1. Human Rights in EU law - an unfinished story Dr. Laurent Scheeck, IEE-ULB

2. Introduction What are human rights in EU law ? How did human rights emerge in the EU ? How are human rights protected in the EU ?

3. What are human rights in the EU ?  EU known for importance it gives to human rights  EU institutions are very active in protecting human rights at the international level  New Member States have to fulfill Copenhagen criteria: « Membership requires that candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and, protection of minorities (…)»

4. What are human rights in the EU ? Council of Europe: all EU countries are members Council of Europe: anti-chamber for EU entry  Is the EU a role model for human rights ?

5. What are human rights in the EU ? Emergence of human rights in the EU is rather a story of: omissions, resistance & unexpected effects mobilisations by private actors, academics and judges still an unfinished story… …but also a very good example of how to make rights work Lesson: no liberty without the rule of law and independent judicial systems

6. What are human rights in the EU ? No comprehensive system for protection for a long time Only in Lisbon treaty  Charter of fundamental rights & EU accession to ECHR EU Charter signed and solemnly proclaimed by EU institutions in 2000 and again in 2007… … but not legally binding until now

7. What are human rights in the EU ? Even more complicated for EU accession to ECHR (EU negotiations, EU-COE negotiations, Protocol 14) But many forms of resistance to human rights  not sure when the Charter will become legally binding anytime soon, EU accession to ECHR delayed

8. Lost in Resistance ? EU catalogue of fundamental rights faces two kinds of resistance  direct and indirect No outright opposition to the general idea of protecting human rights in EU… …but a lot of resistance to idea of EU Charter and strong supranational HR institutions

9. Direct resistance Historic governmental resistance to initiatives for a transnational human rights catalogue. No HR in EC/EU treaties: not a central EU mission… Council of Europe = anti-Monnet method ….but problem is absence of protection from EU action

10. Freedoms but no rights 4 freedoms free movement of goods, persons, including free movement of workers and freedom of establishment, free movement of services, free movement of capital But human rights is not only about liberty, but also about being protected from governmental action This was « forgotten » in Rome in 1957

11. Direct resistance Continued resistance to EP HR initiatives: 1984 Spinelli report on HR and EP initiative for HR catalogue in 1989 both failed First treaty references to HR = preamble of SEA, Maastricht treaty ratified in 1993: « The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. »

12. Direct resistance Commission, EP some EU governments always wanted a rights catalogue… …but no agreement until 1999 Charter (still no legal force). German initiative, supported by Commission and EP.

13. The Charter of Fundamental Rights For the first time in the European Union's history, the whole range of civil, political, economic and social rights of European citizens and all persons resident in the EU. These rights are divided into six sections:  Dignity, Freedoms, Equality, Solidarity, Citizens' rights, Justice. Based on ECHR, the constitutional traditions of the EU Member States, the Council of Europe's Social Charter, the Community Charter of Fundamental Social Rights of Workers and other international conventions to which the European Union or its Member States are parties.

14. Direct resistance Drafting very difficult. MS especially careful about scope. 2003 & 2007: inclusion of the Charter into the now failed EU Constitution, then into Lisbon Treaty But renewed resistance: two opt-outs on the Charter in Lisbon treaty (UK & Poland)

15. Indirect resistance Charter also a victim of indirect resistance to EU  Failure of Constitutional treaty  Ratification problem of Lisbon treaty Charter has been one of the few non-controversial issues for European citizens… …but as a result of overall-resistance to the European project, the Charter process is also frozen for now.

