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GENERAL PRINCIPLES AND FUNDAMENTAL RIGHTS CJEU established a range of general principles of EU law; these are part of primary EU law and are conditions of the legality of secondary legislation. CJEU can review legislation for contravening GPs:
?????Art. 263 TFEU: Jurisdiction of CJEU: CJEU shall "review the legality of legislative 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." The CJEU has used GPs more extensively than just as 'gap fillers' in interpreting EU law; to a certain extent the Treaties support this development --- e.g. Art 263; Art 340 TFEU: the EU shall "in accordance with the general principles common to the laws of the MS, make good any damage caused by its institutions" --- however, Hartley sees the CJEU has having "utilised general principles to cloak the nakedness of judicial law-making." Function of GPs: (i) interpretative guides in relation to the Treaties / EU acts; (ii) ground of judicial review and annulment of secondary legislation / national measures within scope of EU law; (iii) to develop fundamental rights in EU law. They have also been created / manipulated by the ECJ to achieve the results it wants around the limitations of EU law --- e.g. Mangold (to get around the horizontal direct effect of Directives). Sources of GPs: (i) constitutional traditions common to MS (e.g. proportionality from German constitution); (ii) Treaty provisions (e.g. non-discrimination) and secondary legislation (e.g. Ruckdeschel); (iii) ECHR; (iv) values found in Treaties:
? Art 2 TEU: the EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and human rights. PROPORTIONALITY Prior to Art 5(4) TEU, introduced in Lisbon, proportionality was a GP. The following is an example of a GP being used to strike out the penalty clause in a directive:
? Bela Muhle : "If... a measure imposes on certain categories of persons a burden which is in excess of what is necessary... it violates the principle of proportionality." LEGITIMATE EXPECTATION Legal certainty and legitimate expectations are GPs which:
? Prevent legislation from having retroactive effect. This is justified by the rule of law.
? Individuals are protected by legitimate expectation where they have been given precise and specific assurances by EU institutions which cause the individual to entertain justified hopes. o Individual must be able to point to a bargain between them and the authorities ( Mulder) or to a course of conduct / assurance capable of generating a legitimate expectation. Mere fact that a trader is disadvantaged by a change in the law will not give cause for review. Mulder : EU Directive provided a subsidy would be given to farmers who undertook not to supply milk. C gave such an undertaking, then tried to recommence milk production at the end of the agreed five-year period, but was prevented from doing so by the Dutch authorities based on the Directive. CJEU: C had a legitimate expectation that he could return to production after 5 years.
?? ? ? "where such a producer has been encouraged by a Community measure to suspend marketing for a limited period ... he may legitimately expect not to be subject to restrictions which specifically affect him precisely because he availed himself of the possibilities offered by the Community provisions" NON-DISCRIMINATION Started as a GP in CJEU case law but is now expressly mentioned in the Treaties:
? Art 2 TEU: equality and non-discrimination are foundational values of the EU
? Art. 19(1) TFEU: "the Council, acting unanimously in accordance with a special legislative procedure... may take appropriate action to combat discrimination."
? Art. 21(1) (Charter of Fundamental Rights): ""Any discrimination ... shall be prohibited." Recognised by CJEU as a GP:
? Ruckdeschel : EU regulation provided for production refunds for certain competing cereal crops, but not others. CJEU: Regulation was invalid as it contravened GP of equality --- no justification for treating the two products in an unequal manner. Principle excludes " any discrimination between producers or consumers within the Community" Mangold shows GPs can have horizontal direct effect in cases between private parties --- this has been criticised as a mechanism for circumventing the absence of horizontal direct effect of directives and for undermining legal certainty --- particularly because the transposition period had not expired.
? Mangold : German law allowed unrestricted use of fixed term contracts for employees aged 52 and older. C (56) entered a fixed term contract with employer --- C argued it was incompatible with an EU Directive, which had not yet been implemented into German law (implementation period not expired) CJEU: German law was unlawful under EU law because it violated the GP of non-discrimination of age. o MS must observe the GP prohibiting discrimination on grounds of age even though this Directive has not reached the end of the transposition period --- any provision of national law which conflicts with a GP of EU law must be set aside by the national courts. Mangold was criticised for articulating a GP against age discrimination and undermining the carefully negotiated provisions of the Directive; the CJEU interfered with political choices and compromises represented in MS' social policy --- effectively creating a new EU social right on the basis only of a vague reference to international instruments and MS common constitutional traditions. Despite Mangold controversies, GP of non-discrimination on grounds of age was confirmed in:
? Seda Kucukdeveci : C was employed by D from 18-28. D calculated C's notice period as if C had 3 years of service, rather than 10 (national legislation stated years of employment under 25 didn't have to be taken into account). CJEU: Due to the lack of horizontal direct effect of Directives, the Equal Treatment Directive (as in Mangold) could not give an employee a remedy against her employer (just a claim against German government). However, the Directive is merely a specific expression of a GP, which can have horizontal direct effect and the national court was under a duty to disapply any provision of national law breaching this principle. o AG: case should be resolved by giving horizontal direct effect to the Equal Treatment Directive rather than through the general principle of non-discrimination on grounds of age.
