ECJ and Human Rights
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 13 October 2021
119
Article 6
(ex Article 6 TEU)
1.The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights
of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which
shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as
defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general
provisions in Title VII of the Charter governing its interpretation and application and with due regard to the
explanations referred to in the Charter, that set out the sources of those provisions.
2.The Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the
Treaties.
3.Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights
and Fundamental Freedoms and as they result from the constitutional traditions common to the Member
States, shall constitute general principles of the Union's law.
EU Charter of FR
Human Rights v Fundamental Rights and
Freedoms
Four Freedoms of Single Market
• Freedom of movement of persons
• Freedom of movement of goods
• Freedom of movement of Services and capital
• Freedom of establishment
Supremacy of EU Law?
• Two perspectives:
• European
• Absolute
• National
• Relative
• Ultra vires control
European Perspective of Supremacy
• Over domestic law
• Fear of decentralization
• Costa v ENEL
• Principle of autonomous interpretation
• Over constitutional law
• Internationale Handelsgesellschaft
• Solangene?
• Over international treaties
• A 351 TFEU
• The rights and obligations arising from agreements conclude before 1 January 1958 or, for acceding States, before the date
of their accession, between one or more Member States on the one hand, and one ore more on the other, shall not be
affected by the provision of the Treaties.
• Limits:
• Obligations towards third states
• Kadi: x derogation from principles of liberty, democracy and respect for human rights and fundamental freedoms of A2 TEU
• Matthiews: the fact that MS delegates part of its sovereignty on IO does not mean that it will stop complying with FR
Premacy or Supremacy of EU Law?
• Costa v ENEL (6/64)
• Italian Constitutional Court: in case of conflict, newer law prevails
(nationalization statute over Treaty of Rome)
• Should EC law, the Treaty of Rome in particular, be considered dominant over
national statutes?
• Treaty’s provision on single market did not have direct effect -> only the
Commission can bring a case against Italy. HOWEVER, Mr Costa can turn to
Italian courts and contest the compatibility of national law with the EC law
Premacy or Supremacy of EU Law?
• Costa v ENEL (6/64)
• Italian Constitutional Court: in case of conflict, newer law prevails (nationalization
statute over Treaty of Rome)
• By contrast with ordinary international treaties, the E[U] Treaty has created its own
legal system which, on the entry into force of the Treaty, became an integral part of
the legal systems of the member states and which their courts are bound to
apply…The integration into the laws of each Member State of provisions which
derive from the [Union], and more generally the terms and the spirit of the Treaty,
make it impossible for the States, as a corollary, to accord precedence to a
unilateral and subsequent measure over a legal system accepted by them on a
basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal
system. The executive force of [European] law cannot vary from one State to
another in deference to subsequent domestic laws, without jeopardizing the
attainment of the objectives of the Treaty…It follows from all these observations
that the law stemming from the Treaty, an independent source of law, could not,
because of its special and original nature, be overridden by domestic legal
provisions, however framed, without being deprived of its character as [European]
law and without the legal basis of the [Union] itself being called into question.
Premacy or Supremacy of EU Law?
• European view: supremacy
• confirmed in Internationale Handelsgesellschaft
• Can European legislation violate fundamental rights as granted by the German
Constitution?
• Are the fundamental structural principles of national constitutions, including human
rights, beyond the scope of Union supremacy?
• ECJ: Recourse to the legal rules or concepts of national law in order to judge the validity
of measures adopted by the institutions of the [Union] would have an adverse effect on
the uniformity and efficiency of ]European] law. The validity of such measure can only be
judged in the light of [European] law.
• The whole of European law prevails over the whole of national law
Repercussion of the Supremacy
• Simmenthal II
• What consequences flow from the direct applicability of a provision of [Union]
law in the event of incompatibility with a subsequent legislative provision of a
Member State?
• National courts are under a direct obligation to give immediate effect to
European law.
