Fundamental Rights in the EU
Dr. Madalina Moraru, Senior Researcher, Faculty of Law, Masaryk University and Centre for Judicial
Cooperation, European University Institute, Italy, email: madalina_bianca.moraru@law.muni.cz
EU law seminar V 8.12.2020
EU Fundamental Rights
• What place are HRs given in the EU?
• What are the similarities and differences between the EU and national
constitutions as regards codification and role of HRs?
• What is the relation between the various legal sources on human rights in
the EU? Name a few of these different HRs legal sources
Phases of development of EU Fundamental Rights
• FRs were largely absent from the original Treaties.
• They were embedded in the European Political Community Treaty which did not see the daylight due to
the France’s refusal to ratify it. This Treaty incorporated the rights and freedoms in the ECHR.
• This FRs gap became soon a problem for national courts. WHY?
EU secondary law directly impact on individual rights and in the absence of HRs protection at EU level, they
could see their constitutional rights indirectly limited
Phase 1: Stork case – individuals complained against the Community institutions’activities on the basis of
domestic constitutional standards - Is this possible?
Phase II of Development of Fundamental
Rights: judge-made general principles of
EU law
Stauder C-29/69
Legal issue: Mr Stauder challenged a Commission decision which made the distribution of butter at reduced
prices conditional upon identification of the recipient. Mr Stauder argued that the identification by name
breached his right to dignity as protected by the German Constitution. The Constitutional Court referred a
question to the ECJ to assess the validity of the Commission decision with ‘general principles of
Community law in force.’
ECJ reply:
• It looked at various language versions of the Commission decision to identify whether the identification
by name was required; how is this type of interpretation called?
• No such requirement, ‘interpreted in this way the Commission decision at issue contains nothing
capable of prejudicing the fundamental human rights enshrined in the general principles of Community law
and protected by the Court’.
Stauder C-29/69
Conclusions of the ECJ in Stauder on FRs:
• FRs = unwritten general principle applicable to all acts of the
Community institutions;
• Legal force of EU FRs – a Community act adopted in breach of FRs
would be declared void;
• Conform interpretation – if more than one interpretation of a
Community act is possible the one that does not infringe FRs would
have to be adopted;
• ECJ has played a gap filling function for the protection of HRs at EU
level.
What are the sources of the EU FRs?
• constitutional traditions common to the Member States (Internationale
Handelsgesellschaft, C-11/70)
• international treaties for the protection of HRs to which the Member States
are signatories, ECHR is the most significant (Nold, C-4/73)
Which institution has jurisdiction to assess the compatibility of EU acts with
EU FRs?
What is the legal force of EU FRS?
1. Parameter for legality review of EU secondary acts (administrative and
legislative)
All EU secondary acts have to be in conformity with EU FRs, if not they are
not legally valid. Such acts would be null even if this would mean the EU is
in breach with international law – Kadi I ECJ case.
2. Parameter for legality review of Member States’ actions when
implementing EU law or acting within the scope of EU law.
Phase III Development of EU Fundamental Rights
codification of general principles in the EU Charter
EU Charter of Fundamental Rights is the Bill of Rights of the EU.
In force since 1st of Dec 2009
The Charter encompasses a broad range of civil, political, social and economic
rights, together with rights peculiar to EU citizens, such as:
• free movement within the EU,
• the right to vote at elections of the European Parliament and
• the right to equal consular and diplomatic protection in third countries for
unrepresented EU citizens
What is the legal status of the EU Charter?
Based on Article 6(1) TEU, the Charter has “the same status of the Treaties”;
thus, the Charter ranks at the top of EU law sources, as EU primary law.
What is the relationship between the EU Charter and the general principles
of EU law?
What is the legal status of the EU Charter?
What is the relationship between the EU Charter and the general principles
of EU law?
The general principles of EU law are the sources through which the CJEU
secured the protection of fundamental rights in the Union legal order, before
the Charter.
Article 6(3) TEU confirmed the relevance of the general principles, as a
complementary source of protection to the Charter.
There is a significant overlap between the Charter and the general principles
of EU law, however there is no defined hierarchy, nor has the CJEU clarified
their relationship
What is the scope of application of the EU Charter ?
