Taking Rights More Seriously? The EU System of Fundamental Rights

Transcription

1 Allan Rosas and Lorna Armati, EU Constitutional Law: An Introduction HART PUBLISHING - Oxford and Portland, Oregon, 2010, 278 pp 10 Taking Rights More Seriously? The EU System of Fundamental Rights A. General The predominantly economic and technical nature of the original Community integration agenda did not stop the ECJ from declaring, in Stauder (1969), that the general principles of Community law include fundamental rights the respect of which it is incumbent upon the Court to ensure. 1 The Court arguably considered that the effects of Community law, especially in view of the principles of primacy and direct effect that the Court had recognised a few years earlier, made it impossible for the Communities to continue to isolate themselves from human and fundamental rights considerations. 2 There was an apparent risk that the Member States, including their constitutional and other courts, would not accept the primacy over the national constitution, and notably its Bill of Rights, of a Community legal order which did not itself guarantee respect for fundamental rights. 3 In order to defend primacy, the ECJ made fundamental rights part of the Community legal order, and, in so doing, added one more constitutional ingredient to this evolving legal order. Stauder was followed by a series of judgments which developed and refined its rather laconic statement on respect for fundamental rights. 4 This judicial activism was ultimately mirrored by action on the part of the political institutions, notably the Joint Declaration made by the European Parliament, the Council and the Commis- 1 Case 29/69 Stauder [1969] ECR 419, para 7. See also Case 25/70 Köster [1970] ECR 1161, para See ch 2C above, nn and ch 5B and D above. 3 See, in particular, the article by the then judge at the ECJ, P Pescatore, Les droits de l homme de l intégration européenne (1968) 4 Cahiers de droit européen 629. See also J Weiler, The Constitution of Europe: Do the New Clothes Have an Emperor and Other Essays on European Integration (Cambridge, Cambridge University Press, 1999) ; A Rosas, The European Court of Justice and Fundamental Rights: Yet Another Case of Judicial Activism? in C Baudenbacher and H Bull (eds), European Integration Through Interaction of Legal Regimes (Oslo, Universitetsforlaget, 2007) 33, Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; Case 4/73 Nold [1974] ECR 491; Case 36/75 Rutili [1975] ECR 1219.

2 sion in 1977, which, by reference to the case law of the ECJ, affirmed their commitment to respect for fundamental rights. 5 However, the increasing focus on fundamental rights did not impress all observers of the Court, or of the Community more generally. It was held by many that the Court paid only lip service to fundamental rights or, famously borrowing from the title of a book in fact not related to EU law, did not take fundamental rights seriously. 6 Since the 1970s, much water has passed under that bridge so, without trying to provide an exhaustive list of relevant legal and political developments, we will simply highlight a number of points of particular relevance to our constitutional discussion. First, the basic principle of respect for fundamental rights found its way into written primary law at Maastricht via what became Article 6 TEU and is now, under the Treaty of Lisbon, enshrined in Articles 2 and 6 TEU. The importance of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, proclaimed in Article 2 TEU as the foundations of the Union, was reflected in the Kadi judgment (2008), in which the ECJ recognised that certain core principles of the EU constitutional order may even prevail over other parts of primary law. 7 Article 6 TEU, as amended by the Treaty of Lisbon, identifies a three-pronged approach to the EU system of fundamental rights: (i) the Charter of Fundamental Rights, elevated to the same status as the Treaties; 8 (ii) EU accession to the European Convention on Human Rights (ECHR); and (iii) reaffirmation of the general principles of Union law as a source of fundamental rights in the EU, taking into account the ECHR (and, as will be explained below, other international human rights instruments) and the constitutional traditions common to the Member States. Article 7 TEU adds a mechanism which, it is to be hoped, will remain of purely theoretical interest: the possibility to take sanctions against a Member State in case of a serious and persistent breach of the values referred to in Article 2 TEU. Secondly, the case law has developed since those first judgments, handed down in the period While the EU has not yet been able to adhere to the ECHR in its own right (the ECJ held in 1996 that the Communities lacked the competence to do so 9 ), there has been a clear rapprochement between the EU judicial system and the system set up under the Convention, including the European Court of Human Rights. 10 Since the 1980s, the ECJ has recognised that the ECHR enjoys 5 [1977] OJ C103/1. 6 J Coppel and A O Neill, The European Court of Justice: Taking Rights Seriously? (1992) 29 Common Market Law Review 669. The title refers to R Dworkin, Taking Rights Seriously (Cambridge, Massachusetts, Harvard University Press, 1977). See also B de Witte, The Past and Future Role of the European Court of Justice in the Protection of Human Rights in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press, 1999) 859, Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation [2008] ECR I See also ch 4B above. 8 The Charter was first proclaimed by the European Parliament, the Council and the Commission as an instrument of soft law, [2000] OJ C364/1. Art 6(1) TEU refers to the (slightly modified) version of December 2007, reprinted in [2010] OJ C83/389. See also at nn 58 et seq below. 9 Opinion 2/94 Accession to the European Convention on Human Rights [2006] ECR I A Rosas, Fundamental Rights in the Luxembourg and Strasbourg Courts in C Baudenbacher, P Tresselt and T Orlygsson (eds), The EFTA Court: Ten Years On (Oxford, Hart Publishing, 2005) 163.

