14 November 2022
Sybe A. de Vries
Professor of Public Economic Law, Europa Institute, Utrecht School of Law
EU fundamental rights protection within and
beyond the EU Single Market
EU Charter, free movement & citizenship
I. Introduction to EU fundamental rights
Development of Fundamental Rights
within the EU legal order
EU FR as General Principles of EU Law
➢ “Respect for fundamental rights an integral part of the general
principles of Community law” (Case 11/70, Internationale
Handelsgesellschaft)
✓References to constitutional traditions common to MS
✓References to ECHR
➢ Lisbon Treaty: FR in the Treaty and binding EU Charter
Fundamental Rights in the Treaties (a)
Article 2 TEU
‘The Union is founded on […] the rule of law and respect for human rights […].
These values are common to the Member States in a society in which pluralism,
non-discrimination, tolerance […] and equality between women and men prevail.’
Article 3(3) TEU
➢ Social market economy
➢ Combating social exclusion & discrimination
➢ Equal treatment
➢ Protecting the rights of children
Article 6 TEU
➢ Sources of EU fundamental rights
Fundamental Rights in the Treaties (b)
Article 7 TEU
➢ Council may suspend voting rights and other rights of MS
➢ In case of serious & persistent breach of Article 2 TEU
Article 19 TEU: effective legal protection &
independence of the judiciary
Article 49 TEU: accession to the EU
Articles 7-10 TFEU: integration clauses
Article 18 TFEU: principle of non-discrimination
Article 19 TFEU: general principle of non-
discrimination
Article 157 TFEU: principle of equal pay
EU Charter of
Fundamental Rights -
Scope
Article 51(1)
• EU Institutions & FR
• Member States & FR
✓ NB Only when MS implement
EU law → when MS act within
the scope of EU law (case law
ECJ)
• Private parties
✓ Joined Cases C-569 & 570/16,
Bauer et al
✓ Case C-131/12, Google Spain
Towards a self-standing
obligation to respect
FR?
EU Charter of
Fundamental Rights -
Content
Modern catalogue →
mixed approach
➢ No classic distinction between
political, civil, economic and
social rights
➢ Innovative character
➢ Distinction between rights &
principles (Article 52(5))
Corresponding to ECHR?
➢ ECHR minimum standard, but
autonomous interpretation
CJEU
II. Fundamental rights and the EU Single
Market
Fundamental Rights strengthening Four
Freedoms
Point of departure: development of fundamental
rights within the slipstream of the EU Single Market
Treaty freedoms
✓ Case C-390/12, Pfleger: para. 57 ‘National legislation that is restrictive from the point
of view of Article 56 TFEU […] 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.’
EU internal market legislation
✓ Case C-70/10, Scarlet Extended (next week): paras 46 & 47 ‘[…] national authorities
and courts must, in particular, strike a fair balance between the protection of the
intellectual property right enjoyed by copyright holders and that of the freedom to
conduct a business enjoyed by operators such as ISPs pursuant to Article 16 of the
Charter. […] An injunction would result in a serious infringement of the freedom of
the ISP concerned to conduct its business since it would require that ISP to install a
complicated, costly, permanent computer system at its own expense […]
Fundamental Rights softening Four
Freedoms – Clashes & tensions (a)
Treaty freedoms - Different approaches
✓ Case C-112/00, Schmidberger: Restriction as a result of a demonstration by
environmentalists justified and proportionate in the interest of freedom of
expression – true balancing test (para. 89)
✓ Margin of discretion for the Member State
✓ BUT: Case C-438/05, Viking Line: “If […] the national court came to the
conclusion that, in liable to be adversely affected by the reflagging of the
Rosella are in fact jeopardised or under serious threat, it would then have to
ascertain whether the collective action initiated by FSU is suitable for ensuring
the achievement of the objective pursued and does not go beyond what is
necessary to attain that objective.” (para. 84)
✓ Very strict proportionality review → little margin of discretion for Trade
Unions
Fundamental Rights softening Four
Freedoms – Clashes & tensions (b)
EU internal market legislation – Different
approaches
✓ Case C-283/11, Sky Österreich: balancing different conflicting rights: free
movement of services, freedom to conduct a business, pluriformity of media,
freedom of expression (paras 45-46 a.f.)
✓ Case C-131/12, Google Spain (para 97): ‘the data subject may, in the light of his
fundamental rights under Articles 7 and 8 of the Charter, request that the
information in question no longer be made available to the general public by
its inclusion in such a list of results, it should be held […] that those rights
override, as a rule, not only the economic interest of the operator of the search
engine but also the interest of the general public in finding that information
upon a search relating to the data subject’s name.’
