SOURCES OF EU RIGHTS LAW Article 6 TEU indicates three sources for EE Human rights law. 1) EU Charter of Fundamental Rights, Which was proclaimed in Nice in 2000 and was incorporated in the treaties in 2009 (entry into force of the Lisbon treaty) 2) The ECHR (1950), which is now not legally binding the EU, but it will when the EU will decide to adhere to it 3) the general principles of EU law: a body of legal principles, including human rights, which have been articulated and developed by the ECJ over the years These sources of law overlap, since the Nice charter has been written taking inspiration from the European convention of human rights and from the general principles of EU law.

No Human rights provisions in the EEC treaty 1) Originally the EEC was focused on the creation of a common market, rather than on the protection of human rights (no human rights catalogue in the treaties). 2) In 1950s and 1960s, the Court of justice resisted to the attempts of litigants to invoke rights and principles recognized by domestic law (e.g. legitimate expectations, proportionality, natural justice)

Costa c. Enel and Stauder The debate on the Human rights protection in the EU started with the Costa v ENEL decision (case 6/64 Costa v ENEL 1964), that affirmed the supremacy of EU law. In 1969, the first case in which ECJ recognized a fundamental right (STAUDER).

Stauder 3 slides In the Stauder case, the source of a fundamental right (human dignity) is found in the general principles of EU law, built up by the common constitutional traditions.

STAUDER Mister Stauder was a war mutilated who had been included in a group of people to which the European Commission recognized some benefits. In order to do some purchasing, the members of this group of people had to show a personal tag. In Germany, the tag provided to these persons indicated the particulars (full name). Stauder went to a German Court, affirming that the German administrative measure had violated his right to human dignity, which is protected by art. 1 GG. The Court declared that fundamental rights of the person are part of the general principles of EU law, and their respect must be assured by the Court. In this case, though, the ECJ concluded that there had not been any violation of the right to human dignity.

STAUDER – general principles of eu law as a source of human rights General principles of European Union law may be inferred both by the Eu laws and regulations and by the national constitutional common traditions of the members states. In this case, the general principles we talk about are deduced from the constitutional common traditions.

National constitutional court decisions on eu and human rights 1) Frontini (Italian Constitutional Court, 183/1973) 2) Solange I (German Constitutional Tribunal) These decisions evoke the possibility of a constitutional control on the EU acts by the national constitutional courts, in order to preserve the national constitutional fundamental rights and principles

HAUER DECISION OF THE ECJ (against frontini and solange I) The European Court of justice affirmed that “the question of the eventual violation of human rights by a European community act must be estimated within the framework of EU law. The introduction of evaluation criteria, inferred by the national constitutions, might threaten the unity of the common market and the cohesiveness of the community”.

NATIONAL CONSTITUTIONAL COURT DECISIONS (2 slides) 1) German Constitutional tribunal decision Solange II: since the ECJ has assumed a commitment to guarantee the fundamental rights, the German Constitutional tribunal renounces to judge the legitimacy of EU acts. 2) Maastricht Urteil e Lisbona Urteil: the German constitutional Court reaffirms the positions of the Solange I

NATIONAL CONSTITUTIONAL COURT DECISIONS the German constitutional Tribunal affirms its competence to judge on violations of the national constitutional rights only if the EU provides a lower protection of human rights in general terms. (ordinance 7 giugno 2000, EuZW 2000)

Second phase: the European Charter of Fundamental rights(2 s.) From Nice (2000) to Lisbon (2008): the Charter was proclaimed in Nice as a political document, that could be used as an interpretative tool be the ECJ in order to reconstruct the European fundamental rights. With the Lisbon treaty, the Charter acquires the same legal value of the EU treaties (art. 6, par. 1 TEU)

Third phase: the Lisbon treaty and the new art. 6 TEU “1. The Union recognizes 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 Treaties. The provision 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.

ARTICLE 6 OF TUE (2 slides) 2. The Union shall accede to the European Convention for the protection of Human Rights and Fundamental freedoms. Such accession shall non affect the Union’s competences ad defined in the treaties. 3. Fundamental rights, ad 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

EU and ECHR (art. 6 par. 2) Art. 6 par. 2 of TEU has authorized The accession by the EU to the ECHR, that would mean that complaints against EU acts can be brought before the Stasbourg Court..

Three reasons for this accession 1) the EU is accused not to have a genuine commitment to promoting human rights 2) The ECJ is accused of using Human rights discourse in order to extend the EU influence beyond the competences provided by the treaties 3) The ECJ is accused to use human rights as a tool in order to promote the commercial goals of the internal market 4) the ECJ was not born, and in fact is not, a Human rights court

The constitutional traditions of the States after Lisbon Art. 6 TEU still provides the common constitutional traditions as an instrument of the protection of human rights in EU. The common constitutional traditions may in fact provide for a higher protection than the one of the charter, that provides only for a minimum standard protection Furthermore, fundamental rights inferred by common constitutional traditions may be invoked also against UK and Polonia, since protocol n. 30 of the Lisbon treaty limits the enforcement of the Charter towards these countries.

Art. 1 of the protocol “The charter does not extend the ability of the Court of Justice of the European Union, as any Court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms”

Compatibility clause Relations between the Nice Charter and the ECHR (Luxembourg and Strasbourg) We are enlightened by art. 52, par. 3 e 53 of the Charter, that provide the compatibility clause and the correspondence clause 1) compatibility clause: art. 52 par. 3 is intended to ensure harmony between the ECHR and the Nice Charter, promoting deference of the ECJ towards the case law of ECtHR

Compatibility clause Art. 52. par. 3 affirms that “in so far as this charter contains rights which correspond to rights guaranteed by the Convention for the protection of Human rights and Fundamental freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”.

Correspondence clause 2) correspondence clause: art. 53 provides for a general “non-regression” clause. The Nice Charter is conceived as a “minimum standard” human rights protection tool, that cannot lower the protection provided by National Constitutions, EU law, European Convention of Human Rights and other international treaties.

Art. 53 Nice Charter Art. 53: “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms are recognized, in their respective fields of applications, by Union law and international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the protection of Human rights and Fundamental freedoms, and by the member States’ constitutions.

Scope and applicability of the Charter (art Nice Charter) The function of the Charter: A) interpretative tool to enlighten the meaning of other sources of law in EU law. B) Parameter of legitimacy of the EU Acts. C) parameter of legitimacy of some State Acts, in case the national Act has been adopted in order to put into effect a treaty rule or a EU act. E.g. implementation of a EU directive Individuals, legal persons and states may invoke the infringement of a fundamental right, protected by the charter, by a state only in the third hypothesis

Scope and applicability of the Charter (art. 51 Nice Charter) It is necessary for the National Act to be linked to EU law. The national Act must have implemented: 1) a EU treaty rule; 2) or a EU Act (e.g. a directive) 3) or the national Act must be in the scope of the treaties. U.S. Supreme Court theory of incorporation If there is no connection between the EU law and the National Act, the ECJ cannot affirm its competence on national acts.

Subsidiarity (art Nice Charter) The Charter does note create any new power or task for the EU non modify any existing task.