This is an extract of our Fundamental Rights And General Principles document, which we sell as part of our European Human Rights Law Notes collection written by the top tier of Oxford students.
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General principles and fundamental rights
Article 6 TEU:
1) The Union recognises the rights, freedoms and principles set out in the CFREU, which shall have the same legal value as the treaties.
3) Fundamental rights, as guaranteed by the European Convention of Human Rights and
Fundamental Freedoms and as they result from the constitutional traditions of the Member
States, shall constitute general principles of the Union's law.
Article 7 TEU:
On a reasoned proposal by one-third of the Member States, by the EP or ECom, the Council,
acting by a majority of four fifths of its members after obtaining the consent of the EP, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2.
The Member State may address recommendations to it, but if there is held to be a serious and persistent breach by a Member State of the values referred to in Article 2, the Council may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government.
Article 19 TEU:
The Court of Justice of the European Union… shall ensure that in the interpretation and application of the Treaties the law is observed.
The Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.
Article 263 TFEU:
The Court of Justice of the European Union shall review the legality of a wide range of acts…
on grounds of lack of competence, infringement of an essential procedural requirement,
infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
Examples of general principles
Ruckdeschel: the general principle of equality, which requires that similar situations shall not be treated differently unless differentiation is objectively justified.
Mulder: establishes a general principle of legitimate expectations, in the context of striking down an additional levy on milk.
Bela-Muhle: Obligation to purchase skimmed-milk powder held to be disproportionate. However notice limits-
Chacon Navas: the principle of non-discrimination does not apply in all contexts…
and so could not be held to apply in the context of discrimination on grounds of sickness.
Audiolux: '… the mere fact that secondary Community legislation lays down certain provisions relating to the protection of minority shareholders is not sufficient in itself to establish the existence of a general principle of Community law, in particular if the scope of those provisions is limited to rights which are well-defined and certain.' 'Those provisions are essentially limited to regulating very specific company-law situations by imposing on companies certain obligations for the protection of all shareholders. They do not therefore possess the general, comprehensive character which is otherwise naturally inherent in the general principles of law.'
Regulations governing the deposit of maize were said to be in conflict with the German basic law: obligation of importing or exporting was said to conflict with freedom of action and economic liberty. How would the EU system deal with such conflicts?
At para 3: , the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the
Community itself being called in question. Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure. This argument clearly hinges on efficacy.
At para 4, the save: However, an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the
Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community. It must therefore be ascertained, in the light of the doubts expressed by the Verwaltungsgericht, whether the system of deposits has infringed rights of a fundamental nature, respect for which must be ensured in the Community legal system.
SPUC v Grogan Concerned the abortion rules in Ireland- Grogan was a student issuing information on how to get an abortion. 3 concerns:
1) Is abortion a service, so that it can come under the four freedoms? Yes, moral disgust was no answer to the fact that abortion was a service provided for remuneration.
2) Can a member State prohibit the spreading of information about how to get an abortion? The link between providing information on how to get abortions and the freedom to provide such services was too tenuous- no restriction under Art 59 of the
Treaty 3) Is there a right at Community law to distribute abortion information when the practice is banned in the member state in question? The Court has no jurisdiction with regard to national legislation lying outside the scope of Community law. In view of the facts of the case and of the conclusions which the Court has reached with regard to Art 59, the prohibition at issue did not fall within the scope of Community law.
'…it is not contrary to Community law for a Member State in which medical termination of pregnancy is forbidden to prohibit students associations from distributing information about the identity and location of clinics in another Member State where voluntary termination of pregnancy is lawfully carried out and the means of communicating with those clinics, where the clinics in question have no involvement in the distribution of the said information.' So if the clinics had been involved, then would this amount to a restriction on the four freedoms?
AG Van Gergen-Considered that the spreading information about a particular provider of a service in another state could be encompassed in the right to receive services in another state. This freedom of services can only be curtailed by the general interest.
It is undeniable that the prohibition of assistance is promoted by an objective which is regarded in the Member State concerned as an imperative requirement of the public interest… such an objective is justified under EU law, as it relates to a policy choice of a moral and philosophical nature which is a matter for the
And here's how the proportionality inquiry goes:
a) Legitimacy of aim is not questioned ('moral and philosophical nature')
b) National Authorities are able to determine what is and isn't a necessary restriction. Plainly deferential.
Mary Carpenter Case
Mary, a national of the Phillipines, was with a man who conducted services outside his member state, which he could do because Mary looked after his children. The court holds that the international nature of Mr Carpenter's business brings him within the scope of EU law. From there, his right to family life is engaged as his wife is being deported. This right to family life is seen as a fundamental freedom protected by
Community law, as it is in the ECHR.
'The separation of Mr and Mrs Carpenter would be detrimental to his family life, and therefore to the conditions under which Mr Carpenter exercises a fundamental freedom.
That freedom could not be fully effective if MR Carpenter were to be deterred from exercising it by obstacles raised in his country of origin to the entry and the residence of the spouse… A state may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of the freedom to supply services only if that measure is compatible with the fundamental rights whose observance the court ensures'
In the balancing between respect for family life, and public order, the fact that Ms Carpenter has not given any cause for complaint during her stay indicates that the measure was a disproportionate interference with Mr Carpenter's family life. As a result of this finding, the fundamental freedom had not been justifiably interfered with, as the restriction had not been compatible with a fundamental right.
