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EU REMEDIES (I); GENERAL PRINCIPLES OF LAW Abbreviations: ECJ European Court of justice MSs Member states (of the EU) EP European Parliament CFSP Common Foreign and Security Policy TEU Treaty on EU (Maastricht) TFEU Treaty on the Functioning of the EU (Rome) EEC Treaty Treaty establishing the Economic European Community DE Direct effect HRs Human Rights CFI Court of First Instance ECtHR European Court of Human Rights JR Judicial Review
RIGHTS IN THE EU Overview
Development of the role of HRs in the EC
Draft European Political Community Treaty in 1953 intended to make ECHR part of the law of the EC, but was never adopted cos of France's rejection of the closely-linked Defence Community Treaty in
EEC and Euratom Treaties in 1957 were cautiously drafted - omitted reference to human rights. Reflects the EC's primary focus on the creation of a common market, and other economic goals, in its early years. Hence, development has been left largely to the ECJ.
But today, HR have returned to occupy central position. Once ECJ acknowledged HR as part of the general principles, this rapidly gained political approval!
Hence, joint declaration of Parlt, Council and Comm in 1977, and other non-binding initiatives and resolutions were made!
Formally speaking, HR re-entered EU Treaties with subsequent changes in Maastricht, Amsterdam, Nice and Lisbon!
3 formal sources (laid out in art 6 TEU, which recognised protection of HR for first time in Maastricht):
1. EU Charter of Fundamental Rights (2000), upgraded to binding legal status on par with Treaties by Lisbon Treaty in 2009 (art 6 TEU)
Meant to be the principal basis for EU courts to ensure observance of EU law, but UK, Poland and the Czech Republic have negotiated a protocol to the Lisbon Treaty purporting to limit the impact of the Charter.
2. ECHR, which will become formally binding on the EU when EU accedes to it as mandated to do so by art 6(2) TEU. Relevant in to EU law in 3 ways, at present: i. Charter provisions based on ECHR are to have 'same' meaning as ECHR provisions ii. ECHR is one of the main sources of inspiration for general principles iii. ECHR provisions will become formally binding upon accession. iv. NB: in an Advisory Opinion of 1996, the ECJ had ruled that EU lacked competence under the Treaties to accede to ECHR, and that an amendment was necessary. Held that art 352 TFEU does not constitute legal basis for accession, as it would entail substantial change for protection of HRs in the Community system, and entail entry into distinct international institutional system + integration of all ECHR provisions into the Community legal order. This goes beyond scope of art 352 TFEU, as it is of constitutional significance! But this objection has now addressed by art 6(2) TEU!
1. Development of 'general principles of EU law'
EU has imposed HR-based 'political conditionality' on candidate MSs since the Amsterdam Treaty (1999) - art 49 TEU, and claims to integrate HR concerns in its common foreign and security policy
Note art 7 TEU, introduced by the Amsterdam Treaty, empowers Council to suspend voting/other rights of MS found by Council to be responsible for serious and persistent breach of the principles in art 2 TEU. 1
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General Principles of Art 7 TEU established in 1999 a sanction mechanism for serious and persistent breaches of HR. EU Fundamental Rights Agency established in 2007.
Meant to replace the EU Monitoring Centre for Racism and Xenophobia.
Debate over whether powers should include monitoring MSs for purposes of art 7 TEU, but MSs refused to include this within its mandate.
Hence, basically collects info, formulates opinions, highlights good practices, and publishes reports. Remains to be seen what kind of impact it'll bring!
Still, critics highlight that in areas of immigration, asylum and criminal justice, EU has allegedly neglected/undermined HR concerns. EU's competence to enact rules on HR/conclude intl HR conventions?
Early on, not much power to do so - see above discussion about accession to ECHR.
Today, for external EU competence, much has changed! See recent conclusion of the UN Convention on the Rights of Persons with Disabilities!
But not much has changed internally - EU still needs specific competence under a Treaty provision. No general power provided for in the Treaties!
Art 19 TFEU, however, confers competence on EU to adopt measures combatting discrimination (powerful HR tool, but only for field of non-discrimination). Field of data-protection is also developing in the same direction.
Respect for HRs seems to be a "goal" - art 3(5) TEU provides for EU to contribute 'to the protection of HRs' in its external relations; art 21(1) TEU provides for EU's external action to be guided by the stated principles.
Treaty basis for EU's policy over past decade to integrate HR protection into its external relations!
But NO comparable Treaty commitment to protection/promotion of HRs across internal policies
Led to criticism of "double-standards"!
GENERAL PRINCIPLES OF EU LAW Stages of Development
Stage I: ECJ discovers the general principles of law In the 1950s and 1960s, ECJ initially resisted attempts to rely on rights and principles recognised in domestic law.
