EU LAW LECTURE PROTECTION OF FUNDAMENTAL RIGHTS IN THE EU LECTURE ONE 27th January 2012 Reading: Craig and de Brca,

, 4th ed. Chap. 11 See also reading referred to in text below. Key Issues The development of a fundamental rights jurisprudence in response to anxieties from national constitutional courts. The sources of fundamental rights in the EU The scope of fundamental rights protection: review of the acts of the institutions and actions of the Member States within the scope of Community law The CoJs role in balancing protection of fundamental human rights against the fundamental freedoms including goods and services PART ONE DEVELOPING A FUNDAMENTAL RIGHTS JURISPRUDENCE Case 29/69, Stauder v. Stadt Ulm contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court. Case 11/70, Internationale Handeslgesellschaft mbH respect for fundamental rights forms an integral part of the general principles of Community law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States must be ensured within the framework of the structures and objectives of the Community. Wnsche Handelsgesellschaft [1987] 3 CMLRev. 225 (BverfG) Compared with the standard of fundamental rights under the Constitution it may be that the guarantees for the protection of such rights established has thus far by the decisions of the European Court, since they have naturally developed case by case, still contain gaps in so far as specific legal principles recognised by the Constitution or the nature, content or extent of a fundamental right have not individually been the object of a judgment delivered by the Court. What is decisive nevertheless is the attitude of principle which the Court maintains at this stage towards the Communitys obligations in respect of fundamental rights, to the incorporation of fundamental rights in Community law under legal rules and the legal connection of that law (to that extent) with the constitutions of member-States and with the European Human Rights Convention, as is also the practical significance which has been achieved by the protection of fundamental rights in the meantime in the Court's application of Community law. Those rules of procedure, in relation to access to the Court, the given types of procedures, the powers of the Court to review and make decisions, the procedural principles and the effect of its decisions, are organised in a way which in 1

general guarantees an effective protection of fundamental rights which is to be regarded as substantially similar to the unconditional protection of fundamental rights under the Constitution. In view of those developments it must be held that, so long as the European Communities, and in particular in the case law of the European Court, generally ensure an effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany, and it will no longer review such legislation by the standard of the fundamental rights contained in the Constitution; references to the Court under Article 100(1) for that purpose are therefore inadmissible. SOURCES OF FUNDAMENTAL RIGHTS Constitutional Traditions of Member States Case 4/73 Nold v. Commission In safeguarding these rights, the Court is bound to draw inspiration from the constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those states. Case 11/70 Internationale Handelsgesellschaft mbH Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community lawTherefore, the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure. International Treaties to which Member States are Signatories Case 4/73 Nold v. Commission Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law.

The European Convention on Human Rights We will discuss this further in the last lecture this term. C-60/00, Mary Carpenter v. Secretary of State for the Home Department [2002] ECR I-6279 A Member State may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of the freedom to provide services only if that measure is compatible with the fundamental rights whose observance the Court ensures (see, to that effect, Case C-260/89 ERT [1991] ECR I-2925, paragraph 43, and Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 24). The decision to deport Mrs Carpenter constitutes an interference with the exercise by Mr Carpenter of his right to respect for his family life within the meaning of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter `the Convention'), which is among the fundamental rights which, according to the Court's settled case-law, restated by the Preamble to the Single European Act and by Article 6(2) EU, are protected in Community law.

SCOPE OF PROTECTION OF GENERAL PRINCIPLE RELATING TO FUNDAMENTAL HUMAN RIGHTS In considering the extent to which the ECJ has jurisdiction to review the legality of action in accordance with fundamental rights, we need to make two distinctions: Review of the legality of the acts of the EU institutions and review of the legality of Member State action within the scope of EU law.

Review of Legality of EU Measures Recall the grounds of review under Article 230 EC (now Article 263 TFEU) [The ECJ] shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application or misuse of powers

