EU Law & European System of Human Rights Protection 2016 EU Charter, free movement & citizenship Sybe A. de Vries Professor of EU Single Market Law & Fundamental Rights – Jean Monnet Chair Europa Institute, Utrecht University Link between EU Single Market & Fundamental Rights • I.EU Single Market law as a source (of inspiration) for the development of FR II.EU Single Market law strengthening FR III.EU Single Market law as a barrier to FR I. EU Single Market à source for development EU FR • •EU FR as General Principles of EU Law Ø“Respect for fundamental rights an integral part of the general principles of Community law” (Case 11/70, Internationale Handelsgesellschaft) üReferences to constitutional traditions common to MS üReferences to ECHR •FR developed in the slipstream of the Internal Market •Lisbon Treaty: FR in the Treaty and binding EU Charter ANd9GcS_PIux_DmuoNtXQRUOSzg4XTQadwlFuJxmH9vLM3cXXJDE6PRTiA ANd9GcRHT4Rc1qrzPqwLesv2HQt7yTQXv4koT276_zF6eWtcSR4Cb0K25w ANd9GcScxixu12radrUkF6CTBTnL6qkIudGafwATV_4XAiR66aWeRYfj II. EU Single Market strengthening Fundamental Rights (a) ØA specific amplification of the EU Charter üCase C-233/12, Gardella: para. 39 ‘[…] Article 15(2) of the Charter reiterates inter alia the free movement of workers guaranteed by Article 45 TFEU […]’. üCase C-367/12, Sokoll-Seebacher: para. 22 ‘[…] Article 16 of the Charter refers, inter alia, to Article 49 TFEU, which guarantees the fundamental freedom of establishment.’ üCase C-390/12, Pfleger: para. 57 ‘National legislation that is restrictive from the point of view of Article 56 TFEU, such as that at issue in the main proceedings, is also capable of limiting the freedom to choose an occupation, the freedom to conduct a business and the right to property enshrined in Articles 15 to 17 of the Charter.’ ü • II. EU Single Market strengthening Fundamental Rights (b) ØExceptions interpreted in the light of fundamental rights •Case C-260/89, ERT • “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 […] only if they are compatible with the fundamental rights the observance of which is ensured by the Court.” •Case C-390/12, Pfleger •“ As follows from that case-law, where it is apparent that national legislation is such as to obstruct the exercise of one or more fundamental freedoms guaranteed by the Treaty, it may benefit from the exceptions provided for by EU law in order to justify that fact only in so far as that complies with the fundamental rights enforced by the Court. That obligation to comply with fundamental rights manifestly comes within the scope of EU law and, consequently, within that of the Charter. “ ANd9GcT5vLS2oYRtcM6aIO3fehTG4yKCbybL0GU3822EmCCu9UVW_ZJnmA III. EU Single Market as a barrier to FR à Exceptions to free movement • •Point of departure à Fundamental rights do not escape from application of free movement rules ØImportant consequence à shift burden of proof •ECJ uses different techniques to resolve conflicting interests • • •Proportionality •Loose proportionality • test •E.g. Omega •Sayn-Wittgenstein •(Dynamic Medien) •Balancing approach •E.g. Schmidberger •Strict approach •Viking & Laval Possible impact of the EU Charter •CJEU: Taking proper account of fundamental rights in balancing •CJEU: interpreting EU legislation in the light of the Charter (Case C-131/12, Google Spain) •EU legislator à forced to take fundamental rights more seriously à Joined Cases C-293/12 & C-594/12, Digital Rights Ireland & Case C-362/14, Schrems (see hereafter) ØParticularly in fields like data protection & privacy, but what about citizenship rights in general? • ü • Promusicae is a non-profit-making organisation of producers and publishers of musical and audiovisual recordings. By letter of 28 November 2005 it made an application to the Juzgado de lo Mercantil N^o 5 de Madrid (Commercial Court No 5, Madrid) for preliminary measures against Telefónica, a commercial company whose activities include the provision of internet access service. Promusicae asked for Telefónica to be ordered to disclose the identities and physical addresses of certain persons whom it provided with internet access services, whose IP address and date and time of connection were known. According to Promusicae, those