Unlocking the EU Charter: A Comprehensive Perspective on Access to Justice

1. Introduction to the EU Charter of Fundamental Rights Perspective of access to justice Jana GAJDOSOVA EJTN-FRA seminar 14 April 2019

2. Sources of fundamental rights in the EU: the bigger picture European Union Constitutional traditions of the EU Member States General principles of EU law Unwritten Charter of Fundamental Rights of the European Union Written United Nations standards Council of Europe standards Informs Accession Accession ECHR CRPD

3. What is the Charter of Fundamental Rights of the EU? Preamble Peace – common values Universal values Diversity, etc Rights more visible Reaffirms const. and int’l rights Rights, duties, responsibilities Rights, freedoms and principles I Dignity (Articles 1–5) 1 Human dignity 2 Life 3 Integrity of the person 4 Torture and inhuman degrading treatment or punishment 5 Slavery and forced labour II Freedoms (Articles 6–19) 6 Liberty and security 7 Private and family life 8 Personal data 9 Marry and found family 10 Thought conscience and religion 11 Expression and information 12 Assembly and association 13 Arts and sciences 14 Education 15 Choose occupation and engage in work 16 Conduct a business 17 Property 18 Asylum 19 Removal, expulsion or extradition III Equality (Articles 20–26) 20 Equality before the law 21 Non-discrimination 22 Cultural, religious and linguistic diversity 23 Equality: men and women 24 The child 25 Elderly 26 Integration of persons with disabilities IV Solidarity (Articles 27–38) 27 Workers right to information and consultation 29 Access to placement services 30 Unjustified dismissal 31 Fair and just working conditions 28 collective bargaining and action 32 Prohibition of child labour and protection of young people at work 33 Family and professional life 34 Social security and assistance 35 Health care 36 Access to services of general economic interest 37 Environmental protection 38 Consumer protection V Citizens’ rights (Articles 39–46) 39 Vote and stand as candidate to EP 40 Vote and stand as candidate at municipal elections 41 Good administration 42 Access to documents 43 European ombudsman 44 Petition (EP) 45 Movement and residence 46 Diplomatic and consular protection VI Justice (Articles 47–50) 47 Effective remedy and fair trial 48 Presumption of innocence and right of defence 49 Legality and proportionality of criminal offences and penalties 50 Ne bis in idem VII General provisions (Articles 51–54) 51 Application 52 Scope and interpretation 53 Level of protection 54 Prohibition of abuse of rights

4. Charter is: • in force for over 100 months, soon 10 years • of increasing relevance at EU level • and yet – it is still underused at national level

5. The Charter’s potential is not yet fully untapped - why? • Unclear scope of the Charter (to be addressed in the course of the seminar) • Persisting doubts on added value • … Or: just a matter of awareness and time?

6. Why should Charter matter? Charter adds value by e.g.: 1. offering more in terms of procedural aspects/effects 2. offering additional remedial avenues for fundamental rights violations 3. covering more and wider reaching/stronger rights

7. 1. The Charter’s potential to ‘offer more’ in terms of procedural aspects/effects Supremacy and direct effect can play a role when interpreting national law; interpreting EU law; checking national law against the Charter; checking EU legislation against the Charter National courts and authorities are under a duty to apply EU law and set aside conflicting norms of national law (example of Benkharbouche case, 2017)

8. 2 . The Charter: additional access to justice avenues EU Member States Fundamental rights violation Charter does not apply National courts European Court of Human Rights Charter Article 51 check No involvement of implementation of Charter Preliminary ruling Charter applies National courts Involvement of implementation of Charter Court of Justice of the EU infringement European Commission EU Institutions Charter always applies European Court of Human Rights (upon EU accession to the ECHR) Preliminary ruling National courts Court of Justice of the EU infringement European Commission

9. 3. The Charter covers more and wider reaching rights! Charter and ECHR - Art. 52(3): “In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR] 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.”

