ECJ and Human Rights JUSTIN Judicial Studies Institute Masaryk University Katarína Šipulová Brno, 4 November 2024 Direct effect and supremacy •What is the direct effect? • •Where do you find it? • •How did the ECJ arrived to direct effect? What is the direct effect? Monism v Dualism M: international law directly applicable as any domestic law D: binding only on the state, not in; transposition needed 288 TFEU Direct effect and direct applicability •Regulations and decisions: contain directly applicable norms •Van Gend en Loos (Case 26/62) •Origins: reclassification of a chemical into a custom category entailing higher customs charges (BENELUX) •Van Gend en Loos: postal and transportation company, transporting formaldehyde from West Germany to the Netherlands •Opposes import tariff as contrary to the A12 of the Treaty of Rome: •"Member States shall refrain from introducing between themselves any new customs duties on imports and exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other." Direct effect and direct applicability Van Gend en Loos (Case 26/62) The wording of article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between member states and their subjects. Van Gend en Loos The objective of the E[U] Treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the [Union], implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States. This view is confirmed by the preamble of the Treaty which refers not only to the governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects member States and also their citizens. Furthermore, it must be noted that the nations of the States brought together in the [Union] are called upon to cooperate in the functioning of this [Union] though the intermediary of the European Parliament and the Economic and Social Committee. In addition the task assigned to the Court of Justice under Article [267], the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the States have acknowledged that [European] law has an authority which can be invoked by their national before those courts and tribunals. The conclusion to be drawn from this is that the [Union] constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their national. Independently of the legislation of Member States, [European] law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. 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 Repercussions of direct applicability Not all norms are directly applicable: justiciable norms (can be applied by a public authority) Test: 1.Clear provision 2.Unconditional (does not depend on subsequent legislation – automatic prohibition) 3.Absolute provision (does not allow reservations). 4. 4. ECJ eventually moved to a more lenient test (widening the interpretation of 3 criteria) – to simple: provision that can be applicable by a national court Repercussions of direct applicability Direct applicability => Direct effect and Supremacy of [EU] Law Direct applicability: no transposing national provision is needed Direct effect: sets out rights/obligations for individual (sufficiently precise and clear provision) Supremacy: only of those provisions, which have direct effect. I.e. not whole system of EU law, but! Potentially also any norm of EU law, irrespective of its legal force Examples of direct applicability? Defrenne: 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. Reyners: In order to attain freedom of establishment as regards a particular activity, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall act by means of directives. Van Duyn: a Member State, in imposing restrictions justified on grounds of public policy, is entitled to take into account as a matter of personal conduct of the individual concerned The prohibition on quantitative restrictions shall not preclude [national] prohibitions or restrictions on imports, exports, or goods in transit justified on grounds of public morality, public policy or public security. 1.Is it clear? Yes, in case of direct discrimination 2.Is it conditional on legislative action? No. European rights of establishment in A49 FTEU is DE 3.Relative probihition? Free movement of workers, dutch national, UK denying her an entry permit to work at the Church of Scientology Defrenne: lower retirement age. This led to lower pension rights and that violated her right to equal treatment on grounds of gender under article 119. CJEU: A119 has horizontal direct effect Reyners: Dutch lawyer, applied to Bar of Belgium, free movement of services in A56. Is the legal profession of avocat was wholly exempt under the Art 51 TFEU ? NO Van Duyn: Scientology. Dutch national, denied entry permit to work at Church of Scientology. Free Movement of Workers – not implemented by UK. GOV believes Scientology to be harmful to public interest and mental health. Discouraged, but not illegal. Directive: only refusal based on personal conduct – not the case The European Court of Justice held that van Duyn could be denied entry if it was for reasons related to her personal conduct, as outlined in the Directive 64/22/EEC. TEEC article 48 was directly effective, even though the application of the provision was 'subject to judicial control'. Furthermore, the Directive was directly effective against the UK government. First, it would be incompatible with the binding effect of Directives to exclude the possibility of direct effect. Second, the practical efficacy of the Directive would be reduced unless individuals could invoke them before national courts. Third, because the ECJ has jurisdiction to give preliminary rulings under TFEU article 267 (then TEEC article 177) on 'acts of the institutions... of the Union' this implied all acts should be directly effective BUT ALSO: Article 48 of the EEC treaty and Article 3 ( 1 ) of Directive no 64/221 must be interpreted as meaning that a Member State, in imposing restrictions justified on grounds of public policy, is entitled to take into account as a matter of personal conduct of the individual concerned, the fact that the individual is associated with some body or organization the activities of which the member state considers socially harmful but which are not unlawful in that state, despite the fact that no restriction is placed upon nationals of the said Member State who wish to take similar employment with the same body or organization. Lenience towards new UK 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 •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. 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 concluded 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 IHG: absolute character of supremacy. GERM argues that uncertainty. Although Community regulations are not German national laws, but legal rules pertaining to the Community, they must respect the elementary, fundamental rights guaranteed by the German Constitution and the essential structural principles of national law. Mr Kadi, a Saudi resident with assets in Sweden, and Al Barakaat, a charity for Somali refugees, claimed that the freezing of their assets was unlawful. The seizures occurred without any court hearing, right of redress or allegation of wrongdoing. The UN Security Council had adopted resolutions under Chapter VII to freeze assets of people and groups associated with the Taliban and Osama bin Laden. The EU adopted regulations to give effect to which Sweden gave effect. The claimants were named in the resolution and the regulation. They claimed that the regulation should be annulled under TFEU Article 263 and was a breach of human rights. The Court of Justice held the regulation was invalid in EU law. The court had no jurisdiction to review the legality of Security Council Resolutions, but it could review EU regulations. The regulation was adopted to give effect to Member State obligations. Although under international law Security Council Resolutions prevail, under EU law the hierarchy of norms differs. It rejected that TFEU art 351 protected the Regulation from challenge. The Regulation was annulled in relation to Kadi, but effect maintained for a limited period. 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) 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 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 ITA const order: only SC or Parlm can repeal national legislation 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 ITA const order: only SC or Parlm can repeal national legislation Second prong: Ministero delle Finanze v INCOGE 90: NO,incompatibility does not render these rules non-existent. Only an obligation of non-application. National challenges to Supremacy •Human rights • •Competence limits 1. HR as a challenge to Supremacy Concepts used by CJEU 1. 1. •Human Rights •Human, civil, political, justice, equality, solidarity • •Fundamental Rights •EU Charter ~ human rights 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 • • • •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 Why did HR issues enter on the ECJ agenda? Direct effect + IHG + Solange 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 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 Solange I •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 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. 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 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 (Nold) 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 • • • 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? WWW.JUSTIN.LAW.MUNI.CZ