FUNDAMENTAL RIGHTS PART 2

Question 1

what is part 3?

Answer 1

Part III: Fundamental rights-based judicial reviewRelying on EU FR to challenge validity of EU measuresRelying on EU FR to challenge validity of MS measures

Question 2

what can you rely on between these measures?

Answer 2

You can rely on eu val eu measure or ms measureIf you challenge eu measure- u want to limit eu law making powers, remember pic bout internal market – act in this area- limits 1 has subsida propr and other fr- eu must protect fr in this area, so potential of fr is to limit eu law making powers= controversial

Question 3

what is way more controversial?

Answer 3

But way more controversial is this – English law – English measure and she throws in charter- so wants to rely on article to chalalneg valid ofe nglish law- limits law making power of uk – this is ms measure and bc of that – paragraphed, here if ur ms, say wait cjeu using eu fr to asses ms measure- so that’ limtis our power- power block – not what ms should do- ms more controversial than 1- look at overview

Question 4

what should we go back to?

Answer 4

Go back to overview slides- disting btw pre charter and and post charter case law cos structure diff- 2 cases before charter and after- and disting part 1 and 2 of part 3

Question 5

what are 2 cases to start with for eu measures?

Answer 5

2 cases- valid eu measure- 1st kadi before charter 2nd digital rights Startwith kadi

Question 6

what would be the starting point for today?

Answer 6

Staring point tofay ct –c hart always charter- start 51 (1)- says above whenever eu insit act they must comply with fr- but this here pre charter case ct could not rely on charter

Question 7

Part III.1: Relying on FR to challenge validity of EU measureswhat about kadi case?

Answer 7

Case C-402/05P, KadiFacts of kadi on slide- resolt-Kadi had been blacklisted as a terrorist and had his assets frozen by a UN Security Council Resolution. EU took measures to implement this resolution. Kadi challenged the EU Regulation before CJEU, claiming that it infringes his property right and his right to be heard. Kadi had never been able to see the evidence nor to make a case as to his innocence.- eu simply implement resolution eu and having challeened that eveolution b4 cjeu evoloution union- so that’s kadi case- very complex facts facts made easier- when u read text book – slides whats rel for us

Question 8

Part III.1: Relying on FR to challenge validity of EU measureswhat was held in kadi? point 1?

Answer 8

Case C-402/05P, KadiRespect for FR is a condition of lawfulness of EU acts [284]

Question 9

Part III.1: Relying on FR to challenge validity of EU measureswhat was held kadi point 2?

Answer 9

Judicial review of the lawfulness of EU measures with FR is a constitutional guarantee that forms part of the very foundations of the EU. [304] Note: CJEU uses strong constitutional language

Question 10

Part III.1: Relying on FR to challenge validity of EU measurescritically of kadi point 2? $

Answer 10

if you read critically could say incorrect- cos know that fr we impart eu law when eu came existence in 50’s * - political myth its working ct saying tis constitutional guarantee r.a.w & cos pre charter scenario ct not relying on charter its relying on fr of eu law

Question 11

Part III.1: Relying on FR to challenge validity of EU measuresremember about kadi?

Answer 11

Remember: Kadi = pre-Charter case, i.e. EU FR = unwritten general principles of EU law = primary law

Question 12

Part III.1: Relying on FR to challenge validity of EU measuresnext bit to kadi ct held?

Answer 12

Yes, EU Regulation simply gives effect to a UN Security Council Resolution (Ct saying to resolution- so what happens we have eu measure that says yes freeze assets that is binding int law – that’s inetanl law and eu obliged by international freeze assets – that’s what happened, so that onne here is binding. But ct said that doesn’t matter cause) That does not matter because the EU is an “autonomous legal system which is not to be prejudiced by an international agreement.” [316]

Question 13

Part III.1: Relying on FR to challenge validity of EU measureswhat about the autonomas legal system?

Answer 13

Autonomaous legal system- so ct saying if I have eu measure here – im going to do fr based jr of that eu measure- what eu isn’t thinking, if you inval that measure x and that measure x says same thing saying we UN breaching fr law aswell cos saying same thing.= underline prob

Question 14

Part III.1: Relying on FR to challenge validity of EU measureswhat did the ct do here?