Art. 51. 1. The provisions of this Charter are addressed to the institutions,
bodies, offices and agencies of the Union with due regard for the principle of
subsidiarity and to the Member States only when they are implementing
Union law. They shall therefore respect the rights, observe the principles and
promote the application thereof in accordance with their respective powers
and respecting the limits of the powers of the Union as conferred on it in the
Treaties.
2. The Charter does not extend the field of application of Union law beyond
the powers of the Union or establish any new power or task for the Union, or
modify powers and tasks as defined in the Treaties.
What is the scope of application of the EU Charter ?
1. the Charter applies to two different sets of acts: EU acts and national acts.
Is there a difference in the scope of application between the EU and MSs?
Ledra Advertising – Commission signed a MoU under the ESM – mechanism
adopted outside the EU framework.
2. the Charter cannot be relied on to extend the material competences that the
Member States decided to confer on the Union through the Treaties (principle
of neutrality of the Charter);
3. the Charter encompasses both “rights” and “principles”, with different
effects;
4. individuals are not mentioned amongst the passive addressees of the
Charter.
What is the meaning of the notion “national act
implementing EU law”
CJEU (Grand Chamber) Åkeberg Fransson
Mr Fransson, Swedish citizen was accused of charges of serious tax offences, including
providing false information in relation to VAT. He was subject to both administrative tax
penalties and criminal proceedings. He claimed that Swedish law infringed Art. 50 of the EU
Charter on the ne bis in idem principle.
Member States argued that the Charter does not apply, since the Swedish legislation at issue
was adopted before the adoption of the Directive on the common system of VAT, plus the
collection of income tax was not harmonised at EU level.
Do tax penalties and criminal proceedings constitute ‘implementation’ of EU law?
CJEU: MSs have an obligation to take all legislative and administrative measure to ensure
collection of VAT due on their territory.
Art 325 TFEU obliges MSs to counter illegal activities affecting the financial interests of the
EU. Shortcomings in the collection of tax would also determine a reduction in the revenues
of the EU.
What is the meaning of the notion “national act
implementing EU law”
CJEU (Grand Chamber) Åkeberg Fransson:
21. Since the fundamental rights guaranteed by the Charter must therefore be complied with
where national legislation falls within the scope of European Union law, situations cannot
exist which are covered in that way by European Union law without those fundamental rights
being applicable. The applicability of European Union law entails applicability of the
fundamental rights guaranteed by the Charter. There is no general human rights jurisdiction
of the ECJ
22. Where, on the other hand, a legal situation does not come within the scope of European
Union law, the Court does not have jurisdiction to rule on it and any provisions of the Charter
relied upon cannot, of themselves, form the basis for such jurisdiction.
What is the meaning of the notion “national act
implementing EU law”
CJEU (Grand Chamber) Åkeberg Fransson
This means that in order to trigger the application of EU fundamental rights, it is not
sufficient to claim that the national measure involved infringes one or more of them. There
must be a rule of EU primary or secondary law, other than the fundamental right allegedly
violated, that is applicable to the main dispute. If such a different rule exists, the case falls
within the scope of EU fundamental rights and the national measure in question can be
checked against them.
National procedural provisions that allow for the legal
protection, before domestic courts, of
the rights conferred on individuals by Union law
Article 19(1), second sentence, TEU, states that “Member States shall provide
remedies sufficient to ensure the effective legal protection in the fields covered
by Union law”.
Accordingly, national procedural provisions that give effect to the EU primary
law obligation laid down by Article 19(1), second sentence, TEU, fall within the
scope of Union law, hence, of the Charter, regardless of whether those provisions
were adopted with the specific purpose to comply with that EU law obligation
When does a national act «implement EU law»?
Consider these two cases. They both concern national rules that foreclose access to legal aid
by legal persons. However, in one case only the Charter is applicable and the national rules
concerned can be checked against Article 47(3) of the Charter on the right to legal aid.
ALFA Case: Alfa, a German company working in the natural gas sector, wants to bring an
action to establish Germany’s liability under EU law. Following to Germany’s failure to
transpose within the fixed deadline two EU Directives concerning the marketing of natural
gas, Alfa underwent major economic losses. Lacking any income and assets, Alfa cannot pay
a lawyer and therefore asks to be admitted to legal aid. Nevertheless, according to the
German rules, only natural persons can be admitted to legal aid. Alfa challenges these rules
before the domestic court.
