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Using the EU’s Charter of Fundamental Rights in Ireland

Using the EU’s Charter of Fundamental Rights in Ireland. Suzanne Kingston BL PILA, 7 February 2013 skingston@lawlibrary.ie. The EU Charter: A “new” source of EU human rights law for Ireland. Status Charter has “ the same legal value ” as the Treaties (Art 6.1 TEU, Lisbon amendment) – SO

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Using the EU’s Charter of Fundamental Rights in Ireland

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  1. Using the EU’s Charter of Fundamental Rights in Ireland Suzanne Kingston BL PILA, 7 February 2013 skingston@lawlibrary.ie

  2. The EU Charter: A “new” source of EU human rights law for Ireland • Status • Charter has “the same legal value” as the Treaties (Art 6.1 TEU, Lisbon amendment) – SO • Interpretative tool for EU/Irish law within scope of EU law • Including to justify MS actions that might otherwise contravene EU law (eg Omega) AND • Ground of invalidity of all EU actions and all MS actions within scope of EU law • Whether MS is interpreting/applying EU law… • Or even restricting EU rights (eg Carpenter, Ruiz Zambrano) • A minimum level of protection (Art 53, Charter)

  3. What kind of rights does the Charter protect? • Thematic titles • Dignity (Title I) • Freedoms (Title II) • Equality (Title III) • Solidarity (Title IV) • Citizens’ rights (Title V) • Justice (Title VI) • Rights/freedoms vs principles (Charter Preamble, Art. 6.1 TEU) • Principles: “may” be implemented by EU/MS when implementing EU law, “judicially cognisable only in the interpretation of such acts and in the ruling on their legality” (Art 52.5, Charter) • Interpreted in line with Title VII (Art 6.1 TEU) • “Due regard to” explanations (Art 52.7, Charter)

  4. Comparing Charter rights to Ireland’s other HR obligations • Charter vs ECHR? • Some rights identical (eg Art 3 ECHR = Art 4 Charter) • Some rephrased (eg Art 8.1 ECHR, to Arts 3, 7 and 8 Charter (integrity of person, respect for private/family, life, data protection) • Some rights go further eg • Non-discrimination – Art 21 • Right to a fair hearing – Art 47 • Data protection – Art 8, Commission v Bavarian Lager • Special provision for interpreting these rights • Art 52.3 – same meaning and scope BUT EU right may give “more extensive protection” • Viz ECtHR in Bosphorus – EU protection of HR generally equivalent to ECHR

  5. Comparing Charter rights to Ireland’s other HR obligations • Charter vs other EU law rights? • Fundamental rights as general principles of EU law (eg Wachauf, Omega, ERT…) • NB: General principles also bind private parties • Citizenship rights (eg Ruiz Zambrano) • Greater clarity but doesn’t prevent extension of CJEU case-law • Charter rights also provided for in EU Treaties are subject to conditions and limits set out in Treaties – Art. 52(2), Charter

  6. Comparing Charter rights to Ireland’s other HR obligations • Charter vs Irish Constitution? • Many rights in Constitution have broadly similar right in Charter • eg equality Art 40.1, liberty Art. 40.4.1°, freedom of expression Art. 40.6.1°…) • Some Charter rights not found in Constitution as such - although may be implied or part of unenumerated rights • eg right to data protection Art. 8 Charter, right to asylum Art 18 Charter, Workers’ rights, Title IV Charter • Greater emphasis in Constitution on family as “fundamental unit group of Society” Art 41.1° • Also: Constitutional reference to God Art. 44.1… • Interpretation of constitutional and Charter rights likely to converge • National law can go further than Charter (Art 53, Charter)

  7. → Does the Charter make any difference to Irish HR protection? • For rights already recognised by CJEU • Adds weight • Doesn’t prevent recognition of new rights by CJEU as general principles of EU law in normal way (see Art 6.3 TEU) • For rights recognised in ECHR • Charter rights may go further (Art 52.3) • Adds weight • Changes legal force in national legal systems – review of legality of primary national law (in principle) • For “new” rights • Expands substantive scope of EU fundamental rights law

  8. Use of the Charter to date: CJEU • Strong role in reviewing validity of EU acts • Eg Test-Achats C-236/09 – exemption allowing pro-female discrimination in 2004 Insurance Directive invalid • eg C-540/03 Family Reunification Directive – pre-Lisbon • Has provided evidence for categorisation as “general principles” of EU law • Far-reaching implications of this viz. Directives • Eg Kücükdeveci C-555/07; Viking C-438/05

  9. Use of the Charter to date: CJEU • Has provided support for expanding scope of EU citizenship law • Central issue: Is the “genuine enjoyment” of citizenship rights respected? Ruiz Zambrano, Dereci, McCarthy • Even where “national laws” caveat applies, CJEU has used Charter to strengthen pro-rights interpretation where a Directive applies • ANGED C-78/11: right to paid annual leave means sick days while on annual leave can be claimed back

  10. Use of the Charter to date: ECtHR • “Boomerang” effect • Persuasive authority • Has been used to support changes in ECtHR jurisprudence • Eg Scoppola (No 2) – Art 7 ECHR extends to retrospective application of more lenient penalty • Positive dialectic between Luxembourg and Strasbourg • To be reinforced by EU’s ECHR accession

