Fundamental Rights Flashcards
Initial stance of ECtHR towards FR protection?
CFDT v EC:
• Refused to rule on MS acting in scope of EU law, because not considered ‘within their jurisdiction’ in Art 1 ECHR
Initial stance of ECJ towards FR protection?
Indifference
• Cinetheque
•Stork v High Authority
Updated stance of ECtHR towards FR protection?
Bosphorus:
•Presumption of compatibility between EU law and ECHR
• ECHR ‘constitutional instrument of EU public order’
Updated stance of ECJ towards FR protection?
Stauder v City of Ulm; Internationale:
• FRs are part of the unwritten GPLs to be protected
First time CJEU implicitly held that FRs could be part of the unwritten GPLs in EU law
[human dignity]
[obiter]
Stauder v City of Ulm
CJEU explicitly included protection of FRs as part of GPLs protected
Commonalities amongst MS’ consitutions can guide which FRs are protected
Internationale
Brief history of ECHR and ECtHR?
ECHR:
• Ratified by all EU MS in 1953
• Formally recognised in 1991 by the EU Treaty of Maastricht
ECtHR:
•Established in 1959
What is Protocol 16?
Provides mechanism for the highest courts + tribunals of contracting parties to request ECHR’s advisory opinions on questions of principle relation to interpretation/application of ECHR
Principle of proportionality:
• Measures adopted by the EU do not exceed limits of ‘what is appropriate and necessary’ to achieve objectives of the legislation
Fedesa
CJEU cannot enforce the application of FRs in national legislation outside of EU scope
Akerberg Fransson
International treaties on HRs that MS have signed can guide what FRs are protected
Nold
EU: New legal order, where the EU is accountable to both the MS and its citizens
Van Gend en Loos
EU constitution (GPLs, incl FRs) prevail over international law obligations
[UN Security Council]
Kadi and Al Barakaat
CJEU typically draws links between common MS constitutional traditions and int’l law to identify FR as GPL
[right to property]
Hauer
MS are bound by GPL (incl FRs) when legislating within the scope of EU law
Wachauf
Test for derogation (non- or mis-application) of EU law is whether nat’l rules ‘fall within the scope of EU law’
MS can use FR to support its derogation
Elliniki Radiophonia
Respect for human dignity, freedom, democracy, equality, rule of law, respect for HR
[legislation]
Art 2 TEU
Recognises the CFR and ECHR, adopted in Treaty of Lisbon
[legislation]
Art 6 TEU
Full name of the ECHR
European Convention of the Protection of Human Rights and Fundamental Freedoms
If serious and persistent breaches of FR committed by MS, their Council voting rights can be suspended
Art 7 TEU
While CFR was not legally binding before Treaty of Lisbon (2009), it was used by CJEU
European Parliament v Council [2006]
If qualified right is being contravened for objective of general interest (e.g. counter-terrorism), need to verify proportionality of the interference
Digital Rights Ireland
Protection of individuals protects status of individuals as subjects of EU law
Kunoy and Dawes
ECJ never took FR protection seriously, just saw it as a means of hastening the process of legal integration in the Community
Coppel and O’Neill
While the ECJ uses language of FRs in Stauder, etc, it’s actually just using FRs to assert its supremacy
Professor Weiler
Diplomatic protection of FRs is an ‘elementary principle of international law’
Permanent International Court of Justice, 1924
