us whatc an be considered fr. Ct solved this problema dn annulled in 70’s came up with answer, I order to know what kind of fr protected in eu we have 2 sources,

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42
Q

(2) CJEU develops EU fundamental rights (FR)- what is the ct saying?

A

The const comm and itnenrnation hum for e.g echr here u can see this relationship developing, ct saying when I develop eu fr, I will look at the echr. Aswell. What well do now, we will look at both sides on next 2 slides. And we start witht eh consituional tradition common to ms

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43
Q

2) CJEU develops EU fundamental rights (FR)- what is the 1st point were focusing on?

A

2.Constitutional traditions common to the MS

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44
Q

2) CJEU develops EU fundamental rights (FR)- what does consitutional traditions common to ms mean?

A

What are “constitutional traditions common to the MS”? = controversial

„common“ does not mean that FR is recognised in all or majority of MS constitutions

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45
Q

2) CJEU develops EU fundamental rights (FR)- what is meant by point 1 in regard to meaning?

A

What does that acc mean? Well that is v controversial and if u look at the case law of court, u will realise that common doesn’t actually mean what u mean common supposed to mean – of u ask ct that is not meaning u get in case law of ct common doesn’t mean that all ms need to agree with that’s oecufuc fr, ti doesn’t even mean that maj agree wit that, and on slide here see 1 example.

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46
Q

2) CJEU develops EU fundamental rights (FR)- e.g of common constitutions?

A

E.g.: Case C-144/04, Mangold [74-75]: CJEU developed general principle of non-discrimination on grounds of age

-problem was that in clear majorit r.aw that principle doesn’t have cosnitional staus even though ct relied on the common constituonal trradtiions in that judgement.

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47
Q

2) CJEU develops EU fundamental rights (FR)- response of mangold case?

A

BUT: clear majority of MS constitutions did not contain a special prohibition of discrimination based on age
Link to supremacy of EU law: Danish Supreme Court in Ajos, 2016 rejected to follow CJEU‘s Mangold decision(!)

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48
Q

2) CJEU develops EU fundamental rights (FR)- what should we take in response to meaning of Constitutional traditions common to the MS?

A

So what want u to take from this sldie is, that is very controversial notion. What that acc means. And bc so controversial the eother source, the int human rights treaties

49
Q

2) CJEU develops EU fundamental rights (FR)- what about 1. International human rights treaties of which the MS are signatories?

A

-International human rights treaties e.g ECHR

Int human rights are easier- ct knows that aswell, and according to court echr is special source of inspiration.

-ECHR = special source of inspiration for EU fundamental rights (Case C-36/02, Omega Spielhallen [33]). Why?

50
Q

2) CJEU develops EU fundamental rights (FR)- so what is the reason in regard to international hr?

A

And the reason is also clear bc all of ms of the eu are also signatories tot ehechr.

After 1974, all EU MS also signatories of ECHR  “safe“ for CJEU to adopt this content

  • That means they alla greee witht hat so therefore it is safe for ct to adapt content of echr. And say that these hr here are also eu hr. safe to dot hat bc ms have agreed to that already when tney signed echr.
51
Q

2) CJEU develops EU fundamental rights (FR)- less contrversial?

A

Less controversial than “constitutional traditions common to the MS”

So that is less controverisla.- Arg. see previous slide

52
Q

2) CJEU develops EU fundamental rights (FR)- arg often significant what?

A

Arg. often significant differences between specific national conceptions of particular fundamental rights

53
Q

2) CJEU develops EU fundamental rights (FR)- what about signifcant differences?

A

There are quite often sig difference btew conceptions of fr, if u think about freedom of expression how far does it actuallt go? Does it protect freedom fo exp by corportations aswell or only freedom fo expre in the poltical speher, so that q mah be answered differently in the 28 ms, that is why it is difficult to rely on common traditions, wehre eu convention hr u have text, all agreed to that text it is very clear.

54
Q

(3) Sources of EU fundamental rights today- so how did it develop?

A

So this is how it developed from 0 to general pricniples.

55
Q

(3) Sources of EU fundamental rights today- what do general principles come from?

A

General pricniples come from either the common consotional traditins or international treaties like the echhr. This was all simply case law.

56
Q

(3) Sources of EU fundamental rights today- what about 1992?