3 special relevance, and, since the mid-1990s, the Union Courts cite regularly not only Convention provisions but also individual judgments of the European Court of Human Rights. 11 Incidentally, they also started to cite the EU Charter of Fundamental Rights well before the Treaty of Lisbon made it part of binding primary law. 12 More importantly, the case law is full of examples where fundamental rights considerations have determined, or at least affected, the outcome of the case. Suffice it to mention here a string of cases where such considerations have been deemed to justify restrictions on the otherwise fundamental economic freedoms enshrined in the Treaty, such as the free movement of goods or services or the right of establishment, 13 and a number of judgments annulling sanctions instigated against alleged terrorists for want of respect for fundamental rights. 14 As an aside, contrary to what is sometimes asserted, the ECJ has not favoured the economic freedoms at the expense of fundamental rights; the cases in which the Court has accepted that a balance has to be struck between the two have concerned fundamental rights such as property rights or freedom of assembly and expression, which are not in themselves absolute. 15 Thirdly, the relevance of fundamental rights has been enhanced through the development of secondary law. The traditional focus on gender discrimination, manifested not only in primary law but also in a series of directives adopted since the 1970s, was later broadened to include action to combat discrimination in general. 16 In particular, two non-discrimination directives adopted in 2000 relate, on the one hand, to discrimination on grounds of race or ethnic origin (Directive 2000/43) and, on the other, to discrimination relating to employment and occupation on some of the other grounds listed in its legal basis (Article 13 TEC, now Article 19 TFEU), See also A Rosas, The European Union and Fundamental Rights/Human Rights in C Krause and M Scheinin (eds), International Protection of Human Rights: A Textbook (Turku/Åbo, Åbo Akademi University Institute for Human Rights, 2009) 443, See Joined Cases 46/87 and 227/88 Hoechst [1989] ECR 2859, para 13. See also Case C-13/94 P v S [1996] ECR I-2143, para 16, and the earlier cases mentioned in Rosas (2005), n 10 above, 169 fn See below, section C. 13 See, eg Case C-112/00 Schmidberger [2003] ECR I-5659; C-36/02 Omega [2004] ECR I-9609; Case C-71/02 Karner [2004] ECR I-3025; Case C-244/06 Dynamic Medien [2008] ECR I-505; Case C- 438/05 International Transport Workers Federation ( Viking Line ) [2007] ECR I See, eg Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation, n 7 above (violation of the right of defence and of the principle of effective judicial protection as well as of the right of property). See also Joined Cases C-399/06 P and C-403/06 P Hassan, judgment of 3 December 2009 nyr; Case C-340/08 The Queen, on the application of: M and Others v Her Majesty s Treasury, judgment of 29 April 2010 nyr. 15 See Case C-112/00 Schmidberger, n 13 above, paras 79 81, where the Court observed that restrictions may apply to freedom of expression and freedom of assembly, unlike other fundamental rights... such as the right to life or the prohibition of torture and inhuman or degrading treatment or punishment (para 80). See more generally M Lindfelt, Fundamental Rights in the European Union: Towards Higher Law of the Land? (Turku/Åbo, Åbo Akademi University Press, 2007) , who (wrongly it is believed) claims that the fundamental economic freedoms still operate as the main rule and fundamental rights as the exception. 16 See further section D below. See notably Art 157 TFEU (ex Art 141 TEC), which in Case 43/75 Defrenne ( Defrenne II ) [1976] ECR 455 was recognised as having horizontal direct effect. See in that respect ch 5D above, at nn and section E below.

