P2; CH3: Protection of Fundamental Rights

Question 1

History of the judicial respect for human rights in EU

Answer 1

The first european community was merely functionalist, didn’t mention HRs.

J.26/69 “Stauder”: First ruling related to HR

J.11/70 “Internationale handelsgesellschaft”: Human Rights Conventions and Constitutional traditions are used as a Normative Standard

J.44/79 “Hover”: Primacy of EU Law against Germany’s courts

J. 415/05 “Kadi”: Nations, when applying EU Law have to ensure the respect of Human Rights

Question 2

Why is the negative protection of Human Rights useful?

Answer 2

It is a Judicial Construct and an Instrument to enhance the Doctrine of Primacy

Functions as a negative-limits system on public powers: respect for human rights is necessary for legislations to be lawful (parameter of legality)

Question 3

Which measures were functional for a positive protection human rights?

Answer 3

REGULATION 2201/2003: Family law matters (in measures such as:
a) best and supreme interest of the child as guideline
b) interest to let the non custodial parent to see the child

CHARTER OF FUNDAMENTAL RIGHTS as NORMATIVELY BINDING
After a Commission’s call to include a recital attesting the compliance of the act with the Charter

LISBON REFORM

Question 4

The Lisbon Reform: In General

Answer 4

ART. 6 TEU:
Union formally recognizes (already existing in human beings) the rights, freedoms and principles set out in the “Charter of Fund. Rights of the EU” which shall have the same legal value as the Treaties

Charter contemplates 50 fund. rights divided in 6 main categories:
1- Human dignity
2- Freedoms
3- Equality
4- Solidarity
5- Citizens’ rights
6- Justice

*Any limitation must be proportionate and provided for by law
*HR are parts of Union’s common values

The catalogue of rights shifts the protection of human rights from judicial to primary law

Question 5

What other legal sources exist for HR protection?

Answer 5

Other than the Charter, ART.6 mentions also the ECHR (not part of the EU framework) and the COMMON CONSTITUTIONAL TRADITION and GENERAL PRINCIPLES AMONG MS
+ the Int. Agreements on HR

Question 6

What is Protocol no.30

Answer 6

it gives an opt out virtue to some states, such as Poland and Czech Republic, concerning the INVOKING IN NATIONAL COURTS of the Charter