Part II Fundamental Rights in the European Union
Week 4 Lecture 5 Development Fundamental Rights in EU
law
Early case law
The treaties before the EU did not contain any fundamental rights. There was a
functionalist approach: economic integration, peace, etc. Because of the expanding
community policies and the doctrine of supremacy the concerns about human rights grew.
Supremacy/ primacy of EU-law = EU-law stands above national law when the two are in
conflict with each other.
In the Solange I judgement (1976) the German national court did not accept the primacy
of EU-law, only when it is in accordance with national law. However, the CJEU maintained
the system of EU-law: ‘binding rules for all member states (MS) must be preserved at all
costs. If a state can derogate from the EU-law in its own legislation if would blow up the
whole system’.
In Handelsgesellschaft (1970) the Court said that even without framework of human
rights law, the community law also contains human rights and the CJEU will protect these
and ensure that the community principles interpretation is in lone with the ECHR and even
national fundamental rights law.
Handelsgesellschaft (1970)
Facts: MS had to take decisions on export-companies based on EU-law. The companies had
to get a license for exporting goods and discus a deposit with the state about the amount of
goods. If that amount was not exported at the time the license ended, the companies would
not get the deposit back completely, except in cases of ‘force majeure’.
German court: this rule is not in accordance with the German Constitution and what about
the economic liberty?
CJEU: validity of EU-law should not be tested against national law, because it would
undermine uniformity and efficacy of EU law. Thus, the argument that the EU-law is not
valid, because it violated human right as protected in national law, cannot have any effect.
- However, analogous rules inherent in EU-law must be respected: respect for FR
forms an integral part of general principles of law protected by the CJEU.
- Protection of FR must be ensured within framework of the structure and objectives
of the Community.
Conclusion: no violation, despite the fact that the CJEU applies the same principles as the
German Court.
In Solange II (1986) the German court said as long as the EU-law ensured effective
protection of FR, similar to the German Constitution, it would no longer exercise its
jurisdiction to test EU-law against the German Constitution. In this case, what is the problem
of the CJEU with national FR? Well, the public interest is involved when balancing the
competing interest.
- Public interest = individual and national public interest
, - Competing interest = individual and community interest
o Community interest: if all the MS would have the same rules the whole EU
would benefit.
Further developments EU-law
Later there came an explicit recognition of individual rights in secondary legislation. EG:
consumer protection, family reunification, asylum law, privacy, procedural, etc.
Primary legislation = EU-treaties. Treaty on European Union and Treaty on functioning EU.
Secondary legislation = law derived from principles and purposes of the treaties
(richtlijnen, verordeningen, besluiten, aanbevelingen en adviezen). Charter of EU.
FR are laid down in this kind of legislation!
Expansion of the EU law no longer necessarily had increased the risk of FR violations. The
EU law had supremacy and direct effect.
- Supremacy = secure FR protection laid down in secondary legislation
- Direct effect = allows individuals to invoke individual rights before national courts.
Charter of EU promulgated in 2000, but due to acceptance problems it only became
binding in 2009.
- Art. 6 TEU: requires the EU to respect the FR (in the Charter).
- Art. 51 Charter (scope of application): provisions in Charter are addressed to
institutions of the EU and the MS, but only when they have implemented the EU-law.
Directives (=richtlijnen) provide obligations for MS to implement rights in national
law, not merely refer to them. After implementation, individuals van invoke Charter
rights before national courts.
Akerberg-Frransson (2013)
Directives, art. 51, is the Charter applicable in this case?
Facts: Akerberg Fransson (AF) was prosecuted because of serious tax offences, because the
very large amounts and the systematically on large scale also formed part of criminal
activity (Swedish law). He was ordered to pay a lot of it back, with interest. Proceedings
were not brought before the administrative courts and the decision was based on the same
acts providing false information as those in criminal proceedings (§12-13)
RV: must the charges be dismissed on the ground that he has already been punished for the
same acts (P7 art. 4 ECHR & art. 50 Charter)? (§14)
Jurisdiction (§16-31)
Multiple MS pointed that the CJEU lacked jurisdiction and therefore the questions asked
would not be admissible. The CJEU would have jurisdiction if the tax penalties and criminal
proceedings arose from implementation of EU-law, but in the case, the measures were
based on national law and according to art. 51 the measures then fell out of the scope of art.
50 (§16).
CJEU has no power and jurisdiction to examine the compatibility between Charter and
national legislation outside the scope of EU-law, but if the national law does, the CJEU must
provide the national court who asked the preliminary questions with an interpretation
whether the legislation is compatible with FR (§19 jo. 22).
