1. EU Foundations EU Protection of Human Rights
Dr. J.J. Rijpma KOÇ UNIVERSITY Spring 2013

2. EU Protection of Human Rights
European Union ≠ Council of Europe
Charter of Fundamental Rights ≠ European Convention on Human Rights
Court of Justice of the European Union ≠ European Court of Human Rights
Luxembourg ≠ Strasbourg ≠

3. Why should the EU be concerned with FR?
Also economic regulation can affect fundamental rights
The EU is a legal order which is based on the respect for the rule of law and FR (Art. 6 TEU)
Fundamental Rights are General Principles of EU law
Charter of Fundamental Rights
Obligation to accede to the European Convention on Human Rights

4. Fundamental Rights as General Principles
Internationale Handelsgesellschaft (Case 11/70): Para [r]espect for fundamental rights forms an integral part of the general principles of Community law protected by the Court of Justice

5. Fundamental Rights as General Principles
Nold (Case 4/73) Para [t]he Court is bound to draw inspiration from constitutional traditions common to the Member States [...] Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed wihtin the framework of Community law.

6. Fundamental Rights as General Principles
Rutili (Case 36/75) The European Convention on Human Rights has a privileged status as a “special source of inspiration”. Human Rights as general principles apply also to the Member States when acting within the scope of application of EU law: 1) When implementing EU law (Wachauf, Annibaldi) 2) When derogating from EU law (ERT)

7. Schmidberger Facts: Demonstration Brennerpas;
Blocked, hindering in-export
Free movement v. right to demonstrate?
More precisely: can a restriction on the free movement of goods be justified by a fundamental right/general principle? (para. 50)

8. Schmidberger: clear restriction
Consequently, Articles 30 and 34 of the Treaty require the Member States not merely themselves to refrain from adopting measures or engaging in conduct liable to constitute an obstacle to trade but also, when read with Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is respected on their territory (…).

9. Schmidberger: clear restriction
It follows that, in a situation such as that at issue in the main proceedings, where the competent national authorities are faced with restrictions on the effective exercise of a fundamental freedom enshrined in the Treaty, such as the free movement of goods, which result from actions taken by individuals, they are required to take adequate steps to ensure that freedom in the Member State concerned even if, as in the main proceedings, those goods merely pass through Austria en route for Italy or Germany.
It should be added that that obligation of the Member States is all the more important where the case concerns a major transit route such as the Brenner motorway, which is one of the main land links for trade between northern Europe and the north of Italy.

10. Schmidberger: justification?
It is apparent from the file in the main case that the Austrian authorities were inspired by considerations linked to respect of the fundamental rights of the demonstrators to freedom of expression and freedom of assembly, which are enshrined in and guaranteed by the ECHR and the Austrian Constitution.

11. Schmidberger: justification?
NB. Also non-fundamental rights GP’s!
71. According to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect

12. Schmidberger: justification?
It follows that measures which are incompatible with observance of the human rights thus recognised are not acceptable in the Community
Thus, 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 such as the free movement of goods.

13. Schmidberger: justification?
The case thus raises the question of the need to reconcile the requirements of the protection of fundamental rights in the Community with those arising from a fundamental freedom enshrined in the Treaty and, (…)
Both free movement and right to gather and protest not absolute (paras 78 and 79)
81. In those circumstances, the 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.
Weighed: no automatic prevalence for either one!

14. Schmidberger: conclusion
Wide margin of appreciation for the Member States (para. 82)
Fundamental right involved (para. 86)
(…), all the alternative solutions which could be countenanced would have risked reactions which would have been difficult to control and would have been liable to cause much more serious disruption to intra-Community trade and public order, (…)
Consequently, the national authorities were reasonably entitled, having regard to the wide discretion which must be accorded to them in the matter, to consider that the legitimate aim of that demonstration could not be achieved in the present case by measures less restrictive of intra-Community trade.
Conclusion: Restriction was justified

15. Kadi I: EU Financial Sanctions
Para. 303:
Those provisions cannot however, be understood to authorize any derogation from the principles of liberty, democracy and the respect for human rights and fundamental freedoms enshrined in art. 6(1) EU as foundation of the Union”

16. Charter of Fundamental Rights
Drafted by a Convention Solemnly declared at the Nice European Council (2000) Unclear judicial status until Lisbon Now: Art. 6 TEU, same status as the Treaties (i.e. primary law) Directed to the EU institutions and bodies and the Member States when implementing EU law When similar rights as in ECHR than same interpretation. More protection allowed. Protocol: UK and Poland (but see: N.S. Case)

17. Accession to the ECHR Opinion No 2/94 (Accession ECHR): no competence
Art. 6(2) TEU: EU shall accede to the ECHR
Art. 59(2) ECHR as amended by Protocol 14
Why? - more visible
- fill gap in protection when MS apply EU law
(is there a gap? Bosphorus)
- difficulty: joint responsibility (co-respondent mechanism)

18. Fransson
The dilemma on the scope of application of the Charter to the Member States is solved: Scope is the same as the General Principles (“when acting in the scope of application of EU law”) In this case the Court held that the VAT rules fell within the scope of EU law (also because the VAT income is part of the EU’s own resources. Interesting additional features: The question on the duty of the Swedish courts to give priority to EU law and to ask questions to the CJEU

19. This afternoon the case study will be put on KUAIS (solve for Thursday) Tomorrow: EU Citizenship