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Speculating Human Rights Jurisdiction of the ECJ Siniša Rodin.

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1 Speculating Human Rights Jurisdiction of the ECJ Siniša Rodin

2 Hungarian Penal Code 1993 Article 269/B, para (1), points a, b, c of the penal code incriminates to “utilize or exhibit in public swastika, a badge descriptive SS, an arrow-cross, hammer and sickle, a five-pointed red star.” Article 269/B, para (1), points a, b, c of the penal code incriminates to “utilize or exhibit in public swastika, a badge descriptive SS, an arrow-cross, hammer and sickle, a five-pointed red star.” In no member-state of the European Union are prohibited the red star or the traditional symbol of the workers' movement. In no member-state of the European Union are prohibited the red star or the traditional symbol of the workers' movement.

3 Case of Attila Vajnai On 10. March 2003, the Budapest district police station of V and XIII district heard Attila Vajnai, the vice-president of the Workers' Party as a suspect. According to the police Attila Vajnai utilized the red star on a press conference on 21. On 10. March 2003, the Budapest district police station of V and XIII district heard Attila Vajnai, the vice-president of the Workers' Party as a suspect. According to the police Attila Vajnai utilized the red star on a press conference on 21. Attila Vajnai was sentenced on March to 12 months' probation for displaying a red star in public, and was arrested again in April for the same reason. Attila Vajnai was sentenced on March to 12 months' probation for displaying a red star in public, and was arrested again in April for the same reason.

4 Case C-328/04 Reference has been made to the ECJ by order of the Fővárosi Bíróság, Hungary, of 24 June 2004, received at the Court Registry on 30 July 2004, for a preliminary ruling in the criminal proceedings against Attila Vajnai.

5 Question 1 Is Article 269/B, first paragraph, of the Büntető Törvénykönyv (Hungarian Criminal Code), which provides that a person who uses or displays, in public, the symbol consisting of a fivepointed red star commits — where the conduct does not amount to a more serious criminal offence — a minor offence, compatible with the fundamental Community-law principle of non-discrimination?

6 Question 2 Do Article 6 TEU, according to which the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, Directive 2000/43/EC, which also refers to fundamental freedoms, and Articles 10, 11 and 12 of the Charter of Fundamental Rights, allow a person who wishes to express his political convictions through a symbol representing them to do so in any Member State?

7 Jurisdiction depends on ECJ’s reading of the case......as a free movement case, or...as a free movement case, or as a fundamental rights case! as a fundamental rights case! Costa v. ENEL: THE COURT HAS POWER TO EXTRACT FROM A QUESTION IMPERFECTLY FORMULATED BY THE NATIONAL COURT THOSE QUESTIONS WHICH ALONE PERTAIN TO THE INTERPRETATION OF THE TREATY Costa v. ENEL: THE COURT HAS POWER TO EXTRACT FROM A QUESTION IMPERFECTLY FORMULATED BY THE NATIONAL COURT THOSE QUESTIONS WHICH ALONE PERTAIN TO THE INTERPRETATION OF THE TREATY

8 The Problem Whether Communtiy law can restrict States in exercise of their regulatory powers, and where so, on what legal basis and to what extent? Whether Communtiy law can restrict States in exercise of their regulatory powers, and where so, on what legal basis and to what extent? Two situations: Two situations: 4 freedoms affecting MS regulatory powers (Arts TEC) 4 freedoms affecting MS regulatory powers (Arts TEC) Fundamental rights affecting MS regulatory powers (Arts. 6-7 TEU) Fundamental rights affecting MS regulatory powers (Arts. 6-7 TEU)

9 The TEU (Art. 6) The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 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.

10 ECJ Jurisdiction re: Art. 6(1) TEU Art. 46 TEU: The provisions of the Treaty (…) concerning the powers of the ECJ and the exercise of those powers shall apply only to the following provisions of this Treaty: (…) Art. 6(1) not mentioned !!!

11 The Directive (preamble) In accordance with Article 6 of the Treaty on EU, the EUis founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States, and should respect 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, as general principles of Community Law. In accordance with Article 6 of the Treaty on EU, the EUis founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States, and should respect 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, as general principles of Community Law.

12 ECJ Jurisdiction re: Directive 2000/43/EC Article 1 - Purpose Article 1 - Purpose The purpose of this Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment. The purpose of this Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment.

13 Charter of Rights of the EU Article 10 - Freedom of thought, conscience and religion Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. Article 11 - Freedom of expression and information Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Article 12 - Freedom of assembly and of association Political parties at Union level contribute to expressing the political will of the citizens of the Union.