Stork, 1959: applicants tried to say their HR, protected in national constitutions, were being infringed by Regulation. Problem was that HR in criterion of legality in the Treaties, for EC law. But there was discussion within the European Commission and EP about the implications of the doctrine of supremacy (from Costa v ENEL, 1964) and the risk of undermining HRs protected by domestic constitutions. Change came in the **Stauder case, 1969: ECJ declared that the disputed provision 'contained nothing capable of prejudicing the fundamental HRs enshrined in the general principles of Community law and protected by the Court'.
Hence affirmed recognition of general principles of EU law Subsequently elaborated upon in the **Internationale Handesgesellscahft case, 1970: German Constitutional Court asked to set aside EU measure which allegedly conflicted with German constitutional rights and principles.
ECJ affirmed that validity of EC measures can only be judged in light of Community law, since they stemmed from the Treaty, which is an independent source of law (not subject to rules of national law!) - reasserted supremacy
Hence, EC measure cannot be invalidated by contrary fundamental rights or principles of MS constitutions.
Regardless, respect for fundamental rights is an integral part of the general principles of Community law, protected by the ECJ. While such rights are inspired by MS' constitutional traditions, they are protected within the framework of the EC's structure and objectives.
Hence applying EU standards of HR (not national standards, though drawn from there) But Germany, inter alia, though there was insufficient protection of fundamental rights within EU system - Solange I, 1974: reserved right to step in and annul EU law which didn't comply. 2
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but reversed this in Solange II, 1987: held that protection afforded by ECJ was at sufficient level, though still reserving emergency jurisdiction.
Stage 2: ECJ develops the general principles of law After the above 2 cases, the ECJ's subsequent case law emphasised the autonomy of EU general principles, but also stressed that the source of these principles was not entirely independent of MSs' legal cultures and traditions. Justification for the general principles can be derived from Treaties:
Art 263(2) TFEU: ground of review is "infringement of the Treaty or any rule of law relating to its application".
Art 19(1) TEU: ECJ's duty to uphold the law (interpreted broadly) SOURCES of the general principles: Nold v Commission, 1974: identified (a) international HR agreements and (b) common national constitutional traditions as the 2 primary sources of 'inspiration' for the general principles. (NB: ECJ in this case also said that rights can be subj to limitations in view of EU's interests) But note that art 6(3) TEU mentions only the ECHR, within (a), alongside national constitutional traditions. It does NOT expressly reference other international HR instruments.
Before enactment of the EU Charter, the main international instrument which the ECJ drew upon as a 'special source of inspiration' for the formation of general principles was the ECHR!
ECJ however never ruled that ECHR was formally binding on the EU, or that its provisions were formally incorporated into EU law.
Rather, ECJ routinely cites the 'special significance' of ECHR and ECtHR rulings, and art 6 TEU refers expressly to the ECHR.
Allows ECJ to maintain the supremacy and autonomy of EU law!
Also, ECJ retains freedom to go beyond the Convention, so that ECHR provides a floor rather than ceiling of rights.
Reflected in art 52(3) Charter, specifying that provision does not prevent EU law from providing more extensive protection.
NB: ECHR level of protection relatively low, that's why so many signatory states. But since all MSs have signed it, this should be minimum standard.
Other international HR instruments?
ECJ has only rarely drawn on other instruments - criticised for this neglect.
Fluctuating attitude over time!
eg. Defrenne v Sabena III, 1978: ECJ drew on European Social Charter and one of the International Labour Organisation Conventions to back its view that elimination of sex discrimination was a fundamental EU right.
Cf Grant v South West Trains, 1998: where ECJ was surprisingly dismissive of opinion given by the ICCPR HR Committee
Kadi and Al-Barakaat cases: ECJ did not follow the Court of First Instance in citing HR norms deriving from CIL/ius cogens rules of intl law/principles referred to in the preamble to the UN Charter. Instead, it cited only the EU Charter and the ECHR as sources for the applicable HRs.
EU Charter's provisions are based on intl HR instruments, but unsure as yet whether ECJ will treat these international instruments/interpretations of them as influential or persuasive authority.
Note the EU network of Independent Experts on Fundamental Rights (now replaced by EU Fundamental Rights Agency) had argued repeatedly for standards of protection within EU to be 'indexed' to intl HR standards, to avoid MSs having to choose between their loyalty to EU law and other commitments. But not taken up so far!
National constitutional traditions
ECJ infrequently draws on national constitutional provisions, despite the symbolic prominence that ECJ and Treaties place on the 'common constitutional traditions' of MSs. 3
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Reasons: Quite hard for ECJ to assert a 'common' approach across all MSs. Also, fear of compromising supremacy of EU law.
