COUNCIL OF EUROPE VS EU

Transcription

1 COUNCIL OF EUROPE VS EU 1niY Differences in level of protection of human rights between the Council of Europe & EU Court of Justice of the EU (CJEU) vs European Court of Human Rights (ECtHR)

2 Fundamental rights are now part of the EU legal order. the original Treaties did not contain provisions relating to basic human rights. The European Economic Community was limited to economic matters, and the CJEU first developed protection for fundamental rights in economic and commercial interests, rights to property and the freedom to pursue a trade or profession. Moreover, the Court was impelled to include fundamental rights in the EU legal order so as to defend the principle of supremacy of EU law. The threat to the supremacy of EU law over national law arose when national constitutional courts resisted Community action, insofar as they considered it as violating fundamental rights protected in national constitutions. 2

3 FURTHER DEVELOPMENT On the one hand, the CJEU emphasizes that fundamental rights as general principles of Community law are autonomous from specific principles protected by the constitutional laws of individual Member States. On the other hand, these fundamental rights as general principles of EU law are rooted in the national legal cultures and reflect the constitutional traditions of the Member States. 3

4 C-29/69 Stauder v. City of Ulm the applicant who received vouchers for cheap butter under EU scheme for recipients of certain social benefits maintained that he was humiliated by the requirement to write his name and address on the coupon. The Court held that the measure of EU law did not require for these details to be included on the coupon, but it was the German interpretation of the law.

5 C-29/69 Stauder v. City of Ulm Fundamental rights were first recognised by the ECJ based on arguments developed by the German Constitutional Court in Stauder in relation to a EC scheme to provide cheap butter to recipients of welfare benefits. When the case was referred to the ECJ the ruling of the GCC, the EC could not "prejudice the fundamental human rights enshrined in the general principles of Community law and protected by the Court".

6 C-11/70 Internationale Handelgesellschaft (1970) Chapter I of Solange story the applicant claimed that the system which was put in place to control the market in certain agricultural products was invalid as being contrary to fundamental human rights (proportionality) which is one of the rights protected by the German Basic Law. On facts the Court held that there was no violation of the fundamental rights of trade in this case but in its dictum it stated ( ) respect for fundamental rights forms an integral part of the general principles of 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 structure and objectives of the [Union]

7 C-11/70 Internationale Handelgesellschaft (1970) Chapter I of Solange story In this judgment, the Court supplements the Stauder precedent by stating that respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice and that the protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community

8 C-11/70 Internationale Handelgesellschaft (1970) Chapter I of Solange story Despite all its efforts, the ECJ was not immediately able to head off a rebellion by the German courts. The Internationale Handelsgesellschaft pursued the matter further, before the General Constitutional Court which challenged the supremacy of EU law by ruling that it was the fundamental rights set in Basic Law that would prevail over EU law as at the time there was no catalogue of fundamental rights in EU and the EU Parliament did not have legislative powers. This view was supported by Italian Constitutional Court in Frotini v Ministero delle Finanze.

9 PROPORTIONALITY In this case the European Advocate General provided an early formulation of the general principle of proportionality in stating that "the individual should not have his freedom of action limited beyond the degree necessary in the public interest".

10 PROPORTIONALITY the general principle in European Union law of proportionality entails a three-part test: 1) is the measure suitable to achieve a legitimate aim, 2) is the measure necessary to achieve that aim or are less restrictive means available, and 3) does the measure have an excessive effect on the applicant's interests.

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12 Chapter II of Solange story (1986) the German Constitutional Court considered the protection of fundamental rights by the Court of Justice to be of the same level as that granted by the German Basic Law Solanage II (Wünsche Hadelsgesellschaft (Solenage II) [1987] 3 CMLR 225)

13 SOLANGE STORY Contrary to its position in Solange I, the CJEU in its Solange II decision did not insist on the existence of a written Charter of Rights in Europe as a precondition for recognizing equivalence of human rights protection on the European level. By the mid-eighties, when Solange II was decided German jurisprudence had developed in the direction of a rationalist human rights paradigm, a development that was still in its infancy in 1974, when Solange I was decided. Lists of rights and their limitations, unless they exceptionally take the form of clear-cut rules, had simply not contributed to provide much determinacy and clarity. On the other hand the German Constitutional Court had become quite comfortable applying the proportionality principle across the board. Under those circumstances the Court had become less resistant to the idea that the ECJ, even without a textual basis, is essentially engaging in the same practice as the Federal Constitutional Court. 13

14 Chapter III of Solange story Happening in CEE countries Constitutional courts claim that they are obliged to protect fundamental rights of their citizens from their erosion Erosion resulting from the supremacy of EU law over national constitutional orders It appears like a return to Chapter I of the Solange novel, while we have already been through chapter II.

15 SOLANGE DOCTRINE Bruno de Witte: In most other countries too, the Constitution is still the uncontroverted summit of the pyramid of the sources of law, and Community law is reluctantly given a para-constitutional status at most.

16 C-4/73 Nold v. Commission (1974) the Court cited the inspiration for the general principles of EU law as comprising: i) common national constitutional traditions and ii) international human rights agreements. Thus fundamental rights have increased in importance and stature, in no small part due to the development of the general principles of EU law by the CJEU and through legislative initiatives in areas such as nondiscrimination.

