Seminar V – Fundamental rights

                                      8 December, 12.00-13.40


Fundamental rights have first been protected at the national level on the basis of unwritten
principles developed since 1960s by the CJEU in its jurisprudence. Only in 2009, has the EU
benefited of a written catalogue, legally binding, of fundamental rights. Given that the Charter is
a young instrument it includes new developments (so-called second generation of human rights) such
as right to consumer protection (Art 38) or the right to conduct a business (Art 16).

Since the entry into force of the Treaty of Lisbon the Charter of Fundamental Rights of the
European Union has become a legally binding instrument. Importantly, the European Union is not a
party to the ECHR – it should become one in line with Article 6(2) TEU. At the same time the EU
Member States are bound to observe the European Convention on Human Rights (ECHR) and the
fundamental rights guaranteed in national constitutions The resulting interaction of the  three
legal systems is governed by relevant provisions of the Treaty of the European Union (Article 6)
and the Charter itself (Title VII), however, the effectiveness of such arrangement from the point
of view of fundamental/human rights protection standard depends to a large degree on the ability
and willingness of judges to engage in fundamental rights discussions and on the decision makers’
due diligence in assessing impact and progress from fundamental rights perspective.

The accession of the European Union to the ECHR would be an important contribution to the
consolidation of a coherent and harmonised system of human rights protection across the region.
Unfortunately, it will be postponed following the judgement of the Court of Justice of the European
Union outlining the criteria under which the accession is feasible (see: Opinion 2/13 of the Court
of Justice of the European Union of 18 December 2014 on the EU accession to the ECHR). This means
that from the judicial perspective the search for the adequate fundamental/human rights protection
standard will continue in line with the previously established practices until the future accession
to the ECHR will have been completed.

At the same time, the European decision makers have been developing the wide array of instruments
aiming at establishing and complying with fundamental/human rights standards within the European
continent. In particular, from the EU perspective, fundamental and human rights have become so
important that both internally and externally they grew in concrete policy fields. Over the years,
some areas of the two policy fields have turned out exemplary (see for instance the European data
protection standard), in others the EU has proven its potential as an international standard setter
(see: the contribution to the setting of the review standard for the terrorist listing at the UN
level following the Kadi judgment of the CJEU).

The different scope of application of the EU Charter for EU institutions, agencies, bodies compared
to the Member States’ actions.

The EU Charter applies to  the EU institutions, bodies, offices and agencies, even when they are
acting outside the EU legal framework – see Joined Cases C-8/15 to C-10/15 P Ledra Dvertising v
European Commision and ECB

EU Charter overcoming the horizontal application limit of Directives. Charter provisions that are
both ’unconditional and mandatory in nature’ apply not only to the action of public authorities,
but also in disputes between private parties. – Egenberger, para 46


Mandatory reading:

The first 4 cases were given by Prof Krepelka, however note that the first two are of merely
historical relevance

·         C-29/69 Stauder,
http://curia.europa.eu/juris/showPdf.jsf?text=&docid=87844&pageIndex=0&doclang=en&mode=lst&dir=&occ
=first&part=1&cid=16938518

·         C-44/79 Hauer v Land Rheinland-Pfalz

·         European Court of Human Rights, Grand Chamber judgment Bosporus, Application
no. 45036/98, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-69564%22]}

·         Opinion of the CJEU on EU accession to ECHR,
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62013CV0002 .

·         C-617/10 Åkerberg Fransson, ECLI:EU:C:2013:105 (extra case to Prof Krepelka’s list)

Chapter on EU Fundamental Rights by Robert Schutze

Optional

Listen to CJEU President Koen Lenaerts keynote speech with the occasion of the 10 years celebration
for the entry into force of the EU Charter https://www.youtube.com/watch?v=THotpRyHbn0