• Supremacy = rules of [European] law must be fully and uniformly applied in all
the member states from the date of their entry into force and for so long as
they continue in force
• Effect
• Break (x)
• Principle of precedence:
Repercussion of the Supremacy
• Principle of precedence (Simmenthal 106/77)
• [I]n accordance with the principle of precedence of [European] law, the
relationship between provisions of the Treaty and directly applicable
measures of the institutions on the one hand and the national law of
the Member Stats on the other is such that those provisions and
measures not only by their entry into force render automatically
inapplicable any conflicting provision of current national law but – in so
far as they are an integral part of, and take precedence in, the legal
order applicable in the territory of each of the Member States – also
preclude the valid adoption of new legislative measures to the extent
to which they would be incompatible with [European] provisions.
• = principle of executing force
National challenges to Supremacy
• Human rights
• Competence limits
How did the ECJ approach HR?
How did the ECJ approach HR?
Initial resistance, then Stauder
(FR as general principles of Community law)
Human Rights: from Premacy to Supremacy of
EU Law?
• Internationale Handelsgesellschaft
• forfeiture of a deposit lodged in connection with the issue of export licenses for
maize meal
• The plaintiff had failed to export the quantities of maize he had obtained a license
for (more profitable to sell to a domestic buyer)
• Failure to export = forfeiture of the deposit (unless a force majeur)
• Claim: disproportional to German constitutional right to conduct business (a general
right to freedom of action and economic liberty)
• AG: the individual should not have his freedom of action limited beyond the degree
necessary for the general interest
• NO VIOLATION FOUND
Human Rights: from Premacy to Supremacy of
EU Law?
• German Constitutional Court reacts:
• Solange I. (BVerfGE 37, 271) [1974]
• Can national fundamental rights affect the application of European law in the domestic
legal order?
• Rejects ECJ’s vision: theory of relative supremacy of European law
• German Constitution expressly allowed for the transfer of sovereign powers to the EU in
A24, this transfer was limited by the constitutional identity of the German State.
Fundamental constitutional structures are beyond the supremacy of European law.
• Solange II. (BVerfGE 73, 339) 1987
Human Rights: from Premacy to Supremacy of
EU Law?
Solange I
• The part of the Basic Law dealing with fundamental rights is an inalienable,
essential feature of the valid Basic Law of the Federal Republic of Germany
and one which forms part of the constitutional structure of the Basic Law. ...
In this, the present state of integration of the Community is of crucial
importance. The Community still lacks …in particular, a codified catalogue of
fundamental rights, the substance of which is reliably and unambiguously
fixed for the future in the same way as the substance of the Basic Law …
• So long as this legal certainty, which is not guaranteed merely by the
decisions of the European Court of Justice, favourable though these have
been to fundamental rights, is not achieved in the course of the further
integration of the [Union], the reservation derived from Article 24 of the
Constitution applies…
Human Rights: from Premacy to Supremacy of
EU Law?
• If there is a hypothetical case of a conflict between [European] law
and a part of national constitutional law or,….the guarantees of
fundamental rights in the Constitution, there arises the question of
which system of law takes precedence…In this conflict of norms, the
guarantee of fundamental rights in the Constitution prevails so long as
the competent organs of the Union have not removed the conflict of
norms in accordance with the Treaty mechanism.
• NO CHANGE TO THE TREATIES -> but a doctrine of HR is developed
Solange II [1973]
• BVerfG recognized a creation of substantially similar fundamental
rights guarantees
• In view of those developments it must be held that so long as the
European [Union] and in particular in the case law of he European
Court, generally ensures an effective protection of fundamental rights
as against the sovereign powers of the [Union] 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 [Union] legislation cited as the
legal basis for any acts of German courts…
Motives of incorporating HR?
• Unified interpretation of European law
• Strong position of ECJ because of multi-level system
No EEC Bill of Rights – where to find them?
No EEC Bill of Rights – where to find them?
EEC Constitutions + int treaties
Human Rights: from Premacy to Supremacy of
EU Law?
• Stork: argument that Commission infringed German fundamental rights
• Mortgage theory (HR mortgage)
• National FR would bind the EU, since MS could not have created an organization
with more powers than themselves.
