Fundamental Rights

Question 1

Initial stance of ECtHR towards FR protection?

Answer 1

CFDT v EC:

• Refused to rule on MS acting in scope of EU law, because not considered ‘within their jurisdiction’ in Art 1 ECHR

Question 2

Initial stance of ECJ towards FR protection?

Answer 2

Indifference
• Cinetheque
•Stork v High Authority

Question 3

Updated stance of ECtHR towards FR protection?

Answer 3

Bosphorus:
•Presumption of compatibility between EU law and ECHR

• ECHR ‘constitutional instrument of EU public order’

Question 4

Updated stance of ECJ towards FR protection?

Answer 4

Stauder v City of Ulm; Internationale:

• FRs are part of the unwritten GPLs to be protected

Question 5

First time CJEU implicitly held that FRs could be part of the unwritten GPLs in EU law

[human dignity]
[obiter]

Answer 5

Stauder v City of Ulm

Question 6

CJEU explicitly included protection of FRs as part of GPLs protected

Commonalities amongst MS’ consitutions can guide which FRs are protected

Answer 6

Internationale

Question 7

Brief history of ECHR and ECtHR?

Answer 7

ECHR:
• Ratified by all EU MS in 1953

• Formally recognised in 1991 by the EU Treaty of Maastricht

ECtHR:
•Established in 1959

Question 8

What is Protocol 16?

Answer 8

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

Question 9

Principle of proportionality:
• Measures adopted by the EU do not exceed limits of ‘what is appropriate and necessary’ to achieve objectives of the legislation

Answer 9

Fedesa

Question 10

CJEU cannot enforce the application of FRs in national legislation outside of EU scope

Answer 10

Akerberg Fransson

Question 11

International treaties on HRs that MS have signed can guide what FRs are protected

Answer 11

Nold

Question 12

EU: New legal order, where the EU is accountable to both the MS and its citizens

Answer 12

Van Gend en Loos

Question 13

EU constitution (GPLs, incl FRs) prevail over international law obligations

[UN Security Council]

Answer 13

Kadi and Al Barakaat

Question 14

CJEU typically draws links between common MS constitutional traditions and int’l law to identify FR as GPL

[right to property]

Answer 14

Hauer

Question 15

MS are bound by GPL (incl FRs) when legislating within the scope of EU law

Answer 15

Wachauf

Question 16

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

Answer 16

Elliniki Radiophonia

Question 17

Respect for human dignity, freedom, democracy, equality, rule of law, respect for HR

[legislation]

Answer 17

Art 2 TEU

Question 18

Recognises the CFR and ECHR, adopted in Treaty of Lisbon

[legislation]

Answer 18

Art 6 TEU

Question 19

Full name of the ECHR

Answer 19

European Convention of the Protection of Human Rights and Fundamental Freedoms

Question 20

If serious and persistent breaches of FR committed by MS, their Council voting rights can be suspended

Answer 20

Art 7 TEU

Question 21

While CFR was not legally binding before Treaty of Lisbon (2009), it was used by CJEU

Answer 21

European Parliament v Council [2006]

Question 22

If qualified right is being contravened for objective of general interest (e.g. counter-terrorism), need to verify proportionality of the interference

Answer 22

Digital Rights Ireland

Question 23

Protection of individuals protects status of individuals as subjects of EU law

Answer 23

Kunoy and Dawes

Question 24

ECJ never took FR protection seriously, just saw it as a means of hastening the process of legal integration in the Community

Answer 24

Coppel and O’Neill

Question 25

While the ECJ uses language of FRs in Stauder, etc, it’s actually just using FRs to assert its supremacy

Answer 25

Professor Weiler

Question 26

Diplomatic protection of FRs is an ‘elementary principle of international law’

Answer 26

Permanent International Court of Justice, 1924