20. THE EUROPEAN UNION AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS. Allan Rosas 1. INTRODUCTION

Transcription

1 Included in: Catarina Krause and Martin Scheinin (eds), International Protection of Human Rights: A Textbook (Turku/Åbo: Institute for Human Rights, Åbo Akademi University, 2009). 20. THE EUROPEAN UNION AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS Allan Rosas 1. INTRODUCTION This chapter will cover two different aspects of the question of fundamental rights and human rights in the European Union (EU). The main part will be devoted to the internal EU situation, the protection of fundamental rights in the EU, including its 27 Member States. As indicated by the term fundamental rights, this dimension is of a constitutional nature. But the chapter will also take into account the external aspect, relating to the status of human rights in the relations of the EU with third countries. The first (fundamental rights) part will focus on the case law of the EU courts, fundamental rights provisions in the basic Treaties establishing the Communities and the Union, the Charter of Fundamental Rights of the European Union and the new EU Agency for Fundamental Rights. The second (human rights) part will pay more attention to the practice of the political EU institutions, notably the Council and the Commission, in the formulation of an EU external human rights policy. There is an issue transcending this distinction between fundamental rights and human rights, namely the still pending question of the accession of the EU to the European Convention on Human Rights (ECHR), foreseen in the Treaty of Lisbon signed on 13 December 2007 (not in force), 1 and, as the case may be, other international human rights conventions. To the extent that human rights conventions will become formally binding on the EU, they will form an integral part of the EU legal order and will thus be relevant for the EU fundamental rights system. At the same time, adherence to international human rights conventions constitutes a formal commitment, under public international law, vis-à-vis third states and is thus part of the Union s external human rights agenda. It should be stressed at the outset that the EU is not a human rights organization comparable to the Council of Europe, nor are the EU courts human rights courts comparable to the European Court of Human Rights. The EU is an economic and political union of states which promotes and protects fundamental rights and human rights much in the same way as 1 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306, , p. 1. The Lisbon Treaty is intended to replace the Treaty establishing a Constitution for Europe, signed in Rome on 29 October 2004, OJ C 310, , p. 1, which did not enter into force mainly due to the negative outcomes of referendums in France and the Netherlands. The negative result of a referendum in Ireland on 12 June 2008 has cast the fate of the Treaty of Lisbon into doubt as well. 443

2 Allan Rosas states do. The major EU institutions 2 deal with the whole range of EU matters and none of them is devoted solely to fundamental rights internally or human rights externally. As far as the EU courts in Luxembourg are concerned, they are general courts, with jurisdiction over the entire and today extremely wide range of EU law matters. Like national courts, they are called upon to apply and interpret fundamental rights as an integral part of their day-to-day activities. There is no specific human rights/fundamental rights jurisdictional remedy open to the citizen but fundamental rights may be raised in the context of the normal procedures before the courts, such as actions for annulment (Article 230 of the Treaty establishing the European Community, hereinafter ECT) and preliminary ruling requests made by national courts (Article 234 ECT 3 ). The national courts of the EU Member States, too, follow their normal procedures when dealing with EU law questions, also when fundamental rights are involved. While the focus will be on the case law of the European Court of Justice (ECJ), it should be noted that the EU judicial system includes a Court of First Instance (since the late 1980s) 4 and a Civil Service Tribunal (since ) 5 and draws heavily upon the national courts of the Member States, which can request preliminary rulings on questions of the validity and interpretation of EU law. According to the division of competence between the ECJ and the Court of First Instance, actions by private parties are brought before the latter (or, in personnel cases, before the Civil Service Tribunal), the decision of which can be appealed to the ECJ (or from the Civil Service Tribunal, to the Court of First Instance). The ECJ, on the other hand, deals with all preliminary ruling requests made by national courts. While fundamental rights figure in perhaps 50 or so judgments per year given by the EU courts, that is not a very significant number compared to the overall number of cases (more than 1,000) handled each year by them. 6 It should be underlined that the present chapter deals with issues which are, at the time of writing, in a state of flux. The Treaty of Lisbon (the Reform Treaty), which introduces significant amendments to the Treaty on European Union (TEU) and the ECT, the latter renamed Treaty on the Functioning of the European Union (TFEU), will not enter into force before it has been ratified by all the 27 Member States of the EU. 7 In the following, some of 2 Article 9 of the Treaty on European Union, as amended by the Treaty of Lisbon, lists as the Union s institutions the European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the European Union, the European Central Bank and the Court of Auditors. The new EU Agency for Fundamental Rights (see infra, pp ) does not have the status of an EU institution but is one of the many administrative agencies of the EU. 3 See also Article 68 ECT and Article 35 the Treaty on European Union (TEU). 4 Article 225 ECT. 5 Article 225a ECT enabling the establishment of specialized tribunals and Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the Civil Service Tribunal, OJ L 333, , p The number of new cases per year is for both the ECJ and the Court of First Instance in the area of 500. In addition, the Civil Service Tribunal has received around 150 new cases during its first years of existence. See Court of Justice of the European Communities, Annual Report 2006 (Luxembourg, 2007). 7 The Treaty was scheduled to enter into force on 1 January 2009, or during spring 2009 at the latest (Article 6, paragraph 2, of the Treaty of Lisbon), but at the time of writing, it is uncertain whether Ireland will 444