A

Maastricht Treaty 1992: First explicit reference of fundamental rights in text of Treaties

  • In 1992. we ahd the first explicit refernce of fr in the text of the treaties.
57
Q

(3) Sources of EU fundamental rights today- what does art 6 mention?

A

Today: Art. 6 TEU:

  • Sources of EU fundamental rights:
    1. General principles - ECHR & Constitutional traditions common to the MS
    2. Charter of Fundamental Rights

-And today we have art and art6 very helpful cos mentions soruces of fr. And mentions general principles and echr and consitional traditions as soruces for genral rpicnipel so that’s basically codified case law and new for us it also mentions the charter of fr.

58
Q

(3) Sources of EU fundamental rights today- what is next step for us?

A

And that is next step for us. Nexgt we got to charter of fr. What that pic doesn’t tell u what is this rels here.

59
Q

(3) Sources of EU fundamental rights today- what is the rels?

A

What is rels btw now we have chartr now e have eu bill of right and unwritten general rpicniples, why do we nee unwritten general principle if now we have bill of rights? And EQUIV Q IN UK CO NSITOUNAL CONTEXT WOULD BE- WE HAVE HR IN UK WHY DO WE NEED COMMON LAW TO PROTECT HUMAN RIGHTS*- there is no easy asnswer inq – neither in uk nor eu. – so t

60
Q

Part II: The Charter of Fundamental Rights of the EU- now what are we on?

A

So that was part 1- understanding how hr evolved in eu- today sit bit easier bc we have charter of fr as starting point. So lets have look at part no.2

61
Q

Part II: The Charter of Fundamental Rights of the EU- charter on what page?

A

And charter, is on page 155 of my stat book- old but hasn’t changed over years, should be on pg 155- of

62
Q

Part II: The Charter of Fundamental Rights of the EU-what does the charter obtain?

A

Charter fun eu-charter has 7 chapters and 6 contain rights- 2 mins tell us what charter does how ti protect human rights in eu

63
Q

Part II: The Charter of Fundamental Rights of the EU- what does charter protect?

A

How charter protects hr in eu- so 2009 wuth Lisbon trarty, the charter became bidning. In 6 chapter u can see here that is substantive law but said NOT GONNA FOCUS On . More important for us is chapter 7!

64
Q

Part II: The Charter of Fundamental Rights of the EU- so what does charter contain?

A

(1) What does the Charter contain?

7 Chapters

65
Q

(1) What does the Charter contain? - chapter 7?

A

Chapter VII: General provisions

E.g.:
Art 51 Charter: defines scope of application of the Charter
Art 52(1) Charter: Derogation clause
Limitation of Charter right possible if limitation
is provided for by law
meets objective of general interest recognised by the EU, or protects the rights of others
respects essence of Charter right
is proportionate.

FR protection is not absolute. Breach of FR can be justified if conditions of art 52(1) Charter are met.

66
Q

(1) What does the Charter contain? - bottom of slide?

A

And to understand best to start at bottom of slie- fr prot is not absolute

-FR protection is not absolute. Breach of FR can be justified if conditions of art 52(1) Charter are met.

67
Q

(1) What does the Charter contain?- example of this?

A

same in uk u can have fr Ryanair has fr but still have to pay compensation) that is breach of fr but that breach can be justified and when that jsutificaiton can happen is exactly whata rt 52 1 tells u, article 52 1 charter tell su about conditons necc to justify the breach. it need to be provide dby law, it need to meet objective of genral interest and it need to respect essence of charter rights, and needs to be proprtionate

68
Q

Part II.1: What does the Charter contain?- art 52 1 case?

A 
Art 52(1) Charter in action, or the discourse of ‘balancing’
Case C-12/11 McDonough v Ryanair
69
Q

Part II.1: What does the Charter contain?- facts of ryan air?

A

Ryan air case and see what previous slide means in practice
Alredy etnioned this secenario. The eu flight compsen reg r,.aw.

facts: The EU Flight Compensation Regulation obliged airlines to provide care to passengers whose flight has been cancelled. Ryanair claimed that this obligation breaches its Charter rights.
- ryan air fr not absolute means can be breached and breach must be justified.

70
Q

Part II.1: What does the Charter contain?- what was held in ryan air?

