ECJ and Human Rights JUSTIN Judicial Studies Institute Masaryk University Katarína Šipulová Brno, 30 October 2023 Supremacy of EU Law? •Two perspectives: •European •Absolute • •National •Relative •Ultra vires control Primacy 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 • Mr Costa, Italian, owned shares in Edisonvolta , he opposed nationalization of the electricity sector in Italy. He argued tha nationalization of the ENEL company violated A21 Primacy 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. Mr Costa, Italian, owned shares in Edisonvolta , he opposed nationalization of the electricity sector in Italy. He argued tha nationalization of the ENEL company violated A21 Primacy 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 National challenges to Supremacy •Human rights • •Competence limits 1. HR as a challenge to Supremacy Why so little on HR in founding treaties? Why so little on HR in founding treaties? •Focus on economic cooperation •Human rights in COE •Bills of rights as a part of constitutional law Why so little on HR in founding treaties? •Focus on economic cooperation •Human rights in COE •Bills of rights as a part of constitutional law Why so little on HR in founding treaties? •Focus on economic cooperation •Human rights in COE •Bills of rights as a part of constitutional law • • •What is the one exception? 119 BUT: economic freedoms for natural and legal persons Prohibition of discrimination based on nationality (workers) Principle of equal pay for equal work Probihition of discrimination based on gender RATIO: Preventing inter-state competition from unfair dumping of labour costs 1.Proposal 1.1/3 of MS 2.EP 3.Ecommission 2.Council, by 4/5 and consent of EP, may determine a clear risk of a serious breach 3.The European Council: unanimity, on proposal of 1.1/3 MS 2.Commission 3.And consent of EP May determine the existence of a serious and persistent breach 4. Council, WM, suspend the rights EU Charter of FR Human Rights v Fundamental Rights and Freedoms Concepts used by CJEU 1. 1. •Human Rights •Human, civil, political, justice, equality, solidarity • •Fundamental Rights •EU Charter ~ human rights • •Fundamental Freedoms •Related to the internal market: freedom of movement of persons, capital goods and services, and freedom of establishment • • •Clashes? •Which prevails? •Viking Line •Favoured market freedoms over the right to strike Viking line: a ferry between Finland and Estonia. Losing because eof competition from Estonian ferry services – cheaper due to lower labour costs. Viking line wanted to re-register its vessel under Estonian flag – to employ cheapr labour. Flag of convenience!! Strike of members of ITransportUnion and Viking Line argued that this trike contravened EU law – free movement of workers and freedom to provide services. CJEU: right to strike = general principle of community law, can be balanced against fundamental freedoms of free movement of workers and services Four Freedoms of Single Market 1. 1. •Freedom of movement of persons •Freedom of movement of goods •Freedom of movement of Services and capital •Freedom of establishment Viking line: a ferry between Finland and Estonia. Losing because eof competition from Estonian ferry services – cheaper due to lower labour costs. Viking line wanted to re-register its vessel under Estonian flag – to employ cheapr labour. Flag of convenience!! Strike of members of ITransportUnion and Viking Line argued that this trike contravened EU law – free movement of workers and freedom to provide services. CJEU: right to strike = general principle of community law, can be balanced against fundamental freedoms of free movement of workers and services Why did HR issues enter on the ECJ agenda? Why did HR issues enter on the ECJ agenda? Direct effect + IHG + Solange Direct effect and supremacy •What is the direct effect? • •Where do you find it? • •How did the ECJ arrived to direct effect? Direct effect and direct applicability •Van Gend en Loos (Case 26/62) •ECJ cut the umbilical cord with classic international law •A12 is capable of creating personal rights • •European legal order in a new legal order •It is more than international law •It has authority which can be invoked by citizens •It poses the citizens obligations and confers rights, independently on the legislation of member states • • • Horizontal and Vertical Direct Effect •Van Gend: Treaties are theoretically allowed to impose obligations on individuals • •Horizontal DE: •Between individuals •Treaty provisions (Familiapress v Bauer) •Decisions and Regulations •Two exceptions: •1. Reg explicitly calls for a domestic act •2. Reg is too general and needs a domestic act • •Directives: binding on states, dualist •Variola: sets out aim, not the road •Francovich: vertical direct effect • • • Familiapress: A34 TFEU, prohibiting unjustified restriction on the free movement of gods. Civil dispute between 2 companies: Bauer accused of violating the Austrian Law on Unfair Competittion by publishin prize crossword puzzles: a sales technique deemed unfair. Invoked A 34 – Austrian provision has to be disapplied in a civil rpoceedins Francovich – State liability Under the Insolvency Protection Directive 80/987 (now 2008/94/EC) EU Member States were expected to enact provisions in their national law to provide for a minimum level of insurance for employees who had wages unpaid if their employers went insolvent. Mr Francovich, who had worked in Vicenza for CDN Elettronica SnC, was owed 6 million Lira, and Mrs Bonifaci and 33 of her colleagues were owed 253 million Lira together after their company, Gaia Confezioni Srl, had gone bankrupt. The Directive was meant to be implemented by 1983, but five years later they had been paid nothing, as the company liquidators had informed them that no money was left. They brought a claim against the Italian state, arguing that it must pay damages to compensate for their losses instead, on account of a failure to implement the Directive. How did the ECJ approach HR? How did the ECJ approach HR? Initial resistance, then Stauder (FR as general principles of Community law) Stork and Geitling: reluctant answer. Cases by coal