1. Fundamental Rights in the European Union
Specialization Seminar in Human Rights, Winter/Spring 2007
Turku Law School / Åbo Akademi
Tuomas Ojanen
19/05/2019
Tuomas Ojanen

2. Time-Table & Topics
6 February (MD): The historical evolution of the fundamental rights dimension of EU law
13 February (MD): The EU Charter on Fundamental Rights and the EU Constitution
13 March (H V): The role of fundamental rights in the interaction between EU law, national law and human rights treaties
19/05/2019
Tuomas Ojanen

3. Key Terms&Abbreviations
Fundamental rights=Rights protected within the EU legal order (and codified by the EU Charter of Fundamental Rights)
Human Rights=Rights protected by universal or regional human rights treaties or other instruments
Constitutional Rights=Rights protected by national constitutions of the EU Member States
The four fundamental market freedoms=Free movement of goods, services, capital and labour
the Charter= the EU Charter of Fundamental Rights
The European Constitution=the Treaty establishing a Constitution for Europe
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Tuomas Ojanen

4. The Fundamental Rights History of the EU 1958-1999: Major Topics Covered
Initial State in the 1950s
Breakthrough of fundamental rights to EC law
The National Constitutional Challenge
The Political Response to Fundamental Rights
Sources/Scope/Functions of Fundamental Rights
Critical Aspects of Fundamental Rights
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Tuomas Ojanen

5. Initial State in the 1950s
The original EC Treaties were silent on fundamental and human rights (but also see e.g. the principle of non-discrimination based on nationality (Art.7 (12)EC); and equal pay for equal work among men and women (Art. 119(141)EC)
Plausible reasons for the initial silence: no impact on fundamental civil and political rights by the common market; the ECHR does the business; social rights – the improvement of productivity will contribute to the improvement of social conditions, incl. social rights
The intial resistance by the ECJ (C-1/58 Stork, C and 40/59 Geitling; and C-40/64 Sgarlata): The ECJ has no power to review EC acts for their compatibility with domestic constitutional rights
19/05/2019
Tuomas Ojanen

6. Initial State in the 1960s
C-62/26 Van Gend en Loos: direct effect and autonomy of EC law
C-6/64 Costa v. ENEL : ”the law stemming from the Treaty, independent source of law, could not, because of its special and original nature, be overriden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question”
The protection of fundamental rights became legal and political imperative
Debate over the existence of the proctection of fundamental rights within EC law really begins: Is the transfer of powers by the Member States to the EC accompanied by the need to respect fundamental rights?
19/05/2019
Tuomas Ojanen

7. Breakthrough of fundamental rights to EC law
Breakthrough: The Stauder-Internationale Handelsgesellschaft-Nold trilogy ( )
C-26/69 Stauder: Fundamental rights are protected as general principles of EC law
C-11/70 Internationale Handelsgesellschaft: The validity of EC law can only be reviewed in light of EC law. The protection of fundamental rights is ensured within the framework of the structure and objectives of the EC
C-4/73 Nold: The constitutional traditions common to the Member States, as well as (certain) human rights treaties function as sources of inspiration (see ”Sources of inspiration”)
The protection of fundamental rights emerged as necessary to limit the risks entailed for fundamental rights by the absolute primacy of EC law – fundamental rights as
National constitutional challenge fueled the evolution of fundamental rights! (See National Challenge)
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Tuomas Ojanen

8. Interim Conclusion: C-44/79 Hauer
” the question of a possible infringement of fundamental rights by a measure of the Community instutions can only be judged in the light of Community law itself. The introduction of special criteria for assesment stemming from the legislation or constitutional law of a particular Member State would, by damaging the substantive unity and efficacy of Community law, lead inevitably to the destruction of the unity of the Common Market and the jeopardizing of the cohesion of the Community.
Fundamental rights form an integral part of the general principles of the law, the observance of which it ensures; ...in safeguarding those rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the Constitutions of those States are unacceptable in the Community... 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 within the framework of Community law...”
19/05/2019
Tuomas Ojanen