17 PROBLEMS AT NATIONAL LEVEL o Right to life, protection against torture and slavery: Denmark o Family life: in Poland the constitutional definition of monogamous heterosexual marriage spills over to the concept of family life in national case law, providing less protection than Article 8 ECHR;.also in Ireland the scope of the right to family life is less extensive than under 8 ECHR o Right to marry: not protected by e.g. Maltese and Netherlands Constitution. o Status of ECHR: in Hungary the quasi-dualist system is viewed as an obstacle to provide adequate protection to ECHR rights, limiting courts to use techniques of consistent interpretation; but some authors read the new Article Q as granting primacy of international law over national law, though practice will have to confirm this. o Lack of judicial remedies: in the Netherlands courts cannot review the constitutionality of acts of parliament; o Croatia and Malta lack strict scrutiny in the context of proportionality test; the concept of indirect discrimination is unknown in national law 17

18 EXAMPLES OF NATIONALLY MORE PROTECTED RIGHTS Ireland: right to life of the unborn child, trial by jury for non-minor criminal charges, right to reputation o NL, Germany: absolute prohibition of prior censorship of expressions. o Netherlands: right to education and educational financial equal treatment; o Belgium, Czech Republic, Hungary (and others): rights of ethnic, linguistic or cultural minorities o Slovenia: (details of) procedural rights as compared to the Charter (and ECtHR). o Scotland: previously the sanction of nullity of proceedings in case of undue delay o Luxembourg: the natural rights of the human person and family o Slovakia, Czech Republic, Poland, Bulgaria (and others): several social and economic rights o Spain: trial in absentia o Portugal: right to a good administration 18

19 EXAMPLES OF RIGHTS BELOGING TO CONSTITUTIONAL IDENTITY o the core of fundamental rights generally and human dignity especially (Germany; Estonia) o linguistic rights (Belgium) o essential elements of democratic state under the rule of law (Czech Republic, Estonia and elsewhere). o linguistic and cultural rights and protection of natural heritage (Slovenia, Hungary) o freedom of persons not to be totally recorded and registered (Germany)13 o right to equal treatment in general, and the equal educational freedom independent of denomination in particular (Netherlands) o Abolition of the nobility and noble titles (Austria; aspects of this also in Ireland and Italy) 19

20 Mangold C-144/04 Age discrimination recognized as human right Age discrimination becomes a general rule

21 Kuckudevici C-555/07 ECJ and age discrimination expanding direct effect of directives to horizontal relations Legal basis: The ECJ is developing its jurisprudence in the area of age discrimination; jurisprudence which is largely based on Articles 12 and 13 of the EC Treaty, and Directive 2000/78/EC on equal treatment in employment and occupation.

22 Legal basis

23 Age discrimination? Age discrimination can appear in different shapes and sizes. It is not always about ageism which one would normally associate with discriminating people because of their too old rather than too young age. The German law with which Ms Kucukdeveci had a problem was refusing to allow people who worked before they reached the age of 25 to calculate this period of employment as part of the period which was the basis for calculating their notice period for dismissal. Ms Kucukdeveci worked for 10 years for her employer (since she was 18), but when she was dismissed she received notice the length of which corresponded to her working only for 3 years.

24 ECJ conclusion While it is clear that the Equal Treatment Directive does allow Member States to establish certain limitations on equality because of age: for instance those relating to minimum hiring age or minimum experience allowed, the German law went slightly too far, as rightly confirmed by the ECJ.

25 ECJ judgement The ECJ condemned the German law as being against the equality principle, and it also confirmed the principle of supremacy of EU law and its implications: the court considering the case was told to set aside the German law and apply the Directive instead. The problem was: the Directive was to be applied between two non-state entities (one individual, one firm) so in a horizontal relationship!

26 Kucukvedeci is about so much more than age disrimination. It is also about the effect of directives containing fundamental principles of EU law (here the concept of non-discrimination on the basis of age, also established by the Charter of Fundamental Rights which by the way the ECJ enforced retrospectively!). As we know, directives do not have horizontal direct effects. Or do they now? Here we are dealing with a Directive establishing a Fundamenal Principle of EU law, and this one WAS HELD TO BE DIRECTLY EFFECTIVE IN A HORIZONTAL SITUATION!

27 Kucukvedeci is about so much more than age disrimination. AG Bot said that compensation for damages is not efficient remedy for those who suffered discrimination

28 HORIZONTAL APPROACH (between private parties) OF THE CHARTER Developed through the case law LAW is created by the judges of CJEU Associate de medation sociale C-176/12 certain progress in case law (CJEU said that ART 27 of the Charter doesn t have horizontal direct effect)

29 Main guardians of the human rights in Europe are A) CJEU B) ECtHR C) national courts D) European Convention on Human Rights E) Charter of Fundamental Rights in the EU

30 Before the Charter There was no bill of rights in the EU

31 Before the Charter General principles Constitutional traditions International law

32 Before the Charter unwritten list of fundamental rights virtual list

33 Charter adopted in 2000 Non-binding WHY? Some states were afraid of the federalisation of the EU Clash between sovereignty/supremacy 2009 Art 51 of the Charter... Scope of FR when implementing EU law WHEN? When there is an intersection with market freedoms/not purely internal situations However, the idea of FR is to protect HR as universal

34 Another problem shift of power National courts may tend to invoke Charter rather than ask national constitutional courts Decentralized judicial review

35 CJEU case law There is a need to clarify its case law (e.g. Ackerberg Fransson) In its first series of cases CJEU was very cautious Interply between national legal system and EU law system CJEU you can apply both as long as that doesn t diminish the system of EU law standards

36 GENERAL RULE Apply BETTER protection BUT WHAT IS BETTER PROTECTION? E.g. freedom of speech vs. right to privacy E.g. gay marriages in different MS goes on higher level CJEU vs ECHR

37 POSSIBLE SOLUTION? Need for judicial dialogue with national courts

38 CRITICISM OF HORIZONTAL DIRECT EFFECT 1. it creates legal uncertainty 2. open dilemma of judicial review