Legislative Measures Case C-377/98, Netherlands v. Council and Parliament (Patenting of Genes) [2001] ECR I-7079 (Council and EP Directive) As regards respect for human dignity, this is guaranteed in principle by Article 5(1) of the Directive which provides that the human body at the various stages of its formation and development cannot constitute a patentable invention. Nor are the elements of the human body patentable in themselves and their discovery cannot be the subject of protection. Only inventions which combine a natural element with a technical process enabling it to be isolated or produced for an industrial application can be the subject of an application for a patent. It is clear from those provisions that, as regards living matter of human origin, the Directive frames the law on patents in a manner sufficiently rigorous to ensure that the human body effectively remains unavailable and inalienable and that human dignity is thus safeguarded. Executive Measures Cases 46/87 and 227/88, Hoechst AG v. Commission [1989] ECR 2859 in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention . The need for such protection must be recognized as a general principle of Community law. it must be held that the measures which the contested decision ordering the investigation permitted the Commission' s officials to take did not exceed their powers under Article 14 of Regulation No 17 . Article 1 of that decision merely requires the applicant "to permit officials authorized by the Commission to enter its premises during normal office hours, to produce for inspection and to permit copies to be made of business documents related to the subject-matter of the enquiry which are requested by the said officials and to provide immediately any explanations which those officials may seek.

EU HUMAN RIGHTS PROTECTION AND THE INTERNATIONAL LEGAL ORDER: THE KADI CASE

C-402/05P Kadi 281 In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions 282 It is also to be recalled that an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system, observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred on it 284 It is also clear from the case-law that respect for human rights is a condition of the lawfulness of Community actsand that measures incompatible with respect for human rights are not acceptable in the Community. 285 It follows from all these considerations that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights... 334 In this regard, in the light of the actual circumstances surrounding the inclusion of the appellants names in the list of persons and entities covered by the restrictive measures contained in Annex I to the contested regulation, it must be held that the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected. 363 With reference to an objective of general interest as fundamental to the

international community as the fight by all meansagainst the threats to international peace and security posed by acts of terrorism, the freezing of the funds, findancial assets and other economic resources of the persons identified by the Security Council or the Sanctions Committeecannot per se be regarded as inappropriate or disproportionate.

Eeckhout vs. Weiler Eeckhout: http://www.ejiltalk.org/kadi-and-al-barakaat-luxembourg-is-not-texas-orwashington-dc/ The main lesson which international law needs to draw from the Kadi judgment is that, since it increasingly affects, in ever more direct ways, the position of individuals, it needs to develop much better mechanisms for the protection of individual rights. If such better protection had been afforded in Kadi, I am convinced that the Court would have been much more inclined to defer to the Resolution. In fact, the Court intimated that a kind of Solange approach towards international law is not excluded. It devoted eight paragraphs to the Commissions argument that the UN sanctions system allows for the individuals or entities concerned to be heardAnd there would have been no need to engage with the argument if no Solange approach were conceivable. If the Security Council puts its house in order, I expect the Court of Justice to defer to the UN sytem of protection. But for now, the Courts position is akin to the first Solange judgment of the BVG: as long as the UN does not itself guarantee efffective judicial protection, the Court will enforce European human rights norms, as it does in all other circumstances. The Courts judgment should be seen as an incentive for the further development and improvement of international law, and not as a retreat from international law. Weiler: http://ejil.oxfordjournals.org/cgi/reprint/19/5/895 I have seen commentators reading into the decision a dialogical element reminiscent

of the Solange jurisprudence. Such is beauty that comes from the eye of the beholder, not from the text of the Decision.

See also Case T-85/09 Kadi v. Commission (judgment of General Court of 30 September 2010) 151 the General Court considers that, once there is acceptance of the premises, laid down by the judgment of the Court of Justice in Kadi that freezing measures such as those at issue in this instance enjoy no immunity from jurisdiction merely because they are intended to give effect to resolutions adopted by the Security Council.the principle of full and rigorous judicial review of such measures is all the more justified given that such measures have a marked and long-lasting effect on the fundamental rights of the persons concerned.

REVIEW OF THE LEGALITY OF THE EXERCISE OF MEMBER STATE POWERS WHEN MEMBER STATES ACT WITHIN THE SCOPE OF EU LAW a) When Member States implement EU law Case 5/88, Wachauf v. Germany [1989] ECR 2609 b.) where a Member State seeks to derogate from a fundamental freedom Case C-260/89, Elliniki Radiophonia Tieleorassi AE v. Dimotiki Etairia Pliroforissis [1991] ECR I-2925 43 In particular, where a Member State relies on the combined provisions of Articles 56 and 66 in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 56 and 66 only if they are compatible with the fundamental rights the observance of which is ensured by the Court. 44 It follows that in such a case it is for the national court, and if necessary, the Court of Justice to appraise the application of those provisions having regard to all the rules of Community law, including freedom of expression, as embodied in Article 10 of the European Convention on Human Rights, as a general principle of law the observance of which is ensured by the Court.

