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The European Union And Human Rights Notes

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The European Union and Human Rights LLM EU Integration Notes

LLM EU Integration Notes

Table of Contents

2 LLM EU Integration Notes

3 General Principles of Law Development of Human Rights Protection What are they and where do they come from?
In the hierarchy of EU law, we have these rather amorphous principles recognised by the CJEU to plug gaps where the Treaty doesn't provide. However, in order to be based on the rule of law, these principles need to be recognised. For our purposes the most important are the FHRs that the Court recognises. What basis does the court have for recognising these rights? Probably Art 19(1) TEU, and the fact that they need to be there to be grounds of challenge. They come from the constitution of the member states, but the court adopts neither a maximalist or minimalist approach to this - picks and chooses from CFRs, ECHR and the MS constitution.

What do they do?

1. Aid interpretation - steer the court's approach. Particularly in the equality field - uncertainty should be resolved by reference to the general principles to steer the interpretation.

2. They are used as grounds of review to challenge EU measures.

3. Also, they are used as grounds for suing EU institutions for damages in tort.

4. Most importantly, they can be used in horizontal situations. a. Mangold / Kucukdeveci - challenged rules that discriminated on the basis of age. Under German law, to have a fixed-term contract, you need an ex ante objective reason. They said that for over-52s, this law didn't apply, in order to encourage employers to hire older workers. There was a directive that would prevent this, but it had not come into force at the time of the challenge. The court said that there was a general principle of non-discrimination - this radiates through the whole law, so the directive that applied this did not have to have come into force. b. People don't like Mangold because the court is disregarding the content of a directive, and reasoning on the basis of general principles in a horizontal situation. This is novel because private parties in horizontal situations aren't deemed to have knowledge of unimplemented directives, and so for the purposes of legal certainty, the direct effect should not apply. i. Further, most directives have general principles, so won't this just apply to all directives? The EU doesn't just legislate, it does so on good grounds. ii. The EU says that the rights come from constitutional traditions, but only Finland has age discrimination as part of its constitutional rights. Dashwood (2006) notes that it is highly implausible that such a general principle could have developed in regard to a concern so relatively modern as age discrimination. iii. Further, the whole reason that we have the long delay on the directive was because there is such a difference between the directive, and the way that MSs organised their age discrimination law. c. Kucukdeveci - court first re-asserted the principle that directives cannot produce horizontal direct effects (at para. 46) and then followed the conventional avenue of ascertaining whether the national law could be interpreted in conformity with the directive. However, this was not possible because the German legislation was unambiguous and hence not capable of sustaining an interpretation consistent with the directive. Undeterred, and following the lead of its equally enthusiastic Advocate General, the Court went on to hold that the need to give full effectiveness to the general principle of non-discrimination on grounds of age meant that any conflicting national legislation ought to be disapplied. d. This is not totally about HDE, and instead more about the CIA v Securicor. They are both cases of exclusionary, not substitutive effect, a distinction suggested by AG Sagio in Oceano Grupo and strongly defended by Lenaerts and Courthaut (2006) amongst others. It is argued that obstacles within national law can be set aside on the basis of primacy without the need to employ direct effect or its conditions - they are just disapplying conflicting national law, rather than giving full horizontal direct

LLM EU Integration Notes

4 effect. However, in Pfeiffer, the court did not with to support this distinction, and there are lots of problems with this distinction anyway. Moreover, even if this distinction is valid, this might be substitutive! The states were trying to address social problems, and the EU is overriding their decision.

* Dashwood (2006) suggests that this rests on a false dichotomy: either way, one decides the outcome on a different basis from that prescribed by the legislator. However, there is some merit in the response that there is a real difference between rights which exist in embryonic form, which can be given room to fully materialise, and rights which need to be taken directly from higher legal norm and transplanted into national legal order: the ECJ clearly perceives this as a possibility given its request for submissions.

