Human Rights

EU LAW

Prof: MOHAMMAD MEHMOOD AHMAD

Compiled By: Muhammad Raees Malik
University of London
Lect #29, 30 Human Rights 14-03-22, 15-03-22
Essay Only

Introduction:
EU was established as a response to destruction being carried out by World War II and
with an aim to create a supra national organization and environment of trust and
cooperation in economic, commercial and trade fields. EU is a unique legal entity which
provides for harmonious application of law throughout the territory as well as the
application of law at individual and national level. The aim to apply EU law at individual
level is in itself a peculiar characteristic and a form of human right. This economic
operation started from European coal and steel community back in 1951, following Treaty
of Paris, but later on we have witnessed the increased competencies of EU law, such as
European economic community, Euratom, the doctrine to enhance sovereignty of EU law
impliedly, three pillar structure under Treaty on European Union 1992, charter on
fundamental right 1999, and more important link, the accession of EU to ECHR following
Treaty of Lisbon. The court recognized that the EU objective are wide ranging in scope
and it is not possible to disregard human rights.

Art. 6(1) TEU 1992 – Charter of Fundamental Rights constitutes is a basic principle of
law.
Art. 6(2) TEU 1992 – EU will accede to the ECHR.
Art. 6(3) TEU 1992 – fundamental rights guaranteed by the ECHR and as they result
from constitutional traditions common to the MS shall constitute general principles of EU
law.
Art. 7 TEU 1992 – mechanism for sanctioning EU MS who violate the principles in Art 6
in a grave and persistent manner.

1st Ambit:
Stauder (1969): an initial case in which human rights were initiated: Cheap butter for
pensioners was not held to be a fundamental right being violated, nevertheless the Court
recognized fundamental rights as a general principle of Union law.
Internationale Handelsgesellschaft (1970): Court did not find a violation of a
fundamental right of economic liberty being violated, nevertheless the Court recognized
fundamental rights as a general principle of Union law. (both above cases spelled out
human rights)
SOURCES
Nold (1974): Two primary sources for the general principles of EU law are:
1. Common constitutional traditions of member states.
2. International human rights agreements outside EU.
The ECJ has consistently treated ECHR as a source regarding the fundamental right and
has also referred to other international and regional agreements, but in contrast to it the
courts are always shown reluctance in referring to common national constitutional
provision for two reasons;
1) It is difficult to find common traditions across 28 member states.
2) Because of apprehension of compromising the supremacy of EU law.

1st Source: Common Constitutional Traditions:

Hauer (1979): Right to make use of one’s property (to plant vines on her land) was
weighed against the Community interest (aim to avoid overproduction of wine) and was
held not to be violated since she had many other ways to deal with her land which are not
prohibited by EU law which was drawn upon collectively by MS and their traditions.
AM&S Europe (1982): Lawyer-client confidentiality was not accepted by France and
some other states, nonetheless the Court upheld the principle and stated that it is
prepared to recognize a particular right on the basis of common national traditions in
several (not necessarily all) MS.
Omega (2004): It was immaterial whether a fundamental human right had its source in a
national constitution or the Union legal order as a general principle of law, since EU law
would protect such a right whatever its source.

2nd Source: International Human Rights Agreements

Defrenne v Sabena (1978): European Social Charter.
Acme Industry (1999): International Covenant on Civil and Political Rights.
EP v Council (2006): International Convention on the Rights of the Child.
With regards to the application of the fundamental rights, the court had adjudged number
of challenges to both EU and member state legislation which violates fundamental human
right. Initially, court was reluctant to nullify EU legislation based on violation of human
right.
CHALLENGES TO EU LEGISLATION (EU law vs EU human right)
Bosphorus (1996): Legality of EU regulation which implemented UN-mandated
sanctions against the former Yugoslavia under which a Yugoslav aircraft was seized –
according to the Court, fundamental interests of the international community were a
reason sufficient enough to justify such restriction on the property or trade rights.
As per this case, fundamental human rights are balanced against community interest. A
restriction was sufficiently justified.
Kadi (2008): Bosphorus judgment was confirmed in the initial stage of the case here
which involved freezing of assets by EU Reg implementing a UN Security Council
resolution, however, on appeal Court held that obligations imposed by an international
agreement cannot prejudice the general principle that EU must respect fundamental
rights and consequently the Court annulled the EU regulation since it infringed the right
to defense and the right to effective judicial protection.
Kadi (2013): UN provided reasons majority of which provided sufficiently justifying
grounds for their decision and which provided rights of defense and of judicial review but
the restrictive EU measures were annulled since these reasons were not provided with
evidence. (biggest modern qualification of EU law. A bog step forward)

Competition Law Challenges

Archer Daniels Midland (2006): EU law was challenged on the basis of right to defense
Baustahlgewebe (1998): EU law was challenged on the basis of right to a fair hearing
Dansk Rorindustri (2005): EU law was challenged on the basis of principle of non-
retroactivity/retrospectivity