14 ECJ Jurisdiction re: Charter of Rights Still not a binding document Still not a binding document Even under the Constitutional Treaty, it will be binding only on EU institutions and Member States when implementing EU law. Even under the Constitutional Treaty, it will be binding only on EU institutions and Member States when implementing EU law.

15 Conclusion: Prima faciae the ECJ does not have jurisdiction to hear the case on human rights grounds Prima faciae the ECJ does not have jurisdiction to hear the case on human rights grounds Consequence: Member State can imprison people for displaying a red star unless the case can be heard as a free movement case! Consequence: Member State can imprison people for displaying a red star unless the case can be heard as a free movement case!

16 Is Atila Admissible as a Free Movement Case? The Court has power to extract from a question imperfectly formulated by the national court those questions which alone pertain to the interpretation of the Treaty (Costa v. ENEL) The Court has power to extract from a question imperfectly formulated by the national court those questions which alone pertain to the interpretation of the Treaty (Costa v. ENEL) Q: Does Hungarian Criminal Code restrict one of the 4 freedoms, e.g. Free movement of persons Q: Does Hungarian Criminal Code restrict one of the 4 freedoms, e.g. Free movement of persons In such a case, Atila would fit into Schmidberger, Omega line of cases In such a case, Atila would fit into Schmidberger, Omega line of cases

17 Free Movement Analysis Assumption 1: National measure infringes one of the 4 freedoms Assumption 1: National measure infringes one of the 4 freedoms Less persons can travel to Hungary (FMP)Less persons can travel to Hungary (FMP) Less Heineken beer can be sold in Hungary (FMG)Less Heineken beer can be sold in Hungary (FMG) Assumption 2: National measure aims at protection of a mandatory requirement Assumption 2: National measure aims at protection of a mandatory requirement E.g. Public policy, fundamental rights, etc...E.g. Public policy, fundamental rights, etc...

18 Free Movement Analysis Caught by Art. 28 Caught by Art. 28 Justified by Art. 30 Justified by Art. 30 Must not be “arbitrary discrimination” or “disguised restriction” of tradeMust not be “arbitrary discrimination” or “disguised restriction” of trade States have a margin of appreciationStates have a margin of appreciation Objective must be legitimateObjective must be legitimate Proportionality testProportionality test

19 Example of FM analysis Case C-112/2000, Schmidberger (...) whilst the free movement of goods constitutes one of the fundamental principles in the scheme of the Treaty, it may, in certain circumstances, be subject to restrictions for the reasons laid down in Article 36 of that Treaty or for overriding requirements relating to the public interest, in accordance with the Court's consistent case-law since the judgment in Case 120/78 Rewe-Zentral (`Cassis de Dijon') [1979] ECR 649. (...) whilst the free movement of goods constitutes one of the fundamental principles in the scheme of the Treaty, it may, in certain circumstances, be subject to restrictions for the reasons laid down in Article 36 of that Treaty or for overriding requirements relating to the public interest, in accordance with the Court's consistent case-law since the judgment in Case 120/78 Rewe-Zentral (`Cassis de Dijon') [1979] ECR 649. (...) interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests. (...) interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests. The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary to determine whether the restrictions placed upon intra- Community trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, the protection of fundamental rights. The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary to determine whether the restrictions placed upon intra- Community trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, the protection of fundamental rights.

20 What can be justified? Prohibition of lotteries! C-275/92, Schindler When a Member State prohibits in its territory the operation of large-scale lotteries and in particular the advertising and distribution of tickets for that type of lottery, the prohibition on the importation of materials intended to enable nationals of that Member State to participate in such lotteries organized in another Member State cannot be regarded as a measure involving an unjustified interference with the freedom to provide services. Such a prohibition on import is a necessary part of the protection which that Member State seeks to secure in its territory in relation to lotteries. When a Member State prohibits in its territory the operation of large-scale lotteries and in particular the advertising and distribution of tickets for that type of lottery, the prohibition on the importation of materials intended to enable nationals of that Member State to participate in such lotteries organized in another Member State cannot be regarded as a measure involving an unjustified interference with the freedom to provide services. Such a prohibition on import is a necessary part of the protection which that Member State seeks to secure in its territory in relation to lotteries.