A
  • “[F]reedom to conduct a business and the right to property [Arts 16, 17 Charter] are not absolute rights.”
  • [60] The EU Regulation seeks to protect consumers, an objective recognised by Art 38 Charter. [63]
  • When several rights protected by the EU clash, the CJEU must strike a fair balance between those rights. [62]
  • Result: The EU Regulation does strike a fair balance between those rights.[64]
71
Q

Part II.1: What does the Charter contain?- in reference point 2 of ct held?

A

The eu reg seeks r.a.w 2 thing in here- could we go back the limitation of charter needs to be provided by law, that’s eu reg in that case, we have ryan airs charte rights, the eu regulation ifnrignes it, it needs to meet an objective of general interst that is CONSUMER PROTECTION- interest also protected art 3 charter, the enxt step according art 52 1 – was the infringement of limitation needs to respect essence of charter right.

72
Q

Part II.1: What does the Charter contain?- in regerence to point 3 ct held?

A

Ct didn’t say anything with regard to that in case, that is very high standard, almost imposs to infringe that standard and next step it needs to be propritonate – this what u can see here- when sever ral ra.w –that is how proportionality works in that case, and result was eu reg does strike fair balance- emans it is prop and means it can infringe ryanairs rights cos it is jsutifed. So this si how whole process works.

73
Q

Part II.1: What does the Charter contain?- and now that we have charter what?

A

And now that we have charter, wrotten text this is also way easier to follow than way it is before when everything was unwritten. What suggest do no = 10 min break then continue with evolution of charter
Quick q about eu drop in
So we started to look at charter of what it contains , and structurayil snf these are the genral provisons
Art 51 haven’t spoke about – defines sxcope= centre of next lecture then looked at this case above and

74
Q

(2) The Charter’s evolution - point 1 of charters evolution?

A

History: Charter proclaimed by EU institutions in 2000 (then non-binding)

  • Now kinda go back tov ideo. Charter was acc proclaimed in 2000, so its not so view, hw wasn’t bounding until 2009
75
Q

(2) The Charter’s evolution - point 2 of charters evolution?

A

Lisbon Treaty: granted binding force to Charter (cf. art. 6(1) TEU)
Charter = primary EU law = EU’s Bill of Rights

  • only Lisbon treaty granted binding force to charter and now it is eu’s bill of rights and that also means,
76
Q

(2) The Charter’s evolution - point 3 of charters evolution?

A

Today: Charter = starting-point in examining fundamental rights compliance

  • ti is the starting point for examining fundamental rights compliance and can see the brackets cos see well, so why do I need to know stuff genral principle when charter is staritng points- they remain relevant.
77
Q

(2) The Charter’s evolution - point 4 of charters evolution?

A

[As we will see later, that does not mean that pre-Charter case law is irrelevant.]

-Remember slide had about art 6 and soures of eu fundamental rights, yes charter was there but according to article 6 the general principles are source aswell so we need to know both. But whe look at judgement of courts, court always starts with cahrter, and that makers sense u always start with written text

78
Q

(3) Why do we need a Charter? - why do we need charter intro?

A

Here int q? – why do we need charter? – that q very much comes from the preamble of charter so in statute book the preamble before chapter 1

79
Q

(3) Why do we need a Charter- what does it say preamble of charter?

A

-Preamble of Charter: Charter makes “rights more visible” and “reaffirms” existing rights  Really? That is all it does?

80
Q

(3) Why do we need a Charter- what does it say preamble of charter? in other words?

A

And in preamble says, the charter makes rights more visible ans reaffirms exisiting rights- ask self question that’s it? – so reaffiriming existing rights means it doesn’t do anything new, just takes all unwritten pricniples and puts them into codified doc according to preambem why do we need this.

81
Q

(3) Why do we need a Charter- debate that what?

A

Debate that CJEU uses Charter to fashion new rights

82
Q

(3) Why do we need a Charter- what have they given?

A

And given you an anaolgoy again to uk const law, do we actually need uk bill fo rights, cos we already have human rights in common law, do we need charter? –

83
Q

(3) Why do we need a Charter- analogous uk debate?

A

Analogous UK debate: Do we need a UK Bill of Rights? Are the Human Rights Act and the common law not sufficient?

84
Q

(3) Why do we need a Charter- continuing on debate?

A

and the little bullet point see above- debate cjeu used to fashion new rights= something preamble tries to avoid, because says only reaffirms existing rights, but as weknow the jurisprudence of cjeu and cjeu likes to develop new things, it is questionable whether court actually sticks tot hatb reaffirms. So if u keep preamble in mind, why do we need charter.