3 THE EU AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS the modifications introduced by the Lisbon Treaty which are of relevance for fundamental rights and human rights will be considered, while not neglecting the law in force as it stands in late HISTORICAL BACKGROUND After World War II, European cooperation and integration efforts took two different strands. 8 One strand consisted of a focus on democracy, human rights and the rule of law, with the Council of Europe (1949) and the ECHR and other human rights instruments adopted by the Council of Europe. Another strand consisted of economic integration, starting with the European Coal and Steel Community (1952) the European Economic Community (1957, later to become the European Community, EC) and the European Atomic Energy Community or Euratom (1957). The Council of Europe was entrusted with a fairly broad agenda but its level of integration was and still is rather modest. The Community integration process, again, started as deep integration, with supra-national features, including the establishment of an independent Commission and an independent court, the ECJ. But it covered a smaller group of countries (until the 1970s six Member States only, namely the three Benelux countries, France, Germany and Italy) and had an integration agenda of relatively limited scope. Apart from the provisions relating to freedom of movement of workers and the other economic liberties or the principles of non-discrimination on the basis of nationality or gender, there were no explicit human rights/fundamental rights provisions in the founding Treaties of 1951 and And as the Communities were not a party to the ECHR or any other human rights convention, the introduction into Community law of a system of protection of fundamental rights is essentially a story of judge-made law. While in the very early days of European integration, the Court had held that it was not competent to examine whether European Coal and Steel Community decisions were in violation of fundamental rights principles of a national constitution, refraining also from developing a fundamental rights regime at Community level, 10 the ECJ, through cases decided in the period , be able to ratify it (see supra, note 1). 8 Allan Rosas, Fundamental Rights in the Case-Law of the Luxembourg and Strasbourg Courts, in Carl Baudenbacher et al. (eds), The EFTA Court: Ten Years On (Oxford: Hart Publishing, 2005), pp , at pp Here account is not taken of the Preamble to the Treaty establishing the European Economic Community of 1957, which refers to the need to preserve and strengthen peace and liberty. See Pierre Pescatore, The Context and Significance of Fundamental Rights in the Law of the European Communities, Human Rights Law Journal, vol. 2 (1981), pp , at pp Case 1/58 Stork v High Authority, Recueil 1959, 43; Joined Cases 36 38/59 and 40/59 Geitling v High Authority, Recueil 1960, 859. See also Giuseppe Tesauro, The Role of the Court of Justice in the Protection of Fundamental Rights, in Ninon Colneric et al. (eds), Une communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias (Berlin: Berliner Wissenschafts-Verlag, 2003), pp , at p. 104; Allan Rosas, The Legal Sources of EU Fundamental Rights, in Ninon Colneric et al. (eds), Une communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias (Berlin: Berliner Wissenschafts-Verlag, 2003), pp , at p

4 Allan Rosas made it clear that fundamental rights form part of the general principles of Community law whose observance the Court is called upon to ensure. 11 During these early days of European integration, the development of an external human rights policy was out of the question. The development of such a policy, in fact, had to wait until the 1990s and thus took place much later than the articulation, by the ECJ, of a fundamental rights regime. It is to the early fundamental rights case law of the ECJ that we shall now turn. 3. FUNDAMENTAL RIGHTS AS JUDGE-MADE LAW During the 1960s, and particularly after the principles of direct effect and supremacy of Community law had been asserted in Van Gend en Loos (1963) and Costa v ENEL (1964), 12 concerns were expressed notably in German and Italian constitutional doctrine and case law about the possibility of conflict between a Community law declared supreme but bereft of a system of protection of human rights/fundamental rights, on the one hand, and national constitutional Bills of Rights, on the other. 13 These national Bills of Rights could be seriously compromised if human rights-free Community economic law prevailed over national law, including the national constitution, and could be directly invoked before national courts. The first answer of the ECJ to these concerns came in Stauder (1969), where the Court introduced an express fundamental rights component into Community law. It referred to the fundamental rights of the person enshrined in the general principles of Community law whose observance the Court ensures ( les droits fondamentaux de la personne compris dans les principes généraux du droit Communautaire, dont la Cour assure le respect 14 ). In Internationale Handelsgesellschaft, the Court underlined that the protection of fundamental rights must be ensured in the Community legal system and that, whilst the protection of such rights at the Community level is inspired by the constitutional traditions common to the Member States, the validity of Community acts, in accordance with the principle of supremacy of Community law, cannot be challenged on the basis of national constitutional Bills of Rights. 15 In Nold, the ECJ added that guidelines which should be followed within the framework of 11 This development was foreseen by one of the judges of the Court already one year before the first judgment (Stauder, 1969) which announced the new approach. Pierre Pescatore, Les droits de l homme et l intégration européenne, Cahiers de droit européen, vol. 4 (1968), pp , at p Case 26/62 Van Gend en Loos [1963] ECR 1 (which established that not only regulations, but also primary law may have direct effect and thus may be invoked directly by individuals before courts and authorities); Case 6/64 Costa v ENEL [1964] ECR Pescatore, supra (note 11), pp See also the Order of 18 October 1967 of the German Constitutional Court, VVerfGE 22, 293, Case 29/69 Stauder [1969] ECR 419, Recueil 1969, 419. Opinion of Advocate General Roemer of 29 October 1969, ibid., Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125 (paras. 3 4). See also the Opinion of Advocate General Dutheillet de Lamothe of 2 December 1970, Recueil 1970,