CHALLENGES TO MEMBER STATE LEGISLATION (EU human right vs Member

state law)
Member States are bound by general principles of EU law in the following circumstances:
1. When MS is applying national provisions of EU legislation which are based on
protection for human rights.
Rutili (1975): French measures restricting Mr. Rutili’s movement in France had to be
examined as to their compliance with EU law setting out limitations on right of free
movement of workers under Art. 45(3) TFEU.
Österreichischer Rundfunk (2003): ECHR rights to an effective remedy and to privacy
respectively were reflected in EU legislation and had to be interpreted accordingly by the
MS concerned.
2. When Member States is acting as an agent of the EU by implementing or
enforcing EU measures – MS are under an obligation to act and legislate in light
of ECHR

Wachauf (1989): To deprive a farmer of compensation in return or the fruits of his labour
would be incompatible with his fundamental rights.
Lindqvist (2003) + EP v Council (2006): Discussion whether EU law violated
fundamental rights and general principles of EU law by providing MS discretion in terms
of their implementation measure.

3. When MS derogate from EU law on the grounds of e.g. public policy

Elliniki: when derogating, MS must adequately respect EU fundamental rights and
general principles
Familiapress (1997): MS must respect EU fundamental rights and general principles
even when derogating on basis of public policy.
Carpenter (2002): Where MS attempts to rely on a public policy or public interest
derogation to expel or to refuse a benefit to a migrant, MS must take adequate account
of the impact of their actions on the right to family life protected by A.8 ECHR
Omega: Court upheld a derogation made on grounds on the protection of human rights,
restricting on the marketing of laser games in GER can be justified on the grounds of the
protection of human rights
Cinéthéque (1985): Court held it had no power to examine the compatibility of the ECHR
with national law which concerned an area which falls within the jurisdiction of the national
legislator
Konstantinidis (1993): Greek national’s name was transcribed from Greek to German
constituted discrimination – transcription rules were only to be regarded as incompatible
with A.49 on establishment in so far as its application would cause a Greek national such
a degree inconvenience as to interfere with his freedom of establishment
Kremzow (1997): A purely hypothetical prospect of exercising the right to the free
movement of persons does not establish sufficient connection with EU law to justify the
application of Union general principles
Maurin (1996) + Steffensen (2003): Case which demonstrates the differences in
treatment depending on whether the measure concerned falls inside or outside the scope
of EU law.
THE CHARTER OF FUNDAMENTAL RIGHTS
EU set up a study group in 1999 to catalogue various fundamental rights from EU
Treaties, CJEU case law, ECHR and the Declaration on Fundamental Rights of the
European Parliament 1989 - aim was to collect existing rights and to codify new ones.

Charter of Fundamental Rights was solemnly proclaimed at the Nice EC 2000.

Treaty of Lisbon incorporated the Charter into primary EU law and it has been binding on
EU institutions and national governments.

Art 6 TEU – Union recognizes the rights, freedoms and principles set out in the Charter
of Fundamental Rights of the EU of 7th Dec 2000 which shall have the same legal value
as the Treaties.
Vinkov (2012): Purely internal situations do not fall within the ambit of the Charter, nor
do fundamental rights issues arising in areas over which EU has no competence.
Fransson (2013): Fundamental rights guaranteed in the legal order of the EU are
applicable in all situations governed by EU law, but not outside such situations. Since the
fundamental rights guaranteed by the Charter must therefore be complied with where
national legislation falls within the scope of EU law, situations cannot exist which are
covered in that way by EU law without those fundamental rights being applicable.
Applicability of EU law entails applicability of the fundamental rights guaranteed.
Melloni (2013): There was a conflict between the fundamental rights guaranteed by the
Spanish Constitution and the European Arrest Warrant – although national authorities
and courts remain free to apply national standards of protection of fundamental rights,
level of protection provided for by the Charter (and the primacy, unity and effectiveness
of EU law) cannot be compromised.
Kücükdeveci (2010): Court has made a number of judgments citing or referring to the
Charter, in this case Court cited Art 21(1) of the Charter prohibiting discrimination on
grounds of inter alia age.
Volker & Markus Schecke (2010): CJEU upheld fundamental right of data protection by
invalidating part of an EU measure which required the publication of the names of
recipients of funds from the European Agricultural Guarantee Fund.
Scarlet v SABAM (2010): Obliging an internet service provider to install a filtering system
in order to prevent the infringement of intellectual property rights would violate the right
of the provider’s customers to the protection of their personal data.
Chakroun (2010): National legislation which imposes certain requirements on the
number of financial resources available to third-country nationals who wish to obtain a
residence permit for their spouse was prohibited under the EU Directive.
DEB (2010): National legislation refusing legal aid to persons in the absence of a public
interest violated the right to an effective remedy – Art. 47 must be interpreted as meaning
that it is not impossible for legal persons to rely on the principle and that aid granted
pursuant to that principle may cover, inter alia, the costs of legal advice or representation.
EP v Council (2013): Court annulled a Council decision on surveillance of the external
EU sea borders since the measure was likely to affect personal freedoms and
fundamental rights to such an extent that the involvement of the EU law was required.
Italian Republic v Commission (2013): Court annulled notices of several open
competitions to become a civil servant of the EU on the basis that they have been
published only in three official languages violating the A.21 clause - non-discrimination.

