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General Principles and Fundamental Rights Notes
Article 6 TEU is the centre piece of the EU's human rights framework.
1. The Union recognises the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the European Union of 7 December 2000, as adapted at
Strasbourg, on 12 December 2007, which shall have the same legal value as the
The provisions of the Charter shall not extend in any way the competences of the
Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.
Article 6 TEU, then, states three formal sources for EU human rights law: (a) the Charter of
Fundamental Rights, (b) The European Convention of Human Rights, and (c) general principles of EU law.
Despite the importance of Article 6 TEU, for many years human rights were not a concern of the EU, and thus human rights protection was more piecemeal.
What different general principles are currently protected by the courts?
Article 263 TFEU provided the foundation for the development of the principles of judicial review. It provides the ECJ with the power to review infringements of the Treaty or "any rule of law relating to their application"
It was not entirely clear what this meant, but the ECJ saw it as a window through which they could justify the imposition of general principles of law which now function as grounds of review.
The ECJ recognises a wide range of general principles, some of the most litigated include: (a)
proportionality, (b) legal certainty and legitimate expectations, (c) non-discrimination, (d)
transparency, and (e) the precautionary principle.
BUT: it should be noted that while there are many general principles, there are limitations
In Sonia Chacon Navas, the ECJ held that non-discrimination on the grounds of sickness was not a general principle
Further, in Audiolux, the ECJ said that "... 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 … [the relevant provisions of the
Directive] 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 general principles of law"
Proportionality is well established as a general principle of EU law, being enshrined in Article 5(4) TEU
The inquiry has three stages:
o Whether the measure was suitable to achieve the desired end
Whether it was necessary to achieve the desired end
Whether the measure imposed an excessive burden on the individual in relation to the objective being sought
NOTE: there has been some doubt as to whether or not this third stage is actually a part of the CJEU's proportionality inquiry
There are broadly speaking, three types of case that might be subject to challenge on the grounds of proportionality, and the intensity of review might differ in each.
Discretionary Policy Choices
Here, an individual will argue that the policy choice made by the administration is disproportionate
The judiciary is cautious in this type of case, given that it is the function of the administrative/political arm of government to policy choices
Per British American Tobacco, proportionality will be applicable to a policy choice wherever the EU legislature exercises a broad discretion involving political, economic or social choices requiring it to make complex assessments.
o R v Minister for Agriculture, Fisheries and Food, ex p Fedesa
Held: "the legality of a measure adopted in that sphere can be affected only of the measure is manifestly inappropriate having regard to the objective which the competent institution is trying to pursue"
The review was not to be an intensive one
Here, an individual will argue that their rights have been unduly restricted by
Here the judiciary will engage in vigorous scrutiny
o Digital Rights Ireland
Facts: Provisions of a Directive which mandated data retention for the purposes of crime prevention and detection was challenged on the grounds of infringing Articles 7,8 and 11 of the Charter
Held: The CJEU said that the Directive did infringe the private life and personal data protections under Articles 7 and 8 of the Charter
"With regard to judicial review of compliance with those conditions, where interferences with fundamental rights are at issue, the extent of the EU legislature's discretion may prove to be limited, depending on a number of factors, including, in particular, the are concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference"
o This was a very intensive standard of review
Here an individual will argue that the penalty imposed is excessive
Man (Sugar) - the ECJ held that a forfeit of a deposit of £1.6 million was too drastic in light of the function performed by export licenses
Legal Certainty and Legitimate Expectations
Legal certainty and legitimate expectations are connected concepts which oft apply in similar ways:
According to Schwarze (2006) 'actual retroactivity' applies to cases where a rule is introduced and applied to events which have already been concluded
Facts: The Commission introduced monetary compensation for a certain product by Regulation, and then in two later Regulations altered the amount. The later Regulations stated that they would apply fourteen days before they were published
Held: It was held to be a fundamental principle of the community legal order that a measure shall not be applicable before those concerned could become acquainted with it
BUT: it also said that "Although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected"
Apparent retroactivity covers the situations where legislative acts are applied to events which occurred in the past, but which have not yet been definitely concluded.
Cases involving apparent retroactivity are problematic because the administration must have the power to alter policy for the future,
even though this may have implications for the conduct of private parties, which was planned on the basis of the pre-existing legal regime
The rules relating to legitimate expectations regulate this area
Non-discrimination cases look at (a) whether or not people similarly situated are treated differently, and (b) whether or not this difference in treatment can be justified.
The principle of non-discrimination is expressly mentioned in a number of Treaty articles
The approach of the courts in this area has been rather limited by the language of the
Grant - concerned travel benefits for the same sex partners of employees.
o The Court retreated from the broad principle of equality and decided that discrimination on the grounds of sex in EC law did not cover discrimination on the grounds of sexual orientation
The ECJ said that ensuring respect for fundamental rights could not extend the scope of Treaty provisions, which at the time required
Member States only to ensure sex equality in employment
What are general principles and how do they relate to fundamental rights?
General Principles as Protecting Fundamental Rights
Historically, "general principles" of EU law were the first means by which human rights protection was offered by the EU.
In 1969, the ECJ decided the Stauder case, in which it affirmed a category of
'general principles of EU law' which included protection for fundamental human rights
Such rights were derived from fears about the conflict between (a) the doctrine of supremacy, and (b) the human rights protected under domestic constitutions
In Nold, the ECJ identified two main sources of inspiration for these early general principles:
(a) Domestic constitutions a. Prior to the Stauder case, discussions had taken place in the European
Parliament about protecting domestic human rights protection in light of EU
supremacy and the problems that might arise in doing so i. This conflict was brought to life in the International
Handelsgesellschaft case, where the ECJ upheld an EU measure which had allegedly violated German constitutional rights and principles
1. When the case returned to the German Court, the national court decided that regardless German constitutional rights had still been violated - this provides an interesting illustration of the difficulty facing the ECJ in seeking to integrate 'common constitutional principles' from the Member States into the EU
legal order b. ECJ case law rarely draws on national constitutional provisions despite the symbolic prominence given to them by the Court.
i. The reasons for this are rather obvious: it is more difficult for the ECJ
to assert a 'common' approach where a particular right does not appear in every national constitution, whereas an instrument like the
ECHR is intended to reflect the collectively shared commitments of all member states.
(b) International legal orders a. Prior to the enactment of the Charter of Fundamental Rights, the ECJ
identified the ECHR as a "special source of inspiration" from which it would draw general principles.
i. By treating the ECHR as a source of inspiration rather than a formally binding or fully incorporated bill of rights, the ECJ retained the freedom for EU law to go beyond or diverge from the Convention
1. The Court diverged from the Convention in AZKO, which concerned lawyer-client confidentiality b. Beyond the ECHR, the ECJ would rarely draw on other international instruments
Recognition in the Treaties
Despite the ECJ's 'general rights' initiative, fundamental rights eventually found their way in to the Treaties as a result of amendments introduced by the Maastricht, Amsterdam,
Nice and Lisbon Treaties.
Article 6 TEU: Lists the various sources of human rights within EU law
Article 49 TEU: Makes respect for the values on which the EU is founded a condition for application for membership
Article 2 TEU: Founds the Union on respect r human dignity, freedom, democracy,
equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
Article 3 TEU: Declares an objective of the EU to be combatting exclusions and discrimination, whilst promoting social justice and protection, equality between women and men, solidarity between generations and protections of the rights of a child
Article 7 TEU: Empowers the Council to suspend some of the voting and other rights of a Member State which is found by the European Council to persistently breach
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