• REJECTED BY ECJ
• National FR – no direct source of EU HR. EL does not contain any general principle,
express or otherwise, guaranteeing the maintenance of vested rights
• IHG
• Shift, FHR enshrined in the general principles of European law
• National HR are not applicable to European law, but! Confirms existence of analogous guarantee
inherent in European law
• Unwritten bill of rights would be inspired by the constitutional traditions common to the MS
Human Rights: from Premacy to Supremacy of
EU Law?
• Nold
• Explains the indirect relationship between national rights and European rights.
• Distribution of fuels – do the EC rules require companies to meet certain
volume of sales requirements to qualify as a direct wholesaler with a right to
direct purchase from a selling agency?
• Denial of the status based on reduced sales = violations of the fundamental right to
freely practice the trade and profession
• NO VIOLATION FOUND
Human Rights: from Premacy to Supremacy of
EU Law?
• Nold
• Fundamental rights form an integral part of the general principles of law, the
observance of which it ensures. In safeguarding these rights, the Court is
bound to draw inspiration from constitutional traditions common to the
Member States and it cannot therefore uphold measures which are
incompatible with fundamental rights recognized and protected by the
constitutions of those States. Similarly, international treaties for the protection
of HR on which the MSs have collaborated or of which are signatories, can
supply guidelines which should be followed within the framework of
[European] law.
EU Autonomous approach to HR
• Bound by common constitutional traditions
• Minimum standard
• Maximum standard
• Union standard
• ECJ never considered itself materially bound by ECtHR interpretation
• BUT: Lisbon Treaty, Article 6.3
Limits
• Hauer
• Vajnai
• Proportionality test?
• First paragraph
• Conditions of justified infringement
• Proportionality test – policy conditions
Limits
• Proportionality test
• Legitimate aim
• Regulation of the market
• Necessary measure
• Is there any other equal measure?
• Proportional burden
• ECtHR Proportionality test:
• (scope and interference)
• Legality
• Legitimate aim
• Necessity in a democratic society (proportionality test)
Limits
• ECtHR: Is political measure a legitimate & proportional restriction of
the human right?
• CJEU: is human right a legitimate & proportional restriction of the
fundamental freedom?
National Challenges II: Competences
• Who should control the scope of EU law?
• GCC Maastricht Decision & Honeywell
• Maastricht (BVerfGe 89,155)
• Since European Treaties adhere to the principle of conferred powers -> EU is
not able to extend its own competences
• There is a clear dividing line between legal development within the terms of
the Treaties and a making of legal rules which breaks through its boundaries
and is not covered by valid Treaty Law
• Ultra vires doctrine
National Challenges II: Competences
• Thus, if European institutions or agencies were to treat or develop the Union
Treaty in a way that was no longer covered by the Treaty in the form that is
the basis for the Act of Accession, the resultant legislative instruments would
not be legally binding within the sphere of German sovereignty. The German
state organs would be prevented for constitutional reasons from applying
them in Germany…
• … in future, it will be noted as regards interpretation of enbaling provisions by
[Union] institutions …that the Union Treaty as a matter of principle
distinguishes between the exercise of a sovereign power conferred for limited
purposes and the amending of the Treaty, so that its interpretation may not
have effects that are equivalent to an extension of the Treaty. Such an
interpretation of enabling rules would not produce any binding effects in
Germany.