5 THE EU AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS Community law may also be found in international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. 16 It is obvious that the ECJ, taking into account both the principles of primacy (supremacy) and direct effect of Community law, and its tendency to broaden in scope, could not any longer tolerate a situation where Community law could be developed and applied in disregard of fundamental rights. Such a situation would not have been acceptable for the Member States unless, as the German Constitutional Court did in 1974, they would have created some national control mechanism, checking that Community law did not violate the national Bill of Rights. But this latter option, again, would have posed a serious threat to the principles of primacy and uniform application of Community law, taking into account that the (then) six national Constitutions were far from uniform. The disparities between the national Constitutions also explains why the ECJ did not opt for taking them as its formal source of law but chose instead to apply the concept of general principles of Community law, a source of law with which Community lawyers were already familiar and which the Court has applied also outside the framework of fundamental rights. 17 The national Constitutions were not ignored but the ECJ declined to recognize any one of them as a directly binding source, stating as it did in Internationale Handelsgesellschaft that it was inspired by the constitutional traditions common to the Member States. 18 The Nold judgment was delivered around two weeks before the German Constitutional Court handed down its decision in Solange I. 19 The specifications offered by Nold did not prevent the Constitutional Court from asserting its competence to assess the compatibility of rules of Community law with the fundamental rights enshrined in the German Basic Law as long as ( solange ) Community law was not endowed with a catalogue of fundamental rights matching the catalogue of rights of the Basic Law. The Constitutional Court, to the extent that it took the fresh Nold decision into account, may have felt that the new case law of the ECJ was too general, recent and uncertain to merit the full recognition in Germany of the primacy (supremacy) of Community law and any monopoly for the ECJ to declare EU legislative acts invalid. 20 As we shall see below, it was only in its Solange II judgment of 1986 that the Community system for the protection of fundamental rights found more favour with the German Constitutional Court. ed., 2006). 16 Case 4/73 Nold [1974] ECR 491 (para. 13). 17 See, e.g., Takis Trimidas, The General Principles of EC Law (London: Oxford University Press, 2nd 18 Allan Rosas, The European Court of Justice and Fundamental Rights: Yet Another Case of Judicial Activism, in Carl Baudenbacher and Henrik Bull (eds), European Integration Through Interaction of Legal Regimes (Oslo: Universitetsforlaget, 2007), pp , at pp Order of 29 May 1974, BVerfGE 37, The exclusive right of the ECJ to declare EU legislative acts invalid was asserted by the ECJ itself in Case 314/85 Foto-Frost [1987] ECR

6 Allan Rosas 4. ECJ CASE LAW ENDORSED AT THE EU POLITICAL LEVEL The Solange I decision of the German Constitutional Court served as an incitement to reaffirm, at the Community political level, the commitment of the Communities to fundamental rights. Thus, on 5 April 1977, the European Parliament, the Council and the Commission issued a Joint Declaration, which stated that, as the Court of Justice has recognised Community law comprises the general principles of law and in particular the fundamental rights, principles and rights on which the constitutional law of the Member States is based. 21 Recalling further that all the Member States were parties to the ECHR, the three Community institutions underlined the primary importance they attach to the protection of fundamental rights, as derived in particular from the constitutions of the Member States and the [ECHR]. This comes close to the formula used by the ECJ in Nold, as supplemented by a reference to the ECHR made in the case of Rutili. 22 A further step was taken in the Preamble to the Single European Act of 1986, which states that the signatories are determined to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the [ECHR] and the European Social Charter, notably freedom, equality and social justice. The Treaty of Maastricht (1992), which introduced the concept of European Union and established the TEU, included express clauses on fundamental rights and human rights. The most important novelty was Article F (later to become Article 6), paragraph 2, of the TEU, according to which the Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law. It will be noted that this provision, in line with the Court s case law, as it had evolved between 1974 and 1992, 23 refers to the general principles of Community law as the formal source of EU fundamental rights. The ECHR seems to enjoy pride of place ( as guaranteed ), as compared to the constitutional traditions ( as they result from ). That Article F, paragraph 2, was seen as a general political endorsement of the ECJ s case law rather than as a specific source of law for the Court is evident from the fact that the provision was not originally included in the list of provisions to which the jurisdiction of the ECJ should apply. By the Treaty of Amsterdam (1997), the jurisdiction of the EU courts was extended to this provision (now Article 6, paragraph 2) as well. 24 While Article 6, paragraph 2, TEU highlights the ECHR, formal accession to the European Convention remained a controversial subject. In 1996, the ECJ held that as 21 OJ C 103, , 1. See also Pescatore, supra (note 9), pp Case 36/75 Rutili [1975] ECR Rosas, supra (note 8), pp See, more generally, Nanette Neuwahl and Allan Rosas (eds), The European Union and Human Rights (The Hague: Martinus Nijhoff, 1995); Elspeth Guild and Guillaume Lesieur, The European Court of Justice on the European Convention on Human Rights: Who Said What, When? (London: Kluwer Law International, 1998); Philip Alston (ed.), The EU and Human Rights (Oxford: Oxford University Press, 1999). 24 See Article L (later to become Article 46) of the TEU as introduced by the Treaty of Maastricht, as compared to the version it obtained by the Treaty of Amsterdam. 448