Answer 14

And ct made that disitnc here- I dotn care cos this itnernatial law and this is eu – whatever I do here I can bc eu automas legal system and blind to whatever so – improtantn because intenrnatil agreement does not prevail over eu fr review= consitinal guarantee, so that 1 here itn agreement does not affect eu cos put up wall- so kadi last point here

Question 15

Part III.1: Relying on FR to challenge validity of EU measureswhat are the points after kadi?

Answer 15

-International agreements do not prevail over EU constitutional principles (like FR).-The status of international law in the EU is entirely determined by the EU legal order.

Question 16

Part III.1: Relying on FR to challenge validity of EU measureslast point of kadi?

Answer 16

Kadi established priority of EU fundamental rights over international legal rules. in eu legal roder and that’s all we care about- automous new order- eu fr prevail over implanted UN measure- what haopens there don’t care.

Question 17

Part III.1: Relying on FR to challenge validity of EU measures- take home message for kadi?

Answer 17

CJEU asserts full review of lawfulness of an EU measure with FR and without deference to the fact that the EU measure is simply intended to give effect to UN law

Question 18

Part III.1: Relying on FR to challenge validity of EU measures - outcome of case?

Answer 18

Outcome of case: EU regulation was held to breach Kadi’s right to be heard, right to effective legal protection and his property right. CJEU annulled the EU Regulation.

Question 19

Part III.1: Relying on FR to challenge validity of EU measures- what did gearty say?

Answer 19

Gearty: Ruling is a promotion of FR in the EU in defiance of an attempt to lower them from “outside“

Question 20

Part III.1: Relying on FR to challenge validity of EU measures- going back to why q? $

Answer 20

Why? Is it (a) because CJEU is really concerned about protected Kadi‘s rights or (b) to make sure that international agreements (like the UN) do not prevail over EU constitutional law?-Go back to why q and theme – main theme here eu as human rights actor= cjeu care about protecting fr or does it only use fr means to reach other end b – to ensure int agremement does not prevail over eu const law- so q what does ct concerned about- protecting kadis right or my own sovereignty and power could say cts care cos annulled reg- could also say bc consittuional alng only cares eu const law- but could say both are reached- reason for q in exam loads of things possible - balanced view - read case see more arguments= pre charter case kadi

Question 21

Part III.1: Relying on FR to challenge validity of EU measures-post charter case?

Answer 21

Post-Charter: Case C-293/12, Digital Rights Ireland

Question 22

Part III.1: Relying on FR to challenge validity of EU measures- facts of digital rights

Answer 22

The Data Retention Directive (DRD) imposed on telecom providers a duty to retain all data from phone and internet communication for at least 6 months for the purposes of the prevention, and investigation of serious crime. Competent national authorities were empowered by the DRD to access and use this data to assist in fighting organised crime, even without informing the user of telecom services. Does the DRD interfere with right for private life (Art. 7 Charter) and right to protection of personal data (Art. 8 Charter)?

Question 23

Part III.1: Relying on FR to challenge validity of EU measures- what about case?

Answer 23

Now we look at post charter case= charter applies, had lots of cases in light of ms also in England and all about data rention directive key thing imposed telcoma dv all data from inter comm national auth use that data fight against crime without telling user data use- does that infringe right of private life and proec of data?

Question 24

Part III.1: Relying on FR to challenge validity of EU measures- what we doing with this case now?

Answer 24

Case C-293/12, Digital Rights Ireland … the Charter in action

Question 25

Part III.1: Relying on FR to challenge validity of EU measures- what did cjeu examine?

Answer 25

CJEU examined validity of DRD in light of Arts. 7, 8 Charter

Question 26

Part III.1: Relying on FR to challenge validity of EU measures- wat about interfence part?

Answer 26

In that specific case said- data retention directive int r.a.w Interference with Charter rightsData retention as provided for by DRD interferes considerably with the rights guaranteed by Arts. 7, 8 Charter [34-37]– point do nto focus on – we don’t look at substance of charter right – not so rel for examine- don’t want knowledge art 7 and 8 say- more improtnat for us = justification of int

Question 27

Part III.1: Relying on FR to challenge validity of EU measures- what about justification part 3 parts?

