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EULAW1 > FUNDAMENTAL RIGHTS PART 1 > Flashcards

FUNDAMENTAL RIGHTS PART 1 Flashcards

1
Q

evolution of fr?-

A

no reference to fr in treaties -Why? The EEC in the 1950s was envisaged as an economic grouping, not a political one.

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2
Q

evolution of fr?- yet what?

A

Yet, foundational claim:Art. 2 TEU: “The Union is founded on […] respect for human rights”. Smismans: political myth - said not true but people believe it

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3
Q

evolution of fr?- what could we argue here?

A

Beginning of eu, eu was not hr actor cos no fr in treaties and yet thats how it should be but foundational claim makes it more difficult- so we started from 0 but what happens next?

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4
Q

(2) CJEU develops EU fundamental rights (FR)

A

cjeu steps in as saviour - happened in Late 1960s/early 1970s - the court invented EU FUNDAMENTAL RIGHTS

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5
Q

(2) CJEU develops EU fundamental rights (FR)- what did eu say?

A

How? EU FR = integral part of general principles of EU law

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6
Q

(2) CJEU develops EU fundamental rights (FR)- what are general principles?

A

General principles = unwritten primary law of the EU = developed by CJEU- so court read in between lines of primary law to get general principles- ACCORDING TO CT THEY ARE APART OF THIS LAW BUT JUST NOT WRITTEN

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7
Q

(2) CJEU develops EU fundamental rights (FR)- example of this?

A

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

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8
Q

(2) CJEU develops EU fundamental rights (FR)- but is this legitimate?

A

some would say implied terms- court implies them but is that correct and according to hartley - it is not bc it is actually judicial law making

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9
Q

(2) CJEU develops EU fundamental rights (FR)- Why did the CJEU develop EU fundamental rights (FR)?-why? what was facts?

A

answer in case of - Case 11/70, Internationale Handelsgesellschaft - held: German company argued that EU Regulation breaches its human rights protected under the German constitution. [See Topic 4]

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10
Q

(2) CJEU develops EU fundamental rights (FR)- Why did the CJEU develop EU fundamental rights (FR)?-held from this case?

A

if you dont have eu fr there is no light just darkness, so ct needed eu fr in order to put flesh on bone of claim and thats why developed eu fr as a solution

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11
Q

(2) CJEU develops EU fundamental rights (FR)- take home message from case?

A

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

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12
Q

(2) CJEU develops EU fundamental rights (FR)- what was their reasoning from take home case?

A

top= primary eu law then you have secondary and tertiary- and they have to comply with primary eu law- and what counts as primary eu law = fr - so if a eu reg does not comply- it can be declared invalid by cjeu - this how it works and why inventing new primary eu law, inventing fr , ensures other eu law does not breach national fr.

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13
Q

(2) CJEU develops EU fundamental rights (FR)- another reasoning for cts developing?

A

Developing EU FR = protects EU from challenges to supremacy by national constitutional courts [read German CC, Solange I + II - e.g germany- so eu law created protection of fr (primary law) in order to protect supremacy of eu law so national const courts do not conflict with it

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14
Q

(2) CJEU develops EU fundamental rights (FR)-what theme is this in relation to? - extra marks

A

why did cjeu invent fr ? was it to1. to protect fr 2. or does it not care about fr or care about supremacy?THINK ABOUT THIS WHEN THINK OF EU AS HR ACTORfortunately in case Internationale Handelsgesellschaft, both go hand in hand - you protect fr and supremacy of eu law

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15
Q

(2) CJEU develops EU fundamental rights (FR)- what is the next question to ask?

A

(2) CJEU develops EU fundamental rights (FR)- q to ask is what fundamental rights?- we dont know what counts as fr in eu because not in the treaties , we need source that tells us what can be considered fr and ct came up with an answer

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16
Q

(2) CJEU develops EU fundamental rights (FR)- in order to know what kind of fundamental right is protected what?

A

in order to know what kind of fundamental right protected in eu we have 2 sources

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17
Q

what does “constitutional traditions common to ms mean?

A

controversial - look at case law you will realise common does not mean what it is supposed to mean case of cjeu - common does not mean that maj of ms need to agree - mangold case = controversial - in this case cjeu developed fr - problem was that that principle didnt have consitutional status - it doesnt exist so controversial!

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18
Q

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

A

controversial - look at case law you will realise common does not mean what it is supposed to mean case of cjeu - common does not mean that maj of ms need to agree - mangold case = controversial - in this case cjeu developed fr - problem was that that principle didnt have consitutional status - it doesnt exist so controversial!

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19
Q

(2) CJEU develops EU fundamental rights (FR)- what is easier because constitutional traditions common to ms so controversial?

A

International human rights treaties, e.g. ECHR - the other source are easier and ct knows according to cjeu the echr is - special source of inspiration for EU fundamental rights - and reason is because all EU MS agree with that.

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20
Q

(2) CJEU develops EU fundamental rights (FR)- what is it safe for cjeu to therefore do in relation to this?

