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FRE Tutorial Assignment week 2 ()
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Tutorial assignment Week 2. The answers contains only the information that is discussed in the tutorial.
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Tutorial 2: Scope of application of fundamental rightsSubjects:
o The concept of jurisdiction in Article 1 ECHR and the extraterritorial
application of the ECHR;
o The application of Article 1 ECHR when Member States’ acts interfering
with the human rights of individuals are based upon EU law;
o When does the charter apply/when are Member States bound by the
Charter (Article 51 Charter)?
o Material scope of the Charter and the ECHR (overview of the rights, the
scope of substantive provisions must be assessed on case by case basis).
Learning aims:
o To be able to sketch an overview of the rights protected by the ECHR and
the Charter, and point out the most important differences between these
documents;
o To be able to determine whether a specific situation can be brought under
the scope of a fundamental rights provision;
o To be able to explain when States are bound by the ECHR, and apply the
concept of jurisdiction in Article 1 ECHR to a case-solving question
concerning extraterritorial actions of a state;
o To be able to apply Article 1 ECHR when EU Member States are acting on
the basis of EU law.
o To be able to identify the situations in which Member States are bound by
the Charter, and apply its material scope to a case solving question;
Literature
o EFRF Chapter 1, nos. 17-18, Chapter 2, nos. 13-16, 23-28, 30-32, 34-37,
chapter 14, nos 17-33, chapter 20, nos. 4-13, 25.
o X. Groussot and E. Gill-Pedro, “Old and new human rights in Europe: The
scope of EU rights versus that of ECHR rights”, in: Brems, E., & Gerards, J.
H. (eds.), Shaping rights in the ECHR : The role of the European Court of
Human Rights in determining the scope of human rights. New York:
Cambridge University Press, 2013, until page 242, first paragraph
o M. P. Pedersen, “Territorial Jurisdiction in Article 1 of the European
Convention on Human Rights”, Nordic Journal of International Law 2004,
73 pp. 279–305
o Explanations relating to the Charter of Fundamental Rights (2007/C
303/02), OJ 14 December 2007, C 303/17, Explanation on Article 1 —
Human dignity and Explanation on Article 51 — Explanation on Article 51
— Field of application
Case law:
, o ECJ, Case 617/10 Aklagaren v Hans Akerberg-Fransson [2013] ECR I-0000
o ECtHR, Matthews v The United Kingdom, 18 February 1999, No. 24833/94
o ECtHR, Soering v The United Kingdom, 7 July 1989, No. 14038/88
o ECtHR, Al-Skeini and Others v. the United Kingdom, 7 July 2011, No.
55721/07
Question 1
Last week, in tutorial 1, we met Laura, the young women suspected of terrorist
activities who, upon her return to her Member State of nationality, found out that
her assets had been frozen as a result of an EU Regulation. Let us now suppose
that the freezing of her assets is not the result of a European Regulation, but
instead a consequence of the application of national law to her case: the Decree
on Financial Crime. One of the provisions of this decree stipulates that the funds
of persons suspected or convicted for terrorism or terrorism-related activities
are frozen. These people can only get access to the minimum amount of money
needed for subsistence, upon making a request to the authorities. This makes it
impossible for Laura to conduct her business, an internet-shop selling cosmetics.
She considers appealing to a national court, arguing that the national law is in
violation of her human rights.
While preparing her case, her lawyer finds out that there is also EU legislation
covering this area: a Directive which requires Member States to take appropriate
measures to ensure that persons suspected or convicted for serious crimes
cannot use their financial assets for the financing of criminal activities. It leaves
Member States significant discretion as to how they implement this obligation in
their national law. Member State Y has not adopted any implementing
legislation, as it already had relevant and sufficient legislation in place before the
Directive became applicable, the above-mentioned Decree on Financial Crime.
a. Can Laura appeal to the EU Charter of Fundamental Rights?
Concerning to this question it is first relevant to look at the Charter if its
applicable in the Member State. Relevant is here art. 51 of the Charter.
Laura can only appeal to the EU Charter of Fundamental Rights if Member
State Y has implemented Union Law according the case-law Akerberg
Fransson par. 27, 28.
In this case of Laura, Member State Y hasn’t implemented EU law, that
means that Member State Y is not bound to the Charter. Laura cannot
appeal to the EU Charter of Fundamental Rights.
For information
Art. 51 Charter applies to
, Institutions bodies
Member states when they have implemented
Relevant is the case Akerberg par. 28
b. Which provisions of the Charter would cover the rights she is appealing
to? Can you answer the same question as regards the European
Convention of Human Rights (ECHR)?
Art. 16 of the Charter: freedom to conduct a business> this is
about entrepreneurs (=ondernemers).
Art. 17 of the Charter Right to property> Laura’s assets has been
frozen that’s why this art. is relevant.
Art. 1 of the first protocol ECHR “protection of property”
47 /48 Charter> Laura was surprised that here assets were being
frozen, she has the right to a fair trial> art. 6 ECHR
Art. 15> is not relevant in this case.
For information:
Important is Par. 25 of ECHR: references for business non-individuals to
invoke human rights
We have seen that Member State Y has a dualist system as regards the effect of
international law in the domestic law. This means that Laura cannot appeal
directly to the ECHR before a national court. However, when the judgment in last
instance is unfavorable to her, she wants to appeal to the European Court of
Human Rights (ECtHR). Her legal advisor has serious doubts regarding Laura’s
chances of success in a procedure before the ECHR. In fact, he thinks that
Member State Y cannot be held responsible for any breach of the ECHR, as EU
law simply obliges it to take measures against persons suspected or convicted of
serious crimes. By freezing Laura’s funds, Member State Y was merely carrying
out European Union legal obligations. He advises Laura instead to bring a case
against the EU institutions before the ECtHR.
c. Is the legal advisor right? In your answer, pay attention to (1) his view on
the responsibility of Member State Y under the ECHR, and (2) his advice
to bring a case against the EU institutions before the ECHR.
The legal advisor is wrong.
Member state Y has the responsibility for the breach of the ECHR. The problem is
also here that Member state is implementing Union law, the MS has a dualist
system, , this does not mean that the member state is not accountable for breaches
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