#16133 - Supremacy And Fundamental Rights - European Law

Introduction 3

I – Protection of fundamental rights 3

A – General Principles 3

B – The European Convention on Human Rights 3

C – Charter of Fundamental Rights 4

A - Protections 4

B – Limitations 4

II – Supremacy 5

A – EU Perspective 5

B – Member States’ Perspective 5

Summary 5

I – General principles and fundamental rights 6

Arts. 6 and 7 TEU, Art. 19 TEU 6

A - General Principles 6

Wyatt & Dashwood, Ch. 10 6

I – The General Principle of Sincere or Loyal Co-Operation 6

II – Subsidiarity 6

III – Proportionality 7

IV – Legal certainty and legitimate expectation 7

V – Non-discrimination 7

I - What are general principles? And what are not? 7

Case 120/86 Mulder [1988] ECR 2321 (Legitimate expectation); 7

Cases 117/76 and 16/77 Ruckdeschel [1977] ECR 1753 (equal treatment/non-discrimination); 7

Case 114/76 Bela-Mühle [1977] ECR 1211 – from the first tutorial – on proportionality and non-discrimination); 7

Case C-144/04 Mangold [2005] ECR I-9981 (non-discrimination on grounds of age); 7

Case C-427/06 Bartsch [2008] ECR I-7245; Case C-555/07 Seda Kücükdeveci, [2010] ECR I-365 (Grand Chamber) 7

II – Limits to general principles 7

Case C-13/05 Sonia Chacon Navas [2006] ECR I-6467 (non-discrimination on grounds of sickness not a general principle) 8

Case C-101/08 Audiolux [2009] ECR I-9823: 8

B - Fundamental Rights 8

Schűtze Ch. 12 8

Chapter 11 – Fundamental Rights 8

I – Caselaw of the CJEU 8

II – Response of the political institutions 8

III – Scope of application of fundamental rights 9

Chapter 12 – The Charter of Fundamental Rights 10

Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; 10

Case C-159/90 SPUC v. Grogan [1991] ECR I-4685 10

See Case C-60/00 Mary Carpenter [2002] ECR I-6279. 11

Case C-540/03 Parliament v Council [2006] ECR I-5769 11

Case C-432/05 Unibet v. Justitiekanslern [2007] ECR I-2271 11

Joined Cases C-402/05P & C-415/05P Kadi and Al Barakaat v. Council [2008] ECR I-6351; 11

Case T-85/09 Kadi v. Commission [2010] ECR II-5177 11

Case C-584/10P, judgment of 18 July 2013 11

Fransson (Case C-617/10 26 February 2013) 11

Case C-236/09 Association belge des Consommateurs Test-Achats et al v. Council, [2011] ECR I-773 11

Joined Cases C-293/12 and C-594/12 Digital Rights Ireland et al, judgment of 8 April 2014 12

Case C-544/10 Deutsches Weintor eG v. Land Rheinland-Pfalz, judgment of 6 September 2012. 12

Case C-134/15 Lidl GmbH (30 June 2016) 12

C-203/15 and C-698/15 Tele2 Sverige, & Watson, Brice, Lewis judgment of the Grand Chamber (21 December 2016) 12

J. Snell, ‘Fundamental Rights Review of National Measures’ (2015) 21 Eur Public Law 285. 12

Opinion 2/94 [1996] ECR I-1759. 12

Matthews v. UK [1999] 28 EHRR 361 12

Opinion 2/13 Accession to the ECHR (judgment of 18 December 2014) 12

II – Supremacy of EU law 12

A - in the European Court 14

I – The genesis of EU legal authority 14

II – Claims of EU legal authority 15

III – Foundations of EU Authority 15

Cases 17

Case 26/62 Van Gend en Loos [1963] ECR 1 17

Case 6/64 Costa v ENEL [1964] ECR 585; 17

Case 11/70 Internationale Handelsgesellschaft 18

Case 106/77 Simmenthal [1978] ECR 629 18

Cases C-10-22/97 IN.CO.GE [1998] ECR I-6307; 19

Joined Cases C-188/10 & C-189/10 Melki, Abdeli [2010] ECR I-5667; 19

Case C-399/11 Stefano Melloni, judgment of 26 February 2013; 19

Case C-614/14 Ognyanov (5 July 2016), ECLI:EU:C:2016:514. 21

Art. 4 (3) TEU 21

B - In the national courts 21

I - Germany 22

Brunner [1994] 1 CMLR 57 22

‘Bananas’ 23

U. Elbers and N. Urban (2001) 7 European Public Law 21 24

Treaty of Lisbon 2 BvE 2/08, 30 june 2009 25

On ultra vires review 25

On identity review 26

Honeywell [2011] 1 CMLR 1067 26

M. Payandeh, ‘Constitutional Review of EU Law after Honeywell’ (2011) 48 CMLRev 9 27

2 BvR 2728/13 OMT case (‘outright monetary transactions’) 27

Case C-62/14 Gauweiler, Judgment of 16 June 2015 28

Germany’s Response 29

Payandeh, 2017 Euro Const Law Review 400 29

II – Other Member States 30

A - Denmark 30

K. Hoegh, ‘The Danish Maastricht Judgment’ (1999) 24 ELRev 80 30

Klinge, “Dialogue or disobedience between the CJEU and the Danish Constitutional Court?” 30