Answer 27

2. Justification of the interference-Possible if conditions of Art. 52(1) Charter met [38]-1st one always breach has to be based on law- what is law in our case= data renetion directive-Essence of Arts. 7, 8 Charter: not affected [39-40]- always happens art 7 and 8 infringed its not affective -Objective of general interest: (+), DRD contributes to fight against serious crime = public security [41-42] - The law the data retention directive must protect general interest- tha t is condition for justifying breach and in this case public secuirt to fight against serious crime = okay

Question 28

Part III.1: Relying on FR to challenge validity of EU measures- more on justification?

Answer 28

Justification- slide on that specif 1 looked last week –again when ct checks whether breach of charter right can be justified and every breach in theory can be justified-no charter right absolute but always does same thing – checks condition of art 52 charter

Question 29

Part III.1: Relying on FR to challenge validity of EU measures- whats good about jsutificaiton part?

Answer 29

Last bit most improtnat one cjeu arg- and most important for us Here you can argye

Question 30

Part III.1: Relying on FR to challenge validity of EU measures- what can you argue here?

Answer 30

Proportionality of the interference with Charter rights?EU legislature enjoys discretion, but here: due to importance of personal data protection for privacy and the seriousness of the interference, the EU legislature’s discretion is reduced, i.e. review of that discretion should be strict [48] –> no manifestly inappropriate test

Question 31

Part III.1: Relying on FR to challenge validity of EU measures- what is meant by must be prop in other words?

Answer 31

Must be proportionate- may remeebr looked at propetionaly for law making as a limit to eu law making and that’s exactly whats happening here- prop limit to law making if proportionality infringed the eu cannot act- ultimately what happenened in this case – ct said that eu enjoys discretion when makes law

Question 32

Part III.1: Relying on FR to challenge validity of EU measures- whats the test that comes out of it?

Answer 32

You may remeebr from law making lec= something unsual cos usually the test is manifestially inaprop- so usually in ct have to show that directive is manifestly disporpted= difficult test to meet- but ct said in this partic case not necc only need to say dispportoapte strict standard of review

Question 33

Part III.1: Relying on FR to challenge validity of EU measures- what must the eu do?

Answer 33

EU must lay down clear and precise rules governing extent of the interference [54]: but DRD didn’t do that [65]

Question 34

Part III.1: Relying on FR to challenge validity of EU measures- more on eu lay down clear precise?

Answer 34

Result : eu must lay down r.a.w – did not do that all data was covered and that is why directive is disporprtionate – so the result is the ct annulled the directive on the fround that disproprtioanltely restricts privacy right- again important bit could do that bc this test bc it reduced the discretion of eu legislature here

Question 35

Part III.1: Relying on FR to challenge validity of EU measures- so what do we think when thinking about proptionality?

Answer 35

So kind of if you think about proptionality as limit here and that’s mandifestly disproptionate test- it kind of increased power of proptionality review

Question 36

Part III.1: Relying on FR to challenge validity of EU measures- what does this bring to?

Answer 36

Brings me to next q – in this case what was ct concerned about Was ct serious about fr protection in digital rights irelandyes no or i cant decideheld data renetion is invalid- reduced powers of eu legislature and increased the size of limit- the powerful op of proptionality limti- was ct serious about protection fr yes- bc cant see another factor in gain another end court would have breached bc doesnt say anywhere u have to icnrease pwoer of proptionality review, so digital rigths ireland therefore very strong case if you have opiion that cjeu is serious about hr rpotection, strong case for ti as see almost 80% voted. and theme is obv here - links to eu as fr actor!!!

Question 37

Part III.1: Relying on FR to challenge validity of EU measures- what we looking at next?

Answer 37

ms measure more controversil going onto this

Question 38

Part III.2: Relying on EU FR to challenge validity of MS measures- WHAT does cjeu do?

Answer 38

CJEU uses EU fundamental rights to review lawfulness of MS measures = Using EU fundamental rights to limit Member States’ law-making powers-and that limits and that’s down here you can see ms law making powers, this is what we know already and starting point now have charter is againss

Question 39

Part III.2: Relying on EU FR to challenge validity of MS measures- so what is the starting point?

Answer 39

Starting point today: EU fundamental rights bind MS when they implement EU law (Art 51(1) Charter)IMPLEMENT= IMPORTANT WORD

Question 40

Part III.2: Relying on EU FR to challenge validity of MS measures- before that what do we do?