National Challenges II: Competences
• i.e. threat to disapply European law that has been adopted ultra vires
• Honeywell 2011
• Relates to Mangold
• Claimant argued that ECJ’s discovery of a European principle that prohibited
discrimination on grounds of age was ultra vires
• GFCC confirmed the relative supremacy doctrine
• Option to disapply it when the EU law is not considered to be covered by the
principle of conferral
• BUT: also presumption that Union would generally act within the scope of its
competences
National Challenges II: Competences
• If each member state claimed to be able to decide through their own courts on
the validity of legal acts by the Union, the primacy of application could be
circumvented in practice, and the uniform application of Union law would be
placed at risk. If however, on the other hand the member states were
completely to forgo ultra vires review, disposal of the treaty basis would be
transferred to the Union bodies alone, even if their understanding of the law
led in the practical outcome to an amendment of a Treaty or a expansion of
competences…
• The ultra vires review by the FCC can moreover only be considered if it is
manifest that acts of the European bodies and institutions have taken place
outside the transferred competences. A breach of the principle of conferral is
only manifest if the European bodies and institutions have transgressed the
boundaries of their competences in a manner specifically violating the
principle of conferral, the breach of competences is in other words sufficiently
qualified.
National Challenges II: Competences
• Pillar structure and ECJ competences:
• II. Pillar: principle of nondiscrimination
• Tanja Kreil:
• Alexander Dory
• Maria Pupino
National Challenges II: Competences
• Can ECJ announce a constitutional revision void?
• Can ECJ say that a constitutional revision violates the Treaties?
National Challenges II: Competences
• National constitutional courts
• Constitutional identity
• Material core
• Rule of Law
• How CCs react:
• Where is the European law in the hierarchy
• What constitutional system there is (diffuse – concentrated)
• Old v new member states
National Challenges II: Competences
• Hungarian CC 6/2004: regulation of agricultural goods: The Hungarian
constitutions will not bow to European law
• Constitutional Courts and CJEU:
• General courts have less problematic relationship
• German FCC: long refused to send a preliminary ruling question, however, forces general courts to do so
• Same approach: Czech CC
• Austrian, Belgian, Dutch, Nordic – combined courts, more willing to ask
National Challenges II: Competences
• Italy
• Costa v ENEL 1964
• Lex posterior derogate legi priori
• European law = international law
• Frontini 1973
• Confrontation with direct effect and supremacy principles
• There can be primacy, but in case of conflict of laws, it is up to Constitutional Court to decide which law has primacy
• Primacy not from European law, but essence of A11 of the Constitution on conferral of competences
• Simmenthal I.: Italian CC is not right and violates the concept of diffused European judiciary. Against
the effectiveness of the European law
• But: Doesn’t the diffuse system violates legal certainty?
• Granital 1984
• Dualism, in case of conflict, the EU law prevails, but the domestic law stays intact. Only primacy in application
• Between Solange I and Solange II
National Challenges II: Competences
• France
• Matter’s dotrine: in case of the conflict of domestic and international law, the court should aim for
conform interpretation
• If not possible, domestic law is applied
• i.e. no primacy of international law
• Jacques Vebre decision – X Matter doctrine
• Communitarian law has unconditional primacy (only primary law)
• State Council:
• 1968 Samoules: international treaty does not have primacy over later domestic law
• 1986 Smanor: a judge can review the compliance of later law with a treaty but if the law is more detailed, it will prevail
• 1989 Nicolo – same principle
• 1990 Boisdet primacy of a regulation
• 1992 Rothmans International France: vertical direct effect of a directive
• Constitutional Council
• 70-39 DC: refuses to review the constitutionality of founding Treaties: only a priori control
• 76-71 Constitutional conformity of direct election to EP
• Limitation of sovereignty v conferral of sovereignty. Conferral not possible, temporary limitation yes
National Challenges II: Competences
• France
• Changed in Maastricht I.
• Transfer of competences is possible, but it cannot be in conflict with specific areas of constitutional law
• Material core of the Constitution
• Areas: right to vote in regional election, monetary union, migration and asylum
National Challenges II: Competences
• The Court of Justice of the European Union exceeds its judicial mandate, as
determined by the functions conferred upon it in Article 19(1) second
sentence of the Treaty on European Union, where an interpretation of the
Treaties is not comprehensible and must thus be considered arbitrary from
an objective perspective. If the Court of Justice of the European Union
crosses that limit, its decisions are no longer covered by Article 19(1) second
sentence of the Treaty on European Union in conjunction with the domestic
Act of Approval; … these decisions lack the minimum of democratic
legitimation necessary under Article 23(1) second sentence in conjunction
with Article 20(1) and (2) and Article 79(3) of the Basic Law.