  11. Use of the Charter to date: Ireland • Overview • Numerous referrals to CJEU – many, though not all, from Superior Courts • Expedited procedure has been requested successfully (Arts 105, 107, Rules of Procedure CJEU) • Widespread use in other (non-referred) cases to bolster interpretation of ECHR, constitutional rights

  12. Use of the Charter to date: Ireland • Many asylum cases • Joined UK and Irish cases in NS (C-411/10) • MM v Minister for Justice (C-277/11, November 22, 2012) • Referred by Hogan J • Irish asylum system criticised – applications for asylum and subsidiary protection split; application for SP only submitted after Minister indicates intention to deport • Breach of FHR to be heard before SP application • Hogan J, January 23, 2013 – Minister must come to own view in SP application and respect right to be heard (esp credibility) • D v RAT (November 10, 2011, Hogan J) • Use of Art 14 Charter, along with Art 42 of Constitution and Protocol 1, Art 2 ECHR to emphasise importance of right to education • Denial of education amounts to persecution under s2 Refugee Act 1996 • Decision to deport Roma child to Serbia quashed

  13. Use of the Charter to date: Ireland • Multiple other contexts also • Family law • McB(C-400/10, 5 October 2010) • Reference from Supreme Court under urgent FSJ procedure • 2 months from CJEU receipt to judgment • Brussels II bis Regulation, interpreted in light of Art 7 Charter, doesn’t preclude Irish requirement for agreement or court order in order for unmarried father to have custody rights • MN v RN (Finlay Geoghegan J, HC, December 2008) • Art. 24 Charter used to interpret Brussels II bis such that 6 year old child has opportunity to be heard in application for return to place of habitual residence • Principle subsequently affirmed by SC

  14. Use of the Charter to date: Ireland • Companies’ rights • McDonogh v Ryanair(C-12/11, January ) • Referred by Dublin Metropolitan District Court • Ryanair relies on Arts 16, 17 Charter (freedom to conduct a business, right of property) – disproportionate interference? • CJEU rejects argument: need to strike “fair balance” between competing rights (Art 38 – EU policies to ensure a high level of consumer protection) • Digital Rights Ireland (McKechnie J HC; Reference made June 2012 – pending C-293/12) • Compatibility of 2006 Data Protection Directive with i.a. Art 8, Charter

  15. The Charter’s potential for Ireland… • Greater scope of rights • Workers’ rights? • Limited by references to “national laws and practices” (eg Arts 27, 34, 35, 36 – workers’ rights, social security, health care, access to SGEI) • Legal aid? • Art.47.3, Charter (“legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”) – C-279/09 DEB (if EU rights are affected) • Greater force to rights • Greater weight to rights • Visibility and clarity of rights • Encourages greater Irish opt-in in FSJ field? • Worries about divergent common/civil law criminal law traditions may recede

  16. …and its limitations • Only applies where MS acting within the scope of EU law • Charter “addressed to institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarityand to the Member States only when they are implementing Union law” (Art 51.1, Charter) • Eg Hogan J, DF v Garda Commissioner (January 14, 2013) – jury trial for false imprisonment • Even taken the broadest possible view of the meaning of the phrase "implementing" Union law, it is well nigh impossible to see how the Charter could come into play in relation to events which are wholly internal to this State and in respect of which Union law plays no role or part. • Eg where deportation of family member wouldn’t necessitate deportation of EU citizen (Cooke J, Smith v Minister for Justice, March 5, 2012) • Impact of UK-Ireland Protocol on area of FSJ? • Is measure-by-measure participation within the “scope of” EU law?

  17. …and its limitations • Doesn’t (Art 51.2 Charter, Art 6.1 TEU) extend the field of application of Union law beyond the powers of the Union, establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties • Certain rights qualified by reference to “national law and practices” • Eg Workers’ rights, same-sex marriage debate – Art 9

  18. Future key issues and points to watch • Don’t be afraid to ask for preliminary reference • Potential of expedited procedure • Can be referred from any court or tribunal • Where does the scope of EU law end? • Carpenter, Zambrano, Irish government argument in NS (sovereignty clause in Dublin II Regulation) • Charter clearly applies in situations where MS exercising their discretion within scope of EU law • Which situations are wholly internal to a MS? • Kremzow; Iida C-40/11 on citizenship; pending tax sanctions case Fransson C-617/10 • NB agreements outside of EU Treaties – Pringle, November 2012

  19. Future key issues and points to watch • Interaction between national and Charter rights? • Art 53 Charter – Melloni (C-399/11, pending) on EAW • Practical implications of EU ECHR accession? • EU as potential party to ECHR cases…with own judge • Will need to get ECJ ruling before challenging EU act (exhaustion of domestic remedies • If no preliminary reference made by national court: mechanism to ensure ECJ makes ruling before ECtHR • If EU and MS implicated: multiple/co-respondent • ECtHR oversight likely to be as a background presence more than concrete cases – delays from ECtHR workload

  20. Questions skingston@lawlibrary.ie

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