4 namely religion or belief, disability, age and sexual orientation (Directive 2000/78). 17 In addition, fundamental rights considerations often inform the development of secondary law more generally (to cite an obvious example, in enacting legislation relating to the area of freedom, security and justice). Indeed, since 2007, a specific Union agency has been tasked with providing the institutions with information, assistance and expertise in order to ensure that, in the exercise of their various competences, these bodies ensure full respect for fundamental rights. 18 Fourthly, in the context of its external relations policies, the EU has, since the 1990s, paid considerable attention to the promotion of human rights in its relations with third countries. This has been done using both Community law instruments and mechanisms of the Common Foreign and Security Policy (CFSP). 19 In particular, human rights clauses are included in trade and cooperation agreements concluded with third countries and acts of secondary law providing for financial and technical assistance to third countries, including their civil society. CFSP action covers various forms of coordination of Member States human rights policies, including in the context of the United Nations. Both Community law and CFSP measures will normally include the option to instigate sanctions as a result of alleged human rights violations committed by third countries. 20 In promoting human rights externally, the EU also relies on the Universal Declaration of Human Rights of 1948 as a basis for human rights cooperation globally. 21 With these developments, a conceptual distinction has emerged: fundamental rights is a constitutional concept based on case law, Article 6 TEU and the Charter of Fundamental Rights, while the notion of human rights is used primarily in the context of EU external relations. The question of adherence to international instruments such as the ECHR covers both elements, as adhering to such instruments would make them part of the Union legal order while also constituting a commitment vis-à-vis third states and thus an instrument of external human rights policy. 17 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, [2000] OJ L199/86; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, [2001] OJ L2/42. See further section D below. 18 Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, [2007] OJ L53/1. On the background of this Agency, see P Alston and O de Schutter (eds), Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency (Oxford, Hart Publishing, 2005). See also J Kühling, Fundamental Rights in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing/Munich, Verlag CH Beck, 2009) 479, 485. It is interesting to note, in the context of the abolition of the pillar structure under the Treaty of Lisbon, that this Agency acted only in relation to Community law (First Pillar). 19 D Napoli, The European Union s Foreign Policy and Human Rights in N Neuwahl and A Rosas (eds), The European Union and Human Rights (The Hague, Martinus Nijhoff Publishers, 1995) 297; B Brandtner and A Rosas, Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice (1998) 9 European Journal of International Law 468; M Fouwels, The European Union s Common Foreign and Security Policy and Human Rights (1997) 15 Netherlands Quarterly of Human Rights See, eg M Bulterman, Human Rights in the Treaty Relations of the European Community: Real Virtues or Virtual Reality? (Antwerp, Intersentia/Oxford, Hart Publishing, 2001); E Paasivirta and A Rosas, Sanctions, Countermeasures and Related Actions in the External Relations of the EU: A Search for Legal Frameworks in E Cannizzaro (ed), The European Union as an Actor in International Relations (The Hague, Kluwer Law International, 2002) 207; Rosas (2009), n 10 above, A Rosas, The European Union: In Search of Legitimacy in V Jaichand and M Suksi (eds), 60 Years of the Universal Declaration of Human Rights in Europe (Antwerp, Intersentia, 2009) 415.