BETA Case: Beta, a Portuguese commercial company working in the trading of agricultural
products, wants to bring a legal claim against Omega, another commercial company
established in Portugal, in order to recover a credit for a service provided in Portugal.
Nevertheless, Beta lacks any income and assets and cannot pay a lawyer. It asks to be
admitted to legal aid, but the request is rejected because, according to the Portuguese rules,
only natural persons can be admitted to legal aid. Beta challenges these rules before the
domestic court.
When does a national act «implement EU law»?
The Charter is applicable to the ALFA case, but not to the BETA case. Why?
The legal action that Alfa wants to bring against Germany aims at enforcing a right granted by EU law:
the right to have Member States repairing the damages caused by violations of their EU law obligations
(such as the obligation to transpose a EU Directive within the fixed deadline). Thus, there is something
more than the “mere” claim that a provision of the EU Charter is violated.
By contrast, there is no EU law rule other than the provision of the Charter allegedly violated that
applies in the BETA case. All elements of the case are confined within the territory of a single Member
State (thus, the Treaty provisions on the free movement of services do not apply), the legal action that
BETA wants to bring does not concern a situation governed by EU law, and there is no EU legislation
concerning access to legal aid before the Member States’ courts.
The ALFA and BETA cases are inspired to two real cases decided by the CJEU, respectively Case C-
279/09 DEB and Case C-258/13 Sociedade Agrícola.
What is the relationship between the Charter and EU
secondary law?
• All sub-primary provisions of EU law must be interpreted in
conformity with the Charter.
• What happens if conform interpretation is not possible?
Article 267 TFEU or Article 263 TFEU.
CJEU judgments declaring invalid provisions of EU
legislation due to
being in conflict with the Charter:
Joined cases C-92/09 and 93/09, Volker und Markus Schecke
- Case C-236/09, Test-Achats ASBL
- Case C-293/12, Digital Rights Ireland
CJEU judgments assessing the invalidity of EU secondary legislation provisions
at the request of national courts:
- Case C-601/15, J.N. – no violation of the right to liberty by asylum detention
- Case C-18/16, K
The horizontal direct effect of the EU Charter –
Directive
Scope of the Charter is triggered via Directive, can the Charter still be
invoked against an individual?
CJEU answered affirmatively at least in some cases, when the Directive
details rights also contained in the Charter, then the Charter can apply in full,
even if the Directive cannot be invoked against a private party, see Arts. 21
and 31(2) of the Charter
What are the legal effects of the EU Charter on national acts implementing
EU law?
What is the relationship between the Charter and the
ECHR?
The ECHR has a twofold relevance under EU law:
1. as a source of inspiration of the general principles of EU law together
with the national Constitutions of Member States (see Article 6(2) TEU);
1. as a parameter for the interpretation of the Charter, which shall not offer
lesser protection than the ECHR, insofar as corresponding rights are
concerned (Article 53(2) Charter).
ECHR and EU law
Member States’ responsibility before the ECHR:
1. In principle, they cannot avoid responsibility by transferring their
sovereign powers to an international organisation
2. The challenged act arises out of the discretion of the MS under EU law –
ECHR does not concern EU law
3. MSs have no discretion in the implementation of EU law – e.g.
Regulations – national act implementing EU law breaches ECHR – would
MSs bear responsibility for these acts?
What is the doctrine of equivalent protection – Bosphorus?
What is the relationship between the Charter and the ECHR?
National FRs before national
courts
National FRs and Charter
before national courts (267
TFEU)
ECHR raised before ECHR
ECHR raised in front of the
ECtHR on national discretion
+EU law if EU courts have had
no chance of adjudicating or if
protection in EU law
manifestly deficient
How fundamental rights might
be raised
Charter raised in front of GC
or CJEU
ECHR raised in front of ECtHR
if EU courts have no change of
adjudicating on validity of EU
law, or protection in EU law is
manifestly deficient
National law only (no EU law)
National law with an EU
element
EU law