persons used the KaZaA file exchange program (peer-to-peer or P2P) and provided access in shared files of personal computers to phonograms in which the members of Promusicae held the exploitation rights. In those circumstances the Juzgado de lo Mercantil N^o 5 de Madrid decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Does Community law, specifically Articles 15(2) and 18 of Directive [2000/31], Article 8(1) and (2) of Directive [2001/29], Article 8 of Directive [2004/48] and Articles 17(2) and 47 of the Charter … permit Member States to limit to the context of a criminal investigation or to safeguard public security and national defence, thus excluding civil proceedings, the duty of operators of electronic communications networks and services, providers of access to telecommunications networks and providers of data storage services to retain and make available connection and traffic data generated by the communications established during the supply of an information society service?’ The mechanisms allowing those different rights and interests to be balanced are contained, first, in Directive 2002/58 itself, in that it provides for rules which determine in what circumstances and to what extent the processing of personal data is lawful and what safeguards must be provided for, and in the three directives mentioned by the national court, which reserve the cases in which the measures adopted to protect the rights they regulate affect the protection of personal data. Second, they result from the adoption by the Member States of national provisions transposing those directives and their application by the national authorities (see, to that effect, with reference to Directive 95/46, Lindqvist, paragraph 82). 67 As to those directives, their provisions are relatively general, since they have to be applied to a large number of different situations which may arise in any of the Member States. They therefore logically include rules which leave the Member States with the necessary discretion to define transposition measures which may be adapted to the various situations possible (see, to that effect, Lindqvist, paragraph 84). 68 That being so, the Member States must, when transposing the directives mentioned above, take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality (see, to that effect, Lindqvist, paragraph 87, and Case C‑305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑0000, paragraph 28). Widening & deepening EU Single Market •Area of Freedom, Security & Justice ØArticle 67(1) TFEU à “The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.” üFreedom uPersons, including TCNs à common migration policy? üSecurity uCooperation between police and judicial authorities & harmonisation of criminal laws üJustice uMutual recognition of judicial and extra-judicial matters in civil disputes •Economic & Monetary Union ANd9GcQ-DWFDGRYvakG9hANV0oneYIVrW9wURSdks-3QrNJ8Q5ZAZszE European citizenship What is EU citizenship? •Article 20(1) TFEU ØEvery person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship Ø •CJEU (case law) ØCitizenship of the Union is intended to be the fundamental status of nationals of the Member States • • • Citizenship rights (I) •Legal Framework (Legislation & Treaty) ØFirst: Three Directives of 1990’s: limited in scope ØSince April 2006: Directive 2004/38 on the free movement of persons (broad personal scope: economically active and non-active Union citizens and TCN) ØSpecific citizenship rights in the TFEU and the Charter on Fundamental rights • Citizenship rights (II) •Articles 18 to 24 TFEU ØThe right to move and reside freely ØElectoral rights: equal treatment EP and ME Ø(Equal) diplomatic protection in TC ØPetition to EP and Ombudsman ØNew: citizens’ initiative: 1 million citizens from a significant amount of MS ühttp://ec.europa.eu/citizens-initiative/public/initiatives/ongoing • EU citizenship rights (III) •Multiple sources of fundamental rights ØArticle 6 TEU –EU Charter –General principles of EU law –ECHR/International law –national constitutions –specific national and EU legislation –Par. 2: The EU shall accede to the ECHR…. •Beyond market citizenship? • EU Citizenship & Fundamental Rights (I) • •Limited scope of the