7 THE EU AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS Community law stood at the time, the Community lacked the competence to accede. 25 This led to discussions about the possibility to amend the TEU or the ECT so as to provide for the necessary competence to adhere to the ECHR. At the same time, discussions intensified on the need for an EU-specific Bill of Rights, so as to make the fundamental rights protection regime more transparent and visible. At the end, it was decided to follow both tracks, in other words to prepare an EU Charter on fundamental rights and in addition to start the preparations for EU accession to the ECHR. It should be noted in this context that, as will be elaborated below, the 1990s saw the emergence of an EU external human rights policy. This, on the other hand, led to criticism that the EU practised double standards and to demands that the EU put its own house in order before preaching human rights to the rest of the world. 26 The Charter of Fundamental Rights and accession to the ECHR were intended to meet these concerns. Accession to the ECHR was also meant to address the anomaly created by the fact that matters that used to be handled by the Member States and which had thus been subject to ECHR scrutiny in Strasbourg were increasingly transferred to the EU, which for its part was not directly subject to the control of the Strasbourg human rights system. On 7 December 2000, the European Parliament, the Council and the Commission, proclaimed the Charter of Fundamental Rights of the European Union. 27 The Charter states in its Preamble that it reaffirms rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the [ECHR], the Social Charters adopted by the Community and the Council of Europe 28 and the case law of the Court of Justice of the European Communities and of the European Court of Human Rights. There is thus an express recognition of the fundamental rights case law of the ECJ and some of the sources it has used as guidelines in the determination of the general principles of Community law. While the Charter, as proclaimed in December 2000, is not a legally binding instrument per se, it has, as will be explained below, started to be used in secondary legislation and case law as an authoritative interpretation of what constitutes EU fundamental rights. 5. TREATY AMENDMENTS AND INSTITUTIONAL DEVELOPMENTS The present section will provide an overview of the treaty provisions which have been inserted in the TEU and the ECT through the Treaties of Maastricht (1992), Amsterdam (1997) and Nice (2001) as well as some institutional developments which reinforce the 25 Opinion 2/94 European Convention on Human Rights [1996] ECR I See the report of a Comité des Sages (composed of Antonio Cassese, Catherine Lalumière, Peter Leuprecht and Mary Robinson) entitled Leading by Example: A Human Rights Agenda for the European Union for the Year 2000, reprinted in Alston, supra (note 23), pp , and many of the articles contained in the same volume edited by Alston. 27 OJ C 364, , p This refers to the 1989 Community Charter of the Fundamental Rights of Workers, originally adopted in September 1989 by 11 out of 12 Member States, and the European Social Charter adopted by the Council of Europe, originally in Both instruments are today also mentioned in Article 136 ECT. 449

8 Allan Rosas promotion and protection of fundamental rights and human rights in the EU. This overview will include some references to treaty provisions and institutional developments of relevance for not only the protection of fundamental rights but also EU external human rights policies. Article 6 TEU is not limited to the provision (paragraph 2) cited above, which declares that the EU shall respect fundamental rights as general principles of Community law. Paragraph 1 of the article declares that 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. This provision is of particular importance for Article 7 TEU, which provides for the possibility of sanctions against Member States which are in serious and persistent breach of the principles mentioned in Article 6, paragraph 1. As a sanction the Council may decide to suspend certain of the rights deriving from the application of this Treaty, including the voting rights in the Council (paragraph 3). There is a rather complex procedure to arrive at such a decision, involving, apart from the Council, the European Commission and the European Parliament. Article 7 has never been resorted to in practice but in 2000 some informal political sanctions were adopted by 14 Member States against Austria. They were lifted following a report by a group of wise men, which inspired an amendment made in the Treaty of Nice to Article 7. According to the amended provision, the EU may call on independent persons to submit a report on the situation in a given Member State. 29 Article 7 was added to the TEU by the Treaty of Amsterdam. It is no secret that one of the reasons was the impending enlargement of the EU to Central and Eastern European countries, which had experienced dictatorial regimes until recently. But it should be remembered that some of the then 15 Member States had also experienced comparable regimes in the past. Article 7 is supplemented by Article 49 TEU, which provides that full membership in the EU can be applied only by a European State which respects the principles set out in Article 6 (1). Mention should also be made of Article 136 ECT, which provides that the Community and its Member States, in pursuing social policies, shall have in mind fundamental social rights such as those set out in the European Social Charter of 1961 and the Community Charter of the Fundamental Social Rights of Workers of This provision attests to the fact that the EU fundamental rights system includes social rights and that, as the ECJ has stated recently, the EU has not only an economic but also a social purpose. 31 Another stride in the EU s approach to fundamental rights is the emphasis on nondiscrimination, and not just the prohibition of discrimination on grounds of nationality and gender, which are traditional non-discrimination clauses in the ECT. According to Article Rosas, supra (note 10), p. 94. The sanctions were taken because of the entry of the Freedom Party in an Austrian government. The group of wise men consisted of Martti Ahtisaari, Jochen Frowein and Marcelino Oreja. 30 See also supra (note 28). 31 Case C 438/05 International Transport Workers Federation, judgment of 11 December 2007, para. 79; Case C 341/05 Laval an Partneri, judgment of 18 December 2007, para See also Allan Rosas, The Role of the European Court of Justice in the Application and Interpretation of Social Values and Social Rights, in Elina Palola and Annikki Savio (eds), Refining the Social Dimension in an Enlarged EU (Helsinki: Stakes and Ministry of Social Affairs and Health, 2005), pp