 Art 1 – Right to human dignity was applied in

Brüstle (2011): Patenting of human embryos through patented cloning
CIMADE (2013): Obligation on MS to guarantee minimum conditions for reception of
asylum seekers.
 Art. 15 and Art. 16: Freedom to choose an occupation and freedom to conduct
business
 Art. 18: right to asylum
Hasan (2010)
 Art. 24: right of the child
Jasna Deticek (2009), Aguire Zarraga (2010)
 Art 28: right to strike
Laval (2007)
 Art. 32: right to social and housing assistance –
Kamberaj (2012)
 Art. 34: right to access documents –
My Travel Group (2011), Bavarian Lager (2010)

EU AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Nold (1974): two primary sources for the general principles of EU law are:
1. Common constitutional traditions
2. International human rights agreements – including ECHR

Rutili (1975): CJEU held that various rights invoked by the applicant and contained in
express provisions of Union secondary legislation were specific manifestations of more
general principles enshrined in the ECHR.
Elliniki, Kremzow (1997): Court referred to the special significance of the ECHR.
Johnston (1986): A.6 and 13 ECHR requirement of judicial control reflected a general
principle of law common to the MS, equal treatment Directive (ETD) had to be interpreted
in the light of the general principle
 same goes for sex discrimination P v S (1996), Coote (1998)
 same goes for data protection and privacy Rechnungshof (2003)

Hoechst (1989): A invoked various human rights principles, such as that protected under
A.8 ECHR, but argued their application to their business premises Court found that
there had been no such breach by the Commission – judgment criticized.

X Niemietz (1993): It was explicitly stated that A.8 applies to encompass business
premises this ruling was later reflected in the CJEU’s ruling in Roquette Fréres.

Maxmillan vs Data protection commission: Court stressed on the national

supervisories body of protecting personal data as guarantee under the charter. It was
also stressed; it had the sole contest to whether or not commission decision is valid.

Tele 2 Post-Och + Secretary of state for home depzrtment vs Tom Watson + Digital
right case
Member state may not impose a general obligation to retain data on provider of electronic
communication service. Court noted that member state may only adopt legislation as a
prevented measure and strictly for the targeted retention of the data and solely for the
purpose of fighting serious crime.
Article:
Sionaidh Douglas:

This indicates that the national courts will continue to reaffirm their own role in policing the observance
of fundamental rights in the EU, thus ensuring that the multilevel and complex structures of fundamental
rights protection in the EU will continue. This also underlines the need for the EU to accede to the ECHR
and for the CJEU to conform its fundamental rights jurisprudence with Strasbourg, or at least to maintain
it as a minimum standard, in order to legitimize its own institutional position, in order to ensure its
fundamental rights credentials and ward off further challenges from national courts. The avowal of a
strong protection of human rights has been a means for the Luxembourg Court to maintain and increase
its authority and the primacy and constitutional autonomy of EU law. However, the EU must make good
on this avowal and ensure that its protection of human rights is actually robust. The Lisbon Treaty
amendments, especially the now binding nature of the Charter, provide resources for a more effective
protection of fundamental rights in the EU, but it will also be necessary for the EU, and in particular the
CJEU, to move beyond an instrumental, ad hoc, market-led mentality towards a mature conception of
fundamental rights as goods in themselves. In these challenging times for the EU, fundamental rights are
essential and must not be diminished or become a casualty of economic or even security-driven
mentalities.

On the other hand, it is also undoubtedly the case that an increase of fundamental rights monitoring and
activities through EU law would be seen as highly undesirable by some, as it might be seen as limiting
state autonomy, as well as lacking in democratic legitimacy. The adoption and coming into force of the EU
Act in the UK in 2011, which makes ratification of future amendments to the TEU and TFEU subject to
approval by referendum, reveal a suspicion of any potential transfers of power from states to the EU, as
do the legal challenges and ensuing careful scrutiny by, for example, the German Constitutional Court of
each EU rehaul and transfer of sovereignty brought about by treaty change. Existing critiques of the ECtHR
and a demonstration of the desire to ‘bring rights home’ in the context of Strasbourg135 also reveal a
reluctance to allow European regional authorities any greater competence in the human rights field. The
dynamic between Luxembourg and Strasbourg also cannot be forgotten, nor the potential impact on the
ECHR of a greater fundamental rights competence for the EU in the future. These are very vexed
questions, which will be debated for a long time to come. In the meantime, the most appropriate
conclusion to draw on the Lisbon Treaty human rights provisions, and recent Court of Justice case law,
might be that it is complexity, rather than human rights protection itself, which has increased most.

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