85
Q

(3) Why do we need a Charter- what have they given?

A

Given 4 possible arg see in scholarship some more convincing than toehrs why we need charter

86
Q

(3) Why do we need a Charter- what about the thme button here?

A

THEME BUTTON= RELATES TO C NO.3 – what is impact of charter on fundamental rights protection in eu, if u just think aaboiut preamable reaffirms, think not such big impact doesn’t do anything else.

87
Q

(3) Why do we need a Charter- what is arg 1?

A

Arg. 1: Rights should be visible in a mature legal order

-Arg number 1 – think used by African genral Maduro. Rights should be visible in a mature legal order or in other wrods if u don’t have them in codified doc your legal roder is in mature, and tha makes me thik about uk before 1998- so what was uk before hract according to a genral madoure and inmature elgal order so that arg isn’t convincing bc clearly uk was a mature legal order]

88
Q

(3) Why do we need a Charter- what is arg 2?

A

Arg. 2: More legal certainty than unwritten general principles

-Arg 2: thid one has force, more legal certainity than unwriten genral rpinciples- remember the gernal principles one of soruces to common consitional traditions of ms, bvery constrovesial, so means u have same controversy in genral pricniples of eu law. That is kinda subjective interp by cjeu if simply unwritten. Now with text of charter this one ehre it is very clear, that pivides legal certainity.

89
Q

(3) Why do we need a Charter- what is arg 3?

A

Arg. 3: A more legitimate basis for rights-based judicial review

-
Arg 3: the more leg r.a.w – again that relates to point number 2 legal cert, we will see in part nu ber 3 of fundamental rights lec, ct uses fundamental rights to review eu and ms measures, if that power and huge power is based on something that is not written, unwriten the ms will clearly say yorue going too far we want to see u have this poer somewhere in text but that text did not exist before the charter so now thrta we have charter clearly legit basis for rights basedjudicial review…?

90
Q

(3) Why do we need a Charter- what is arg 4?

A

Arg. 4: Creating support for EU by bringing EU closer to its citizens (with a Bill of Rights)

Arg 4 @: r.a.w – that is eu thinking but that just not eu thinking the same arg goes around whn u think about bill fo rights for uk. Bringign uk cictizens of uk closer to its cictiznes. So this slide her is about them, what is imoact f charter on fundmanetal rightd protection, and u cans ee that even though the preamble only says simply reaffirms rights, f u look at wider pci atelast bottom 3 arg = good arguments – show u that there is a n impact outside reaffirming existing rights.

91
Q

(4) Relationship with the ECHR - what about this?

A

Art. 52(3) Charter [read!]

Charter effectively incorporates ECHR rights into EU law
Art 52(3) Charter makes EU’s accession to ECHR [= Part IV of lecture] less difficult. It reduces danger of conflicting rulings between CJEU and ECtHR.

Charter incorporates ECHR rights as a baseline, a minimum standard
Charter provides a floor, not a ceiling = EU can provide more extensive protection than ECHR
Yes, Charter indeed provides rights that go beyond ECHR; e.g. Art. 28 Charter

92
Q

(4) Relationship with the ECHR - more about this?

A

Not gonna tlak about enxt two slides- ill explain rels btw charter and genral principles and charter and eu covnentio fo European rights, that is 1 of learnig bojectvives, on substantive rels btw charter gernal pricnipels and echr, prepare 2 slides, time constraints, not gona talk abotut his and move onto next step probs talk about in tutorials more.

93
Q

(5) Relationship with general principles- might have to do extra research on this

A

(5) Relationship with general principles

Relationship between (a) Charter and (b) fundamental rights as general principles = unclear in CJEU case law
Post-Lisbon Treaty: CJEU continues to use both

Why does the Union need two internal bills of rights (general principles and the Charter)?
Court could rely on flexible general principles to extend FR protection in future = “organic” growth of FR protection  but: undermines legal certainty
Analogous UK debate: Why do we need the common law to continue to protect fundamental rights if we have the Human Rights Act?

94
Q

Part II.6: Application of the Charter in the UK- special rules for uk?

A

(6) Special rules for the UK?

