Evolution of EU Human Rights Course number: EUI10/A-9 Lecturer:

1. Evolution of EU Human RightsCourse number: EUI10/A-9 Lecturer:

2. Aims of the lecture To familiarize participants with evolution of EU human rights, both in internal and external dimension, To facilitate understanding of the role human rights play in EU law, To familiarize participants with key provisions governing the EU human rights regime: Articles 2, 6 and 7 TEU, To allow participants to appreciate the rationale behind opinions 2/94 and 2/13 on accession to ECRH, To facilitate understanding of the main rules governing the application of Charter of Fundamental Rights.

3. Evolution Primary aim of European Communities was creation of the Common Market, Limited scope of the EEC Treaty made conflicts between ‘Community’ acts and fundamental rights of the individual unlikely, In the case of conflicts the founding states regarded constitutional guarantees in the member States’ constitutions as sufficient, “Bill of Rights” would have given the EEC state-like character, which was not intended hence the idea was dropped.

4. Evolution • Fundamental rights evolved through jurisprudence of the Court of Justice qua general principles of law, • Already in the early days of the European Communities it becameclear that the decision NOT to include a reference/catalogue of human rights in the founding treaties was a mistake with far reaching consequences for the Communities’ legal framework.

5. Threat to supremacy of EU Law? • Lack of protection of human rights was not accepted by, in particular, the German and Italian constitutional courts, • According to the position of the German court, it would continue to review Community [now Union law] law by the yardstick of German constitutional rights, as long as there is no comparable protection in EU law: BVerfG, Solange I, [1974] 2 CMLR 540.

6. Stauder v City of Ulm • In case 29/69 Stauder v. City of Ulm the Court held that: “Interpreted this way, the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community Law [now Union law] and protected by the Court”.

7. Internationale Handelsgesellschaft • Case 11/70 Internationale Handelsgesellschaft (IHG) was a milestone, • The Court was asked to respond to a preliminary reference from the German Verwaltungsgericht on the interpretation and legality of selected provisions of EEC (now EU) customs regulations dealing with compulsory deposits lodged in connection with import licenses, • The plaintiff claimed that the EEC regulations in question were in breach of fundamental rights enshrined in the German Basic Law.

8. Internationale Handelsgesellschaft The Court of Justice held: “… an examination should be made as to whether or not any analogous guarantee inherent in Community law [now Union law] has been disregarded. … respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community [Union].”

9. Furthermore, in Nold… • In a subsequent case 4/73 Noldthe Court added: “As the Court has already stated, fundamental rights form an integral part of the general principles of law … In safeguarding these rights, the 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 are signatories, can supply guidelines which should be followed within the framework of Community law [now Union law]”.

10. Pre-charter case-law Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v RepublikÖsterreich, Case C-36/02 Omega Spielhallen, Case C-60/00 Mary Carpenter v Secretary of State for the Home Department, Case C-200/02 Kunqian Catherine Zhu and Man Layette Chen v Secretary of State for the Home Department.

11. From case-law to bill of rights • Case-law of the Court of Justice proved to be very incremental, • It demonstrated that the European Communities, especially with emerging intergovernmental areas of co-operation under the EU umbrella (Second and Third Pillars of the EU) required a catalogue of fundamental rights, • Options included: • Bill of Rights for the European Union, • accession to the ECHR.

12. Opinion 2/94 • Art. 308 EC Treaty - a possible legal basis for the accession to the ECHR? • The Court of Justice argued that the European Community had no competence to accede to the ECHR, • Such move would have gone beyond the remit of Art. 308 EC Treaty.

13. Charter of Fundamental Rights • The Charter of Fundamental Rights was prepared by a special convention, • Its work was undermined by disagreements between the Member States as to the basic features of the Charter: legal nature, the choice of rights, invocation to God, • The Charter was officially proclaimed in 2001 by the Presidents of the Council, the European Parliament and the European Commission, • The end result was controversial – the Charter was non-binding.

14. Charter of Fundamental Rights • In the period between the Treaty of Nice and the Treaty of Lisbon the Charter was not binding, consequentially it remained a mere point of reference for the EU institutions, including the European Court of Justice and the Court of First Instance (now the General Court), • The catalogue of rights included well established rights enshrined in the ECHR (including subsequent protocols) and EC Treaty itself, • The general provisions laid down in the final part of the Charter clarified that it did not create any new rights and did not extend the powers for the European Union.

15. Charter of Fundamental Rights • The Charter was meant to become biding as part 2 of the Treaty establishing a Constitution for Europe, • In an attempt to draw a clear line between the latter and the Treaty of Lisbon a decision was made to remove the Charter from the scope of new treaty, yet insert a clause giving it binding effect, • The UK and Poland secured an opt-out as part of the deal (see Protocol No 30 to EU Founding Treaties).

16. Key provisions

17. Art. 2 and Art. 3(3) TEU “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” […] “It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.”

18. Art. 6 TEU “1. The Union recognises 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 provisions 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.

19. Art. 6 TEU “2.The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties. 3.Fundamental rights, as 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.”

20. Charter of Fundamental Rights • Charter of Fundamental Rights is binding and has the same status as the Founding Treaties, • It applies to the European Union and its Member States but only when they implement EU law, • Charter is accompanied by the explanatory notes, which clarify how it should be interpreted, • Case-law of the Court of Justice of the European Union is of paramount importance.

21. Opinion 2/13 • As per Article 6 TEU the European Union has the obligation to accede to ECHR, • It negotiated an accession treaty with other contracting parties to ECHR, • In Opinion 2/13 the Court of Justice ruled that the European Union cannot conclude this agreement as it stands, • The Court of Justice used heavy artillery, which – as some argue – blocks the accession completely.

22. Article 7 TEU • Compliance with Articles 2 and 3 TEU are part of pre-accession conditionality and they are also employed in external relations of the European Union, • However, once countries join the European Union it has no robust mechanisms to enforce respect for fundamental rights, • Article 7 TEU: a toothless shark? • Infringement proceedings? • See cases of Poland and Hungary.

23. Things to remember • EU human rights regime developed incrementally, • Initially, there were no provisions on human rights in the Founding Treaties of the European Communities, • Jurisprudence of the Court of Justice was instrumental, • Attempts for accession to ECHR have failed, even though the European Union has – as of Treaty of Lisbon – the competence to do so, • EU has the Charter of Fundamental Rights, which is initially was not binding but now has the status of primary law, • Enforcement of EU values is weak.