National Challenges II: Competences
• Where fundamental interests of the Member States are affected, as is generally the
case when interpreting the competences conferred upon the European Union as
such and its democratically legitimated European integration agenda
(Integrationsprogramm ), judicial review may not simply accept positions asserted
by the European Central Bank without closer scrutiny.
• The combination of the broad discretion afforded the institution in question
together with the limited standard of review applied by the Court of Justice of the
European Union clearly fails to give sufficient effect to the principle of conferral and
paves the way for a continual erosion of Member State competences.
• German constitutional organs, administrative bodies and courts may participate
neither in the development nor in the implementation, execution or
operationalisation of ultra vires acts. This generally also applies to the Bundesbank.
National Challenges II: Competences
• Germany after Lisbon
• FCC ruling of 5 May 2020 on the partial unconstitutionality of the ECB’s PSPP
program (Public Sector Asset Purchase Programme)
• Accepts the primacy of Treaties over Constitution, but classifies an individual secondary act of EU institution
as ultra vires
• Follow-up: Commission filed infringement proceedings against Germany: Germany has not
only violated fundamental principles of EU law (autonomy, primacy of application,
effectiveness, uniform applicability of EU law). It has also interfered with the judicial mandate
of the ECJ)
• FCC should not have declared Weiss decision to be ultra vires act without referring the
matter back to ECJ – violated primacy of EU law.
• Interference in the independence of a MS’s court
• ECJ will be a judge in its own case
National Challenges II: Competences
• ECJ Press release
• In general, it is recalled that the Court of Justice has consistently held that a judgment in which the Court
gives a preliminary ruling is binding on the national court for the purposes of the decision to be given in the
main proceedings. 1 In order to ensure that EU law is applied uniformly, the Court of Justice alone – which
was created for that purpose by the Member States – has jurisdiction to rule that an act of an EU institution
is contrary to EU law. Divergences between courts of the Member States as to the validity of such acts
would indeed be liable to place in jeopardy the unity of the EU legal order and to detract from legal
certainty. 2 Like other authorities of the Member States, national courts are required to ensure that EU law
takes full effect. 3 That is the only way of ensuring the equality of Member States in the Union they created
National Challenges II: Competences
• Poland: Constitutional Tribunal decision of 7 October 2021
• Unlike the German ruling, it calls into question the cornerstone of European
integration
• Sweeping rejection of the primacy of European law
• Establishes the unconstitutionality of central primary law norms: A1 and 19 TEU
• Poor reasoning, does not address harmonization or reconciliation of EU law and national constitution
• Blanket primacy of Polish constitution
• Effectively denies any competence of the EU
• Denies national judges power to review the conformity
What does Bogdandy et al. propose?
What does Bogdandy et al. propose?
• beyond the scope of Article 51(1) CFREU Member States remain autonomous
in fundamental rights protection as long as it can be presumed that they
ensure the essence of fundamental rights enshrined in Article 2 TEU
• The scope:
• 1. MS executing obligations from EU law
• 2. MS implementing EU law (directives)
• 3. The scope of EU law: national limitations of a right granted by EU law (market
freedoms) trigger the application of EU fundamental rights
• Not applicable to non-economic activites and purely internal situations
What does Bogdandy et al. propose?
• Systemic violations of the essence of fundamental rights (A2 TEU) by any
public authority in the European legal space amount to infringements of
Article 20 TFEU which can be considered by national courts in cooperation
with the Court of Justice
A2 Control
Policy
instruments
Sanction mechanism, Article 7 TEU Control
International peer pressure Convergence
Evaluation reports of the accession
process/CVM
Conditionality
Issue linkage (loans, package
negotiations)
Control (indirect influence)
Pre-accession influence + networking
(social learning)
Contagion
Legal
instruments
Infringement Control (indirect influence)
Preliminary ruling procedure Control
A2 triangular protection
A2 Control
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