A

therefore its “safe“ for CJEU to adopt this content of echr - ms agreed to that already when they signed convention of echrint is more clearer than cjeu

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21
Q

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

A

so before fr was simply case law - but now Maastricht Treaty 1992: First explicit reference of fundamental rights in text of Treatiesin art 6 - useful as it mentions sources of fr - now codifed case law and also mentions charter of fundamental rights

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22
Q

(3) Sources of EU fundamental rights today - so now we have this why do we need unwritten general principles if we have bill of rights?

A

e.g hr act in uk - why do we need common law to protect hr- not easy q

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23
Q

so what was part 1?

A

Understand how hr evolved in eu

24
Q

what is part 2?

A

charter of fundamental rights of eu! - pg 155 stat book - starting point

25
Q

(1) What does the Charter contain?- what about fr protection?

A

has 7 chapters and 6 contain rights - more important for us is chapter 7

26
Q

(1) What does the Charter contain?-Chapter VII: General provisions?

A

FR protection is not absolute-art 52(1) tells u when justification can happen- tell u conditions necc to justify breach-is provided for by law-meets objective of general interest recognised by the -EU, or protects the rights of others-respects essence of Charter rightis proportionate

27
Q

Part II.1: What does the Charter contain?- Art 52(1) Charter in action, or the discourse of ‘balancing- case?

A

Case C-12/11 McDonough v RyanairFacts: 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

28
Q

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

A

ryan air werent happy and said ‘“[F]reedom to conduct a business and the right to property [Arts 16, 17 Charter] are not absolute rights.” so basically their fr is not absolute rights - which means they can be breached and breach must be justified - so go back to limitations of chater Result: The EU Regulation does strike a fair balance between those rights.[64]- which means that it is proportionate and means can infringe ryan airs rights bc justfied. and now that we have charter easier to follow than when everything was unwritten.RYAN AIR - CASE THAT APPLIES THOSE PROVISIONS

29
Q

Part II.1: What does the Charter contain?- what about art 5 1

A

Art 51 Charter: defines scope of application of the Charter- be centre of next weeks lecture

30
Q

Part II.2: The Charter’s evolution- what is the history of the charter?

A

History: Charter proclaimed by EU institutions in 2000 (then non-binding)- not so new hw wasnt binding until 2009only Lisbon Treaty: granted binding force to Charter (cf. art. 6(1) TEU) - and now it is eus bill of rights- which means starting point for examining fr compliance - can see

31
Q

Part II.2: The Charter’s evolution- what is a question to consider here?

A

Q: why do i need to know general principles when charter is starting point? principles -they remain relevant - according to art 6 general principles are soure aswell so need to know bothbut when look at judgements of cjeu - ct always start with charter and makes sense to start with written text

32
Q

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

A

q comes from preamble of charter- and in it it says -Charter makes “rights more visible” and “reaffirms” existing rights  Really? - thats it -so reaffirming exisitng rights mean it doesnt do anything new just takes all unwritten principles and puts them into a codified doc according to preamble- why do we need this? - so do we really need charter?

33
Q

(3) Why do we need a Charter?-what is debate of this?

A

Debate that CJEU uses Charter to fashion new rights - hw that is something the preamble tries to avoid as says only reaffirms existing rights but as we know jurisprudence of cjeu - and cjeu likes to develop new things it is q whether ct sticks / reaffirms.

34
Q

(3) Why do we need a Charter?-what shall we keep in mind

A

so if you keep preamble in mind- why do we need charter?4 POSSIBLE ARG - why we need it theme button relates to : what is impact of charter on fr protection in eu if think preamble not such big impact

35
Q

(3) Why do we need a Charter?-what is argument no,1?

A

Arg. 1: Rights should be visible in a mature legal orderused by AG MADURO - rights should be vis - other words if you dont have them in codified document your legal order = immaturearg not so convicing

36
Q

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

A

Arg. 2: More legal certainty than unwritten general principles- text of charter provides more legal certainity than unwritten

37
Q

(3) Why do we need a Charter?-what is argument no.3?

A

Arg. 3: A more legitimate basis for rights-based judicial review- relates to point 2

38
Q

(3) Why do we need a Charter?-what is argument no. 4?

A

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

39
Q

(3) Why do we need a Charter?-so what about these arguments overall?

A

so even though preamble only says reaffirm existing rights - look at 3 arguments shows good impact outside reaffirming existing rights

40
Q

(4) Relationship with the ECHR- what about relationship with echr? - he didnt explain these he explained in seminar so research!!!

A

(4) Relationship with the ECHRArt. 52(3) Charter [read!]Charter effectively incorporates ECHR rights into EU lawArt 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 standardCharter provides a floor, not a ceiling = EU can provide more extensive protection than ECHRYes, Charter indeed provides rights that go beyond ECHR; e.g. Art. 28 Charter

41
Q

(5) Relationship with general principles - RESEARCH HE DID NOT EXPLAIN

A

(5) Relationship with general principlesRelationship between (a) Charter and (b) fundamental rights as general principles = unclear in CJEU case lawPost-Lisbon Treaty: CJEU continues to use bothWhy 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 certaintyAnalogous UK debate: Why do we need the common law to continue to protect fundamental rights if we have the Human Rights Act?

