European Fundamental Rights Law – Complete Summary
Week 1
Lecture 1 – The European system(s) of fundamental rights protection
1. What are Fundamental Rights?
Dominant narrative: Fundamental Rights are a limited category of rights of especially important
interests of individuals, meaning that they enjoy better protection against the legislature than ‘normal’
legislation. They are furthermore apolitical in the sense that they cannot be changed by a majority in
parliament and are (usually) enshrined in the constitution. They moreover impose negative obligations
on the state in that they prohibit the state from interfering in individuals’ lives and they therefore
operate in a vertical manner, meaning between the individual and the state. Lastly, they have a special
normative force, as they can only be outweighed under exceptional circumstances.
Gardbaum: Constitutional Rights are important prima facie legal claims against (mostly)
government infringement that can nonetheless be limited or overridden by certain
conflicting public policy objectives.
Does this still hold today? Fundamental Rights today cope with a number of challenges:
o Rights inflation:
Möller: Rights inflation refers to the increasing protection of relatively trivial interests,
such as the Court reading into the right to private life (Article 8 ECHR) a right not to be
affected by noise or other pollution. However, there is an important conceptual
distinction between an interference with and a violation of a right: an interference will
only amount to a violation if it cannot be justified.
Glendon: The language of ‘rights’ has so invaded the public scene that creative political
discussion has become almost impossible.
Gerards: Fundamental Rights, like a prism, are transparent and clearly defined ‘objects’
on the face of it. As soon as light falls on these rights, however, they appear to cover a
whole array of interests and values. In practice, therefore, the Fundamental Rights
prism continuously discloses new hues of colour, as new individual interests are
constantly recognised as elements of Fundamental Rights, which has the disadvantage
of being prone to making mistakes. As an alternative, the starting point metaphor
should be the prism’s colour spectrum in which the colours are clearly defined and
delineated from each other, i.e. the Court should be more precise in defining the scope
of Fundamental Rights and establish criteria for the definition thereof.
o Positive Obligations:
Möller: The existence of positive obligations is well established in the ECtHR’s case law,
but the legally difficult question is whether the state has done enough to comply with
its obligations. Furthermore, there is a trend of acknowledging socio-economic rights,
which impose positive duties on the state and thus conflict with the dominant narrative
according to which rights are concerned only with negative obligations.
Gardbaum: Negative constitutional rights are rights not to have certain things done to
you, typically by the government, whereas positive constitutional rights are rights to
certain states of affairs and impose affirmative obligations or duties of action
government actors. The latter can be broken up into social and economic rights, and
protective rights.
o Horizontally effect / applicability:
Möller: The first time horizontal effect was acknowledged was in the 1953 Lüth
decision, which was about an individual calling for a boycott against a film director
based on his involvement with the Nazi-regime. Here, the German Constitutional Court
ruled in favour of the freedom of opinion and subsequently the idea of an objective
system of values in the German constitutional system.
, Gardbaum: The arguments for adopting a horizontal approach expresses a well-known
critique of the ‘liberal’ vertical position. First, the society’s most fundamental values
should apply to all its members, and second, constitutional rights and values may be
threatened at least as much by powerful private actors and institutions as by
governmental ones; the vertical approach automatically privileges the autonomy of
privacy of such ‘citizen-threateners’ over their victims.
o Fundamental Rights may be limited or balanced against other rights:
Gardbaum: Constitutional rights are generally operationalised through a two-step
process: first, it determines whether a constitutional right is implicated and has been
infringed, and second, whether the infringement is nonetheless a justified one, which is
increasingly operationalised through the principle of proportionality.
The proportionality principle is operationalised through a common three-pong test: (1)
that the means used are suitable or rationally related to the objective; (2) that they are
necessary or minimally impar the right; and (3) that the means used are proportionate.
Möller: in the balancing exercise, the right is balanced against the competing right or
public interest, which implies that in contrast to the dominant narrative, rights do not
seem to enjoy any special or elevated status over public interests, but rather operate
on the same plane as policy considerations.
