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Fundamental rights and the European Union

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The EU started as merely an economic device. However, as it has developed into a political organisation, particularly one which legislative supremacy in some areas, there has been an increasing demand for the recognition of human rights. Prior to the Lisbon Treaty in 2009, only what is now Article 2 TEU guided the EU’s actions, providing for respect for human dignity, freedom, equality and human rights. Due to the lack of a concrete set of rights to respect, the Court of Justice could only be guided by the differing collections of human rights devices set out in the law of Member States. Nevertheless, the CJEU gradually recognised particular rights, in cases such as Captain Kirk [1984] – legal certainty, M&S [2002] – legitimate expectation, Man (Sugar) [1985] – proportionality, Cowan [1989] – non-discrimination and Kadi [2008] – effective judicial protection, to name a few.

The CJEU’s dealings with human rights constituted only an incremental development of recognition for rights, limited by the EU’s competences. In Internationale Handelgesellschaft [1970], the CJEU found that Member States’ constitutional rights should constitute principles of EU law.

In an attempt to codify enforceable rights into EU law, Article 6 TEU provides a ‘triple protection’ for human rights. Firstly, the Article ‘attaches’ the Charter of Fundamental Rights to the Treaties, providing that it has the same legal value. Secondly, it provides that the EU will accede to the European Convention of Human Rights. Finally, it provides that fundamental rights which are common to the constitutions of Member States shall constitute principles of EU law. The former provision is the most important – the introduction of the Charter of Fundamental Rights.

The Charter of Fundamental Rights

The Charter of Fundamental Rights of the European Union (CFREU), as enforceable with the Treaty of Lisbon, has several purposes. It intends to: legitimise the EU; provide greater visibility for rights; guarantee rights to citizens of the EU and align the EU with other international organisations.

The CFREU can be split into two sections. The first is a list of rights: Articles 1-50, which are more exhaustive than any other similar document of human rights. The second is a list of ‘horizontal provisions’ that specifies how the rights operate and how they are to be applied.

Horizontal provisions

Articles 51, 52 and 53 concern how the CFREU is to operate. They shall each be considered in turn.

Article 51(1)(a) addresses the CFREU to all institutions, agencies bodies and offices of the EU and Article 51(1)(b) to Member States when they are “implementing” EU law. In Test-Achats [2011], the Commission was found to be in breach of Articles 21 and 23 of the CFREU concerning gender equality in proposing a Directive to allow gender to be a factor for review in determining insurance premiums beyond December 2012. It is clear that Article 51(1) bought the Commission’s actions within the scope of the CFREU. It is less clear when Member States will be classed as ‘implementing’ EU law. It is clear from Mangold that where a Directive is contravened by national legislation, that national legislation will be subject to the CFREU. Both the CFREU’s explanations and Fransson [2013] confirm that a Member State is implementing EU law whenever it is acting within the scope of EU law. In Römer [2011], a national measure concerning sex discrimination was therefore within the scope of EU law and the CFREU. Only if there is no connection with EU law, such as in Hadj Ahmed [2013] will the CFREU be inapplicable.

Article 51(2) prevents the CFREU from extending the competences of the EU. As such, in Pringle [2012], the European Stability Mechanism was not subject to the CFREU as an extra-EU organisation.

Article 52(1) allows the CFREU’s rights to be limited with law. Such a limitation, for example on the right to take collective action, was permitted in Viking Line [2007]. The right was merely codified by the CFREU, so the date of this case (pre-CFREU) is irrelevant. Article 52(2) limits the Charter to the scope of the Treaties, such that in cases like Gardella [2013], fundamental rights cannot be relied on where a claim is outside of the scope of free movement. Article 52(3) requires CFREU rights to be interpreted consistently with equivalent ECHR rights, but to allow extra protection if granted by the CFREU. In MCB [2010], ECHR restrictions were applied to Charter Rights, and in Melloni [2013], a trial in absentia was permitted under the CFREU following a similar decision in the European Court of Human Rights. Articles 52(4) – 52(7) are quoted below:

(4) In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.

(5) The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

(6) Full account shall be taken of national laws and practices as specified in this Charter.

(7) The explanations drawn up as a way of providing guidance in the interpretation of this Charter
shall be given due regard by the courts of the Union and of the Member States.

An example of Article 52(6) in action can be found in Alemo-Herron [2013], where the UK’s national employment law was respected to give precedence to an employer’s rights concerning collective agreements.

Finally, Article 53 states that the CFREU shall not adversely affect human rights. This apparently odd provision was interpreted by Advocate General Bot in Melloni as elevating ECHR rights aboce CFREU rights. However, the Court of Justice disagreed, citing the primacy of EU law.

Protocol No 30

In addition to the provisions of the CFREU, Protocol No 30 on the application of the CFREU to the United Kingdom and Poland contains two articles which appear to limit the effect of the the CFREU. Article 1 says that the CFREU does not extend the ability of the EU or English/Polish courts to find legal measures of of the two Member States inconsistent with fundamental rights. Article 2 says that the Charter only applies to the extent that rights or principles recognised by it are already recognised by the two Member States. It is unclear what the impact of the Protocol is: The Advocate General in NS [2011] was clear that the Protocol did not provide an ‘opt-out’ from the Charter. Chalmers (see book recommendation at bottom of page) sees the Protocol as having merely a chilling effect on the Charter. It certainly appears that Article 2 of the Protocol and Article 52(6) of the CFREU are irreconcilable.

Applying the CFREU

The Google right to be forgotten case [2014] is a good example of how the Charter works in practice. A Spanish citizen wished to have Google’s search engine ‘forget’ about a certain web page which was potentially damaging to his reputation. Four different CFREU rights needed to be balanced: the right to data protection (Article 8), the right to a private life (Article 7), the right to freedom of expression (Article 11) and the right to run a business (Article 16). Irrespective of the fact that the Court of Justice ignored the latter two rights (of Google) and found a ‘right to be forgotten’, the case illustrates that as the CFREU has such a large number of rights, rights will nearly always need to be balanced, and some will be infringed upon – contrary to Article 53 CFREU.

It has been suggested by Advocate General Bot in Melloni [2013] that the inspiration for the Court of Justice’s attitude to CFREU rights is inspired by an ‘EU way of life’.

Accession to the European Convention on Human Rights

Article 6(2) TEU provides for the EU’s accession to the ECHR. A draft agreement has recently been reviewed by the CJEU, who rejected it, indefinitely delaying such an accession. Several reasons were given, including: the specific characteristics of EU law were not accounted for; Article 344 TFEU was violated as the CJEU’s jurisdiction over inter-Member State disputes would be compromised; responsibility allocation by the ECtHR for breaches of EU law could not allowed and the rules on the Common Foreign and Security Policy were incompatible with EU law as a non-EU court cannot be given the power to review acts of the EU.

Next: Preliminary reference procedure

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