Answer 40

Before that we look at pre charter case law bc relevant Pre-Charter CJEU case law

Question 41

Part III.2: Relying on EU FR to challenge validity of MS measures- what must ms comply with?

Answer 41

If you lok at precharter case law u do not have word implement, ct saying ms measure must comply eu fr if they fall within scope of eu law – within scope important -MS measure must comply with EU FR if it falls “within the scope of” EU law (Case C-260/89, ERT [42]).-This is within scope of eu law- if youre within scope – eu fr protection applies and oyu can check ms measures- this here

Question 42

Part III.2: Relying on EU FR to challenge validity of MS measures- what is meant by outside?

Answer 42

e.g -WITHIN – this area here outside (eu fr do not apply) so whos fr apply = ms fr apply here outside= national fr apply-Outside the scope of EU law, EU law (including EU FR) does not apply and national fundamental rights protection applies

Question 43

Part III.2: Relying on EU FR to challenge validity of MS measures- so what is the key q?

Answer 43

So key q what gets us into scope of eu law cos only here can ct use its powerWhen is a MS measure “within the scope of” EU law?

Question 44

Part III.2: Relying on EU FR to challenge validity of MS measures-how to be in scope?

Answer 44

Required = a sufficient link between MS and EU lawthat agai doesn’t help as much cos very Vague concept, no clear criteria in case law

Question 45

Part III.2: Relying on EU FR to challenge validity of MS measures-when is it an easier case?

Answer 45

E.g.: (+) when MS implements a directive in national legislation

Question 46

Part III.2: Relying on EU FR to challenge validity of MS measures-in that case what happens?

Answer 46

in that case ms measure simply transforms eu law international law which is why in scope of eu law – if simply transforms eu law that means if you have berach of fr in national law means breach of fr in directive, cos simply trasnofrmed directive international, ct saying that is within scope of eu law and eu fundamental protection applies and that is limit to law making power in ms So directives and implementation = easy case- if have that in prob q = easy- for sure within scope of eu law

Question 47

Part III.2: Relying on EU FR to challenge validity of MS measures-Okay, but why do I need to know pre-Charter case law now that we have the Charter?

Answer 47

So what u can see here we now have charter so why do we need to know pre charter- reason bc this case law remain r.a.w – relvant post charter- charter simply takes case law on board which is why this stuff and precharter remains rel – after break look at 1 precharter case where this is actually relvant – what falls withinscope of eu law and see how wide ct is pushing that limit- wider pushed- less scope of national autonomy and more liits of national law making and more sad faces in ms.-Because pre-Charter case law remains relevant …as we will see soon

Question 48

Part III.2: Relying on EU FR to challenge validity of MS measures-what is the case for stretching the limits?

Answer 48

Stretching the limits of “within the scope of” EU law……Pre-Charter: Case C-260/89, ERT

Question 49

Part III.2: Relying on EU FR to challenge validity of MS measures-facts of…Pre-Charter: Case C-260/89, ERT?

Answer 49

The plaintiff had been granted an exclusive licence under Greek law to broadcast television programmes. The defendant, a local television station, violated the plaintiff’s exclusive right. In the Greek courts, the defendant claimed that the Greek law restricted its freedom to provide services (Article 56 TFEU) and also violated its fundamental right to freedom of expression.

Question 50

Part III.2: Relying on EU FR to challenge validity of MS measures-what did courts held in Case C-260/89, ERT?

Answer 50

Where national rules fall within the scope of Union law, those rules must be compatible with EU fundamental rights [42]

Question 51

Part III.2: Relying on EU FR to challenge validity of MS measures-how do we explain this case?

Answer 51

free movement of good example from slide? -dvd

Question 52

Part III.2: Relying on EU FR to challenge validity of MS measures-so what is the q from this $?

Answer 52

– u may remember this very beginning – links supremacy with fr – in that kind of scenario national ct has to disapply and uk gov would be like wat a power grab- so anser to this q – national or eu = most controversial when think about this area here- so answer of ct = extremely controv- lots of scholars say no it is for ms to decide.

Question 53

Part III.2: Relying on EU FR to challenge validity of MS measures-what did courts held in Case C-260/89, ERT? more?

