Fundamental Rights

Question 1

what does Art 2 TEU state?

Answer 1

states that the Union is “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights”.

Question 2

What did the Court decide in Stork?

Answer 2

The task of the European institutions was to apply European laws “without regard for their validity under national law”
the ECJ rejected national law as a direct source of EU fundamental rights.

Question 3

What is one of the most famous cases in EU law?

Answer 3

Internationale Handelsgesellschaft.

Question 4

What did one of the most famous cases in EU law Internationale Handelsgesellschaft. decide?

Answer 4

Internationale Handelsgesellschaft came to solidify general principles of EU law as the legal basis for European fundamental rights.

The Court’s reasoning was that, despite the Treaties being silent, EU law would be “inspired” by the “constitutional traditions common to the Member States”.

Question 5

_____came to solidify general principles of EU law as the legal basis for European fundamental rights.

The Court’s reasoning was that, despite the Treaties being silent, EU law would be “inspired” by the “constitutional traditions common to the Member States”.

Answer 5

Internationale Handelsgesellschaft

Question 6

What did Nold decide?

Answer 6

that one way of identifying a common “agreement” of a fundamental right between the various national constitutional traditions was to use international agreements of the Member States.

e.g ECHR

Question 7

what is an example of an international agreement which the Court can use as guidance for identifying a common “agreement” of a fundamental right between the various national constitutional traditions?

Answer 7

ECHR

Question 8

What happened in the case of Kadi?

Answer 8

Concerned suspected terrorist financing.
Under international law, Security Council Resolutions are supreme.
The EU regulation, he submitted, had been adopted in breach of his fundamental rights as protected by EU law, to be legally represented the EU regulation implementing the resolution was unlawful. Many international lawyers have argued that this judgment of the Court of Justice was disrespectful of international law.

Question 9

Concerned suspected terrorist financing.
Under international law, Security Council Resolutions are supreme.
The EU regulation, he submitted, had been adopted in breach of his fundamental rights as protected by EU law, to be legally represented the EU regulation implementing the resolution was unlawful. Many international lawyers have argued that this judgment of the Court of Justice was disrespectful of international law.
what case?

Answer 9

Kadi

Question 10

the ECtHR was prepared to create a presumption that EU Member States act in compliance with the rights protected by the ECHR when implementing EU law.
which case laid down this presumption?

Answer 10

Bosphorus

Question 11

The Bosphorus presumption, that EU Member States act in compliance with the rights protected by the ECHR when implementing EU law, can be rebutted but only when?

Answer 11

if it can be shown that the level of protection provided under EU law was manifestly deficient. This is quite a high threshold for claimants to meet.

Question 12

What does Art 6(2) say and do?

Answer 12

“the Union shall accede to the European Convention for the Protection of Human Rights”.

The Treaty of Lisbon for the first time imposed an obligation on the EU to accede to the ECHR

Question 13

Why was it necessary for Art 6(2) that “the Union shall accede to the European Convention for the Protection of Human Rights”.

Answer 13

as it was held in Opinion 2/94 that the EU could not accede to the ECHR without having been given the competence to do so by the Treaties.

Question 14

Art 6(2) states that “the Union shall accede to the European Convention for the Protection of Human Rights”.

The Treaty of Lisbon for the first time imposed an obligation on the EU to accede to the ECHR

However why did this not happen in 2013?

Answer 14

the agreement did not sufficiently respect the special characteristics of EU law the Court argued.

it was felt that the Court of Justice sacrificed human rights protection to be able to protect its own powers.

Question 15

When did the Charter of Fundamental Rights become legally binding?

Answer 15

after the Treaty of Lisbon which recognised the Charter as having “the same legal value as the Treaties” (Art 6(1) TEU).

Question 16

Art 6(1) TEU

Answer 16

the Treaty of Lisbon which recognised the Charter as having “the same legal value as the Treaties”

Question 17

what was the purpose of the Charter of Fundamental rights in the Treaty of Lisbon?

Answer 17

The intention of the EU was to make human rights “more visible”

Question 18

What did the case of Melloni say?

Answer 18

Melloni argued that the application of the European Arrest Warrant would breach his fundamental rights under the Spanish Constitution, which provided more extensive protection than the Charter. if the relevant provision is compatible with the Charter, it is not possible for Member States to provide more extensive fundamental rights protection.

Question 19

Melloni argued that the application of the European Arrest Warrant would breach his fundamental rights under the Spanish Constitution, which provided more extensive protection than the Charter. if the relevant provision is compatible with the Charter, it is not possible for Member States to provide more extensive fundamental rights protection.
which case

Answer 19

Melloni

Question 20

Who are bound by EU fundamental rights under Art 5(1) of the Charter?

Answer 20

the provisions of the Charter are “addressed to the institutions and bodies of the Union”.

Question 21

EU institutions are bound by fundamental rights even if they are operating “outside” of EU law, for example, when they sign an international agreement

Under what article of the charter?

Answer 21

Art 5(1) of the Charter

Question 22

What does the case of Akerberg say?

Answer 22

fundamental rights guaranteed by the Charter must be complied with where national legislation falls within the scope of European Union law,

Question 23

fundamental rights guaranteed by the Charter must be complied with where national legislation falls within the scope of European Union law,
which case

Answer 23

Akerberg

Question 24

Some rights cannot be limited, such as right to life, prohibition of torture, however most fundamental rights are relative: they can be limited in accordance with a public interest.
What are the limitations? (2)

Answer 24

1) proportionality

2) essentiality theory

Question 25

What case demonstrates proportionality?