9 THE EU AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS ECT, legislative action may be taken to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. While this provision only provides the legal basis for legislative action, two central non-discrimination directives adopted in 2000 provide relevant substantive rules. 32 As far as human rights provisions of relevance for external relations are concerned, Articles 177 and 181a ECT stipulate that Community policies in the area of development cooperation and in the area of economic, financial and technical cooperation with third countries shall contribute to the general objective of developing and consolidating democracy and the rule of law and the objective of respecting human rights and fundamental freedoms. In the same vein, Article 11 TEU provides that one of the objectives of the Common Foreign and Security Policy (CFSP) of the EU 33 is to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms. The CFSP or as it is often called in EU jargon, the Second Pillar was one of the novelties introduced by the Treaty of Maastricht and it is of a more intergovernmental nature than the supra-national First Pillar represented, inter alia, by the ECT. There are no clauses in the TEU or the ECT providing explicitly for the accession of the EU to international human rights conventions. As was noted above, the ECHR is mentioned as an important guideline for the determination of EU fundamental rights in Article 6, paragraph 2, TEU, while Article 136 ECT mentions the European Social Charter. Moreover, Article 63, paragraph 1, ECT states that EU measures on asylum should be adopted in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees. The entry into force of the Treaty of Lisbon of 2007, 34 would change the situation as far as the ECHR is concerned, as according to an amended Article 6 TEU, repeating what was already envisaged in the abortive Treaty establishing a Constitution for Europe of 2004, 35 the Union shall accede to the ECHR. A clause opening up such accession of the EU has, from a Council of Europe and ECHR point of view, been included in Protocol No. 14 to the ECHR (not yet in force). 36 A similar clause enabling EU accession has recently been included in the new UN Convention on the Rights of Persons with Disabilities Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 199, , p. 86; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 2, , p Title V (Articles 11 28) of the TEU. 34 Supra (notes 1 and 7). 35 Supra (note 1). 36 Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, Strasbourg, 13 May In December 2008, the Protocol has been ratified by 46 Member States of the Council of Europe but has not entered into force, due to the refusal of Russia to ratify. See Chart of signatures and ratifications published on the web site of the Council of Europe, < See also infra, pp. 457 and Adopted by the UN General Assembly on 13 December 2006 and open for signature on 30 March 2007, when the Convention was signed by the European Community. In December 2008, the Convention has entered into force but it has not yet been approved by the EC. According to Article 44 of the Convention, 451

10 Allan Rosas Also from an institutional point of view, the development of an EU fundamental rights and human rights agenda has brought about some changes and novelties. The driving forces behind an increased emphasis on fundamental rights and human rights have been the Commission and the European Parliament, while the Council, because of resistance from some Member States, has been much more hesitant. 38 The Commission, on the other hand, has refrained from establishing any post of Commissioner or any Directorate-General dealing exclusively with fundamental rights and human rights. 39 An important, but not exclusive, part of fundamental rights questions are dealt with by a Commissioner and Directorate-General responsible for Justice, Freedom and Security, while (external) human rights questions are handled mainly by the Commissioner and Directorate-General for External Relations but also by the Directorate-Generals for Development, EuropAid, Humanitarian Aid and Enlargement. In the European Parliament, a similar organizational structure emerges, with Committees, inter alia, for Civil Liberties, Justice and Home Affairs, Foreign Affairs and Development. The Committee on Foreign Affairs does have a Subcommittee on Human Rights. While legislative proposals, treaty negotiations with third countries and financial assistance are mainly the responsibility of the European Commission, it has sought assistance and advice from independent experts and non-governmental organizations. In , the Commission drew upon a Network of Independent Experts in Fundamental Rights. This network has published annual reports on the situation of fundamental rights in the EU and its Member States, with conclusions and recommendations as well as so-called thematic comments and opinions on particular issues or questions. 40 The annual reports have been discussed in the Civil Liberties, Justice and Home Affairs Committee of the European Parliament. In 2005, the Commission proposed the creation of a European Union Agency for Fundamental Rights (FRA). 41 After difficult discussions, the Council, on 15 February 2007, adopted a new regulation establishing such an Agency. 42 According to Article 2 of the Regulation, the objective of the Agency is to provide the relevant institutions and bodies of the Community and its Member States when implementing Community law with assistance and expertise relating to fundamental rights in order to support them when they take it is open for adherence not only by states but also by regional integration organizations, meaning essentially the EU. 38 For instance, the Council and its Legal Service still in the late 1990s asserted that the European Community lacked any competence to adopt legal acts in the field of external human rights policies. See Barbara Brandtner and Allan Rosas, Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice, European Journal of International Law, vol. 9 (1998), pp , at pp , In the report of a Comité des Sages of 1998, supra (note 26), it was proposed to appoint a separate Human Rights Commissioner. Alston, supra (note 23), p < (last accessed 1 December 2008). 41 Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights, COM(2005) 280 final of 30 June See also Philip Alston and Olivier De Schutter (eds), Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency (Oxford: Hart Publishing, 2005). 42 Council Regulation (EC) no. 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ L 53, , p