Hence, ECJ prefers to ground decision in collective commitments of the ECHR. Hauer v Land Rheinland-Pfalz, 1979: for sake of unity and efficacy of EC law, qn on infringement of fundamental rights by EC measures can be judged only in light of Community law!
ECJ held that right to property was guaranteed in accordance with common constitutional ideas of MSs, as reflected in P1-1 ECHR (shows preference to back up with ECHR) Standard of recognition?
ECJ has NOT expressly adopted either the maximalist or minimalist standard rather, case-by-case approach!
Today, Charter (art 53) says courts can't go below protection offered by international treaties - but these treaties usually have quite low a level of protection.
Seems like level of protection might depend on the type of right. More difficult to get general measures (Directive/regulation) annulled, compared to individual administrative measures.
Germany v Council (Bananas), 1994: eg of general measure which ECJ was reluctant to annul.
cf X v Commission, 1994; BPB v Commission, 2008: examples of admin acts which ECJ is more ready to annul.
see next section for the distinction.
Mannesmannrohren-Werke, 1998: ECJ dismissive of maximum-standard approach (where recognition by even one MS as a fundamental right would suffice). Hence need recognition by all, or at least, most MSs.
AM&S, 1979: France argued that ECJ was foisting on the EU a domestic rule of English law (alleging max-std approach)
AG Warner, however, though that a general principle could be distilled even if 'conceptual origin/scope of its application in detail' differed between MSs.
Cf AKZO, 2007: ECJ refused to extend EU's general principle of legal professional privilege beyond context of independent lawyers, to in-house lawyers, since there was no 'developing trend'/'uniform tendency' across the MSs to justify it.
Omega Spielhallen, 2004: ECJ drew upon the particular conception of human dignity within German law, abstracting a more general concept which could be said to be shared by all MSs.
But note that in this case, it was an MS seeking derogation from EU free movement rules to comply with constitutional requirements on human dignity (compared to typical domestic dignity-based challenge to the validity of an EU measure). Even if there is general consensus on the existence of a right, there will almost always NOT be consensus as to how the right should be interpreted/translated into a general principle of EU law. Differences between MSs' conceptions of particular HRs are significant. ECJ's recognition and application will probably still differ from indiv MS approach.
HR-Based Challenges to EU Action 2 forms: (1) review of legality of EU acts; (2) review of legality of MS action when acting within scope of EU law.
A. Challenges to EU legislation
Typical approach: Nold, 1974: despite declaring that general principles would take precedence over conflicting specific Community measures, ECJ also emphasised that on the facts, the relevant rights were not absolute, and limitations were justified by EU's overall objectives .
- Hence, limited success in challenging validity of EU legislation!
ECJ's technique of requiring Eu legislation to be interpreted and implemented in compliance with fundamental HR effectively insulates EU legislation against challenge, and imposes HR obligations on national authorities!
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General Principles of But in the field of anti-terrorism (post 9/11), ECJ has been more willing to strike down EU laws for disproportionate violation of indiv rights.
Pre 9/11, in the Bosphorous case, 1996: ECJ held that fundamental interests of the intl community could justify restrictions of property and trade rights, even where indiv appeared entirely uninvolved in terrorist activities.
Cf Kadi I and Kadi II, amongst other important judgments, ECJ and CFI struck down number of EU laws (whether autonomous EU measures or UN SC-mandated measures) for violating range of rights, usually rights of defence and the right to property. These EU laws had been adopted to implement a UNSC resolution.
In Kadi, EU adopted Regs meant to implement UNSC Resolutions - required all MSs to freeze finances of persons/entities controlled by Taliban or associated with Osama/Al Qaeda. Cs claimed infringement of right to use of their property and right to a fair hearing, as their assets were frozen without even an opportunity to defend themselves.
CFI had rejected applications for annulment, holding that it lacked authority/jurisdiction to question Resolutions of the UNSC, even indirectly.
But ECJ took different approach! Held that Community is based on the rule of law so that MSs and institutions cannot avoid review of conformity of acts with the basic constitutional charter - the EC Treaty. International agreements cannot affect autonomy of the EC legal system, and measures incompatible with respect for HRs are not acceptable within the Community.
**thus, obligations imposed by international agreement cannot prejudice the constitutional principles of the EC Treaty (which includes principle that all EC acts must respect fundamental rights)
Review of lawfulness is not restricted to the international agreement, but also applies to the EC act intended to give effect to the agreement!
This is even if Community measures are intended to give effect to UNSC Resolutions.