* Dougan (2007), conversely, provides the 'trigger model': supremacy is a remedy to be administered by domestic courts in resolution of disputes involving Community law; the threshold criteria for direct effect act as a trigger and necessary pre-condition for the principle of supremacy. There didn't seem to be a need to Human Rights Jurisprudence - wasn't part of the ECSC, and all of the MS were signatories to the ECHR. However, after pressure from the German Constitutional Court, this jurisprudence was developed, and later appeared in the treaty. If the UK has an optout under Article 30, importantly it doesn't have an opt out from the general principles. Kamberaj Case concerning equal treatment for housing benefit. Court holds that, per Art 6(3), fundamental rights are general principles, but this doesn't govern the relationship between the convention and the Member States / national law. This seems unremarkable until you look at Derechi, where it held that even though the Charter didn't apply, the MS should apply the convention. They would do this anyway, but it seems weird that the Court would tell them to do this. All of the repetition in the treaty is in order to keep states like the UK (suspicious of the CFR) happy.

Is the EU a human rights organisation?
Perhaps they are, but they are still striving towards economic rights as a goal. Perhaps they are using free movement as a tool to actualise rights, though. There is obviously a distinction, but they are blurring the distinction. Viking and Laval show a willingness to limit economic rights on the basis that they conflict with fundamental rights. Maybe we would focus too much on the Court, though the Commission is showing willingness to consider rights too.

LLM EU Integration Notes

5 Field of Application of Human Rights Review Review of Union Meaures The court has developed Human Rights protection here. International Handelsgesellschaft Group of German traders that challenged a system of the deposits established by a EU Agricultural Regulation. German traders argued that the revelation was contrary to fundamental HRs as protected by the German constitution and in particular it was contrary to principles of proportionality and the freedom to pursue a trade or profession. Argued that the court of justice should construe those rights as they are construed under German law. After examination, the Court concluded that there had been no violation of FHRs. This result was not readily accepted by the German constitutional court, which in Solange I (reported at [1974] 2 CMLR 540) felt that effective protection of FHRs had not been assured with sufficient certainty within the EU. In 1986, the German Constitutional Court delivered its ruling in Solange II (reported at [1987] 3 CMLR 225) where it reversed this approach and felt that the protection afforded by the Court of Justice of the EU had reached the appropriate level guaranteed under German Law. It appears that the Court has afforded different degrees of protection for different rights (see Case 13/92 P. v. S. and Cornwall County Council, [1996] I 2143 (personal rights) and Case 4/73 Nold, above, in the context of economic rights). Omega Court upheld the German public policy, but not very clear - it's about human dignity, but this is only found in the German Constitution - is this a minimalist approach? Maduro says that we have a majoritarian approach, but this varies - see the difference in consumer protection law. The court basically works on a casebycase basis - the nature of the measure at issue has been relevant too: (1) Challenge of general measures: The Court has shown great reluctance to annul general measures (See Case C280/93 Germany v. Council [1994] ECR I4973 (Bananas) (regulation); C377/98 Netherlands v. Council (Biotechnology Directive)) and Case C540/03 Parliament v. Council (Family reunification) [2006] ECR I
5769 but see also the recent judgment in Joined Cases C402/05P and C415/05P Kadi and Al Barakaat International, ([2008] ECR I6351) concerning a regulation (2) Challenge of administrative acts: more challenges have been successful, particularly in the field of staff cases (e.g. see X v. Commission (Case C404/92P [1994] ECR I4737) and competition proceedings (Case T
53/03 BPB v. Commission, [2008] ECR II1333). Netherlands v Council (Biotechnology Directive) Required MSs to provide patent protection for biotechnological inventions. Dutch Govt argued that some provisions of the directive that concerned ability of parts of the human body were contrary to the right of human dignity. Only when there is a flagrant breach that the Court will say there has been a breach. X v Commission A member of Commission staff who sued successfully Commission arguing that an AIDS test had been carried out on him without his consent. Successful challenge was mounted. Court held there had been a breach of the applicant's respect for private life. Kadi Court annulled a council Regulation, but this is more like an administrative act, so probably shouldn't be touted as a glorious exception to the rule - it's a very special case. The court has struck down 2 legislative measures for going against the Charter - TesteAchate and one other.

Review of National Measures Carpenter Filipino lady who married a British national and she challenged immigration rules which were going to result in her deportation and her argument was that the expulsion would be detrimental to family

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