EU Charter ØArticle 51(1) Charter à Åkerberg-Fransson and beyond ØLink with free movement: derogations and restrictions to free movement • •The right to reside (Article 20 TFEU)? • EU Citizenship & Fundamental Rights (II) •Link with free movement ØE.g. Case 60/00, Carpenter ØArticle 21 TFEU & Directive 2004/38 Ø…BUT… Case C-333/13, Dano •Link with Article 20 TFEU ØRottmann, Ruiz Zambrano…. ØVon Bogdandy: Article 2 TEU and Article 20 TFEU ØCommission: Rule of Law procedure: Article 7 TEU • EU Citizenship & Right to Family Life (I) EU Citizenship & Right to Family Life (II) • • • • http://t0.gstatic.com/images?q=tbn:ANd9GcR4Tfun7kXrS_u2h2SbCQedrVlxfKyWM74y5zp0rVOT3fImnJdv •Case C-135/08, Rottmann: ‘It is clear that the situation of a citizen of the Union who is faced with a decision withdrawing his naturalisation (…) in a position capable of causing him to lose the status conferred by Article 20 TFEU and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law.’ > EU Citizenship & Right to Family Life (III) • • • • http://t3.gstatic.com/images?q=tbn:ANd9GcS4l4zTI1Nx2KgyYP-r4pZ1G67L0wgc2wRot6JXJKBn5-lZIwzTpg •Case C-34/09, Ruiz Zambrano: Zambrano’s have the Colombian nationality live with their two children having the Belgian nationality in Belgium. They are threatened to be expelled. Do you think EU citizenship would be able to help/of added value to the family? • EU Citizenship & Right to Family Life (IV) • • • • •Case C-34/09, Ruiz Zambrano: ‘Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’ • Case C-34/09, Ruiz Zambrano üOpinion AG Sharpston •Very lengthy opinion •Model of free movement  legal uncertainty •Fundamental rights protection  whenever the EU is competent to act •The ECJ should shape and fine-tune its case law on fundamental rights üJudgment of the ECJ •Extremely short judgment •No word on protection of fundamental rights •Leaves us to speculate: a broad interpretation of Article 20 TFEU on citizenship  triggers application of fundamental rights •Tension between right to family life and EU residence right  should one or both parents have this right? EU Citizenship & Right to Family Life (V) • – – – – – http://data.un.org/_Images/Maps/Turkey.gif • •Case C-256/11, Dereci ‘Effectiveness of Union citizenship’ • •‘the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.’ • EU Citizenship & Right to Family Life (VI) •National (Dutch) case law ØArticle 20 TFEU – mixed family: one Dutch parent à Strict interpretation! uthe Dutch parent is (partly) unable to take care of the children: fosterhome uDutch parent mentally ill uExceptional circumstances accepted üTest: de facto forced to leave the territory of the European Union •Questions Dutch court in Case C-133/15, Chavez-Vilchez (pending – Opinion AG) • The EMU & Fundamental Rights •Are reforms to national labour law required by the Troika (EU, ECB, IMF) for states in receipt of a bail-out compatible with fundamental, social rights (Barnard)? üUnfortunately the questions referred in Sindicatos dos Bancários do Norte do not explicitly make the link between reforms required by the troika and the changes to Portuguese labour law (public sector pay cuts) üDoes the EU Charter apply? üIf so, how could reforms of the labour market be challenged? üDifficult exercise for the ECJ perhaps a procedural approach? Towards a more general right for the protection of EU citizens’ fundamental rights in the EU (I)? • •Point of departure à three layers of protection ØNational level ØECHR level ØEU level •CJEU in the case of Dereci •“if the referring court considers (…) that the situation of the applicants in the main proceedings is covered by European Union law, it must examine (…) the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.” • Towards a more general right for the protection of EU citizens’ fundamental rights in the EU (II)? • •Composite citizenship (Van Eijken, 2014) •Composed of different entitlements – responsibilities of authorities & Fundamental rights protection •Challenge (I): limited scope of the EU Charter •Challenge (II): serious and systematic breach of fundamental rights (Article 7 TEU, Article 2 TEU and Article 20 TFEU) • • File:Firenze.Loggia.Perseus02.JPG 9780521548427 Thank you for your attention!