Weatherill: The Court was remarkably quick to find the case fell within the scope of the
Treaty. Would someone moving to receive services also be protected? If so, is it rational to leave out of the scope of protection the few people who doggedly never move across a border.
Baby steps: slow to acknowledge the Charter
Parliament v Council
Makes passing notice of the Charter, in a case determining the compatibility of a directive regarding child immigration to the right to family life.
At para 38: While the Charter is not a legally binding instrument, the Community legislature did, however, acknowledge its importance by stating, in the second recital in the preamble to the Directive, that the Directive observes the principles recognised not only by Article 8 of the ECHR but also in the Charter.
Unibet v Justitiekanslern
This case concerned national betting regulations and their compatibility with fundamental rights of the EC.
Question arose whether the principle of effective judicial protection of an individuals rights under Community law must be interpreted as requiring it to be possible in the legal order of a Member State to bring an action against national provisions. At para 37- It is to be noted at the outset that, according to settled case-law, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in
Articles 6 and 13 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms… and which has been reaffirmed by article 47 of the charter of fundamental rights of the EU.
Kadi and Al Bakaraat v Council
UN Security council declaration which froze the assets of individuals. Goes to the relationship of the international legal order of UN and national or EU legal order.
The Court reiterated the place of fundamental rights in the EU structure: according to settled case-law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States…
It followed from this that obligations imposed by international agreement cannot have the effect of prejudicing the constitutional principles of the (Treaties), which include the principle that all community acts must respect fundamental rights, that respect constituting a condition of their lawfulness…
Provisions of the Treaties do not authorise any derogation from the principles of liberty,
democracy and respect for human rights and fundamental freedoms enshrined in Article 6(1) TEU as a foundation of the Union.
The come within the scope of EU law, the act had to not be of the UN, but of the Member
States. If it was directly attributable to the UN, then it could not be reviewed by the ECJ.
SO, 'the Community judicature must, in accordance with the powers conferred on it by the
EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.'
As to the CHARTER, the court simply refers to it as affirming the general principle of rights protection, expounded specifically in the right to be heard and the right to effective judicial protection.
Subsequent Kadi litigation: on the intensity of review:
CJEU must establish the factual basis for the reasons relied on to justify an infringement of fundamental rights. Not enough to assess the cogency of the reasons in the abstract. So, in the absence of a reason which is sufficiently detailed and specific, that is substantiated and that itself constituted the basis to support that decision, the CJEU will annul the contested decision.
The Charter is now properly seen as the starting-point in examining the EU's commitment to fundamental rights.
Concerned a man who had avoided tax, had been found out, paid it back and then was being faced with criminal charges over the avoidance.
The applicability of Charter rights was made clear: Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by
European Union law without those fundamental rights being applicable. The applicability of
European Union law entails applicability of the fundamental rights guaranteed by the
If the court used the same approach as it had in Mary Carpenter, they would have had to conclude they were within the scope of Union law, and let her claim the social benefits.
However, in this case, they did not fall within the scope of EU law, as they looked to national rules and she did not have a right to live in that country as a matter of law. The ECJ can manipulate the situation to allow for it to fall within the scope of EU law if it wishes to.
Legislative acts which have been held incompatible with charter, and therefore invalid
Association belge des consommateurs test-achats v Council
Provision of a directive held invalid for breach of principle of the principle of equal treatment contained in the Charter.
Articles 21 and 23 of the Charter state that any discrimination based on sex is prohibited and that equality between men and women must be ensured in all areas.
Digital Rights Ireland
Directive 2006/24 on data retention held invalid for violation of Arts 7 & 8 Charter.
48 In the present case, in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by Directive 2006/24, the EU
legislature's discretion is reduced, with the result that review of that discretion should be strict.
As to whether it's strictly necessary, the court outlines the extensiveness of the scheme:
general effect of all of EU population. Indeed, there are also a general lack of limits, and a lack of objective criterion to define the limits of intrusion and of subsequent use. An example is the fact that data is retained for six months regardless of the type of data in question.-
The Directive did not require any particular relationship between the data whose retention is provided for and a threat to public security- on this basis, it is not threatening the legislature's capability to override Articles 7 and 8 for the purposes of national security- BUT it must show a link to national security.
The access to the data by competent national authorities is not made dependent on a prior review carried out by a court or an independent administrative body
The main problem is the lack of clear and precise rules governing the extent to which fundamental rights are going to be interfered with. Precise circumscribing by provisions is needed to ensure that it is actually limited to what is necessary.
Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.
Note q on 2017 paper: 'Directive 2006/24 [on data retention] does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary' (Joined Cases C-293/12 and C-594/12 Digital Rights Ireland et al (2014)).
Does this ruling assert judicial control over matters that should properly be left to the EU legislative process? Does the EU's Charter of Fundamental Rights generally deserve condemnation for a fundamental shift of this nature?
More commonly, the Court has emphasised the scope of legislative discretion and rejected applications for annulment of acts for claimed violation of Charter
Labelling obligations imposed on poultry producers limit the exercise of the freedom to conduct a business (Art 16 of Charter), but that freedom is not absolute, (art 52(1) of the charter) and the rules genuinely meet objectives of general interest.
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