The European Union and Human Rights

LLM EU Integration Notes

Table of Contents

General Principles of Law 3

Development of Human Rights Protection 3

What are they and where do they come from? 3

What do they do? 3

Is the EU a human rights organisation? 4

Field of Application of Human Rights Review 5

Review of Union Meaures 5

Review of National Measures 6

Other Issues 6

The Charter of Fundamental Rights 7

Why is a showcasing of rights good? 7

Who enjoys the protection? 7

Horizontal 8

Art 51 8

Member States 8

The Article 30 Opt Out 9

EU and International Human Rights Obligations 9

Accession 10

Process 10

Problems 10

Co-respondent procedure 11

What is the EU acceding to? What about the Protocols? 11

Kadi 12

The Right to Equal Treatment 13

Introduction and Different Uses of the Concept 13

Equality as an Abstract Principle of Fairness 13

Equality as a General Principle In Respect of Specific Grounds 13

Non-Discrimination on the Grounds of Sex 14

Is the Proportionality Principle Suitable for Balancing Competing Rights? 15

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.

   1. Mangold / Kücükdeveci – 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.

   2. 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.

      1. 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.

      2. 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.

      3. 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.

   3. Kücükdeveci – 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.

   4. 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 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...

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