Case C-159/90, Society for the Protection of the Unborn Child v. Grogan [1991] ECR I-4685 Case C-299/95, Friedrich Kremzow v Republik sterreich [1997] ECR I-2629 The appellant in the main proceedings is an Austrian national whose situation is not connected in any way with any of the situations contemplated by the Treaty provisions on freedom of movement for persons. Whilst any deprivation of liberty may impede the person concerned from exercising his right to free movement, the Court has held that a purely hypothetical prospect of exercising that right does not establish a sufficient connection with Community law to justify the application of Community provisions (see in particular to this effect Case 180/83 Moser [1984] ECR 2539, paragraph 18). c.) When some specific substantive EU rule is applicable to the situation in question Case C-555/07 Seda Kckdeveci v Swedex GmbH & Co. KG See for a discussion, Editorial Comments, (2010) 47 CMLRev. 158

PART TWO: BALANCING FUNDAMENTAL FREEDOMS AND FUNDAMENTAL RIGHTS

Case C-112/00 Schmidberger 74 Thus, since both the [EU] and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by [EU] law, even under a fundamental freedom guaranteed by the Treaty such as the free movement of goods. Case C-36/02 Omega Spielhallen 37 It is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected. . 39 In this case, it should be noted that.the prohibition on the commercial exploitation of games involving the simulation of acts of violence against personscorresponds to the level of protection of human dignity which the national constitution seeks to guarantee in the territory of the Federal Republic of Germany See Lenaerts & Fons, The Constitutional Allocatin of Powers and General Principles of Law (2010) 47 CMLR 1629

[i]t [the ECJ] endorsed a model based on value diversity where national constitutional traditions are not in competition with the economic objectives of the Union, but form an integral part of it. Contrast these two cases with Case C-341/05 Laval un Partneri Ltd C. Kilpatrick, British Jobs for British Workers? UK Industrial Action and Free Movement of Services in EU Law at: http://eprints.lse.ac.uk/24369/1/WPS200916_Kilpatrick.pdf It is hard to deny that the fundamental rights rhetoric rings particularly hollow in Laval. It contrasts sharply with the approach taken in the very cases cited by the Court to support its reasoning Six Steps to the elevation of market freedoms over the protection of human rights? Step One: Recognise that the human right to take collective action (to strike) is not an absolute right; Step Two: Construe the Posted Workers Directive (PWD: Directive 96/71) as giving rise to exhaustive as opposed to minimum harmonization; Step Three: Interpret the nucleus of mandatory rules within the PWD restrictively; Step Four: Conclude that Article 56 applies to trade union activities; Step Five: Conclude that the collective action is a restriction within the meaning of Article 56; Step Six: Conclude that the restriction cannot be justified How much we explain the Courts stricter approach in Laval? Judge Lenaerts (see Lenaerts & Fons above) explains it in the following way. Moreover, in contrast to the contested measue in Omega, the collective action taken in Viking and Laval, involved measures which potentially cloaked protectionist, albeit socially legitimate, claims. In Omega, activities involving playing at killing were banned because they were incompatible with a basic value of the German constitution. Despite the effect on trade, the German authorities attitude had nothing to do with the fact that the equipment was imported from the UK. Hence, there was no intent to insulate the local market from external competition in Omega. Conversely in Viking and Laval, trade unions sought protectionist measures by struggling to keep jobs at home. While it is in principle legitimate for trade unions to protect workers from social dumping, it is equally true that trade unions are not entitled to shield local labour markets from competition coming from Member States with low average wages. For this reason, the ECJ may have felt that granting a margin of appreciation to trade unions in such a broad way, as if they were Member State authorities, was inappropriate. Otherwise, the ECJ might have tilted the

balance in favour of a social Europe that arguably excludes a large part of its new citizens. Trade unions could easily engage in social protectionism, leading to retaliatory measures and eventually to the fragmentation of social groups across Europe. In this regard, had the Scandanavian trade unionsreacted to cheaper labour coming from the Baltic States with a transnational mindset, perhaps seeking to raise standards throughout the EU rather than seeking to exclude workers from other Member States, the ECJ might have been more sympathetic to their claim. For example, fears of social protectionism might have been alleviated had the Scandanavian trade unions joined forces with their Baltic counterparts to provide a European solution to intra-Union relocation or to the remuneration of posted workers. It follows from these cases that the ECJ leaves to the Member States a margin of appreciation when defining the social objectives to be protected as well as when setting out the means to attain them, provided that no fundamental EU value, such as the prohibition of protectionism, is at stake.

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