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Fundamental rights in Europe: Tutorial 3Tutorial 3: Limitations to fundamental rights
Subjects:
o Limitations to the exercise of the rights protected by the ECHR (distinction arts.
8-11 ECHR, implied limitations (art. 6) and absolute rights);
o Limitations to the rights protected by the Charter (art. 52(1) Charter).
Learning aims:
o Be able to point out the relationship between the scope of a right and limitations
of a right
o Determine the scope of a right, and whether its exercise has been limited in a
concrete case;
o Be able to differentiate between rights the exercise of which may be limited on
the one hand, and absolute rights on the other hand;
o Be able to explain how the exercise of the rights protected in articles 8-11 ECHR
may be lawfully limited, and apply the limitation clauses in paragraph 2 of these
provisions to a case-solving question;
o Be able to explain the way in which the Charter permits limits to the exercise of
the rights protected by it, and relate this to the ECHR.
Literature
o G. Van der Schyff, G. (2014) ‘Interpreting the protection guaranteed by two-stage
rights in the European Convention on Human Rights’, in Brems, E. and Gerards, J.
(eds.) Shaping Rights in the ECHR: The Role of the European Court of Human Rights
in Determining the Scope of Human Rights. Cambridge: Cambridge University
Press, only until p. 70, available here.
> you should know the relationship between the scope of a right and its
limitation, and the way in which the ECHR provides for limitations on the rights
protected therein.
o K. Lenaerts, “Exploring the Limits of the EU Charter of Fundamental Rights”,
European Constitutional Law Review 8(3), pp. 375-403, only pages 388-394 (on
limitations), available here.
> you should know how the charter provides for limitations on the rights
protected therein.
o Explanations relating to the Charter of Fundamental Rights (2007/C 303/02), OJ
14 December 2007, C 303/17, Explanation on Article 52 — Scope and
interpretation of rights and principles (see lecture 2) (see reader).
Case law (see reader):
o ECtHR, Soering v The United Kingdom, 7 July 1989, No. 14038/88 (see lecture 3)
o ECtHR, Sunday Times v The United Kingdom, 26 April 1979, No. 6538/74
o ECtHR, Gäfgen v Germany, 1 June 2010, No. 22978/05
o EJC, Case 402 & 415/05P Kadi and Al Barakaat International Foundation v Council
& Commission [2008] ECR I-6351 (see lecture 2)
o ECJ, Case 92/09 & 93/09 Volker und Markus Schecke Gbr and Hartmut Eifert v
Land Hessen [2010] ECR I-11063.
1
, Fundamental rights in Europe: Tutorial 3
Question 1:
In Tutorial 1 and 2, we met Laura, who was suspected of having prepared a terrorist
attack. We learned that Laura, because of her alleged links with terrorist organisations,
found herself listed by the United Nations Security Council on the “Consolidated United
Nations Security Council Sanctions List”. Now let us assume that, while living in Member
State Y – until she left for Kenya – she became very good friends with a woman named
Bella. Eventually, Laura even moved in with Bella, as her funds had been frozen and she
had trouble paying the rent for her apartment. At that point in time, Bella and Laura are
confronted with a new measure.
A recent Directive 1234/2017 on the Combat of Terrorism empowers Member States to
adopt all measures that serve to isolate suspected terrorists so as to preclude that they
can successfully provoke others to commit terrorist acts. The president of Member State
Y reasons that the best way to isolate a person is deterring others from initiating or
maintaining such contact. He has legislative powers and decides to implement the
Directive by means of a Presidential Decree:
Sole Article:
1) It is prohibited to have contact with persons who are listed on the “Consolidated
United Nations Security Council Sanctions List”.
2) Names and pictures of those persons who act in contravention to the first Article
will be published on the Internet.
As soon as the Decree has been made public, name and picture of Bella are published on
a website named Terrorist Friends by the police. Bella starts a lawsuit in order to have
her name and picture deleted. She states this publicity violates her rights under Articles
7 and 8 of the Charter of Fundamental Rights of the EU. The legal advisors for Member
State Y argue that that is not true. Her privacy is not at stake because she could have
avoided contact with Laura.
No limitations absolute rights/ one stage rights
Limitations two stage rights/ limited rights
Charter
1. Scope of application, art. 51
2. Material scope (interference)
3. Personal scope
Limitation: art. 52 par. 3
- Provided by law
- Respect of essence
- Proportionality
- Necessity
- Objectives of the Union
2
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