Commentary on Mangold and Seda:
? Tursing and Horler: Seda means any national law which comes under the scope of a directive, must be declared invalid by domestic courts if it conflicts with a EU GP. This could include a huge range of national legislation and is contrary to the absence of horizontal direct effect. o Undermining direct effect: In Seda, CJEU denies horizontal direct effect but achieves the same result by allowing individuals to rely on the equality principle. National law is disapplied because it is contrary to EU law. That cannot be distinguished from direct effect. This move crumbles the architectural structure of Regulation and Directive.
? Peers and Costa: o GPs and the Fundamental charter: Seda is the first case where CJEU refers to the new legal status of the Charter as set out in the Treaty of Lisbon. But noticeably, Court still refers primarily to GPs of EU as a source of human rights rules. This might be because GPs are not subject to the protocols (UK, Poland, CZ negotiated a separate Protocol to alter the Charter's impact). o Scope of the Rule: The rule in Kucukdeveci should not be limited to cases of non-discrimination on grounds of age, should apply whenever any GP of EU law regarding human rights protection is sufficiently connected to the application of a Directive. o Decision is justified: Human rights should be privileged over other rules as regards their legal effect on conflicting national law because human rights have primacy in the hierarchy of primary EU law, confirmed in Kadi. Directives giving effect to human rights principles should have stronger legal effect than normal Directives (which this decision achieves). LIMITS TO THE GENERAL PRINCIPLES No GP of discrimination on grounds of sickness:
? Sonia Chacon Navas : C had to take eight months off work due to sickness. D dismissed C. C argued that the dismissal was void due to discrimination on grounds of sickness and contrary to the EU Equal Treatment Directive. CJEU: rejected C's claim, the Directive did not cover this situation and there is no general principle of non-discrimination on grounds of sickness. Bartsch limits the application of Mangold, BUT note that it was decided before Seda, which seems to reinforce Mangold. My thoughts: not really a step back, just affirming that a link to EU law is required before GPs will bite; i.e. the national law has to be within the scope of an EU Directive / Regulation.
? Bartsch : D's pension scheme excluded benefits for spouses more than 15 years younger than their partners. C (21 years younger than her husband) was denied benefits on this ground and challenged it CJEU: rejected C's claim --- the situation had no link with EU law (outside the Equal Treatment Directive) and so a GP could not apply: Peers: Bartsch shows the need for a sufficient link to EU legislation (e.g. national measures implementing the Equal Treatment Directive as in Mangold). GP of equal treatment will not be applied in a fully autonomous way by the ECJ, will only apply where there is a link to the Equal Treatment Directive. CJEU will not always extrapolate a GP from the Treaties / secondary EU legislation.
?????Audiolux  no GP of equality of shareholders. CJEU: mere fact that secondary EU legislation lays down provisions protecting minority shareholders is not itself sufficient to establish the
existence of a GP requiring equality of shareholders, particularly given that secondary legislation is limited to narrow, well-defined rights. The provisions did not possess "the general, comprehensive character which is otherwise naturally inherent in GPs of law." Douglas-Scott: Auidiolux shows that a principle must have constitutional status to qualify as a GP. FUNDAMENTAL RIGHTS Treaties of Rome and Paris did not mention fundamental rights; the EU was conceived as a purely economic body. However, when EU law's impact on individuals became apparent, the demand for FRs protection grew and the CJEU developed rights as GPs of EU law (e.g. Nold ). Sources of fundamental rights as GPs: (i) constitutional traditions common to MS; (ii) international treaties on human rights to which MS have collaborated / are signatories. Treaty provisions: fundamental rights are now protected in the treaties:
? Art. 6 TEU: three sources of fundamental rights: (i) the Charter; (ii) ECHR; (iii) GPs of EU law
? Art. 7 TEU: procedure for sanctioning MS which fails to comply with HRs / values in Art. 2
--- Council can suspend certain Treaty rights from MS in question (e.g. voting rights). FUNDAMENTAL RIGHTS AS GPs OF EU LAW PRE-LISBON Compliance with GPs of fundamental rights is a condition of legality of EU and MS acts and a ground for judicial review. FRs recognised in IH --- they are based on common constitutional principles of MS:
? Internationale Handelsgesellschaft : EU Regulation awarded C a licence to export maize under terms which included a forfeitable deposit if C failed to export in a given time period. C failed to do so, but challenged the Regulation. CJEU: Regulation did not violate the FR to trade (penalty clause was appropriate), but fundamental rights protection does form an integral part of EU law and action by the EU which violates FRs is unlawful. FR's include freedom of trade and proportionality. o AG: fundamental principles of national law "contribute to forming that philosophical, political and legal substratum" from which emerges general EU law principles of fundamental rights. FRs are only engaged when the issue comes within the scope of EU law.