2. Who are the main actors?
National systems of fundamental rights protection: In national systems, Fundamental Rights are found
in Constitutions, legislation and in the ECHR, as transposed into the national legal system. They are
then mainly protected by Courts (constitutional or ‘normal’) and by Parliament or other political
bodies, such as committees of Human Rights and trade unions.
o Constitutional review systems:
Dominant ‘centralised’ model: constitutional courts and ordinary courts review all
laws (e.g. Germany, Italy, France, Spain, Poland)
‘Parliamentary sovereignty’ model: no judicial review of the constitutionality of acts
of Parliament (e.g. Netherlands)
‘Commonwealth model’: judicial review leading to ‘declaration of incompatibility’
addressed to Parliament, but no powers to quash to set aside legislation (UK) (see
Gardbaum)
Nordic ‘Counternarrative’: ordinary courts refrain from exercising their judicial
review power (See Hirschl).
o Non-judicial actors: Parliaments, Parliamentary committees, Councils of State, NGO’s, etc.
The Council of Europe, which is Europe’s human rights organisation that has the double role of
standard setting and enforcement/monitoring of those standards.
o European Court of Human Rights (ECtHR)
o European Charter of Human Rights (ECHR): an international treaty, even though a special one
because the monist and dualist traditions of the Contracting Parties play a relevant role.
Decentralised ‘Substitute constitution’: Netherlands
Mixed systems (centralised + decentralised): France, Belgium
Limited and complementary role for ECHR: Germany, Italy
3. What are the main issues in European Fundamental Rights Law?
General Principles of EU Law: Fundamental Rights under EU law are protected as general principles of
EU law, as building on the common constitutional principles of the Member States and on the ECHR,
instead of Union law being subject to Fundamental Rights review, as recognised by CJEU,
Internationale Handelsgesellschaft.
o Article 6(3) TEU: “Fundamental Rights, as guaranteed by the [ECHR] and as they result from
the constitutional traditions common to the Member States, shall constitute general
principles of the Union’s law”.
Charter of Fundamental Rights: Article 6(1) TEU
o “The Union recognises the rights, freedoms and principles set out in the Charter of
Fundamental Rights (…) which shall have the same legal values as the Treaties”.
, o “The provisions of the Charter shall not extend in any way the competences of the Union as
defined in the Treaties”.
EU legislation, e.g. equality law.
Week 2
Lecture 2 – The ECHR: current issues
1. ECtHR as victim of its success: case load, backlog and reform
The Reform Process
o Phase 1: reform of the Court
Protocol 11 (1994-1998):
Amended the Convention to make provisions for a new wholly judicial
system of determination of applicants.
The Commission and the Court were replaced by a new Permanent Court ,
which handles both the admissibility and merits phases of application.
Protocol 14 (2004-2010):
Introduced a single-judge formation to examine admissibility and a three-
judge committee dealing with ‘repetitive’ cases.
New admissibility criterion (Article 35(3)(b) ECHR) of having “suffered a
significant disadvantage”, introduced to allow the Court to further filter out
cases.
Judges’ terms extended to non-renewable 9 years
Committee of Ministers can bring proceedings before the Court where a
State refuses to comply with a judgement (Article 46(4) ECHR)
Rule 41: Prioritising (2009)
The Pilot judgement procedure: was developed as a technique of identifying the
structural problems underlying repetitive cases against many countries and imposing
an obligation on States to address those problems. Where the Court receives several
applications that share a root cause, it can select one or more for priority treatment
under the pilot procedure, in which the Court’s task is not only to decide whether a
violation of the ECHR occurred but also to identify the systemic problem and to give
the Government clear indications of the type of remedial measures needed to
resolve it.
Proceedings before the ECtHR
Committees, Sections, Chambers, and Grand Chambers: under Article 27, as
amended by Protocol 14, the Court may sit in several configurations:
o The single-judge formations are competent only to declare
applications inadmissible;
o The three-judge committee may examine admissibility and the
merits of repetitive cases;
o The seven-judge chambers examine the admissibility, and merits
both of individual applications, which are not prima facie
inadmissible, and of inter-state cases
Admissibility (Article 35 ECHR)
Can the Applicant claim to be a victim? Article 33, on inter-state cases,
provides that an application may only be brought by a Contracting Party.
Article 34, on individual applications, furthermore provides that an
application must be brought by a person who is directly affected.
Have domestic remedies been exhausted? Under Article 35(1), for
subsidiarity reasons, applicants are under an obligation to use the remedies
provided by national law, which are sufficient to address the breaches
addressed.