11 THE EU AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights. The Agency, which has its seat in Vienna, replaces the European Monitoring Centre on Racism and Xenophobia established in as well as the Network of Independent Experts mentioned above. At the time of writing, the appointments to the Management Board, Executive Board and the post of Director have been completed. 44 The new Agency will supposedly increase awareness and expertise concerning the protection of fundamental rights notably in the preparation of EU legislative acts as well as the application and implementation of such acts by the EU institutions and the Member States. It does not have competence to deal with individual complaints, nor to monitor Member States performance with a view to initiate procedures under the above-mentioned sanctions clause contained in Article 7 TEU or infringement procedures under Article 226 ECT, 45 but the Council, if it so wishes, may use the expertise of the Agency in a possible Article 7 procedure. The tasks of the new Agency will be focused on the question of the protection and promotion of fundamental rights in the EU rather than on the question of human rights in external relations. However, there will be a possibility for candidate countries and countries with which a stabilization and association agreement has been concluded to participate in the work of the Agency, in which case, if the respective Association Council agrees, the Agency may deal with fundamental rights issues in the candidate or associated country concerned. 46 Finally, it should be noted that the institution of European Ombudsman, too, plays a role in the promotion and protection of fundamental rights. According to Article 195 ECT, the Ombudsman is empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Community institutions and bodies. 47 He or she is thus not empowered to deal with complaints against the Member States institutions, a task which belongs to the national ombudsmen or similar bodies. But the European Ombudsman organizes regular seminars with the national ombudsmen of the Member States in order to discuss common problems notably relating to the application and implementation, at national level, of EU law, including EU fundamental rights law Council Regulation (EC) no. 1034/97 of 2 June 1997, OJ L 151, , p See < (last accessed 1 December 2008). In addition to a Management Board and an Executive Board, the new Agency also has a Scientific Committee and it has establish a cooperation network called the Fundamental Rights Platform. The Agency cooperates with Member States institutions and with the Council of Europe and other international organizations. 45 Under Article 226 ECT, the Commission may initiate infringement procedures before the ECJ against a Member State for failure to fulfil its obligations under Community law. If a Member State does not comply with an ECJ judgment, the Court may according to Article 228 ECT order the Member State concerned to pay a lump sum or a penalty payment to the EU budget. 46 Article 27 of the Regulation. 47 See Article 195 of the EC Treaty and Ian Harden, When Europeans Complain: The Work of the European Ombudsman, Cambridge Yearbook of European Legal Studies, vol. 3 (2000), pp See, e.g., J.-P. Delevoye and P.N. Diamandouros (eds), Rethinking Good Administration in the European Union (Luxembourg: Office for Official Publications of the European Union, 2008), which is based on the proceedings of the sixth seminar of the national ombudsmen of the EU Member States and Candidate 453