Answer 53

A MS can justify a breach of the freedom to provide services (Art 56 TFEU) if one of the exceptions provided for by Articles 52, 62 TFEU are met. The Treaty provides for the possibility that MS can justify a breach. Therefore, the national rules in question must be compatible with EU fundamental rights. If they infringe EU FR, they cannot justify the breach of the freedom to provide services. [43]

Question 54

Part III.2: Relying on EU FR to challenge validity of MS measures- articles for our example?

Answer 54

Articles in slide – 52 62- SAY YOU CAN JUSTIFY BREACH FOR E.G BASED ON PUBLIC MORALITY

Question 55

Part III.2: Relying on EU FR to challenge validity of MS measures- so what do we take home from ERT?

Answer 55

1.A MS measure must comply with EU fundamental rights if the measure is “within the scope of” EU law2. MS must comply with EU fundamental rights when they derogate from EU rules or restrict EU rules on public policy or other grounds - previous scenario abstracte lang- public policy in oru case = public morality2, . above expands reach of EU fundamental rights significantlymost difficult and controversila case

Question 56

Part III.2: Relying on EU FR to challenge validity of MS measures- 2 in depth?

Answer 56

Greatest significance of 2. (see previous slide): When MS derogate from a fundamental freedom (like in ERT).In short: When MS derogate from a fundamental freedom, they must respect EU fundamental rights because they act “within the scope” of EU law.But this reasoning of the Court is controversial!Possible arg.: The Treaty allows MS to justify a breach of a fundamental freedom, i.e. MS act on a power given by EU law (e.g. Arts. 52, 62 TFEU in ERT) when they derogate from a fundamental freedom.

Question 57

Part III.2: Relying on EU FR to challenge validity of MS measures- about derogate?

Answer 57

So when ms derogate from fundamental freedom=free movement of goods, labour, capital, they always have to respect eu fr, so that pushes this boundary here outside bc these freedoms apply a lot to ms laws so here ct is making sure that has power to review these measures, increase power of cts to second guess ms law

Question 58

Part III.2: Relying on EU FR to challenge validity of MS measures- controversial good argument?

Answer 58

Controversial good argunment why ct right- bc in treaty start with free moment and then u have treaty provision that allows justificiation and public morality, in our case is article 36 of tfeu, so fact that ms are allowed to breach and justify free movement of goods, comes from eu law, which is why they also act within scope of eu law when actually do that, that is argument of ct, that’s what says here, and here article 52 and 62 include public morality as justificartion an ert

Question 59

Part III.2: Relying on EU FR to challenge validity of MS measures- next well look at?

Answer 59

Next look at post charter – after 2009 so charter applies

Question 60

Part III.2: Relying on EU FR to challenge validity of MS measures- when ms implementing law art 51 1?

Answer 60

When are MS “implementing Union law” (Art. 51(1) Charter)?Case C-617/10, Fransson

Question 61

Part III.2: Relying on EU FR to challenge validity of MS measures- what is meant by starting point?

Answer 61

Means court taking art 51 starting point – means ms have to comply with eu fr when they implement eu law- so instead of saying when theyre acting within eu – charter is saying when they IMPLEMTN EU – implent narrower term than within scope of eu law – this category here gets smaller- if you only look at lang of implement- fransson tells us whether that happened or not

Question 62

Part III.2: Relying on EU FR to challenge validity of MS measures- what is theme here?

Answer 62

Theme – to what extend ms bound by eu fr – ert was about that aswell but franson most important to what extent ms bound eu fr

Question 63

Part III.2: Relying on EU FR to challenge validity of MS measures- facts of fransson?

Answer 63

Mr. Fransson falsified his VAT returns. The Swedish tax authorities imposed financial penalties on him. In addition, Fransson was criminally prosecuted for his actions. Fransson argued that the criminal proceedings violate his EU right under art. 50 Charter not to be tried twice for the same offence. The Swedish Court referred the matter to the CJEU.

Question 64

Part III.2: Relying on EU FR to challenge validity of MS measures- background?

Answer 64

Background: the applicable Swedish legislation did not implement EU directivesSweden did not act as agent of EU

Question 65

Part III.2: Relying on EU FR to challenge validity of MS measures- so what is ct saying?- held here?

