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Elaborations of the Fundamental Rights in Europe working group assignments
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Elaborations of the working group assignments for the course Fundamental Rights in Europe.
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Werkgroepopdrachten Fundamental Rights in EuropeWeek 1: What are Fundamental Rights in Europe?
Homework Assignment: Migration, Border Control and Human Rights
In October 2016, a Syrian family arrived on the Greek Island of Milos. They were transferred
to a reception centre in Leros, where they indicated that they wanted to apply for asylum.
Nonetheless, 6 days later they were deported to Türkiye in a joint return operation carried
out by Greece and Frontex, the border agency of the European Union. The applicants
brought an action for damages on the basis of Article 268 TFEU before the Court of Justice of
the EU. They claimed that Frontex is liable for the damages incurred by them, because the
EU Agency failed to act in conformity with its human rights obligations before, during and
after the joint return operation. For the legal basis of Frontex’ obligations, they referred to
the Charter of Fundamental Rights of the EU and various provisions in secondary legislation,
such as the Frontex Regulation, the Asylum Procedures Directive and the Return Directive.
Under human rights law, so-called pushbacks — sending people who have applied for
asylum at a national border back to another country without due consideration of their
individual circumstances — is illegal. However, in this case, the Court of Justice of the EU
ruled that Frontex could not be held liable for damages related to the family's deportation. It
argued that it was Greece, not Frontex, who had the power to issue return decisions or
decide on asylum applications. As Frontex had no powers in this respect, they could not be
held liable for damages resulting from a breach of the Charter or secondary law, the Court
ruled. You can watch the current director of Frontex commenting on the case here.
A. Can the family bring a claim against the EU Agency (Frontex) before the European
Court of Human Rights for violation of the ECHR? In your answer, pay attention to the
legal orders that the ECtHR and the Court of Justice of the EU form part of.
- When someone applies for asylum, they have the right to be processed. A
pushback is the not processing of the application for asylum. The court of Justice
is part of the EU. ECHR is not a section of the EU laws. Frontex is an EU agency, so
they have to take it to the Court of Justice. The EU and the council of Europe are
separate things with a separate court. Article 1 of the ECHR says there is only
jurisdiction over the members. Since the EU is not a member of the ECHR. The
ECHR can’t rule over the EU bodies. Frontex is an agency of the EU, and it is not
part of the council of Europe. The EU has its own fundamental rights charter. So,
the answer is no.
, EU Council of Europe
Bestaat uit verschillende instellingen. European convention of Human rights
1. Primary law: (ECHR): a document with all of the rights.
a. Treaty on the European Union Some important articles:
(TEU); 1. Article 1 ECHR: there is only
b. Treaty on the functioning of the jurisdiction over the members;
European Union (TFEU); 2. Article 34 ECHR: allows individuals
c. The EU charter on fundamental who claim to be a victim of a
rights (CFR): more difficult for an violation of a convention right they
individual to claim their rights in can go to the ECTHR.
the court of Justice. The
provision in the EU charter also
apply to the bodies and agencies
of the EU not only member
states (article 51 of the EU
charter).
2. Secondary law:
a. Decisions;
b. Directives (richtlijnen);
c. Regulations (verordeningen).
CJEU: Court of Justice of the EU. This court European Court of Human Rights (ECTHR).
is situated in Luxembourg. This court is situated in Strasbourg.
You can start two actions as an individual The infringement of the right has to come
for: 1) damages or for 2) annulment (article from a public institution to file a case at the
263 and 268 Treaty of the functioning of the court.
EU):
A. Action for annulment refers to the
situation that an EU body acts in a
way that infringes on someone’s
fundamental rights.
B. Action for
damages/schadevergoeding.
Let’s assume that the family wants to bring proceedings against Greece for the unlawful
expulsion before a Greek domestic court.
B. If they want to rely on the ECHR in the procedure before the domestic court, is it
relevant whether Greece has a dualist or a monist system? And is that relevant if they
appeal to EU law, for example a Directive?
- Yes, the distinction between dualist and monist legal systems is relevant when
individuals seek to rely on international treaties, such as the European Convention
on Human Rights (ECHR), in domestic court proceedings.
- In a monist system: international law and domestic law are considered to be part
of the same legal system. International laws can be directly applicable. The
, Netherlands has a monist system. The Dutch court or an individual can use the
provision directly.
- In a dualist system: international law and domestic law are separate legal systems.
The state would first have to incorporate the provision into the national law and
then it would be part of national law. The court or an individual can’t use the
provision directly.
- What if a country with a dualist system doesn’t implement international laws?
o ECHR: in the end states are sovereign to say which laws are applicable. If
the state does not implement the law, you can go to the Court of Human
Rights.
- Is the distinction still relevant if it’s about EU law?
o No, the distinction is then not relevant, because EU law is directly
applicable. EU law has direct effect. HR Van Gend & Loos: it was ruled that
the community (the EU) constitutes a new order of EU law. So, the EU is
for every member a new order. EU law is binding on states and individuals.
It gave rights and obligations to individuals. Under EU law it is always a
monist system, individuals can direct appeal to EU law. Even if a state has
implemented the law. As long if a provision is: 1) sufficiently clear and 2)
unconditional. It can be invoked by an individual in the court. Otherwise,
the court can’t use the provisions.
Let’s assume that the family appeals to EU law. In particular, they argue that the Greek
authorities have not followed the appropriate procedures before removing them to Türkiye.
Indeed, the authorities failed to take a proper return decision in respect of the family. This is
contrary to the Return Directive, in particular Article 12, which reads as follows:
Article 12
Form
Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued
in writing and give reasons in fact and in law as well as information about available legal
remedies.
C. Can the lawyer appeal to Article 12 of the Return Directive before the Greek domestic
court?
- Yes, the lawyer representing the family can appeal to Article 12 of the Return
Directive before the Greek domestic court. Because it is EU law it can be directly
applicable. HR Van Gend & Loos says that it needs to be sufficiently clear and
unconditional for it to have direct effect. It’s unconditional because the words
‘shall be used’ are used not ‘can be used’. It’s also sufficiently clear because it
describes what needs to be said in the article. There has been said that the return
decision needs to be motivated and also give information about available legal
remedies. A directive has to be implemented by the state, if it isn’t implemented
you can file a complaint at the national court for infringing of article 12.
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