Human Rights: Judicial Dialogue

Question 1

Costa v ENEL

Answer 1

Seminal case which introduced the principle of primacy of EU law - where there is a conflict between EU law and domestic law, EU law must prevail and take precedence. This led to some concerns that the primacy of EU law would lead to domestic constitutional provisions protecting fundamental rights being disapplied.

Question 2

Stauder

Answer 2

For the first time the CJEU recognised a category of general principles of EU law to be upheld by the CJEU - this included the protection of fundamental rights. So Stauder is the first case in which the CJEU recognised its own jurisdiction over protecting fundamental rights = hugely important development.

Question 3

Internationale Handelsgesellschaft

Answer 3

CJEU held that the validity of an EU measure CANNOT be challenged on the basis that it runs counter to national laws relating to the protection of fundamental rights in that particular MS. However, building on Stauder, the CJEU again explicitly recognised that EU law itself MUST protect fundamental human rights.

This was another hugely important development as the CJEU more firmly asserted its supremacy over human rights protection - CJEU stated that EU law was now primarily intended to protect fundamental rights, rather than domestic constitutional provisions of MS.

The CJEU’s reasoning was that it was necessary for EU law to prevail even over fundamental rights provisions in domestic constitutions in order to ensure the uniformity, validity and efficacy of EU law.

Question 4

Internationale Handelsgesellschaft (BVerG)

Answer 4

The German Constitutional Court (BVerG) reacted immediately to the judgment of the CJEU in Internationale Handelsgesellschaft - very negative reaction. BVerG held that provisionally, in the case of conflict between EU law and fundamental rights guaranteed in the German constitution, the German constitution would prevail.

Question 5

Wunsche Handelsgesellschaft

Answer 5

Approximately 10 years later, the BVerG changed its approach towards fundamental rights protection and its relationship with the CJEU doing so. Court held that so long as EU law at least ensured protection of rights substantially similar to those guaranteed by the German constitution, then the court would no longer exercise its jurisdiction to decide the applicability of secondary EU legislation when it conflicts with constitutionally protected fundamental rights.

I.e. the BVerG said that so long as EU law protects the rights substantially similar to those in the German constitution, it will not strike down secondary legislation on the basis that it runs contrary to protection of fundamental rights guaranteed in the constitution.

This is a GOOD EXAMPLE of effective judicial dialogue under the current system - it prevents conflict between the BVerG and CJEU provided that the rights guaranteed under the constitution are protected where the rights safeguarded by EU law are substantially similar. However, where EU law does not adequately protect a fundamental right set out in the MS constitution, the BVerG will still uphold that right - allows for a generally effective level of protection under EU law across the MS, but also allows domestic courts to protect the constitutional rights under the particular traditions of that MS where EU law does not properly do so.

Question 6

Wachauf v Germany

Answer 6

MS must comply with fundamental rights protection as set out under EU law, when they are implementing EU law

Question 7

E.R.T case

Answer 7

CJEU extended the scope of its fundamental rights protection to include where MS are derogating from provisions of EU law - so even where MS are actively attempting to not implement EU law, they are still required to comply with the protection of fundamental rights as protected under EU law.

Question 8

ITWF v Viking Line

Answer 8

CJEU held that the protection of fundamental rights is a key objective and general principle of the EU and thus can even justify a restriction on one of the four fundamental freedoms of the EU.

This shows the extent to which the CJEU and EU law is willing to protect fundamental rights = offers a very high level of protection. Also demonstrates that since the EU has transitioned into a political and social union, as well as an economic one based on the single market, protection of civil and political rights has become increasingly important and can now trump economic rights set out under the freedoms of the EU.

Question 9

Lisbon Treaty - 3 Sources of HR Protection

Answer 9

1) Art.6 TEU
2) Charter of Fundamental Rights
3) General Principles of EU law

Question 10

Charter of Fundamental Rights of the European Union

Answer 10

This came into force with the Lisbon Treaty in 2009, with its primary purpose being to codify fundamental rights protected under EU law and ensure a clear, visible legal framework. It incorporates ALL ECHR rights in addition to socio-economic rights developed by the EU - so it is broader than just the ECHR as it incorporates further rights developed by the CJEU.

Again, this demonstrates the effectiveness of the current system of legal pluralism - multiple different courts exercising their own jurisdiction over fundamental rights protection is good as it encompasses broader protection of human rights and pushes standards up generally.

Question 11

Art.51(1) Charter of Fundamental Rights

Answer 11

This sets out the field of application of the Charter of Fundamental Rights - i.e. when the Charter applies and its provisions must be complied with. Art.51(1) provides that the Charter applies to all EU institutions and MS when they are IMPLEMENTING EU law.

A literal/strict interpretation of Art.51(1) would suggest that this only applies where MS are actively introducing measures to put EU law into effect - so would cover transpositions, all EU measures being adopted etc. - like the traditional scope in Wachauf v Germany

Question 12

Art.52 Charter of Fundamental Rights

Answer 12

This provides that the interpretation of the ECHR rights in the Charter is to be the same as they are interpreted in the Charter - does not set a new standard for this.

Question 13

Fransson

Answer 13

CJEU took a different approach to interpreting Art.51(1) and held that ‘when implementing EU law’ means that the Charter applies in ALL situations simply governed by EU law - so this extends well beyond just implementing EU law on a literal construction of that term.