Answer 65

Art. 51 Charter confirms the Court’s pre-Charter case law [18]Art 51 Ms must comply with charter rights if act in scope of eu law – that is surpising because if u look wording art 51 says implement not scope of eu law so ct makes sure that old case law this wholse sec continues ton be rel unde arti 51 1 = dodgy

Question 66

Part III.2: Relying on EU FR to challenge validity of MS measures- what was held?

Answer 66

“[F]undamental rights guaranteed by the Charter must … be complied with where national legislation falls within the scope of European Union law […]. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.” [21]

Question 67

Part III.2: Relying on EU FR to challenge validity of MS measures- what is there argument?

Answer 67

There is hw good argument in favour of ct- u can see this bullet point here, the wording doesn’t really support this reasoning, but in exmaplanations of charter, if your read them, explanations explain what is meant impleny and actually use words within scope of eu – so this is why eu saying

Question 68

Part III.2: Relying on EU FR to challenge validity of MS measures- what is meant by implementing?

Answer 68

“Implementing Union law” = “within the scope of EU law”-Court based reasoning on Explanations to the Charter (cf. Art. 52(7) Charter) rather than the wording of Art. 51(1) Charter

Question 69

Part III.2: Relying on EU FR to challenge validity of MS measures- what do we next do?

Answer 69

Next leave out next slide- tells you why ct argued in fransson that that specific case was within scope of eu law and go straight to take home message

Question 70

Part III.2: Relying on EU FR to challenge validity of MS measures-take home message of fransson?

Answer 70

MS implement Union law (Art. 51(1) Charter) when they act “within the scope” of Union law

Question 71

Part III.2: Relying on EU FR to challenge validity of MS measures-about why q?

Answer 71

Can all agree this is wide reading of implWhy q – what is ct concerned about – so end result fransson mr franson couldn’t rely on art 50 did not prohib ms from ms from imposing com of fines admin and criminal on him, he did not succed. But q is if u look at wat ct interpreted to implement, is ct mainly concerned about protecting fr, or does it really want to sure wide review powers, over national law in order to ensure appl of eu law.Result: Wide reading of “implementing”Why? Is it because CJEU is mainly concerned about (a) protecting fundamental rights or (b) ensuring that it has wide review powers over national law in order

Question 72

Part III.2: Relying on EU FR to challenge validity of MS measures-what was cts motivation in fransson?$

Answer 72

So what was cts motivation in franson-menti meter –cjeu wide reading implement in fran bc concerned about ensuritng it has wide review powers over ms law or protecting eu fr when ms act – both – all correct depend how u argue- when u read about case in textbook try to see whether diff arguments to support ur opinion cos can use these arguments in exam $

Question 73

Part III.2: Relying on EU FR to challenge validity of MS measures-what about next 3 slides? $

Answer 73

Next 3 slides are for further reading- leave them out- ct is doing on enxt 3 slides –clarify what within scope eu law means and guess what not clear after all- if youre very critical about what cjeu concenrend about and if you have the opinion that what cjeu is concerned about is extending this limits then of coruse wouldn’t define what it means – cause more wide more power – critical reading of cjeu rulings but point is so far cjeu hasn’t clarified what actually means- good arg-cpurse if clarfiy-= clear boundaries ct doesn’t want that wants maximum powers

Question 74

Part III.2: Relying on EU FR to challenge validity of MS measures-what is the one thing that is clear?

Answer 74

One thing is clear in CJEU case law: Where a case does not involve EU law but only national law, the -Charter does not apply and cannot be relied on.-Charter does not have free-standing application in the MS; it needs to “piggyback” on another rule of EU lawSee next slide

Question 75

Part III.2: Relying on EU FR to challenge validity of MS measures-furhter explanation of this?

Answer 75

One thing clear where case foes not r.a.w So if you don’t have eu law in action you are certainly her eu fr charter rights do not apply- a means is –eu fr basically need another provision of eu law to piggy back on – so in case where directive impleneted with know eu fr apply- the eu that the fr piggy backs on is of course eu directive – here in that spefici scenario controversial one here piggbakcs on another= free movement of goods- in ert = freedom to provide servie and eu fr could only apply bc ert was relying on tha eu freedom and that bring siwthin scope of eu lawIf you have case where no eu law applies ur here and that’s very case law of ct -

Question 76

Part III.2: Relying on EU FR to challenge validity of MS measures-can see in which case?

