Fundamental Rights

Question 1

3 themes to think about?

Answer 1

1. eu is hr actor - when rights infringed - rely on eu - eu there to protect HR = vision of EU
2. To what extent MS bound by Eu Fr- look next lec
3. Impact of Charter on Fr Rights protection in eu

Question 2

evoloution of eu fr- how it all began?

Answer 2

Evolution of EU FR – originally : no reference to fr in treaties – EEC in 1950 was said to be economic grouping not political one

Yet – AG Maduro – very existence of eu is predicted on respect for fundamental rights – smismans said political myth

Question 3

(2) CJEU develops EU fundamental rights (FR)

- what could you say in relation to this?

Answer 3

• Could say that eu not hr actor because no fr in treaties – confusing bc we have foundational claim in treaty

Question 4

(2) CJEU develops EU fundamental rights (FR)

- who developed fr?

Answer 4

cjeu - process started late 1960’s/early 70’s

Question 5

(2) CJEU develops EU fundamental rights (FR)

- what is eu fr and what are general principles?

Answer 5

eu fr = integral part of general principles of EU law

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

Question 6

(2) CJEU develops EU fundamental rights (FR)

- example of eu fr?

Answer 6

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

Process similar to that development of common law by English courts

Question 7

(2) CJEU develops EU fundamental rights (FR)

- But: Is this legitimate?:

Answer 7

is cts implying them actually correct? -

• according to hartley - eu ct used general principles of law to cover law making

Question 8

Why did the CJEU develop EU fundamental rights (FR)?- what is the case for this?

Answer 8

Case 11/70, Internationale Handelsgesellschaft

Question 9

Why did the CJEU develop EU fundamental rights (FR)?- what was facts in Case 11/70, Internationale Handelsgesellschaft?

Answer 9

German company argued that EU Regulation breaches its human rights protected under the German constitution

Question 10

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

Answer 10

validity of eu law can only be judged in light of national law - danger that eu law undermine fr as did not mention fr protection back then

Question 11

Why did the CJEU develop EU fundamental rights (FR)?-problem and solution in this case?

Answer 11

Solution: CJEU developed EU FR

Question 12

Take home from case:

Answer 12

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

Question 13

why with take home from case?

Answer 13

Developing EU FR = protects EU from challenges to supremacy by national constitutional courts

Question 14

Criticism of this case?

Answer 14

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

Question 15

(2) CJEU develops EU fundamental rights (FR) - not in treatries - so where does fr come from?

Answer 15

sources of eu fr as general principles - case 4/73 nold

1. International human rights treaties of which the MS are signatories
2. Constitutional traditions common to the MS

Question 16

(2) CJEU develops EU fundamental rights (FR) - so what can you see here?

Answer 16

see this relationship developing, ct saying when I develop eu fr, I will look at the echr.

Question 17

(2) CJEU develops EU fundamental rights (FR) - what about constitutional traditions common to ms?

Answer 17

common doesnt meant that all ms consitutions need to agree - consitutional traditions ‘common’ to ms are controversial bc of this

• mangold case

Question 18

(2) CJEU develops EU fundamental rights (FR) - what about international hr treaties e.g echr?

Answer 18

human rights more easier
- we know echr - special source of inspiration for EU fundamental rights (Case C-36/02, Omega Spielhallen [33]).

• That means they all agree hat so therefore it is safe for ct to adapt content of echr
• Less controversial than “constitutional traditions common to the MS”