Rask Madsen et al, ‘Competing Supremacies and Clashing Institutional Rationalities’, (2017) 23 ELJ 140. 31

B - France 32

C. Richards, ‘The supremacy of Community law before the French Constitutional Court’ (2006) 31 ELRev 499. 32

C – Post-communist Countries 33

A Albi, ‘From the Banana saga to a Sugar Saga and Beyond’ (2010) 47 CMLRev 791 33

D - UK 33

ex parte Factortame [1991] 33

HS2 [2014] UKSC 3 34

Pham v. SS for the Home Department [2015] UKSC 19 34

III – Legal pluralism 34

Wilkinson, “Constitutional Pluralism: Chronicle of a Death Foretold?” ARENA Working Paper 7/2017 35

Maduro, “Europe and the Constitution: What if this is as Good as it Gets?” 36

N. Walker, ‘Constitutional Pluralism Revisited’ (2016) 22 ELJ 333. 37

J B Cruz, Another Look at Constitutional Pluralism (2016) 22 ELJ 356 38

Questions 39

General principles are the origins of EU discourse on fundamental rights. Today, the starting point is Art 6 TEU:

• Shows the tension between an enabling provision and a need to limit the exercise of powers (“shall not extend in any way the competences”, “shall not affect the Union’s competences”…) – it is listing things that the EU can do but at the same time being careful to say it doesn’t extend the EU’s competences. It is a political commitment to limitation but conferral of broad powers.

• Identifies three sources of human rights protection:

  • Art 6(1) Charter

  • Art 6(2) ECHR – in a sense, this has always been an indirect source of rights protection in the EU, but what would change with accession is that individuals would be able to bring a claim in front of the Strasbourg Court against one of the European Institutions: the CJEU will no longer be in charge

  • Art 6(3) General principles

Therefore, we must see how these three sources interact with each other: Schütze

However, there are other provisions in relation to fundamental rights protections:

• Art 2 TEU: the EU is committed to the protection of human rights

• Art 7 TEU (IMPORTANT): an enforcement mechanism for Art 2 TEU against Member States. But Article 7 is very limited to political dealings – individuals can’t really invoke it. Thus, the key limitation is that it’s limited to state and international level enforcement ( the rest of human rights protection in the EU, which gives individuals actionable rights)

Early on, deep insertion of EU law into the legal orders of Member States. Supremacy means that any national measure will be disapplied if it comes into conflict with any EU measure. It is a very powerful mechanism – the smallest, most technical EU mechanism will take precedence over national constitutional principles:

Internationale Handelsgesellschaft (1970) at [3]: without the Community itself being called in question, the validity of a Community measure cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure.

But such a powerful assertion of supremacy cannot stand unless it is accompanied by some allowance:

[4]: analogous guarantees are inherent in Community law – respect for fundamental rights forms an integral part of the general principles of law protected by the CJEU, which are inspired by the constitutional traditions of Member States.

The CJEU has always regarded it as an important source of protection, and the ECtHR has often engaged in a two-way dialogue with the CJEU:

• EU perspective: Roquette Frères (2004) at [29]: regard must be had to the caselaw of the ECtHR

• ECHR perspective:

  • Matthews v UK (1999): supremacy of EU law is no defence for MSs to violate human rights protections, however

  • Bosphorus (2005): presumption that EU law is consistent with human rights protections (i.e. don’t come to Strasburg each time you lose a case at the ECJ)

EU’s accession to the ECHR?

• Opinion 2/94: CJEU says it is impossible to accede under Article 352 TFEU

• Accession Agreement 2013

• Opinion 2/2013 (MUST READ IN FULL, and compare with Opinion of the Advocate-General): CJEU again said that, in principle, the EU could accede, but then it would have to make certain structural changes question is then whether the Council of Europe will accept such a modified version of accession that is essentially useless in terms of remedies

One may question the CJEU’s motives here, but it can also be seen as an example of the CJEU policing the boundaries of EU competence (cf Art 6(2) – will not affect Union competence).

A - Protections

Started as a very subsidiary thing

• Unibet v Justitiekanslern (2017): “the principle of effective judicial protection … Fundamental Freedoms … and”

The Charter includes a mixture of traditional rights protection and broader socio-economic rights: it has right to life and prohibition of torture (Arts 2, 4), but it also has rights to free market activation etc.

• One particularly problematic right is Art 16 (right to conduct a business), so that economic operators will argue that any form of market regulation is a violation of their fundamental rights.

Exam tip: remember Article 16 for problem questions – whenever advising a trader about any kind of regulation. But then conclude that the EU’s response is proportionate.

There are also horizontal clauses in Chapter 7:

• Art 51: Charter is addressed to the Union...