European Union System of HR Protection
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 26 September 2022

HR as a field of study
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•Politically very salient issue
•Core of constitutional democratic regimes
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•Vehicle behind the triple transformation
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•Change of competences
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•Change of actors (and interaction between actors)
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•Change of the nature of EU (constitutionalisation)
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How to study HR in multilevel governance?
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•Traditionally part of national sovereignty
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•Who (which level) does create & control the norms?
•Who (which level) applies the norms?
•Who (which level) solves the conflict of laws?
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•Saliency = high interest of states
•HR in international organisation x federal entity
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Weiler: Transformation of Europe
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Weiler’s Transformation of Europe
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•What is his major argument/point raised in the article?
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Where are the (human) rights?
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•ECSC and EEC and EURATOM
•X
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•. Why there are no HR in Community?
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Where are the (human) rights?
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•ECSC and EEC and EURATOM
•X
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•. Why there are no HR in Community?
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•Economic activity (coal, nuclear energy, economic integration)
•Council of Europe (IG)
•IL generally seen as weak, presumptions that in conflict of national and international (EC) law,
domestic law prevails -> This would endanger HR
•No real legacy of judicial protection of HR
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Article 119 EEC (141) equal pay without discrimination on sex
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•1. Each Member State shall ensure that the principle of equal pay for male and female workers for
equal work or work of equal value is applied.
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•2. For the purpose of this article, "pay" means the ordinary basic or minimum wage or salary and
any other consideration, whether in cash or in kind, which the worker receives directly or
indirectly, in respect of his employment, from his employer.
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•3. The Council, acting in accordance with the procedure referred to in Article 251, and after
consulting the Economic and Social Committee, shall adopt measures to ensure the application of the
principle of equal opportunities and equal treatment of men and women in matters of employment and
occupation, including the principle of equal pay for equal work or work of equal value.
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•4. With a view to ensuring full equality in practice between men and women in working life, the
principle of equal treatment shall not prevent any Member State from maintaining or adopting
measures providing for specific advantages in order to make it easier for the underrepresented sex
to pursue a vocational activity or to prevent or compensate for disadvantages in professional
careers.
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Pressure of France – French firms worried of competition on a common market (Netherlands: 40% lower
remuneration of women)

Where are the rights?
-SEA: Preamble
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-Maastricht Treaty: HR as one of the aims of the EU + EU respects the FR
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-Amsterdam, article F: The Union is founded on the principles of liberty, democracy, respect for
human rights and fundamental freedoms, and the rule of law, principles which are common to the
Member States.
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-Constitution – Charter of fundamental rights – Lisbon treaty: legally binding character
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Where are the rights?
TEU, Article 2
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the
rule of law and respect for human rights, including the rights of persons belonging to minorities.
These values are common to the Member States in a society in which pluralism, non-discrimination,
tolerance, justice, solidarity and equality between women and men prevail.
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How HR permeated the EU
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•Constitutionalisation of the aquis
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1.Spill-over of jurisdiction (authority)
2.Enlargement process (foreign policy)
3.Empowerment of the ECJ

I. Spill-over of jurisdiction
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Weiler’s Transformation of Europe
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•What is his major argument/point raised in the article?
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•Conceptualization of the transformation of the relationship between
Member states x Community (EU)
•Constitutionalisation of the Treaties on behind of the HR proliferation in the EU’s acquis
•What caused this constitutionalisation?
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Weiler’s Transformation of Europe
1.
1.
•What is his major argument/point raised in the article?
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•Conceptualization of the transformation of the relationship between
Member states x Community (EU)
•Constitutionalisation of the Treaties on behind of the HR proliferation in the EU’s acquis
•This is not an isolated result of SEA
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•It is not a result of intergovernmental decision, but a logical result of slow transformation
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Weiler’s Transformation of Europe
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•Exit and voice?
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•Landmark doctrines of ECJ
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•Direct effect
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•Supremacy
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•Implied powers
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•HR
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•State liability principle
•Effet utile of EU law
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Weiler’s Transformation of Europe
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•How does the EU judicial review work?
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•Review of all European law measures
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•Review of the acts of member states
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•Judicial empowerment both supranational and domestic
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Weiler’s Transformation of Europe
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•Mutation of Jurisdiction and competneces
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•JURISDICTION AREAS
•1. No jurisdiction of the EU
•2. Autonomous jurisdiction (authority) of the EU
•3. Overlap of EU/member states authority
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~ Competences of EU
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•X not a sovereign, does not have inherent powers, but conferred competences (by Treaties)
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•Principle of conferral
•Under the principle of conferral, the Union shall act only within the limits of competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States.
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Principle of conferral: TEU
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1.
Article 4
1.In accordance with Article 5, competences not conferred upon the Union in the Treaties remain
with the Member States.
…
Article 5
1.The limits of Union competences are governed by the principle of conferral. The use of Union
competences is governed by the principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence,
the Union shall act only if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States …
4. Under the principle of proportionality, the content and form of Union action shall not exceed
what is necessary to achieve the objectives of the Treaties.
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Problem?
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•Treaties do not set out a list of conferred competences
•They attribute legal competence for every EU’s activity in respective titles
•Thematically limited competences in distinct policy areas
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•Threats:
A.Teleological interpretation (spill over)
B.Increase of EU’s general competences
•Article 114 TFEU
•Article 352 TFEU
C.Doctrine of implied external powers