9. Other Landmark Rulings
C-5/88 Wachauf: Fundamental rights are also binding on the Member States when they implement EC law
C-60&61/84 Cinéthéque and C-260/89 ERT: Member States must also take into account fundamental rights when they limit e.g. free movement of goods or persons)
C-12/86 Demirel: the ECJ has no jurisdiction to examine the compatibility with fundamental rights of national measures ”falling outside the scope of application of EC law”
C-100/88 Oyowe: EC measures must be interpreted in harmony with fundamental rights
C-314/85 Foto-Frost: The ECJ enjoys exclusive power to review the validity of EU measures – cf. National Constitutional Challenge!
19/05/2019
Tuomas Ojanen

10. The National Constitutional Challenge
The German and Italian Constitutional Courts refused to accept the views by the ECJ on the primacy of EC law in the early 1970s
Solange I, BVergG, 1971: As long as an adequate standard of protection was not offered under EC law itself, the BVerfG reviews EC measures for their conformity with the German constitution. In particular, the BVerfG noted a lack of a catalogue of fundamental rights – the debate over the adoption of the EC catalogue of fundamental right started
The BVerfG revised its position in 1986 (Solange II, only so long as adequate level of protection is maintained)
Brunner v. TEU, 1993: the BVerfG declared that it reviews whether EU measures remain within the competence of the EU
Several other national constitutional actors have also challenged against primacy of EU law and the exclusive jurisdiction of the ECJ to review the validity of EU measures (to be continued on 13 March: The role of fundamental rights in the interaction between EU law, national law and human rights treaties)
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Tuomas Ojanen

11. The political response: 1970-1980
The European Parliament, the Council and the Commission solemnly issued a joint declaration on fundamental rights on 5 April 1977
Several other non-binding initiatives and declarations (Declarations and Resolutions on Racism and Xenophobia by the European Council, a Declaration of Fundamental Rights and Freedoms by the European Parliament (1989), a Community Charter of Fundamental Social Rights (1989, signed by 11 Member States)
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Tuomas Ojanen

12. Breakthrough of fundamental rights to the EC/EU Treaties
The Single European Act of 1986: references in the preamble to the ECHR
The Treaty on the European Union (1993): TEC art. 177, TEU Art. 6 (the Union respects the fundamental rights as guaranteed by the ECHR and by national constitutional traditions, not justiciable!)+respect for human rights and fundamental rights also mentioned in the two other pillars of the TEU (Art. J(1)2, Art. K.2(1)
EU citizenship and attached rights, Chapter II TEC
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Tuomas Ojanen

13. Fundamental rights in the EC/EU Treaties
The Amsterdam Treaty: the general clause (art. 6.1 TEU), rendered justiciable Art. 6.2 TEU (via art. 46d TEU), sanction procedure (Art. 7 TEU) conditions of accession (art. 49TEU), new law-making power to combat discrimination (art. 13 TEC), the communautarisation of large parts of the III pillar + some references to fundamental rights (e.g. art. 11TEU, in CFSP)
The Nice Treaty: Elaborated the sanction prodecure under Art. 7 TEU
The adoption of the EU Charter of Fundamental Rights in 2000 (to be continued on13 February: The EU Charter on Fundamental Rights and the EU Constitution)
19/05/2019
Tuomas Ojanen

14. Sources of Inspiration
The special relevance of the ECHR (see separate slide)
The constitutional traditions common to the Member States (e.g. C-44/79 Hauer)
Some references to other sources (e.g. International Covenant of Civil and Political Rights, see C-374/87 Orkem; European Social Charter of 1961, see C-149/77 Defrenne III)
Sources of inspiration are subject to interpretation ”within the framework of the structure and the objectives of the Community (C-11/70 Internationale Handelsgesellschaft)
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Tuomas Ojanen