I will talk about UK POSIT* COS UK DID NEGOTITATE SOMETHING CLEVER, put up no.30 on appl r.a.w

-Lisbon Treaty Protocol (No. 30) on the application of the Charter to Poland and the UK

95
Q

Part II.6: Application of the Charter in the UK- more on this special rules?

A

The idea was we are afraid that the cjeu is using charter to extend the power of the eu. How can it do that? – remebr judicial review- the court is using fundamental rights tor evieiw legality not just of eu measures. But also of ms measures. That’s an area of controversy. And wider u interp the charter, the more u can review ms measures and more power u take ms of what they can do. And uk was afiradi that would happen. Remember Theresa mays red line the jrusid of court, that is one these things. So it reflects fears o fexpansion reading of charter- declares

96
Q

Part II.6: Application of the Charter in the UK- what can cjeu not do?

A

Cjeu cannot r.a.w –

Declares that CJEU cannot extend Charter to create new rights
Reflects fears of expansionist reading of Charter by CJEU

  • new rights that could then be used to review the elgailty of act of aprl I uk- that’s not what uk wants and that protocol no.30 also here in stat book. Theyre 2 ways if u look at text of protocial,. 2 ways to understand it
97
Q

Part II.6: Application of the Charter in the UK-(6) Special rules for the UK?

A

Two ways to understand Protocol (No. 30)

(a) Only declaratory effect = no special position for UK
(b) Only core set of Charter rules apply to UK

98
Q

Part II.6: Application of the Charter in the UK- what about A?

A

A-= is actually no spec- due to way it is phrased

99
Q

Part II.6: Application of the Charter in the UK- what about B?

A

that would be uk positon- simply means that tehres only core of charter rights that apply to uk – so if core then goes beyond text and develops new charter rights, that would not aply to uk. Only the core would apply t uk, that is uk postin, but u cans ee that case actually made it to cjeu,

100
Q

Part II.6: Application of the Charter in the UK- cases for this?

A

Case C-411/10, NS

  • Preamble to Protocol clarifies that Charter applies in UK [119-120]
  • and as quite recent case in that case court- interp proptocal and simply said that the rpamble to rpotocal clarifies that charter applies uk- that’s ac what it does- uses word applies in yk and form that persp
  • No opt-out from the Charter for UK  Protocol (No. 30) only declaratory
  • Means uk did not opt out of anything that relates to charter and protpcial no.30 only has declartory effect.
101
Q

Part II.6: Application of the Charter in the UK- what would the critcism be?

A

The critisicm would be of course, sow hats prupose of protocol no.30 why do that if ahs no effect whatsoever for binding effect harter of uk. That would be critical reading of ct. but again that’s not what ct decided.
After Brexit we will certianitly have special sit for uk

102
Q

Part II.7: Future of the Charter in the UK post-Brexit?

A

(7) Post-Brexit: The future of the Charter in the UK
- If Britain leaves, EU law ceases to apply in the UK (art. 50(3) TEU)  Charter ceases to apply in UK
- So Britain leaves – like wa phrase thi IF BRITIAIN LEAVES – eu law cease sr..aw means crter does not apply in uk either

103
Q

Part II.7: Future of the Charter in the UK post-Brexit - what clause do we need to see?

A

See clause 5(4) European Union (Withdrawal) Bill:

“The Charter of Fundamental Rights is not part of domestic law on or after exit day.“

104
Q

Part II.7: Future of the Charter in the UK post-Brexit - if you follow what?

A

If u follow news would have noticed that is acc contro in comments, talk about tbalign and amameding in commetns that charter not simply taken away from way order uk law pre Brexit uk law has to be interpret, but at moment just don’t know what will happen, but this position currently have

105
Q

Part II.7: Future of the Charter in the UK post-Brexit - what about futher reading?

A

But, it is not that easy!
Further reading on the effect of the Charter on the interpretation of retained EU law by UK courts post-Brexit: Merris Amos, UK Constitutional Law Blog, 2017

FURTHER READIUNG ON THIS TOPIC- ACTUALLY NOT THAT EASY AND AT BOTTOM.

So no weve done intro, evolution and charter we can have a look at an essay type exam q . Please

106
Q

what about essay q?

A

go back to look?

107
Q

whats next?

A

Part III: Fundamental rights-based judicial review

  • Relying on EU FR to challenge validity of EU measures
  • Relying on EU FR to challenge validity of MS measures

That was end of part number, number 2 looked at charter of fr and impact of charter of fundamental right protection and fo course charter will always come up in this part here aswell.