? SPUC v Grogan : Cs (Irish students) provided info on abortion clinics in the UK; SPUC applied was granted an injunction by Irish SC preventing them from doing so. C's appealed to CJEU. CJEU: the injunction fell outside the scope of EU law: although abortion was a service (and protected by free movement laws), the link between injunction prohibiting leaflets and free movement was "too tenuous for the prohibition on the distribution of information to be capable of being regarded as a restriction." o "Where national legislation falls within the field of application of Community law ... [ECJ must]
assess the compatibility of that legislation with the fundamental rights as laid down in particular in the ECHR" However, "the Court has no... jurisdiction with regard to national legislation lying outside the scope of Community law". o AG (different reasoning): there was a restriction on the freedom of services and therefore that the Court should consider FRs. Here, need to balance of right to life vs freedom of expression.
Balancing the competing rights is very sensitive, involves ethical value judgments so MS must be allowed a considerable margin of discretion. Apply proportionality and the margin of discretion, conclusion is that the injunction was not incompatible with the FR of freedom of expression. By finding EU law was not engaged, the CJEU avoided the politically charged question over right to life
/ freedom to choose ---arguable CJEU is not competent to answer this question, particularly given that its answer would be binding on MS as a matter of EU law.
? Chalmers criticises this approach: the ECJ stresses FRs are indefeasible but then fails to protect their indefeasibility in holding they are only to be protected insofar as they fall within EU law. Problematic because analogous situations are treated differently --- e.g. had students been paid they would have come within EU law. My thoughts: difficult that analogous situations are treated differently, but it is right that the EU should only weigh in when issues come within EU law (flows from conferral) Kadi litigation
? Kadi : UN Security Council resolution froze the assets of a terrorist suspects. Resolution was enforced by a Regulation from EU Council. CJEU: annulled Reg. for violation of C's rights to be heard / defend himself against allegations --- JR for compatibility with FRs is "a constitutional guarantee forming part of the very foundations of the [EU]".
? Litigation was not exhausted: CJEU allowed Reg to be maintained for three months, allowing EU to cure the procedural breaches of Cs' right to be heard. Commission gave C a summary of reasons for the action and a brief opportunity to respond. Then adopted a new Reg. freezing assets. o Kadi v Commission . JR extended to a review of the evidence / reasons underpinning the measure. Since evidence provided to C was too vague, C's rights had been infringed.
? That was a decision of the General Court; the Appeal Court upheld their decision in Kadi II and reinforced that CJEU must undertake rigorous review of EU acts for compatibility with HRs. o Kadi II  CJEU: as well as considering procedural rules (the legal basis for the listing, and whether the duty to give reasons was satisfied), the Court must ensure that the listing decision is taken on a "sufficiently solid factual basis". The Court rejected AG Bot's recommendation that it should carry out a "limited" review in cases arising from UN counter-terrorist sanctions Commentary on the Kadi litigation:
? Ziegler: o Strong constitutional thrust is reminiscent of Van Gend en Loos and Costa. Kadi distinguished EU legal order from general international law and this reinforced quasi-federal features of the EU. o The ECJ hinted at a hierarchy within EU primary law, so that international law agreements (such as that with the UN) could be permitted to restrict EU market freedoms but not EU human rights. This suggests principles of liberty, democracy and human rights rank more highly than the economic freedoms in the EU legal order. o ECJ undertook vigorous review of the Reg. because UN procedure for reviewing resolutions for HR infringements was insufficient; hinted that they would adopt a Solange II approach if UN procedure was developed to ensure proper HR protection.
? Douglas-Scott: Kadi appeared to be a victory for human rights but the real concern of the ECJ was to establish the autonomy of the EU legal order from international law. The case had a very strong constitutional emphasis and rejected a subordinate relationship of the EU to the UN.
Albi: Kadi may not be the triumph for HRs that it seems --- although ECJ undertook vigorous review of an EU act for compliance with HRs, the Reg. was only an implementation of a UN Resolution, not an act in its own right, so ECJ may not take such a vigorous approach in the future.