15. The Special Status of the ECHR within the EU Legal Order
First explicit reference to the ECHR in Case 36/75 Rutili [1975] ECR 1219
Characterization of the ECHR as an instrument having "special relevance" for the determination and interpretation of fundamental rights as general principles of Community law (Joined Cases 46/87 and 222/88 Hoechst [1989] ECR 2859)
The ECHR is also the only international human rights instrument mentioned in Article 6.2TEU
References to individual judgements of the Strasbourg Court since the mid-1990s (e.g. Case C-13/94 P v S [1996] ECR I-2143).
Acknowledgement by the ECJ that its earlier case-law may have to be adjusted in the light of the case-law of the Strasbourg Court subsequent to that earlier case-law (Case C-94/00 Roquette Frères [2002] ECR I-9011)
The Accession of the EU to the ECHR and the review of EU acts/domestic implementing measures for their compatibility with the ECHR (to be discussed on 13 March: The role of fundamental rights in the interaction between EU law, national law and human rights treaties)
19/05/2019
Tuomas Ojanen

16. Scope of Protection
Fundamental rights, including the review by the ECJ, apply in the field of application of EU law only.
Fundamental rights are also binding on the Member States when they are applying EU law (C-5/88 Wachauf, C-60/84 Cinéthèque, C-260/89 ERT; uncertainty over the scope of fundamental rights due to the lack of clarity of EU jurisdiction)
As a rule, fundamental rights assume relevance in the EU/Member States-the individual interface. Occasionally, some rights may become relevant at the sphere of relations between individuals (horizontal effect; e.g. C-43/75 Defrenne)
19/05/2019
Tuomas Ojanen

17. Major Functions of Fundamental Rights within EU law
Yardsticks for the interpretation and the review of validity of EU law
A source of legitimation and unity (but also a source of disunity)
Checks on the exercise of powers by the EU institutions and by the Member States when they implement Union law (the defensive or negative function of fundamental rights)
A mandate to fulfill (the positive or offensive function of fundamental rights)?
A source of competence? (see e.g. Opinion 2/94 by the ECJ on Accession by the EC to the ECHR) – Traditionally, the allocation of competences between the EU and its Member States has been considered to be neutral vis-à-vis the protection of fundamental rights
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Tuomas Ojanen

18. Monitoring of fundamental rights within the framework of the EU
The Article 230EC Procedure
The Article 234EC Procedure, and the (limited) role of the national courts – excursus: the Article 234 preliminary rulings procedure)
The European Ombudsman
EU network of independent experts on fundamental rights
Fundamental Rights Agency?
External supervision of the EU by international monitoring bodies, especially the European Court of Human Rights (see separate slides, the approach of the Strasbourg authorities)
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Tuomas Ojanen

19. Critical Aspects of EU Fundamental rights 1969-1999
The key role of judicial interaction between the ECJ and national courts under Article 177 (now 234) EC – case-by-case pattern of evolution, gaps & confusion&uncertainty,”judicial law-making”
The pervasive market ideology of EC law – the four market freedoms as the fundamentally fundamental principles of the EC legal order; fundamental rights function as exceptions to fundamental market freedoms; for the relationship between fundamental rights and the four market freedoms, see separate PPP!!)
Something for economic actors and EC citizens only
The EC institutions: Taking rights seriously?
Fundamental rights as limits, not as a mandate to fulfil
The lack of adequate preventive and retrospective dimension of compliance of the EU and its Member States with the requirements of fundamental rights
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Tuomas Ojanen

20. Article 234EC
Article 234
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community and of the ECB;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.
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Tuomas Ojanen

21. Non-Discrimination Article 12
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited…
Article 13
1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation...
Article 141
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
For the purpose of this article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, …
Article 21 of the Charter
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.
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Tuomas Ojanen

22. Membership Condition Article 6
1. 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.
2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights … and as they result from the constitutional traditions common to the Member States, as general principles of Community law. …
Article 7
1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four fifths of its members after obtaining the assent of the European Parliament, may determine that there is a clear risk of a ser-ious breach by a Member State of principles mentioned in Article 6(1)…
Article 49
Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union.
19/05/2019
Tuomas Ojanen