12 Allan Rosas 6. FUNDAMENTAL RIGHTS AS GENERAL PRINCIPLES OF EU LAW The case law of the EU courts of relevance for fundamental rights is by now extensive and covers a wide array of Community law areas. 49 The fundamental rights upheld by Luxembourg case law include civil rights (such as the right to fair trial, the prohibition of retroactive penal legislation, the right to privacy and family life and children s rights), political freedoms (such as freedom of expression, freedom of assembly and freedom of movement), social rights (such as the right of men and women to equal pay, which has been described by the ECJ as a fundamental right, 50 and the right of trade unions to resort to collective action) and the principle of non-discrimination in relation to nationality, race, gender and sexual orientation, as so on. The list of fundamental rights is not closed: As noted above, the Court has stated that it draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. 51 The ECHR enjoys special relevance and will therefore be discussed separately below. But the reference in Article 6, paragraph 2, TEU to the ECHR has not prevented the Court, also after the entry into force of the Treaty of Maastricht, from citing occasionally some other human rights conventions as sources of inspiration. Such citations include the European Social Charter of 1961, the International Covenant on Civil and Political Rights of 1966, the Convention on the Rights of the Child of 1989 and International Labour Organization Conventions. 52 Moreover, the Preamble to the Single European Act of 1986, Article 136 ECT as well as the EU Charter of Fundamental Rights make reference to the European Social Charter of The EU Charter also refers in its Preamble, inter alia, to the international obligations common to the Member States. According to Article 53 of the Charter, nothing in the Charter shall be interpreted as restricting or adversely affecting human rights as recognized, inter alia, by international law and by international agreements to which the Union, the Community or all the Member States are party. While the first fundamental rights cases concerned the conformity of Community acts with fundamental rights as general principles of Community law, a significant part of Countries, Strasbourg October See, e.g., Rosas, supra (note 8); Neuwahl and Rosas, supra (note 23); Guild and Lesieur, supra (note 23); Alston, supra (note 23), passim. 50 See, e.g., Case C 13/94 P v S [1996] ECR I 2143; Joined Cases C 270/97 and C 271/97 Deutsche Post [2000] ECR I 929, para This broad formulation was adopted already in the case of Nold (1974), supra (note 16). 52 Allan Rosas, The European Union and International Human Rights Instruments, in Vincent Kroenenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? (The Hague: T.M.C. Asser Press, 2001), pp , at pp For recent examples, see Case C 540/03 Parliament v Council [2006] ECR I 5769, para. 37, where reference is made to the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the European Social Charter, and the cases of International Transport Workers Federation, supra (note 31), para. 43, and Laval an Partneri, supra (note 31), para. 90, where reference is made to the European Social Charter and ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise of

13 THE EU AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS subsequent cases has also addressed measures taken by Member States in applying or implementing Community law. Some of these cases led the ECJ to hold that Community law provisions, when applied at the national level, should be interpreted in the light of fundamental rights. 53 In some other cases the Court was faced more directly with national measures implementing Community acts or at least falling within the domain of Community law. 54 In Wachauf, the Court stated explicitly that the Community law requirements of the protection of fundamental rights are also binding on the Member States when they implement Community rules. 55 In the ERT case, the test was specified to be whether the national measures fall within the scope of Community law. 56 The border-line between the two situations may be tricky to establish in a concrete case, in view of the grey zone which exists between the scope of Community law and that of purely national law. In some cases, the Court has concluded that the link between the national measure and Community law was not sufficiently strong for a Community law control exercised by the Court. 57 In other cases, the Court has tilted in favour of a sufficient link. For instance, in K.B., at issue was national legislation limiting the right to marry to heterosexual couples where neither partner s identity was the result of surgical gender reassignment. Such a provision would as such fall outside the field of application of Community law. But marriage was according to United Kingdom national legislation a precondition for the grant of a survivor s pension. As pensions come within the purview of Community law, the Court held that there was inequality of treatment under Community law, even if the inequality did not relate directly to the award of a pension but to a necessary precondition for the grant of such a pension: namely, the capacity to marry. 58 The EU Charter of Fundamental Rights (Article 51) includes among its addressees the Member States only when they are implementing Union law. 59 This seems to confirm that there is consensus on the applicability, in principle, of EU fundamental rights to the Member States when they are implementing EU law, while the precise delimitation of the field of application of this Community law from the scope of national law falling outside EU 53 Rutili, supra (note 22); Case 222/4 Johnston [1986] ECR Case 63/83 Kent Kirk [1984] ECR 2689; Case 249/86 Commission v Germany [1989] ECR Case 5/88 Wachauf [1989] ECR 2607, para Case C 260/89 Elliniki Radiophonia Tileorassi (ERT) [1991] ECR I See also Case C 159/90 Grogan [1991] ECR I 4605, para. 31, where the Court stated that it is competent to rule on the interpretation of Community fundamental rights in order to enable the national judge to assess the compatibility with those fundamental rights of national legislation which falls within the field of application of Community law, while it is not competent to do so in respect of national measures which fall outside the scope of Community law. 57 Grogan, supra (note 56); Case C 299/95 Kremzow [1997] ECR I 2405, para. 15; Case C 306/96 Annibaldi [1997] ECR I Case C 117/01 K.B. [2004] ECR I 541, para. 30. See also Case C 60/00 Carpenter [2002] ECR I 6279, paras ; Case C 71/02 Karner [2004] ECR I 3025, paras On the definitive version of the Charter see infra (note 95). On the relationship between this formula and the case law of the Court on Member States obligations, see, e.g., Gráinne de Búrca, The Drafting of the European Union Charter of Fundamental Rights, European Law Review, vol. 26 (2001), pp , at pp ; Clemens Ladenburger, L application pratique de la Charte des droits fondamentaux par la Commission européenne, Revue européenne de droit public, vol. 14 (2002), pp , at pp