CHARTER OF FUNDAMENTAL RIGHTS Two reasons for the creation of the CFR: (i) to give social rights the same status as other rights under EU law; (ii) to make FRs more visible and not just hidden in the case law of the ECJ. A draft was adopted in 2000. Initially, it did not have legal status, but post-Lisbon it has been given the same status as other Treaties by Art 6 TEU. Although, note:
? Art 6(1) TEU: Charter does not extend the competence of the EU Britain, Poland, Czech Republic Protocol 1 to the Charter prevents it from creating new rights to those already provided for in British law and provides an opt-out in relation to solidarity rights, so these charter rights will not be directly enforceable in the UK. However, unlikely to be practically significant as most solidarity rights are already recognised as GPs so can be enforced in national courts without Charter. Content: The original mandate was to consolidate and render visible existing EU obligations --- not to create anything new. However, there are some innovative provisions: e.g. ecological rights. There are also some notable omissions --- e.g. minority rights. The Charter is, notably, more extensive than the ECHR. Scope: The final chapter of the Charter contains general clauses relating to its scope and applicability.
? Art 51(1) MS are only caught by the Charter when implementing EU law (see Chalmers above.) o Fransson held that Art 51(1) means that the Charter applies to MS when they are implementing EU legislation or seeking to justify restrictions on EU free movement law. o Cruciano and Harnandez involved MS acting in fields affected by EU law but were not directly implementing EU law. ECJ: in these circumstances MS could not be held to Charter standards.
? Art 52(1) any Charter right, even the most fundamental (e.g. freedom from torture) may be limited, no rights are absolute in contrast to the ECHR. Any limitation must be proportionate, necessary, and meet the objectives of general interests recognised by the EU / the need to protect rights of others.
? Art 52(2) Charter rights must be "excised... within the limits defined by the Treaties." However, it's unclear whether Charter is a minimum standard, or if ECJ can develop more extensive FRs as GPs.
? Art 52(3) regulates the relationship between the Charter and the ECHR. Where a right is protected by both, "the meaning and scope of those rights shall be the same as those laid down by the ECHR." Although, this does not prevent EU law "providing more extensive protection." o Schutze; Art 52(3) promotes harmony between the ECHR and the Charter. o Douglas-Scott: ECHR provides a minimum standard; Art 52(3) provides for the EU to be indirectly bound by the ECHR as Charter rights must be interpreted in the same way as equivalent ECHR rights, the ECHR must always be followed when restricting equivalent Charter rights to ensure that the EU maintains the same level of protection of human rights as the ECHR.
? Art 53 indicates that the principle of supremacy is subverted and EU law may be checked against national human rights standards, but the ECJ rejected this interpretation in Stefano Melloni --- EU
measures must be checked against EU FRs by the ECJ but cannot be checked against MS standards. In an area which has been harmonised by EU law, the MS cannot apply their own fundamental rights standards if these are higher than those in the Charter. Standard of review for violation of Charter rights: ECJ has been criticised for applying FRs strictly against MS, but with low intensity against EU acts (Kadi does not resolve this concern, as it only implemented UN resolution). It is unusual for UN act to be struck down for violating Charter.
?????Where a case involves balancing of conflicting Charter rights, the ECJ normally holds that such balancing should be conducted during the legislative process and the ECJ will not intervene unless there is a manifest error. Case law under the Charter (pre-Lisbon) This case reviewed a national decision for violation of Art. 8 ECHR as a fundamental right of EU law, but did not refer to the Charter.
?????Mary Carpenter : B (Filipino) overstayed in the UK, but married C (British national). C ran an advertising business with a cross-border element. UK tried to deport B; C argued this violated his Art. 56 TFEU right (freedom to provide services). ECJ: Art. 56 should be read in light of C's fundamental right to respect to family life (Art. 8 ECHR) and so UK was prevented from deporting B. MS may invoke public interest reasons justify a national measure likely to restrict freedom to provide services only if that measure is compatible with fundamental rights. NB: court found a link with free movement very easily, so as to engage their jurisdiction to review
--- contrast this to SPUC in which the ECJ were reluctant to find such a connection. Thus, there seems to be a more forthright approach from the court here --- attempting to show that EU law is serious about human rights protection. CJEU avoided mention of the Charter until Parliament v Council  --- mentioned briefly that the EU legislature had acknowledged its importance by referring to it in the preamble to a directive. Similarly:
? Unibet v. Justitiekanslern : (case concerned adequacy of Swedish national remedies): ECJ "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 ECHR and which has also been reaffirmed by Article 47 of the Charter." Case law under the Charter (post-Lisbon) Between 2000-09, the ECJ relied on the Charter as a source of interpretation of EU law and FRs. PostLisbon, the Charter acquired binding legal force and is now the starting point for EU FR law.
? NS v Home Secretary : Regulation gave UK discretion to consider the cases of asylum seekers before deporting them to their point of entry into the EU (here, Greece). UK refused to exercise discretion. Cs objected to deportation on grounds that Greece would not respect their rights. ECJ: UK could not merely presume that Greece would comply with their obligations to respect HRs, UK must use discretion to ensure Greece will: "MS must ... make sure they do not rely on an interpretation of an instrument of secondary legislation [including Regulations] which would be in
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