wholesalers, a rguing that HC of ECSC decided in violation of German constitution (right to property) – no competence plus no provision protecting the rights. With DE and Supremacy – stakes are suddenly high Stauder v Ulm: 1969 case EU scheme provided cheap butter for welfare benefits – but it required to show a coupon with person’s name and address. Mr Stauder: this iolates his dignity. Pokud by měly přímo účinné evropské normy absolutní přednost, pak by mohlo dojít k jejich aplikaci a tím hypoteticky k porušení práv plynoucích například z německé ústavy, která Spolkový ústavní soud garantuje. S něčím takovým se ústavní soudy nehodlaly smířit a vysílaly do Lucemburku varovné signaly Solution: Stauder v Ulm: fundamental rights are part othe EC law The Court of Justice held that properly interpreted, the measure did not require a name to be shown on the coupon. In doing so it acknowledged that human rights formed part of unwritten general principles of EU law. IT IS NOT NECCESSARY When a single decision is addressed to all the member states the necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider one version of the text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim he seeks to achieve, and in the light in particular of the versions in all ... languages. ... Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court. 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 • • ECJ incorporate central features of modern constitutions into the co whilst the application of Union law could not depend on its consistency with national constitutions, fundamental rights did form an "integral part of the general principles of [European Community] law" and that inconsistency with fundamental rights could form the basis of a successful challenge to a European law.^[3] In ruling as it did in Internationale Handelsgesellschaft the ECJ had in effect created a doctrine of unwritten rights which bound the Community institutions 3. Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law.... 4. However, an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community. It must therefore be ascertain, in the light of doubts expressed by the Verwaltungsgericht, whether the system of deposits has infringed rights of a fundamental nature, respect for which must be ensured in the Community legal system. 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 • • ECJ incorporate central features of modern constitutions into the co 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… • ECJ incorporate central features of modern constitutions into the co 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 • ECJ incorporate central features of modern constitutions into the co Solange II [1987] •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… • ECJ incorporate central features of modern constitutions into the co Human Rights: from Primacy to Supremacy of EU Law? •Nold • •Distribution of fuels – do 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 • • ECJ incorporate central features of modern constitutions into the co Human Rights: from Primacy to Supremacy of EU Law? •freedom of action and economic liberty •right to freely practice the trade and profession • •ECHR: no right to liberty or to pursue a trade/profession •Right to property: restricted • • ECJ incorporate central features of modern constitutions into the co 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 Limits •Hauer • •Vajnai • • •Proportionality test? •First paragraph •Conditions of justified infringement •Proportionality test – policy conditions • Evropu trápila nadprodukce vinné révy, na což ES reagovalo v rámci zemědělské politiky nařízením zakazujícím na přechodnou dobu výsadbu nových vinic. Paní Hauerová však na svém pozemku chtěla pěstovat vinnou révu, tudíž po zamítnutí povolení ze strany správních úřadů následovala správní žaloba proti Porýní-Falci. Příslušný správní soud vznesl předběžnou otázku na Soudní dvůr, který neshledal porušení základních práv, neboť právo na majetek není stavěno absolutně Vajnai. Představitel maďarské politické strany veřejně nosil na veřejném shromáždění pěticípou červenou hvězdu, za což byl trestně popotahován. Maďarský soud poslal do Lucemburku otázku, jestli se zákaz používání symbolů totality nepříčí lidskoprávním zásadám Unie. Soudní dvůr se s případem vypořádal velmi rychle: „Je nutno konstatovat, že případ Attily Vajnaie nemá žádný vztah s jakoukoliv situací zamýšlenou ustanoveními smluv a že maďarsk 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 • Evropu trápila nadprodukce vinné révy, na což ES reagovalo v rámci zemědělské politiky nařízením zakazujícím na přechodnou dobu výsadbu nových vinic. Paní Hauerová však na svém pozemku chtěla pěstovat vinnou révu, tudíž po zamítnutí povolení ze strany správních úřadů následovala správní žaloba proti Porýní-Falci. Příslušný správní soud vznesl předběžnou otázku na Soudní dvůr, který neshledal porušení základních práv, neboť právo na majetek není stavěno absolutně Vajnai. Představitel maďarské politické strany veřejně nosil na veřejném shromáždění pěticípou červenou hvězdu, za což byl trestně popotahován. Maďarský soud poslal do Lucemburku otázku, jestli se zákaz používání symbolů totality nepříčí lidskoprávním zásadám Unie. Soudní dvůr se s případem vypořádal velmi rychle: „Je nutno konstatovat, že případ Attily Vajnaie nemá žádný vztah s jakoukoliv situací zamýšlenou ustanoveními smluv a že maďarsk Normal: you test for proportional infringement into HR (is policy measure a justif CJEU: conflict of HR and FR/FR: interference of HR – legitimate, justifying restriction of fundmental freedoms. 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? What does Bogdandy et al. propose? • • • • • Compare this with reverse Solange 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 • • Or ORF case: broad interpretation of the scope of a directive to engage in fundamental rights discourse. Kücükdeveci: implementation extends to MS legislation that is not intended to implement a directive, but touches upon related fields (C-555/07,Kücükdeveci,[2010] ECR I-00365) 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 WWW.JUSTIN.LAW.MUNI.CZ