A. Spill over & HR in secondary law
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•Enaction of norms in competences delegated upon the EU
•Spill-over of EU competences
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•MUTATIONS
•Extension
•Absorption
•Incorporation (Stauder v Ulm, Solange implementation)
•Expansion
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Specifics of discrimination
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•Amsterdam Treaty:
•Fight against discrimination on the grounds of sex, race, ethnic origin, religion, belief, health,
age, sexual orientation
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•Legislation in EU: unanimity (Council of EU)
•BUT: directives regulating equal treatment (race, gender, labout discrimination)
•Basis for robust ECJ jurisprudence
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•JUSTICE area
•Cooperation in criminal matters
•Fifth freedom: common market of judgments
•Principle of mutual trust
•Borders and asylum seekers
•Digital rights Ireland (Directive 2006/24/ES Data Retention Directive)

B. Increase of General competences
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•Article 114 (The harmonization competence)
•(ex Article 95 TEC)
•1. Save where otherwise provided in the Treaties, the following provisions shall apply for the
achievement of the objectives set out in Article 26. The European Parliament and the Council shall,
acting in accordance with the ordinary legislative procedure and after consulting the Economic and
Social Committee, adopt the measures for the approximation of the provisions laid down by law,
regulation or administrative action in Member States which have as their object the establishment
and functioning of the internal market.
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•2. Paragraph 1 shall not apply to fiscal provisions, to those relating to the free movement of
persons nor to those relating to the rights and interests of employed persons.

B. General competences
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•Tobacco Advertising case
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•Germany: hamonisation power could only be used to promote the internal market, not to ban activity
•The ECJ annulled the European law as going beyond the harmonization power
•3 constitutional limits of harmonization power
• EU must harmonize national laws
• A simple disparity in national laws is not enough to trigger harmonization = obstacle in trade
needed
• EU legislation must contribute to elimination of obstacles to free movement or distortion of
competition

Article 352 (ex 308 ~ 235 EEC Treaty) – the residual competence
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•1. If action by the Union should prove necessary, within the framework of the policies defined in
the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not
provided the necessary powers, the Council, acting unanimously on  a proposal from the Commission
and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.
Where the measures in question are adopted by the Council in accordance with a special legislative
procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the
consent of the European Parliament.
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•2. Using the procedure for monitoring the subsidiarity principle referred to in Article 5(3) of
the Treaty on European Union, the Commission shall draw national Parliaments' attention to
proposals based on this Article.
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•4. This Article cannot serve as a basis for attaining objectives pertaining to the common foreign
and security policy and any acts adopted pursuant to this Article shall respect the limits set out
in Article 40, second paragraph, of the Treaty on European Union.

C. Implied powers
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•Originally only international agreements under the Common Commercial Policy with 3rd countries and
IOs
•Expansion
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•Article 216
•1. The Union may conclude an agreement with one or more third countries or international
organisations where the Treaties so provide or where the conclusion of an agreement is necessary in
order to achieve, within the framework of the Union's policies, one of the objectives referred to
in the Treaties, or is provided for in a legally binding Union act or is likely to affect common
rules or alter their scope.

Where are the rights?
II. Enlargement process
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•1994 Václav Havel: European Union is a community based on “a large set of values, with roots in
antiquity and in Christianity, which over 2000 years evolved into what we recognize today as the
foundations of modern democracy, the rule of law and civil society.”
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•To be a model for CEE transitions
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•raison d’être behind the integration project?
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HR in the enlargement process
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•Which enlargement?

HR in the enlargement process
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•Mudde-Sedelmeier and Merlinger: Eastern enlargement
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•1. attempt to use the enlargement to spread HR and democratic norms
•EC declarations, Phare, …
•2. accession condition
•Copenhagen criteria 1993 (HR and democracy)
•3. normative revision of Treaties

HR in the enlargement process
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•1962 Birkelbach report
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• Declaration on the European Identity
•Relationship of 9 EC members towards the third countries
•Determination to defend the principles of representative democracy, of the rule of law, of social
justice – which is the ultimate goal of economic progress – and f respect for human rights.
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•1977 Joint Declaration (EP, Council, Commission)
•To defend the FR derived from the national constitutions and the ECHR, adopted by CoE
•Although protection of HR is not the main task and goal of the EC
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•1978 Declaration on Democracy (EC)
•First election of the EP
•Objection of EC should any of the member states backslide to authoritarian government

Willi Birkelbach, a member of the then-newly createdEuropean Parliament, responded on behalf of the
Socialist Party to Spain’s first application formembership, rebutting the Franco regime. Its
anti-democratic philosophy, Birkelbach argued,contradicted the values of the Community. He also
pointed out that, were the Community tomake an offer of membership to Madrid, it would undermine
its own credibility, both internallyand internationally. This was the first time that the European
Parliament proved to be a suitablechannel of communication for political parties opposing the
non-democratic European regime

3. HR in the enlargement process
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•Mattheus v Doego case
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•‘Article 237 of the EEC Treaty must be interpreted as meaning that, in addition to the
requirements which it lays down for the application and agreement, it permits the accession of a
State to the European Economic Community only if that State is a European State; and its
constitution guarantees, on the one hand the existence and continuance of a pluralistic democracy
and, on the other hand, effective protection of human rights.’
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•The Draft Treaty establishing the European Union 1984 (Spinnelli)
•1989 EP resolution Declaration of Fundamental Rights and Freedoms – one of EC tasks is to
contribute to the propagation of democracy based on respect of FR
•Democratic reunification of Europe

3. Copenhagen Criteria
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•Definition of fundamental values and political conditions of membership
•Take over the definition of democratic character imposed by A237 EEC Treaty
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•To minimize the risk of backsliding
•Democracy
•Rule of law
•Functioning of market economy
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•1998: transformed into Council Regulation EC No 622/98
•The very same year, democratic principles in Preamble and Article F TEU = new Grundnorm
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•Amsterdam: transfer of Copenhagen criteria into Article 7
•And membership criteria: Article 49

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