Overview. In the beginning

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1 Fundamental Rights Lund, 24 January 2018 Eduardo Gill-Pedro 1 Overview How Fundamental Rights came into EU law. Sources of Fundamental Rights in EU law Scope of EU Fundamental Rights of the EU Limitations on the rights 2 In the beginning According to the evaluation of the Verwaltungsgericht, the system of deposits is contrary to [ ] principles of national constitutional law [ ], with the result that the primacy of supranational law must yield before the principles of the German basic law 3 1

2 In the beginning Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. the validity of such measures can only be judged in the light of Community law. 4 In the beginning The law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called in question. 5 In the beginning In fact, 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. 6 2

3 In the beginning A system of mere declaration of exports effected and of unused licences would, by reason of its retrospective nature and lack of any guarantee of application, be incapable of providing the competent authorities with sure data on trends in the movement of goods. 7 Fundamental Rights in the Treaty Article 6 TEU 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. 8 Fundamental Rights in the Treaty Article 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. [ ] 9 3

4 Scope of EU fundamental rights Article 51 Charter Scope 1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. 10 EU Institutions and Fundamental Rights C-405/05 Kadi v Council and Commission the Community judicature must, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, 11 EU Institutions and Fundamental Rights C-293/12 Digital Rights Ireland Directive 2006/24 entails a wide-ranging and particularly serious interference with [EU] fundamental rights [...] by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by [ ] the Charter. 12 4

5 EU Institutions and Fundamental Rights 46/87 Hoechst v Commission rights [ ] such as the right to legal representation and the privileged nature of correspondence between lawyer and client [ ]must be respected as from the preliminary-inquiry stage 13 Member States and Fundamental Rights C-426/11 Alemo-Herron Article 3 of Directive 2001/23, [ ] cannot be interpreted as entitling the Member States to take measures which, while being more favourable to employees, are liable to adversely affect the very essence of the transferee s freedom to conduct a business 14 Member States and Fundamental Rights 411/11 N.S. the derogation [ ] forms part of the mechanisms for determining the M.S. responsible for an asylum application [ ] under that regulation and is, therefore, merely an element of the Common European Asylum System. 15 5

6 Member States and Fundamental Rights C-60/00 Carpenter A Member State may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of the freedom to provide services only if that measure is compatible with [EU] fundamental rights 16 Member States and Fundamental Rights C-617/10 Åkerberg Fransson fundamental rights must therefore be complied with where national legislation falls within the scope of European Union law, [ ] The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter. 17 Member States and Fundamental Rights C-206/13 Cruciano Siragusa The reason for [protecting fundamental rights in EU law] is the need to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law 18 6

7 Limits to the scope of EU Law C-198/13 Hernandez the purpose of [the national measure] is not to recognise an employee s claim against his employer resulting from his employment relationship, [ ] but to recognise [ ] the right of the employer to request from the Spanish State compensation for the loss suffered as a result of irregularities in the administration of justice, 19 Limit to the scope of EU Law C-299/95 Kremzow The appellant in the main proceedings is an Austrian national whose situation is not connected in any way with any of the situations contemplated by the Treaty provisions on freedom of movement for persons. 20 Member States and Fundamental Rights Suggested test: Does the national measure invove something in respect of which the member states has a specific obligation under EU law? Yes = Scope of EU law = MS obligation under Art 51 CFREU 21 7

8 Limitations on rights Article 52 CFREU 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 22 Limitations on rights? C-438/05 Viking Line the right to take collective action for the protection of workers is a legitimate interest which, in principle, justifies a restriction of one of the fundamental freedoms guaranteed by the Treaty. 23 Limitations on rights? C-112/00 Schmidberger it is necessary to determine whether the restrictions placed upon intra-community trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, the protection of fundamental rights. 24 8