10. Charter and ECHR: scope Equivalent protection to ECHR More extensive than ECHR No ECHR equivalent EU context-specific Preamble Peace – common values Universal values Diversity, etc Rights more visible Reaffirms const. and int’l rights Rights, duties, responsibilities Rights, freedoms and principles I Dignity (Articles 1–5) 1 Human dignity 2 Life 3 Integrity of the person 4 Torture and inhuman degrading treatment or punishment 5 Slavery and forced labour II Freedoms (Articles 6–19) 6 Liberty and security 7 Private and family life 8 Personal data 9 Marry and found family 10 Thought conscience and religion 11 Expression and information 12 Assembly and association 13 Arts and sciences 14 Education 15 Choose occupation and engage in work 16 Conduct a business 17 Property 18 Asylum 19 Removal, expulsion or extradition III Equality (Articles 20–26) 20 Equality before the law 21 Non-discrimination 22 Cultural, religious and linguistic diversity 23 Equality: men and women 24 The child 25 Elderly 26 Integration of persons with disabilities IV Solidarity (Articles 27–38) 27 Workers right to information and consultation 29 Access to placement services 30 Unjustified dismissal 31 Fair and just working conditions 28 collective bargaining and action 32 Prohibition of child labour and protection of young people at work 33 Family and professional life 34 Social security and assistance 35 Health care 36 Access to services of general economic interest 37 Environmental protection 38 Consumer protection V Citizens’ rights (Articles 39–46) 39 Vote and stand as candidate to EP 40 Vote and stand as candidate at municipal elections 41 Good administration 42 Access to documents 43 European ombudsman 44 Petition (EP) 45 Movement and residence 46 Diplomatic and consular protection VI Justice (Articles 47–50) 47 Effective remedy and fair trial 48 Presumption of innocence and right of defence 49 Legality and proportionality of criminal offences and penalties 50 Ne bis in idem VII General provisions (Articles 51–54) 51 Application 52 Scope and interpretation 53 Level of protection 54 Prohibition of abuse of rights

11. Charter and ECHR: field of application Coverage of rights, spectrum from civil and political to economic and social ECHR Charter Applicable state actions and omissions ECHR Charter

12. Article 51: The Charter’s “field of application” “1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. 2.The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. “

13. Access to justice: Charter vs. ECHR

14. The Charter’s use in practice: a case example Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) and Secretary of State for Foreign and Commonwealth Affairs and Libya (Appellants) v Janah (Respondent) [2017] UKSC 62 The case concerned two employees of the embassies of Sudan and Libya in the UK. They made several employment claims, which the Employment tribunal turned down because the employees were considered ‘members of the mission’ under the State Immunity Act 1978. This raised the question of whether this procedural limitation imposed by the State Immunity Act was compatible with the right to an effective remedy and a fair trial under Article 47 of the Charter and Article 6 of the ECHR. Section 16(1)(a) and Section 4(2)(b) of the State Immunity Act 1978 (“SIA”) barred the claimants’ employment law claims from being pursued before the Employment Tribunals on grounds of State Immunity. Some of the claims were derived from EU law, namely discrimination, harassment and breach of the Working Time Regulations.

15. The Charter’s use in practice: a case example UK courts needed to resolve, firstly, whether Article 47 could be given direct horizontal effect, meaning that the appellants could rely on it even though Libya is not a Member State or one of the EU institutions referred to in Article 51 of the Charter (Libya, not bound by EU law, is here equated to a private party). Secondly, the courts had to decide if it could simply disapply the relevant sections of the State Immunity Act. Granting direct horizontal effect to the procedural provision of Article 47 of the Charter allowed the UK courts to disapply the provisions of the State Immunity Act that conflict with the Charter, enabling the two claimants to further pursue their substantive claims under the relevant provisions of the Working Time Regulations and the Racial Equality Directive.

16. Thank you for your kind attention! jana.gajdosova@fra.europa.eu