Answer 76

Case C-258/13, Sociedade AgrícolaandCase C-198/13, Hernández?

Question 77

Part III.2: Relying on EU FR to challenge validity of MS measures-what was held in 1st case?

Answer 77

Case C-258/13, Sociedade Agrícolaheld:‘Where a legal situation does not fall within the scope of Union law, the Court has no jurisdiction to rule on it and any Charter provisions relied upon cannot, of themselves, form the basis for such jurisdiction’. [20]Charter itself cannot form basis for jusdicial review this why said piggy back need to piggy back on another eu rule on itself it cant apply for ms measures and Hernandez ct said same

Question 78

Part III.2: Relying on EU FR to challenge validity of MS measures-what was held in second case?

Answer 78

Case C-198/13, Hernández?held: “[T]he mere fact that a national measure comes within an area in which the European Union has powers cannot bring it within the scope of EU law, and, therefore, cannot render the Charter applicable.” [36]competence not suffiencent needs to be eu – needs to be eu law in that area eu has to do something and only if that happens charter comes into came cos within scope of eu law .

Question 79

Part III.2: Relying on EU FR to challenge validity of MS measures-explanation of this cases?

Answer 79

Explain – 114 tfeu tabacoco- show eu can acty and ms can act also know from law making elc eu has actually acted we have lots of tabacco directives. In that case if we have eu law tabacco directive eu fund rights apply when ms implement this direc into eu law- charter right piggy back on other eu law the tabacco directive. If hw the eu doesn’t act so lets assume for now we don’t have any eu reg /directive for tabacco means in theory eu still has competence to act but ahsnt excerie comp yet- so charter rights do not apply ct says bc another eu rule is missing we only have ms measures but they are they have to comply with national fr, only when eu exercise competence and creates law then fr can piggy back on that law – cjeu says. And within case law above

Question 80

Part III.2: Relying on EU FR to challenge validity of MS measures-why did we mention this is controversial?

Answer 80

Reason why mention, bc this is controversial – AG shapston suggested- that scenario here where eu has competence but ahsnt exc - = sufficnet – even in this scenario should apply, - this is diff academic view toc jeu

Question 81

Part III.2: Relying on EU FR to challenge validity of MS measures-who stated the controversy?

Answer 81

-Others have gone further than the CJEUOpinion of AG Sharpston in Case C-34/09, Ruiz Zambrano [163-177]:-“[P]rovided that the EU had competence (whether exclusive or shared) in a particular area of law, EU fundamental rights should protect the citizen of the EUeven if such competence has not yet been exercised.” [163]-According to AG Sharpston, the existence of a material EU competence is all that is needed for EU FR to applyThat is not how the CJEU sees it (previous slide)

Question 82

Part III.2: Relying on EU FR to challenge validity of MS measures-why does it matter?

Answer 82

CJEU case law vs. AG Sharpston  why does it matter? - The bigger picture: It is ultimately about the division of powers between the EU and the MS-Fundamental rights are cross-sectoral, they apply in all fields-The wider the application of the Charter as concerns MS law, the wider the jurisdiction of the CJEU over MS laws!-MS are wary of this  read Art. 51(2) Charter and again Protocol (no. 30) Lisbon Treaty

Question 83

Part III.2: Relying on EU FR to challenge validity of MS measures-what about wider applic?

Answer 83

Wider appl – so accordgin ag shaprtoon what happens here, as logn as comp eu apply looks like this – so scope left over ms free of eu law much smaller and power of eu to review and set limits to ms measures much bigger – power grab much bigger- this is reviewd by ag sharpston.

Question 84

Part III.2: Relying on EU FR to challenge validity of MS measures-why it really matters the implementing part?

Answer 84

That is why it really matters how “implementing” in Art. 51(1) Charter is interpreted.-This is why it really matters- wider u interp to implenet more powers u take away from ms – something that ms don’t want

Question 85

Part III.2: Relying on EU FR to challenge validity of MS measures- exam q?

Answer 85

go over it

Question 86

ACCESSION?

Answer 86

accession is attached to further research - continue iab