6. The protection of fundamental rights

Human rights in the European Union

Introduction

• The initial three Community Treaties omitted any reference to human rights.

• The European Court of Justice initially refused to treat them as part of the Community’s legal order, even where they were fundamental principles common to the national legal systems (cases 1/58, Stork v. High Authority,1959, 40/64, Sgarlate v. Commission, 1965)

• In 1969, however, the Court announced a change in attitude (case 29/69, Stauder v. City of Ulm, 1969).

The general principles of EU law

• In the Stauder case, the applicant alleged that a EU measure concerning a subsidized butter scheme for welfare recipients violated the fundamental right to human dignity. Having construed the EU measure in a manner consistent with protection of human dignity, the Court declared that the fundamental human rights are “enshrined in the general principles of Community law and protected by the Court”.

• This approach was elaborated upon in the famous case 11/79, (Internationale Handelsgesellschaft v Einfuhr und Vorratstelle für Getreide und Futtermittel, 1970), in which the German Constitutional Court was asked to set aside an EU measure concerning forfeiture of an export-license deposit which was alleged to conflict with h.r.

The dilemma behind the protection of national fundamental rights

• Recourse to the legal rules of national law in order to judge EU measures would affect the uniformity and efficiency of EU law. The validity of such measures can only be judged in the light of EU law.

• However, an examination should be made as to whether any analogous guarantee inherent in EU law has been disregarded. The protection of h.r. whilst inspired by the constitutional traditions common to the MS, must be ensured within the framework of the structure and objectives of the EU law.

Differing evaluations

• The ECJ concluded there had been no infringement of the rights claimed (economic liberty and proportionality), since the restriction on the freedom to trade was not disproportionate to the general interest advanced by the deposit system.

• However, when the case returned to the German court, the national court (Verwaltungsgericht) concluded that the principle of proportionality enshrined in German constitutional law had indeed been violated by the EU deposit system.

Sources of “inspiration”

• In case 4/73,(Nold v Commission) 1974, the ECJ stated that in safeguarding the fundamental rights which form an integral part of the general principles of law, it is bound to draw inspiration from constitutional traditions common to the MS, and it cannot therefore uphold measures which are incompatible with f.r. recognized and protected by the Constitutions of those MS.

• Similarly, international treaties for the protection of h.r. of which MS are signatories, can supply guidelines which should be followed within the framework of EU law.

The European Convention on Human Rights

• By treating the ECHR as a source of inspiration rather than a formally binding bill of rights, the ECJ asserted the autonomy and supremacy of EU law. Moreover, it retained the freedom to “go beyond” the Convention in recognizing rights which may not be similarly protected under the ECHR, such as refugee rights and data protection (case C-28/08, Commission v Bavarian Lager, 2010).

• However, rights such as the right to pursue claims by judicial process, rights against sex discrimination and privacy were specific manifestations of general principles enshrined in the ECHR.

• The idea of the ECHR as a “floor” rather than a ceiling for EU h.r. has been maintained by the EU Charter of f.r.

Other international H.R. instruments

• Article 52(3) specifies that the provisions of the ECHR “shall not prevent Union law to providing more extensive protection”.

• Apart from the ECHR, the ECJ has only very occasionally drawn on other regional and international instruments, and this neglect has attracted criticism.

• The elimination of sex discrimination (Defrenne v Sabenna III, 1978) was linked to the European Social Charter and one of the International Labor Organizations Conventions.

• The United Nations Convention on Refugees (the Geneva Convention) has regularly been cited in cases dealing with the EU’s directive on minimum standards for asylum-seekers, since the Directive expressly draws on the Geneva Convention.

• The International Covenant on Economic, Social and Cultural Rights was recently considered by the ECJ (case C-73/08, Bressol, 2010, access of students to higher education).

• The ECJ cited only the EU Charter and the ECHR and not h.r. norms deriving from customary international law, from “ius cogens rules of international law and principles referred to the UN Charter, in the famous Kadi and Al-Barakaat cases, 2005.

• In this case, the ECJ struck down the EU’s implementation of US Security Council anti-terrorist asset-freezing resolution for violation of fundamental rights, such as the right of defense.

• To sum up, the ECJ’s emphasis on the EU’s constitutional autonomy and its relative disconnection from the wider international h.r. system has given rise to critical comment (MS have to choose between their loyalty to EU law and their other international commitments).

National constitutional traditions

• The ECJ has also drawn only infrequently on national constitutional traditions. It is difficult for it to assert a “common” approach where a particular right does not appear in every national constitution.

• Case 44/79, Hauer v Land Rheinland-Pfalz. An EU regulation restricted the applicant’s right to plant vines on her land. “The right to property is guaranteed in the Community legal order in accordance with the ideas common to the Constitutions of the MS, which are also reflected in the first Protocol to the ECHR. In accordance with the indications provided by these rules, the use of private property can be controlled by the legislature taking into consideration the general interest, its social function and the requirements of social justice.

The “maximum standard” approach

• In the case T-112/98, (Mannesmannröhren- Werke) the Court of First Instance refused to recognise the right to remain silent in the field of competition law as a general principle, because this right exists only in Germany. The CFI was dismissive of the maximum standard approae ch.

• In the case of AM&S, the ECJ recognized the principle of lawyer-client confidentiality (legal professional privilege). The French government argued that the case represented an attempt to foist on the EU what was no more than a domestic rule of English law. Advocate general: a general principle could be distilled from among the various states even if the conceptual origin of the principle and the scope of its application in detail differed between MS.

• In AKZO case, (C-550/07 P) the ECJ refused to extend this privilege beyond the independent lawyers to the “in-house” lawyers. The EJC took the view that there was no “developing trend” or “uniformity tendency” in this direction across the MS such as to justify widening the EU’s general principle.

• In Omega Spielhallen case (C-36/02, 2004), the ECJ accepted that Germany could seek an individual derogation from EU free movement rules to comply with its constitutional requirements on human dignity.

Towards a national identity protection

• Germany was seeking this derogation not in order to impose its own standards of protection for human dignity on the other MS, but in order to gain a country-specific exemption from EU free movement principles.

• There is not a general consensus as to how a right should be ”translated” into a general principle of EU law, such as the freedom of expression and the content of broadcasting, the right to life and the abortion laws (right to life of the foetus), the economic rights to pursue a trade or profession and social priorities (energy monopolies).

• Thus, the ECJ decided to accept particular national rights not as a general principle but as a justification of an exemption from EU free movement principles.