21 How wide is margin of appreciation Case C-124/97, Läärä It is for [Member State] authorities to assess whether it is necessary, in the context of the aim pursued, totally or partially to prohibit activities of that kind or merely to restrict them and, to that end, to establish control mechanisms, which may be more or less strict. It is for [Member State] authorities to assess whether it is necessary, in the context of the aim pursued, totally or partially to prohibit activities of that kind or merely to restrict them and, to that end, to establish control mechanisms, which may be more or less strict. the mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of the need for, and proportionality of, the provisions enacted to that end. Those provisions must be assessed solely by reference to the objectives pursued by the national authorities of the Member State concerned and the level of protection which they are intended to provide. the mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of the need for, and proportionality of, the provisions enacted to that end. Those provisions must be assessed solely by reference to the objectives pursued by the national authorities of the Member State concerned and the level of protection which they are intended to provide.

22 Is prohibition of the Red Star a justified interference? Case C-36/02, Omega: (...) the prohibition on the commercial exploitation of games involving the simulation of acts of violence against persons, in particular the representation of acts of homicide, corresponds to the level of protection of human dignity which the national constitution seeks to guarantee in the territory of the FRG. Case C-36/02, Omega: (...) the prohibition on the commercial exploitation of games involving the simulation of acts of violence against persons, in particular the representation of acts of homicide, corresponds to the level of protection of human dignity which the national constitution seeks to guarantee in the territory of the FRG.

23 Is the Hungarian measure proportionate to the aim pursued? Omega: (...) by prohibiting only the variant of the laser game the object of which is to fire on human targets and thus play at killing' people, the contested order did not go beyond what is necessary in order to attain the objective pursued by the competent national authorities. Omega: (...) by prohibiting only the variant of the laser game the object of which is to fire on human targets and thus play at killing' people, the contested order did not go beyond what is necessary in order to attain the objective pursued by the competent national authorities.

24 Can Atila still be admissible as a fundamental rights case? Fundamental rights are a general principle of law Fundamental rights are a general principle of law Fundamental rights bind both the EU and its Member States Fundamental rights bind both the EU and its Member States There has to be an effective legal protection There has to be an effective legal protection Respect for FR is a requirement for EU membership Respect for FR is a requirement for EU membership

25 ECJ: FR = general principle of law (...) fundamental rights form an integral part of the general principles of law the observance of which the Court ensures, and that, for that purpose, the Court draws inspiration from the constitutional traditions common to the MS and from the guidelines supplied by international treaties for the protection of HR on which the MS have collaborated or to which they are signatories. The ECHR has special significance in that respect. (...) fundamental rights form an integral part of the general principles of law the observance of which the Court ensures, and that, for that purpose, the Court draws inspiration from the constitutional traditions common to the MS and from the guidelines supplied by international treaties for the protection of HR on which the MS have collaborated or to which they are signatories. The ECHR has special significance in that respect.

26 Omega; Schmidberger Since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty... Since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty...

27 Effective legal protection Leerlaufende Rechte? Since both, the Community and Member States, are required to respect fundamental rights, does the ECJ have an obligation to effectively protect rights guaranteed by the Treaty? Since both, the Community and Member States, are required to respect fundamental rights, does the ECJ have an obligation to effectively protect rights guaranteed by the Treaty?

28 Effective Judicial Remedy Case 222/84, Johnston The requirement of judicial control stipulated by that article reflects a general principle of law which underlies the constitutional traditions common to the member states. That principle is also laid down in articles 6 and 13 of the EHRC of 4 Nov As the European Parliament, Council and Commission recognized in their joint declaration of 5 April 1977, and as the Court has recognized in its decisions, the principles on which that Convention is based must be taken into consideration in Community law. The requirement of judicial control stipulated by that article reflects a general principle of law which underlies the constitutional traditions common to the member states. That principle is also laid down in articles 6 and 13 of the EHRC of 4 Nov As the European Parliament, Council and Commission recognized in their joint declaration of 5 April 1977, and as the Court has recognized in its decisions, the principles on which that Convention is based must be taken into consideration in Community law. By virtue of article 6 of directive no 76/207, interpreted in the light of the general principle stated above, all persons have the right to obtain an effective remedy in a competent court against measures which they consider to be contrary to the principle of equal treatment for men and women laid down in the directive. It is for the member states to ensure effective judicial control as regards compliance with the applicable provisions of Community law and of national legislation intended to give effect to the rights for which the directive provides. By virtue of article 6 of directive no 76/207, interpreted in the light of the general principle stated above, all persons have the right to obtain an effective remedy in a competent court against measures which they consider to be contrary to the principle of equal treatment for men and women laid down in the directive. It is for the member states to ensure effective judicial control as regards compliance with the applicable provisions of Community law and of national legislation intended to give effect to the rights for which the directive provides.