42
Q

Part II.6: Application of the Charter in the UK - what are the special rules?

A

(6) Special rules for the UK?what about uk position- uk negotiateLisbon Treaty Protocol (No. 30) on the application of the Charter to Poland and the UK- idea was , we are afriad cjeu using charter to extend power of eu- how can it do that? wider interpret charter more power take away from ms - uk afraid that would happen

43
Q

Part II.6: Application of the Charter in the UK -what does it declare?

A

Declares that CJEU cannot extend Charter to create new rights- new rights that could then be used to review legality of act of parliament in uk- thats not what uk wants therefore Reflects fears of expansionist reading of Charter by CJEU

44
Q

Part II.6: Application of the Charter in the UK -what are 2 ways to understand protocol?

A

Two ways to understand Protocol (No. 30) -a) Only declaratory effect = no special position for UK- due to way it is phrased(b) Only core set of Charter rules apply to UK- uk position only core of charter that applies to uk and that core is waht is in text , so if ct then goes beyond text and develops new charter rights, that would not apply to uk, only core would apply to uk

45
Q

Part II.6: Application of the Charter in the UK - what case interpreted protocol?

A

Case C-411/10, NS- Preamble to Protocol clarifies that Charter applies in UK [119-120]-No opt-out from the Charter for UK  Protocol (No. 30) only declaratory effectcriticsm would be - what is the purpose of protocal no.30 why do it if have no effect whatsoever for the binding effect on charter on uk.

46
Q

(7) Post-Brexit: The future of the Charter in the UK - what if britain leaves?

A

If Britain leaves, EU law ceases to apply in the UK (art. 50(3) TEU)  Charter ceases to apply in UKSee clause 5(4) European Union (Withdrawal) Bill:“The Charter of Fundamental Rights is not part of domestic law on or after exit day.“criticms charter not speciifally taken away -but we dont know for sure

47
Q

what have we done so far?

A

evolution and charter - WE CAN DO ESSAY TYPE E.G LOOK AT THIS IN YOUR OWN TIME - can only do matters of part a for now - look at slide

48
Q

what is part no.3?

A

Fundamental rights-based judicial reviewMORE DIFFICULT - REALLY CONTROVERSIAL AND ACADEMIC DEBATE REASON 3 THINGS - FR BIG AREA - IF DESIGN ESSAY Q OBV THINK ABOUT 3 THEMES - part no.3 relates to how fr bind ms.

49
Q

Part III: Fundamental rights-based judicial review -what is judicial review?

A

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

50
Q

Part III: Fundamental rights-based judicial review-The wider context of fundamental rights-based judicial review

A

“In Western societies of the 20th and early 21st centuries the bill of rights play a new key role in legitimising the government. As a side effect, the courts in Europe of our time hold in effect a sort of veto power over many important political decisions. … [I]n Europe at the onset of the 21st century politics has become deeply judicialised …” (Kűhn, p.151 in Maduro and Azoulai, The Past and Future of EU Law, Hart, 2010)

51
Q

Part III: Fundamental rights-based judicial review- The wider context of fundamental rights-based judicial review

A

again in uk not 100% yes we have jr and s.4 but ct can only declare an act of parl incomitable with hr it cannot invalidate act of parl - parl still supreme in ukon other hand - lots of ms eu- gemrany - where they can look at their national bill of rights and if act of parl infringes they can update it - that is a power of const courts in other ms and this court here refers to that power and in eu here the cjeu possess power as well, to invalidate powers if breach hr

52
Q

Part III: Fundamental rights-based judicial review- The wider context of fundamental rights-based judicial review

A

-Charter adds legitimacy to EU legislation-Charter empowers CJEU- so wider to debate is role of courts in democ and b what is seperation of pwoers between legilature and courts = wider context of importance of fr protection and give ct power to review ms based on fr

53
Q

Part III: Fundamental rights-based judicial review- what are next 3 slides?

A

overview

54
Q

Part III: Fundamental rights-based judicial review - over view 1?

A

Overview 1Fundamental 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.

55
Q

Part III: Fundamental rights-based judicial review-overview 2?

A

Overview 21. Relying on EU FR to challenge validity of EU measuresPre-Charter casesCase C-402/05P, Kadi (EU measure implementing UN Security Council Resolution)Post-Charter casesCase 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)

56
Q

Part III: Fundamental rights-based judicial review - overview 3?

A

Overview 3refers to scenarios in whcih ms bound by eu fr - A B AND C - if your not in ABC means ms not bound by eu fr - do next weekTHEME = TO WHAT EXTENT - SO IN RELATION TO THIS THEME ONLY MENTION THIS CASE LAW!!2. Relying on EU FR to challenge validity of MS measureMS 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 obligationsCase 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]DISTINGUISH BTW THIS SLIDE AND PREVIOUS COS 1 MS CASE LAW AND 1 EU

EULAW1 (11 decks)

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