16. Why all this resistance ? 2 explanations Fundamental rights regulate the relationship between individuals and the State Charter = a constitutional document  fear of European federation or state Fear of supranational “invasion” of the State  ECJ and EU law much more powerful than European Court of Human Rights and ECJ  primacy of EU law, budget  Empowerment of national courts

17. The EU and Human Rights Does the EU have no internal system for protecting human rights then ? Reference to ECHR in existing EU treaty, Fundamental Rights Agency, Commission, Network of experts, EP. Most of all: judicial politics of fundamental rights in EU ECJ protects rights since 1969 (Stauder case) ECJ “invents” human rights

18. Integration through human rights Why? Academic pressure, internal pressure (judges), pressure from Italian and German Constitutional courts  also to save supremacy of EU law, i.e. reducing national judicial resistance  Extending EU competences with human rights law, e.g. Pupino judgement (2005)  Constitutionalising the EU, i.e. changing the nature of the EU by creating more direct links between the EU and citizens, e.g. Schmidberger jugdement (2003) National political and judicial resistance no surprise

19. The ECJ under fire Resistance to ECJ rulings is nothing new, but more political opposition than before, also HR cases. Academic: Instrumentalising HR for integration debate Political: Metock e.a. vs Ireland (C ‑ 127/08) 25/07/2008 Laval, Viking, Rüffert, Luxembourg (2007 and 2008): ECJ strict interpretation of freedon of circulation, to the detriment of national social practices and unions Judicial: Resistance from Constitutional courts (EAW)

20. The ECJ, Human Rights and the ECHR ECJ not a human rights court…but protects rights like any “constitutional” court ECJ protects rights even without a legally binding rights catalogue to do so. How ? ECJ relies on  Directives (ex. equal treatment directive of 2000)  Common constitutional traditions & general principles  ECHR since the mid-70’sECHR in ECJ case law.  7,5 times more often than all other existing international (1997-2006)

21. The ECHR in the ECJ and CFI, 1998- 2005

22. The ECJ and the Charter Charter has been used in the ECJ on many occasions  Parties invoke the Charter regularly since 2001  Advocate generals invoke the Charter regularly since 2001  The TFI has used Charter +/- a 100 times since 2002  The ECJ has used the Charter on some occasions since 2006  Even the European Court of Human Rights also uses the Charter Charter = fundamental parameter of reference in the ECJ and beyond

23. The ECJ and the Charter Charter is not an intergovernmental document… …but a merely the synthesis of existing case-law (mostly build on ECHR) validated by governments Opt-outs have mostly symbolic value, rights remain protected at/from a supranational level because of existing ECJ case law Complementarity between governmental action and judicial protection of rights: governments consolidate previous evolutions, give symbolic and political value Complementarity between ECHR and Charter

24. The diplomacy of European judges HR in EU = also European Court of Human Rights European Court of Human Rights active even before formal EU accession to ECHR (Matthews, Bosphorus judgements, etc.)  Judicial annexation of EU to ECHR ? Regular meetings between European Judges Result of leadership by an epistemic transnational community  few but powerful judges, lawyers, governmental and “civil society” actors.

25. The diplomacy of European judges Alignment of case law Cross-fertilization Result of constant dialogue, socialisation of judges + systemic entanglement Reciprocal empowerment of the two courts “Keeping Member States together” Allows to enhance judicial protection of human rights

26. Result  HR in EU not so much a supranational instrument to protect rights at the national level  rather an instrument to protect citizens with regard to action of an ever more powerful EU  applies only to EU institutions and to Member States applying EU law

27. Remaining challenges Ratification of Charter EU accession Individual access to ECJ Informing national judges of ECJ human rights jurisprudence Liberty & security equilibrium

28. Conclusion EU has an open, interdependent, fragile judge-driven HR system Still a lot of political resistance to HR – political process = slow Future challenge in EU: growing EU power in sensitive areas (security, police, justice) & judicial human rights protection without overall political support Political consolidation would have symbolical and political advantages

29. Conclusion Legal situation would not change much Human rights and Charter might not be lost in resistance after all  Already applied even before ratification of ECHR and EU accession to ECHR.  But for the moment: the EU is sending out mixed signals to the world and EU candidate countries

30. Conclusion No Human Rights without strong and independent judicial systems… …and people fighting for their rights EU example: ECJ is at the basis of a good protection yet it also had institutional interests to do so because of external pressure Good human rights protection = mobilisation + giving political and legal incentives to those who have to protect rights

31. Thank you !