Session 4 : The Constitution of EU (b): The Charter of Fundamental Rights Flashcards
hat was the situation before the adoption of the charter of fundamental rights?
• Before the charter, there was a form of “unwritten” bill of rights,
Stork in 1959 gap in EU law with no act on human rights, that created the risk of questioning the primacy of EU
- Stauder, 1969, in order to preserve the primacy of EU law, recognizes the existence of fundamental human rights, as a part of the general principles of EU law, but relied on the judge
- Nold 1974: use international treaties as inspiration and guidelines
What points were made during the Internationale Handelsgesellschaft?
- Looking for an analogous guarantee
- Fundamental rights form an integral part of the principles of law
- General principles are inspired by the national constitutions of Member States
What does the charter contribute to doing?
Charter : Codifies the already existing rights of the EU, the general principles of the EU.
Primary law: legislative and non-legislative acts need to respect the charter
Contribution to the constitutionalization of the EU, at the heart of the big decisions in the ECJ, with 10% decisions referring to it.
What is the difference between rights and principles?
for example social rights are principles, it means that they do not have a direct effect, and cannot therefore be invoked by individuals directly before the European or the national judge. In order to be invoked, they need to be transposed in the legal order. This disctinction appears in article 52.
In which case was the distinction between rights and principles brought forth?
ECJ, 2014, association de mediation sociale, about worker’s right to information the article 27 does not by itself confer individuals a right which they may invoke as such.
How does the charter contribute to the constitutionalisation and federalisation of the EU?
- Compares to the Bill of Rights, Canadian charter of rights and freedoms, Germany
- New objective to the EU, new telos that goes beyond economic integration
- Possibility to invoke the charter, vertically (regarding institutions) and horizontally (against another individual
What is the principle of legality?
if an act of a European institution, an organ, does not respect the charter, that act can be annulled by the ECJ, because primary law.
What is the scope of application of the Charter?
defined by article 51 of the Charter, institutions and bodies of the Union, and member states when implementing Union Law.
• EU Institutions all have to apply the Charter
• Member States : only when they are impleting an EU directive and EU law.
• Individuals : principle of non-discrimination, and social rights
Which cases have contributed to defining the scope of application of the charter?
o Wachauf case member states when implementing community rule, have to apply those rules in accordance with those requirements.
o Fransson case
we can consider that we’re in the scope of the directive when national measures have in a way contributed to the correct application of the directive, and their intent align with that of Community Law.
How to determine which proftection prevails?
Constitutional pluralism: coexistence of different protections, how to determine which one prevails?
- Rule of application of the most protective norm
- Limits primacy, unity and effectiveness of EU law
What was the issue in the Melloni case?
judge wanted to know whether he could apply the national constitution instead of the charter and refuse a European arrest warrant?
What was the decision of the melloni case?
“national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised”, would have risked undermine the principles of mutual trust and recognition of the member states which would compromise the effectiveness of the framework decision.
What was the issue of the Fransson case?
Swedish law goes beyond the EU directive, a national prospective that was technically not a transposition of the directive. Does that fall in the scope of EU Law?
What was the decision in the Fransson case?
The fact that the national legislation upon which those tax penalties and criminal proceedings are founded has not been adopted to transpose Directive 2006/112 cannot call that conclusion into question, since its application is designed to penalise an infringement of that directive and is therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union
Example of a case in which primacy of EU was not upholded?
Tarricco case