Fundamental Rights in
the EU Digital Single
Market
• E.g. Case C-18/18, Eva
Glawischnig-Pieszcek
v Facebook
• GDPR
• Copyright Directive
• (Proposals) for:
✓ Digital Services Act
✓ Digital Markets Act
✓ AI Regulation
✓ Data Governance Act
“Lousy traitor. This corrupt tramp has
never earned a penny fairly but keeps
sending our tax money to infiltrated
invaders. Please prohibit this green
Fascist party”.
Concluding
observations
• No a priori hierarchy
between fundamental rights
and economic freedoms
• But: the Internal Market
rules constitute the
normative framework for the
assessment of FR → this is
different for the ECHR
✓ Is this narrative apt to deal with FR?
✓ Is the reasoning of the Court sometimes
flawed?
✓ Is the toolbox of the Court sufficient to
deal with FR?
✓ Are social rights more second division?
• And: certain FR play a
particularly important role
in the context of the EU
✓ Rights to privacy & data protection
✓ Hence: what about other FR?
III. Beyond the EU Single Market - EU
citizenship & (Fundamental) Rights
What is EU citizenship?
• Article 20(1) TFEU
➢Every 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
• CJEU (case law)
➢Citizenship of the Union is intended to be the
fundamental status of nationals of the Member States
EU citizenship rights (I)
Legal Framework (Legislation & Treaty)
➢ Market access rights for economically active citizens
(Treaty provisions on free movement -> workers, selfemployed,
service providers and recipients)
➢ Migration rights: since April 2006: Directive 2004/38
on the free movement of persons (broad personal
scope: economically active and non-active Union
citizens and TCN)
✓ Impact of Covid-19 on migration rights unprecedented
➢ Specific citizenship rights in the TFEU and the Charter
on Fundamental rights
EU citizenship rights (II)
Articles 18 to 24 TFEU
➢ The right to move and reside freely
➢ Electoral rights: equal treatment EP and ME
➢ (Equal) diplomatic protection in TC
➢ Petition to EP and Ombudsman
➢ New: citizens’ initiative: 1 million citizens from a
significant amount of MS
✓ http://ec.europa.eu/citizens-initiative/public/initiatives/ongoing
EU citizenship rights (III)
Multiple sources of fundamental rights
➢ Article 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 → Article
51(1) Charter
➢ Link with free
movement: derogations
and restrictions to free
movement
➢ Link with the right to
reside - Article 20
TFEU?
EU citizenship & Fundamental
Rights (II)
Link with free movement
➢ E.g. Case 60/00, Carpenter
➢ Article 21 TFEU & Directive 2004/38
➢ …BUT… Case C-333/13, Dano
Link with Article 20 TFEU
➢ Ruiz Zambrano….
➢ Von Bogdandy: Article 2 TEU and Article 20 TFEU
➢ Court of Justice: Article 19 TEU, Article 47 EU Charter &
Article 2 TEU: Protecting independence of judiciary (Case C-
619/18, Commission v Poland)
IV. EU Citizenship & Right to Family Life
EU citizenship & Right to Family Life (a)
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 (b)
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’
EU citizenship & Right to Family Life (c)
Case C-133/15, Chavez-Vilchez
Article 20 TFEU (mixed family)
✓the Dutch parent is (partly) unable to take care of the children
✓TCN-parent is able to take care of the children
✓CJEU refers to the EU Charter
‘The fact that the other parent, an EU citizen, could assume sole responsibility for the primary
day-to-day care of the child is a relevant factor, but is not in itself a sufficient ground to refuse
a residence permit. It must be determined that there is not, between the child and the thirdcountry
national parent, such a relationship of dependency that a decision to refuse a right of
residence to that parent would compel the child to leave the EU.’
‘[…] the competent authorities must take account of the right to respect for family life, as
stated in Article 7 of the Charter of Fundamental Rights of the European Union, that article
requiring to be read in conjunction with the obligation to take into consideration the best
interests of the child, recognised in Article 24(2) of that charter.’
V. A more citizenship-based system of
protection of FR?
Three layers of FR protection
• National level
• ECHR level
• EU level
➢ CJEU in 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.”
➢ CJEU in Chavez-Vilchez
✓ Application of EU Charter
Composite citizenship (Van Eijken,
2014)?
• Composed of different entitlements – responsibilities
of authorities & fundamental rights protection
• Challenge (I): limited scope of the EU Charter
➢ Market citizenship & free movement extremely relevant
➢ In exceptional circumstances: FR protection for static EU citizens
• Challenge (II): serious and systematic breach of
fundamental rights (Article 7 TEU, Article 2 TEU and
Article 20 TFEU)
➢ Political agreement difficult
➢ BUT → Important case law of the Court
s.a.devries@uu.nl
Thank you for your attention