Answer 25

Digital Rights Ireland

a case where the Court found the data retention measures in Directive 2006/24 to be disproportionate to the objective of public security.

Question 26

a case where the Court found the data retention measures in Directive 2006/24 to be disproportionate to the objective of public security.
what case

Answer 26

Digital Rights Ireland

Question 27

What is the German ‘essentiality theory’ which can limit fundamental rights?

Answer 27

that human rights can be restricted insofar as the essential core of those rights are not impaired

Question 28

What case demonstrates the German essentiality theory?

Answer 28

Zambrano the Court held that the Belgian measure deprived the children of their “genuine enjoyment of the substance of the rights conferred by virtue of their status of citizens of the Union”.

Question 29

deprived the children of their “genuine enjoyment of the substance of the rights conferred by virtue of their status of citizens of the Union”.
what case?

Answer 29

Zambrano

Question 30

What case demonstrates that the Commission is bound by the Charter even when acting in the sphere of international law, because the Commission remains “the guardian of the [EU] Treaties” at all times

Answer 30

Ledra Advertising

Question 31

explain Ledra Advertising case

Answer 31

the Commission is bound by the Charter even when acting in the sphere of international law, because the Commission remains “the guardian of the [EU] Treaties” at all times

Question 32

What is the Polish case?

Answer 32

Poland has a rule of law crisis.

in 2016 the European Commission activated its rule of law framework , following the Article 7(1) TEU procedure and adopted 4 successive Rule of Law Recommendations up until 2017

HOWEVER these few orders and judgements from the ECJ have not prevented Poland’s abrupt descent into authoritarianism which is now the first EU MS to no longer have an independent judicial branch

the adoption of the ‘muzzle law’ in Poland is the culmination of the deliberate and sustained process of rule of law breakdown

Question 33

In regards to the Polish case, how has the Commission and Council briefly dealt with the issue?

Answer 33

The Commission has systematically acted in a too little too late fashion while the Council has systematically failed to meaningfully act; a dereliction of duties

Question 34

How should the Commission have responded in the Polish case 2016?

Answer 34

Commission should publivally and promptly and unambiguously condemn flagrant threats to EU rule of law requirements instead of only expressing concerns.

Commission must also stop considering enforcement as a last resort option and restricting itself to launching infringement cases only when there is a 100% chance of winning

Question 35

What is an example which reflects how the European Council and Council of the EU failed to meaningfully respond to the undermining of judicial independence in Poland?

Answer 35

they spent less than 1 hour discussing behind closed doors the rule of law situation in Poland in 2020

Question 36

What was the Hungary Case?

Answer 36

in 2011 the judicial retirement age was lowered from 70 to 62 which ended up removing a lot of judges. Responding to criticism, by the end of 2012 agreed to rehire retired judges ages 62-70 if they wished to continue to work. BUT this return was obstructed 1) Court positions had already been filled by new judges, meaning they were offered lower places with less prestige and 2) the judges who were made to retire were given considerable compensation if they opted to remain in retirement.

Question 37

in 2011 the judicial retirement age was lowered from 70 to 62 which ended up removing a lot of judges. Responding to criticism, by the end of 2012 agreed to rehire retired judges ages 62-70 if they wished to continue to work. BUT this return was obstructed 1) Court positions had already been filled by new judges, meaning they were offered lower places with less prestige and 2) the judges who were made to retire were given considerable compensation if they opted to remain in retirement.
what case?

Answer 37

Hungary case

Question 38

What did Kochenov say about the case of Poland and Hungary ?

Answer 38

that the tools available to preserve the rule of law are largely inadequate

Article 2 TEU, which makes reference to democracy, the rule of law and a series of other Union values, is probably not best guarded by the Commission monitor MS compliance.

Question 39

Kochenov:
Hungrary and Poland rule of law backsliding revealed the EU’s significant vulnerabilities in the face of the need to uphold the values of the EU

what crisis are we dealing with?

Answer 39

a sociological legitimacy crisis in tackling illiberal democracies plaguing the EU

Question 40

Lacny: Suspension of EU Funds paid to MS breaching the Rule of Law

The protection of the common European values (article 2) lies at the heart of the EU integration process, and so the whole European project is put at risk if these values are violated.

What has the Commission suggested?

Answer 40

The Commission intends to make regular transfers of EU funds to MS paid from the EU budget for the implementation of different EU policies conditional upon respect for the rule of law

Question 41

Lacny: Suspension of EU Funds paid to MS breaching the Rule of Law

The Commission intends to make regular transfers of EU funds to MS paid from the EU budget for the implementation of different EU policies conditional upon respect for the rule of law

Why have they created this proposal, in response to what?

Answer 41

a response to the common diagnosis that the EU lacks effective legal instruments to stop systemic breach of the rule of law by MS

Question 42

What is a flaw in the current system which the proposal from the Commission to make regular transfers of EU funds to MS paid from the EU budget for the implementation of different EU policies conditional upon respect for the rule of law, is trying to rectify

Lacny?

Answer 42

that Poland is the largest recipient taking of EU funds from 2014-2020 and Hungary is the largest recipient of EU funds on a per capita basis

Question 43

What does Lacny say about the Art 7 TEU procedure in regards to Poland and Hungary cases?

Answer 43

that it is dissapointing in protecting the ‘European values’ including the rule of law