29 Respect for FR is requirement for accession Copenhagen Council 1993 criteria: “... stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities” Copenhagen Council 1993 criteria: “... stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities” Are these criteria applicable after membership? Are these criteria applicable after membership?

30 Constitutional opportunity of Atila To make FR a standard of judicial review To make FR a standard of judicial review To give Art. 6 TEU teeth To give Art. 6 TEU teeth To make further step in constitutionalisation of the Treaties To make further step in constitutionalisation of the Treaties

31 FR as a standard of review For the time being FR are standard of review only accessory, e.g. as a mandatory requirement. For the time being FR are standard of review only accessory, e.g. as a mandatory requirement. Question: Can ECJ anticipate the Charter of Rights becoming legally binding? Probabbly not! Question: Can ECJ anticipate the Charter of Rights becoming legally binding? Probabbly not!

32 Van Gend en Loos Revisited (teeth & constitutionalisation) Choice between avenues of review: vigilance of individuals + direct effect Choice between avenues of review: vigilance of individuals + direct effect Jurisdiction of the ECJ: Was it undisputable then? Jurisdiction of the ECJ: Was it undisputable then? Constitutionalisation THEN and NOW: new legal order & Constitutional Treaty Constitutionalisation THEN and NOW: new legal order & Constitutional Treaty

33 Van Gend – issue of jurisdiction The government of the Netherlands and the Belgian government challenge the jurisdiction of the Court on the ground that the reference relates not to the interpretation but to the application of the Treaty in the context of the constitutional law of the Netherlands, and that in particular the Court has no jurisdiction to decide. The government of the Netherlands and the Belgian government challenge the jurisdiction of the Court on the ground that the reference relates not to the interpretation but to the application of the Treaty in the context of the constitutional law of the Netherlands, and that in particular the Court has no jurisdiction to decide. The solution of such a problem, it is claimed, falls within the exclusive jurisdiction of the national courts, subject to an application in accordance with the provisions laid down by articles 169 and 170 of the Treaty. The solution of such a problem, it is claimed, falls within the exclusive jurisdiction of the national courts, subject to an application in accordance with the provisions laid down by articles 169 and 170 of the Treaty. The Belgian government further argues that the Court has no jurisdiction on the ground that no answer which the Court could give to the first question of the Tariefcommissie would have any bearing on the result of the proceedings brought in that court. The Belgian government further argues that the Court has no jurisdiction on the ground that no answer which the Court could give to the first question of the Tariefcommissie would have any bearing on the result of the proceedings brought in that court.

34 The Newest Legal Order? In Atila, the ECJ is facing a dilemma similar to one in Van Gend: In Atila, the ECJ is facing a dilemma similar to one in Van Gend: Van Gend – GATT or New Legal OrderVan Gend – GATT or New Legal Order Atila – NLO or the ConstitutionAtila – NLO or the Constitution

35 How to Justify? Incorporation? Incorporation? TEU and TEC are functionally inextricable.TEU and TEC are functionally inextricable. Art. 220 TEC:Art. 220 TEC: The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed. Law can not be observed if Art. 6 TEU is not effectively protected! However, this would require decision against Art. 46 TEU (word “only”)

36 How to Justify? Extension of free trade provisions to other regulatory purposes? Extension of free trade provisions to other regulatory purposes? Example US: Katzenbach v. McClung – racial discrimination in a highway restaurant is prohibited by the Constitution since it affects trade between States.Example US: Katzenbach v. McClung – racial discrimination in a highway restaurant is prohibited by the Constitution since it affects trade between States.

37 Bottom Line Jurisdiction of ECJ is not impossible to justify Jurisdiction of ECJ is not impossible to justify Member States will always have a margin of discretion how to exercise police powers Member States will always have a margin of discretion how to exercise police powers Both the Union and MS have to respect fundamental rights (...) Both the Union and MS have to respect fundamental rights (...) (...) subject to prinicple of proportionality (...) subject to prinicple of proportionality Margin of discretion and compliance with proportionality are controlled by the ECJ. Margin of discretion and compliance with proportionality are controlled by the ECJ.

38 If this approach is taken... ECJ would control compliance with Art. 6 subsidiary - as long as it is not complied by the Member States. ECJ would control compliance with Art. 6 subsidiary - as long as it is not complied by the Member States. Is it likely? Is it likely?No!


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