Art 297 EC implicitly permits obstacles to operation of common market if meant to maintain international peace and security, but DOES NOT authorise derogation from principles of liberty, democracy and respect for HR and fundamental freedoms enshrined in art 6(1) EU.
Art 307 EC does not permit any challenge to principles forming the very foundation of the Community legal order (one of which being protection of fundamental rights, including review by EC courts of lawfulness of Community measures)
Hence, held that rights of the defence were not respected, and there was unjustified restriction of his right to property.
Specifically, right to be heard and right to effective judicial review of these rights.
But ECJ allowed Reg to remain in effect for 3 months, to allow Eu institutions to cure the procedural breach, and to re-list applicants.
In Kadi II, General Court clearly disapproved of ECJ's reasoning above! But still followed the approach outlined - undertook robust (strict) review of the evidence offered in justification of the sanctions + evidence of observance of rights of the defence, eventually rejecting them as superficial and inadequate.
Hence, GC annulled the Reg without allowing 2nd chance!
Hence, in these cases, the EC courts have been much less deferential to EU institutions and even intl institutions (UN SC) when considering challenges based on fundamental rights. But claimants' success is tempered by fact that victory is often pyrrhic
eg. In Kadi I where ECJ maintained measures in force for some time.
B. Challenges to EU administrative action - [2 main contexts] easier to get annulled than (A)
1. Staff cases
Such staff and recruitment cases are usually based on pleas of violation of freedom of expression/religion, right to private and family life, and non-discrimination.
Civil Service Tribunal hears these complaints at first instance, before General Court and ECJ. 5
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**Wenig v Commission, 2008: decided that proceedings involving suspension and withholding of pay was administrative in nature, so that art 6(1) ECHR does not apply to the Comm (limited to judicial proceedings!)
but still, in Bui Van, 2008: CST rule that staff regulations and conditions of employment must still be read in the light of the Charter provisions.
Field of Commission's enforcement powers in competition proceeding.
Commonly, arguments based on rights of the defence (including right to fair hearing, and related principles of non-retroactivity of penal liability), data protection, and privacy.
Comm has wide powers in competition proceeding - includes authority to investigate and make searches, and impose severe financial penalties. Cs often call upon Court to limit and control exercise of these wide powers, by reference to general principles of law.
Early case of Hoeschst AG v Commission, 1989: company challenged Comm's decisions to order investigation into its affairs, upon suspicion of anti-competitive practices.
ECJ held that Reg cannot be interpreted to give results which are incompatible with the general principles of EC law (and especially with fundamental rights)
During interpretation, must have regard to the rights of the defence, and the fundamental right to the inviolability of the home.
but limited the application of the latter right to private dwellings, not undertakings (because of wide variances in the approach taken by MSs as to undertakings). Further, art 8(1) ECHR is concerned with man's personal freedom, not his business.
Found that there was no breach of principles by the Comm on the facts!
NB: in subsequent cases, ECJ accepted that art 8 ECHR, as clarified by ECtHR subsequently, did indeed extend to business premises.
[shows significance of ECHR and the case law of the ECtHR. Still, before EU actually accedes to ECHR according to art 6(2) TEU, the ECHR is not formally binding on EU]
C. Challenges to MS action
ECJ has held that fundamental rights are binding also on MSs, when MSs are acting within the scope of application of EU law - but parameters are not clear! Also, MSs might be resistant.
Generally speaking, 3 categories of situations where MSs can be said to be acting within scope of application! But hard to predict in advance.
Metock, 2008: even where issue was deemed outside the scope of application of EU law, ECJ still drew MS' attention to its international obligations under the ECHR.
The 3 categories:
1. 2.MS applying provisions of EU legislation based on protection for HRs MSs are bound by general principles when applying provisions of EU legislation which are based on protection for HRs. Rutili, 1975: established the above rule! Court held that Directive's provisions, which limited restrictions that MSs could impose on free movement of workers, were specific expressions of the general principles enshrined in the ECHR. MSs as agents of the EU MSs are bound by general principles of EU law where acting as 'agents' of the EU, implementing/enforcing EU measures.
Hence must legislate and act in a manner which respects rights set out in ECHR, even where EU measures do NOT directly embody the particular right. Wachauf v Germany, 1989: ECJ held that MSs are bound by all the general principles and fundamental rights binding on EU action, when implementing EU law, because acting as agent.
hence, on the facts, MS had to endeavour to provide compensation to tenant farmer upon expiry of tenancy, even where EU Reg being implemented did not specifically provide for compensation!
Allows ECJ to strengthen EU legislation in terms of protection of rights, where the original EU measure does not provide expressly for it.
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