Tutorial 3: Limitations to fundamental rights
Subjects:
o Limitations to the exercise of the rights protected by the ECHR (distinction
(=onderscheid) 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 (=bepalen) 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 EFRF Chapter 2, nos. 38-49, chapter 14, nos. 38-51, chapter 20, nos. 14-18
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
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
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).
Case law:
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.
,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 (=afhouden/afschrikken)
others from initiating or maintaining (=behouden/handhaven) 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 (=overtreding) 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 (haar recht is niet in het
geding) because she could have avoided contact with Laura.
a. Can Bella appeal to the Charter? What do you think of the argument made by the
legal advisors for Member State Y?
First is the question for the scope of application art. 51: “does it fall within the
scope”
Second, the question of personal scope> art. 7> is everyone
Thirdly, the question of material scope
ECHR
Two stage rights 8-11 ECHR.
o This is a two stage rights because they are made by 2 paragraphs.
o Art. 8 ECHR
o Par. 1: contains personal Scope: everyone
o Par. 2: limitations: there is no interference except in such interference
o Je moet hier een afweging maken tussen het individu en de EU en bij
absolute rights hoef je de afweging niet te maken aangezien er geen
beperkingen aan verbonden zijn, maar je moet wel de scope doen.
, One stage rights are absolute rights
o One stage rights are absolute
o There are no limitations
CHARTER
One stage rights:
Only chapter one are absolute rights
There is a general Limitationclause in art. 52Charter
Bella wants to appeal to art. 7 “respect for private and family life” and art. 8 “protection of
personal data” of the Charter.
Member state has implemented the directive by means of a Presidental Decree regarding
to art. 51 Charter, that means that they have implemented Union law.
First, you will need to look at art. 51 jo. 52 Charter. According to art. 51 par. 1 Charter, only
institutions and bodies of the EU can regard to the Charter and Member States when they
are implementing EU Law. But art. 52 Charter provides the scope of guaranteed rights,
especially art. 52 par. 3 Charter is important because this paragraph implies limitations.
Art. 52 par 3 Charter contains that the rights of the Charter in so far correspond to rights
guaranteed by the Convention for the Protection of Human Rights and Fundamental
Freedoms, the meaning and scope of those rights shall be the same as laid down in the
Convention.
Regarding to the explanations relating to the Charter does Art. 7 Charter corresponds to
art 8 ECHR.
Art. 8 Charter is closely connected to art. 7 Charter according to case-law Markus par. 47
and 52
This means that because of a limitation that has been laid down in art. 52 par 3 Charter
and those rights where Bella is appealing to corresponds to the ECHR. Bella can appeal to
art. 7/8 of the Charter.
Regarding to the argument of the legal advisors of Member State Y;
Paragraph 59 of Volkert and Marcus v Land Hessen states that the term private life must not
be interpreted restrictively. This means that the argument of the legal advisor is wrong. That
Bella could have avoided contact with a possible terrorist does not mean that she loses her
right of privacy. He is arguing that it falls outside the material scope that Bella could have
avoided the contact with Laura. This is not convincing because normally/generally provisions
of scope are very broad and normally you would place provisions in a scope. It’s clearly an
infringement of her privacy because in this case it falls within the personal scope and the
scope of application, it is very explicit. The material scope, the behaviour, is in this case the
placement of her picture and name online. That means that all 3 criteria succeed, the legal
advisor is wrong.
Extra