108
Q

what about part 2?

A

Part 2 – NOT SUPER EASY, BUT MORE DIFF COME TOWARD END PART 3 MORE DIFF BC WE WILL COME INTO TERIROTY THAT IS REALLY CONTRO- LOTS OF ACADMEIC DECBATE- ALSO REASON WHY THINK ABOUT 3 THMESE WHEN THINKA BOT FUNDAMENTAL RIGHTS LAW- VERY BIG AREA SO IF I DESIGN ESSAY Q IN HYPRTHEICAL SIT- I WILL BOS THINK ABOUT 3 THEMEs- and oart 3 relates to 1 threse themes aswell especc no.2 how fudn rights bind ms. So today lets start with part 3

109
Q

Part III: Fundamental rights-based judicial review- JUDICIAL REVIEW?

A

Judicial review

And lets start with verys imple def of judicial review

110
Q

Part III: Fundamental rights-based judicial review - what was said?

A

“The power of courts to determine the validity of the acts of the Legislative or the Executive departments of government.”

It is simply r.a.w – something u now already from cosnotitonal and administrative law

111
Q

Part III: Fundamental rights-based judicial review - what is next to talk about?

A

The wider context of fundamental rights-based judicial review

112
Q

Part III: Fundamental rights-based judicial review - what if i want to stay in context with const law

A

If I want to stay within context of cosnituonal law – this si where the enxt slide, here fits I the wisder context of the relevance of cosnittional law, for fundam rights and other way round aswell, of fdun rights const law, van see here, bill of rights new key role legitimising gov and also give sort of vito power to cts, again in the uk, that is acc not 100% correct bc yes we have hr act, yes we have s.4 declaration of incompativlitly but u willr eembr fromc onst law the ct can only declare ana ct of parl incompatible with hr. it cannot invalid act of aprl parl still supreme in uk

113
Q

Part III: Fundamental rights-based judicial review -

A

On oyhrt han have lots o f ms in eu where they can ahvr a look at their national bill of rights and if the act fo aprl right there infringes bill of right they can invalid it- that’s power of const court sin other ms. And this quote her refers tot hat power and eu cjeu psowses that power aswell to invalidate measures if they breach fundamental rights, meant possess

114
Q

Part III: Fundamental rights-based judicial review - so what do we have?

A

So what u have is yes the charter ads legitimacy to eu elg this quote here but at same time it also empowers the cjeu. So the wider debatre u can think about is A what is the role of cts in a democracy. U may have touched on that in cosnt law and B what is separation of powers bte the legisatlture and courts- so if u do further reading fundamrentsl rights that will sometimes come up, not a lot but that is wider contec t in importance f dunamaetk rights portiectiona nd giving ct power to review emasures , eu and ms measures based on fundamental rights.

115
Q

The wider context of fundamental rights-based judicial review - overview introduction?

A

Fundamental rights cases can be very complex and it is easy to get lost in details when reading a case.

As a start, distinguish between pre-Charter and post-Charter cases as this affects the structure of the Court’s reasoning.
Then, tackle the case law by distinguishing between (a) EU fundamental rights-based judicial review of EU measures and (b) EU fundamental rights-based judicial review of Member State measures.

116
Q

pre charter?

A

. Relying on EU FR to challenge validity of EU measures
Pre-Charter cases
Case C-402/05P, Kadi (EU measure implementing UN Security Council Resolution)

117
Q

post charter?

A

Post-Charter cases
Case C-236/09, Test Achats (Unisex tariffs in Gender Directive)
Case C-293/12, Digital Rights Ireland (data retention under Data Retention Directive)
Case C-362/14, Schrems (European Commission “Safe Harbour Decision”, transfer of data to US)

118
Q

overview of no.2?

A
  1. Relying on EU FR to challenge validity of MS measure
    MS act as agent of EU (e.g. applying EU regulation, implementing EU directive)
    Case C-411/10, NS (applying EU regulation)
    MS derogate from Treaty obligations
    Case C-260/89, ERT [Pre-Charter]
    Case C-60/00, Carpenter (derogation from freedom to provide services) [Pre-Charter]
    MS otherwise act “within the scope of EU law”
    Case C-617/10, Fransson [Post-Charter]

EU LAW (14 decks)

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