ECJ and Human Rights
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 13 October 2021







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.

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



Where do EU fundamental rights constrain the states?
•Common market:
•principle of non-discrimination
•Equal pay for men and women
•General principles
•
•Migration & Asylum Law
•Citizenship & Freedom of movement & Protection of rights of migrants
•
•Justice
•Criminal law
•Judicial governance
•
•Foreign policy
•FR of third country citizens?

FR Beyond the Single Market
•II. And III. Pillar
•
•II. Pillar: principle of nondiscrimination
•Tanja Kreil
•
•Alexander Dory
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•III. Pillar
•Maria Pupino
•Accused of a crime (mistreating children). Prosecutor asked for evidence of children. Should the
national law be interpreted in light of a Council’s Framework Decision, or does the duty of
harmonious interpretation relate only to the first pillar?
•ECJ: the interpretative duty applies to pillar 3 decisions too.
•
•

Compare this with reverse Solange

EU Charter of Fundamental Rights
•Why the Charter?
•Alternative strategy to the accession to ECHR
•
•Proclaimed in 2000
•Initiator: European Council, aiming to strengthen the protection of FR in Europe by making them
more visible
•
•Until Lisbon: merely a source of inspiration, not binding force
•
•Since it draws on many sources -> Explanations!
•Not legally binding
•Due respect when interpreting the Charter…
•
•
•

No generations of HR
Innovative

EU Charter of Fundamental Rights
•What changes did the Charter bring?
•
•No generations of rights
•Innovative rights (rights of Child)
•Some rights missing
•
•Codification of existing case-law: the problem of authority?
•
•Rights v principles
•
•What is the added value of the Charter?
•
•

Wording however: merely reaffirming existing rights, not creation of new ones

EU Charter of Fundamental Rights
•
•I. Dignity
•II. Freedoms
•III. Equality
•IV. Solidarity
•V. Citizens’ Rights
•VI. Justice
•VII. General provisions on interpretation and application
•
•
•

Application of Charter by MS?
•4 general principles
•
•1. It is addressed to the Union and applies to MS only exceptionally
•2. Not all provisions in Charter are rights
•3. Charter rights can be restricted by EU legislation
•4. Harmony among Treaties, Convention and MS
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2. Schmidberger
3. Fransson case

Hard Rights vs Soft Principles
•What are rights?
•
•Direct effect
•Can be invoked before a court
•
•What are principles?
•
•Title VII
•To be implemented by legislative and executive acts
•Judicially cognizable only when these acts are interpreted by courts
•E.g. environmental protection A37
•Not a limit on government, but stated aim of governmental action
•Careful! Not source of objectives for EU institutional activity!
•
•
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Application of Charter by MS?
•Article 51: implementation of EU law
1.MS as agents implementing and applying EU measures
•Minimum standards for refugees
•Fransson case: implementation vs application [later narrowed down by Siragusa case]
•2. MS derogating from EU rules
•A) MS’s measures derogating from free market must comply with Charter [Sayn-Wittgenstein]
•B) FR can justify derogation from the free market [Omega, Dynamic Medien]
•Protection of FR – legitimate restriction of EU free movement
•3. MS actions within the scope of EU law
•
•What is outside the scope?
•Craig-De Burca: Treaties do not provide any general power to enact rules on human rights (apart
from anti-discrimination)
•Exclusive national competences and legislation
•A 4 TEU
•Residence permits e.g.
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Limits of FR limitations in the Charter
•Article 52
•Any limitation on the exercise of the rights and freedoms recognised by this Charter must be
provided for by the law and respect the essence of those rights and freedoms. Subject to principle
of proportionality, limitations may be made only if they are necessary and genuinely meet
objectives of general interest recognised by the Union or the need to protect the rights and
freedoms of others.
•
•
•i.e. 3 constitutional principles of limitations:
•1. provided by the law
•IA of executive power?
•2. Proportionality principles -> necessary in light of general interests of Union or others
•3. independent existence of the absolute limit to public interferences: respect to the essence of
the limited right. I.e. essential core doctrine
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•
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2. Schmidberger
3. Fransson case

Opt-outs
•Same binding force as EU Treaties, although it is not in the Treaties
•But: Poland and UK: protocol related to the Charter’s application
•
•Czechia: President requests an opt-out at the very end of the ratification process
•Other MS agree that Czechia will be able to enter the Protocol during the next treaties revision J
•What is the Protocol about?
•Social rights directly applicable (justiciable) before courts [UK]
•Discrimination on the basis of sex [Poland]
•Beneš decrees on return of property [Czechia]
•
•Relevance of Protocol 30?
•Merely a political declaration. Vague, states that Charter does not extent the competence of the
CJEU, or domestic or other courts, to state that actions of POL and UK are in violations of HR
reaffirmed by the Convention
•Not a real opt-out
•Repetition of A51
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Key post-Lisbon case
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2. Schmidberger
3. Fransson case

A2 Control



A2 triangular protection

1. Protection of values in the institutional exercise of power (level EI); this obligation stems
from the Article 2 TEU and the Charter.
2. Protection of values, with respect to member states, in the application and implementation of
Union policies (member states, level MS); this obligation stems from Article 2 TEU and Article 51
of the Charter.
3. Protection of values, in relation to member states, during application of their own internal
policies in areas where competences have not been transferred to the EU (national states, level
NS); this obligation stems from Article 2 TEU, subject to accession conditionality.
It is worth mentioning here that many member countries contest such an interpretation of Article 2
and its application over and above the competencies entrusted to the Union, because they see this
as undue enlargement of the EU’s scope of authority. Rather than in official documents, such
stances can be observed in the statements submitted by governments during proceedings at the Court
of Justice. With reference to human rights, these countries promote a minimalist interpretation and
criticise what they describe as ‘creeping competencies’. Specifically, consider the controversial
discussion surrounding the application of the Charter in connection with the British, Polish, and,
potentially, Czech opt-outs. See Bončková, Helena and Smekal, Hubert. ‘Fragmentace společných
hodnot? Výjimka z Listiny základních práv Evropské unie.’ Současná Evropa 2010, 2, 61-81.

A2 Control



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