CJEU argued that the court’s settled case law states that fundamental rights guaranteed by EU law are applicable in ALL situations within the scope of EU law - therefore this continues with application of the Charter. This was a very bold and expansive definition given by the CJEU to the meaning of ‘implementing’ in the Charter - use as an example of the CJEU’s hegemony in the area of human rights protection as it has clearly stated that it is the primary HR protection court in the EU and it has a very wide jurisdiction over human rights protection.

CJEU also said that in an area not governed by EU law, MS are free to apply their own human rights standards provided they do not conflict with the Charter or undermine the efficacy/primacy of EU law.

Question 14

Opinion of Advocate General Cruz Villalon

Answer 14

AG Cruz Villalon in his separate Opinion on Fransson argued in favour of a more restrictive approach to the application of the Charter of Fundamental Rights - he contended that merely because the exercise of public authority has its origins in EU law, this should not necessarily mean that it is a sufficient finding for being about implementation of EU law - so he questioned the reasoning of the CJEU’s very broad approach.

The more narrow approach advocated by AG Cruz Villalon would mitigate some of the problems in Fransson as a statement of radical legal pluralism in which the CJEU has clearly asserted its own supremacy and jurisdiction over HR protection

Question 15

Stefano Melloni

Answer 15

CJEU held that MS cannot have higher human rights protection standards provided for by their own domestic constitutions than the protection guaranteed under EU law IN SITUATIONS GOVERNED BY EU LAW. This is because to do so would undermine the uniformity, validity and efficacy of EU law - if MS could all set their own HR standards of protection in areas governed by EU law, these principles of EU law would be undermined.

Art.53 Charter cannot be interpreted as allowing MS to set higher standards than those guaranteed by the Charter. (CJEU started by saying that the EAW did NOT violate Art.53 of the Charter RE the level of protection.)

However, the CJEU was clear that where the situation is NOT governed by EU law, then national courts are free to set their own higher standards of HR protection, provided it does not conflict with the Charter or undermine the primacy of EU law.

Therefore, the Spanish constitutional rule which prevented a second criminal trial had to be disapplied and the Italian rule had to be followed because the Spanish rule would set a higher HR standard than the Charter in a situation governed by EU law.

Question 16

Schecke v Land Hessen

Answer 16

Issue was whether EU agricultural policy could be nullified due to infringing rights to personal data guaranteed under Art.8(1) Charter.

CJEU noted that under Art.52(1) of the Charter, MS may impose limitations on fundamental rights where they are proportionate, provided for by law and respect the essence of the rights.

CJEU held that the measure here was NOT proportionate and thus the infringement was not justified. Proceduralisation of proportionality applied here - no evidence that the EU considered another means of achieving its objective that would have been less restrictive on rights guaranteed by the Charter.

So where the EU/MS wants to justify an infringement of rights in the Charter, you must apply proportionality proceduralisation test!

Question 17

Test-Achats v Counseil des Ministers

Answer 17

CJEU held that EU directive which allowed for discrimination on the basis of gender for insurance companies setting premiums violated Art. 21 and 23 of the Charter and thus the directive was invalid.

Where the measure actively contradicts (and does not respect the essence of the rights) fundamental rights guaranteed by the Charter then it will be unlawful.

Question 18

Art.6(2) TEU

Answer 18

This provides that the EU ‘shall accede to the ECHR’ - in response to Opinion 2/94 which held that there was no valid legal basis for accession to the ECHR - CJEU said that Art.352 TFEU did not confer valid legal basis for accession.

Note that Art.6(2) TEU goes beyond merely providing a legal basis for accession, but actively imposes an OBLIGATION on the EU to accede.

Question 19

Bosphorus v Ireland

Answer 19

ECtHR held that the EU’s system of human rights protection is equivalent to that guaranteed by the ECHR. Therefore, so long as the CJEU was providing equivalent protection to ECHR rights, the ECtHR would not review the validity of EU law directly.

Demonstrates effective judicial dialogue between the courts.

Question 20

Matthews v UK

Answer 20

However, the ECtHR has been willing to intervene and find that ECHR rights have been breached in situations governed by EU law (which would normally be in the CJEU’s jurisdiction).

ECtHR held in Matthews that EU primary law did NOT comply with voting rights set out in the ECHR and thus violated rights under the ECHR.

Question 21

M.S.S v Belgium and Greece

Answer 21

ECtHR held that Belgium and Greece had violated Art.3 ECHR rights against inhumane and degrading treatment in sending asylum seekers back to places where they would definitely suffer poor conditions, even though this was in the scope of the Dublin Agreement.

Shows again how the ECtHR has been willing to intervene even in the scope of EU law where the CJEU is not sufficiently protecting fundamental rights = benefits of the legal pluralism system

Question 22

NS and ME

Answer 22

CJEU held that the UK exercising a discretionary power conferred by statute did fall within the scope of EU law and thus was subject to review by the Charter. This demonstrates the supremacy approach taken by the CJEU undermining effective judicial dialogue - it has given an incredibly broad scope to its own protection of fundamental rights jurisdiction and has been highly willing to intervene and find discretionary power/national measures unlawful, arguably beyond the intended scope of Art.51(1) Charter.