14 Allan Rosas fundamental rights framework continues to provoke discussion in concrete cases. And as will be explained below, a Protocol annexed to the TEU and ECT, as amended by Lisbon Treaty of 2007, and relating to the application of the Charter to Poland and the United Kingdom introduces uncertainties as to the extent to which the Charter will be applicable in these two countries. The above discussion is relevant mainly for what has been termed Community or First Pillar law. While the EU courts do not, generally speaking, have jurisdiction under the CFSP (Second Pillar), they have limited jurisdiction under Title VI TEU concerning Police and Judicial Cooperation in Criminal Matters (the Third Pillar). In Pupino, the ECJ referred to the need for a Member State to respect fundamental rights also in a case falling under the Third Pillar (interpretation of a framework decision). 60 If the Treaty of Lisbon were to enter into force, 61 the Third Pillar would be integrated into a common EU framework and gaps in the jurisdiction of the EU courts or in the fundamental rights regime relative to the present Third Pillar should largely disappear. Finally, it should be noted that different views have been expressed on the question of what specific weight the EU courts have given to fundamental rights as compared notably to the traditional economic freedoms contained in the ECT. 62 While it is beyond doubt that the general principles of Community law, and thus fundamental rights, are seen as part of primary law and thus at the same hierarchical level as the basic Treaties (the TEU, the ECT and the Euratom Treaty), it is sometimes asserted that the EU courts do not take fundamental rights seriously enough and in practice give preference to the economic freedoms or other parts of written primary law. Without entering into this discussion in any greater detail, it is the understanding of the present writer that in the case law of the ECJ, fundamental rights are not in any way subordinate to written primary law. On the other hand, in the case of fundamental rights which are not absolute but permit limitations and restrictions (which is the case for most fundamental and human rights), it is a question of a balancing act between them and other parts of primary law, in application also of the principle of proportionality. 63 There may even be a certain tendency to give at least some fundamental rights more weight than other parts of primary law Case C 105/03 Pupino [2005] ECR I See supra (notes 1 and 7). 62 See, e.g., Mats Lindfelt, Fundamental Rights in the European Union: Towards Higher Law of the Land? (Turku: Åbo Akademi University Press, 2007), passim. 63 Rosas, supra (note 8), pp and notably Cases C 112/00 Schmidberger [2003] ECR I 5659; paras ; International Transport Workers Federation, supra (note 31), paras See Lindfelt, supra (note 62), pp , who refers to Case C 432/04 Cresson [2006] ECR I 5769, in which (paras ) the Court examined the merits of a claim that a provision of written primary law (Article 213 ECT) is in violation of fundamental rights. 456

15 THE EU AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS 7. EU LAW AND THE ECHR Not only does Article 6, paragraph 2, TEU state that the fundamental rights to be protected as general principles of Community law are guaranteed by the ECHR but the EU Charter of Fundamental Rights 65 goes further in providing (Article 52, paragraph 3) that in so far as the Charter contains rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the said Convention. The entry into force of the Treaty of Lisbon of 2007 would not only make the Charter legally binding but also provide for the formal accession of the EU to the ECHR (the EU shall accede to the ECHR). 66 And according to Article 59 of the ECHR, as amended by Article 17 of its Protocol No. 14 (not in force), the EU may accede to the Convention. Accession to the ECHR would be the culmination of a long development. The relationship between the Luxembourg and Strasbourg systems has been one of gradual rapprochement. 67 In its first judgments citing fundamental rights, the Court of Justice did not refer expressly to the ECHR. The first references came after France as the (then) last Member State had ratified the Convention. 68 The Court subsequently characterized the ECHR as an instrument having special significance. 69 And more recently, the ECJ has begun to refer to individual judgments of the European Court of Human Rights. 70 This is nowadays done on an almost routinely basis. One can thus note the following stages in the case law of the ECJ: fundamental rights outside the competence of the Court; fundamental rights as part of the general principles of Community law (since 1969); explicit reference to the ECHR (since ); characterization of the ECHR as having special significance (since 1989); and reference to individual judgments of the European Court of Human Rights (since the 1990s). Given that the Court has started to refer to individual judgments of the Court of Human Rights, it is not surprising that it has also indicated a willingness to adjust its own case 65 Supra (note 27) and infra (note 95). 66 Article 6, paragraph 2, TEU, as amended by the Lisbon Treaty (see supra, note 1 and p. 451), which on this point confirms what is said in Article I 9 of the abortive Treaty establishing a Constitution for Europe (see supra, note 1). As noted supra (note 25), the ECJ held in 1996 (Opinion 2/94) that as Community law stood at that time, there was no legal basis in the Community Treaties giving the EC the competence to accede to the ECHR. 67 Rosas, supra (note 8), pp Nold, supra (note 16), para. 12. This reference, it is true, figures in a paragraph citing the assertions of one of the parties. For a reference to be found in the reasoning of the Court itself, see Rutili, supra (note 22), para. 32. In the latter case, the Court noted that the ECHR had been ratified by all the Member States. 69 The first such statement seems to have been in Joined Cases 46/87 and 222/88 Hoechst [1989] ECR 2859, para. 13. See also ERT, supra (note 56), para P v S, supra (note 50), para. 16. For more recent citations of Strasbourg case law, see, e.g., Carpenter, supra (note 58), para. 42; Joined Cases C 238/99 P Limburgse Vinyl Maatschappij [2002] ECR I 8375; Case C 94/00 Roquette Frères [2002] ECR I 9011, paras. 29 and 52; K.B., supra (note 58); Karner, supra (note 58); Parliament v Council, supra (note 52). 457