5 The following discussion will focus on the role of fundamental rights in the Union legal order, highlighting questions of scope and status rather than analysing the substance of the various rights recognised in, say, the Charter of Fundamental Rights. As a preliminary point, it is important to note that fundamental rights have to be respected at all levels of EU governance, including by the various bodies of the Member States. Respect for fundamental rights by the Union as such raises questions concerning (i) the validity (legality) of Union secondary law, 22 (ii) the interpretation of Union secondary law 23 or (iii) the legality of individual measures such as Commission or judicial decisions. 24 Compliance at the national level requires consideration of one additional, preliminary issue; Union fundamental rights will only be applicable in situations which fall within the scope of Union law. It is to this aspect that we shall now turn. B. Field of Application As an important component of Union primary law, fundamental rights are, in principle, always applicable when Union institutions and other bodies act. The question of the field of application of Union fundamental rights at Member State level is more complex. When should national courts and authorities apply Union fundamental rights rather than, or in addition to, fundamental rights recognised in the national constitution and in international human rights instruments binding on the Member State in question? It is submitted that the basic criterion is much more obvious than is sometimes assumed. In our view, it should go almost without saying that Union fundamental rights have to be respected at the national level whenever Union law is at stake. This is simply a function of the fact that fundamental rights are part of Union primary law and must, like any norm of Union law, be respected when this body of law, or national measures to implement that law, are applied by courts or authorities of the Member States. It should not have come as a surprise to anyone when the ECJ, in Wachauf, confirmed that Union fundamental rights are also binding on the Member States when they implement Community rules. 25 In ERT and subsequently, the test was formulated as a requirement that the national measures fall within the scope of 22 Case C-540/03 Parliament v Council [2006] ECR I-5769; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation, n 7 above. 23 See, eg Case C-465/07 Elgafaji [2009] ECR I On Commission decisions see, eg Case T-351/03 Schneider Electric v Commission [2007] ECR II- 2237, paras In Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paras and Case C-385/07 P Der Grüne Punkt Duales System Deutschland v Commission [2009] ECR I-6155, paras , the ECJ found that the Court of First Instance had infringed the requirement of access to justice within a reasonable time derived from Art 6 of the ECHR. See also Joined Cases 341/06 P and 342/06 P Chronopost v UFEX [2008] ECR I-4777, paras 44 61, on the question as to whether the proceedings before the Court of First Instance guaranteed access to an independent and impartial tribunal. 25 Case 5/88 Wachauf [1989] ECR 2607, para 19. See also Case 36/75 Rutili, n 4 above; Case 63/83 Kent Kirk [1984] ECR 2689; Case 249/86 Commission v Germany [1989] ECR 1263.

6 Community law. 26 Contrary to what could be gathered from some of the discussions at the Convention which prepared the Charter of Fundamental Rights, the Court did not launch any radical new principle in these judgments but simply stated the obvious. 27 That said, it is not always easy to draw the borderline between national rules which fall within the scope of Union law, on the one hand, and national measures which fall outside this scope, on the other. 28 In some cases, the ECJ has concluded that the link between the national measures and Union law was not sufficiently direct or strong and that the national measure thus fell outside the scope of Union law (perhaps the most well-known case concerned a prisoner who attempted to invoke his Union law right to move and reside freely as a basis for contesting his prison sentence). 29 A number of examples best illustrate the issues that can arise. In Carpenter, a Union citizen who provided services to recipients in other Member States as a significant proportion of his business could, under Union law, rely on his right to family life in order to oppose the expulsion of his spouse, a thirdcountry national, from his Member State of origin, despite the fact that the spouse had not travelled with her husband to the other Member States concerned and so had not herself exercised free movement rights. 30 In KB, the Court held that the refusal to grant a widower s pension to a couple on the basis that they were not married came in principle within the purview of Union law. The incapacity to marry followed from the refusal under national law to recognise that gender reassignment could result in the classification of a couple as heterosexual (a condition for marriage). While the right to marry was a question for national law, there was inequality of treatment as regards a necessary precondition for the grant of a pension, a matter of Union law. As this inequality of treatment resulted from a breach of the right to marry under Article 12 of the ECHR, the national legislation at issue was to be regarded as being, in principle, incompatible with the requirements of Article 141 EC (Article 157 TFEU) on equal pay. 31 In Mangold and Kücükdeveci, the Court, taking inspiration inter alia from Directive 2000/78 (mentioned above), concluded that non-discrimination on grounds of age had become a general principle of Union law. 32 However, in Mangold the dead- 26 Case C-260/89 Elliniki Radiophonia Tileorassi (ERT) [1991] ECR I See also Case C-159/90 Grogan [1991] ECR I-4605, para See at nn below. 28 A Rosas, Perspectives pour la protection des droits fondamentaux de l Union européenne in T von Danwitz and J Rossetto (eds), Aktuelle Herausforderungen der europäischen Integration: Lissabonner Vertrag, europäishe Gesellschaftspolitik und Grundrechtsschutz in der EU (Berlin, Konrad Adenauer Stiftung, 2009) Case C-299/95 Kremzov [1997] ECR I See also Case C-159 Grogan, n 26 above; Case C- 306/96 Annibaldi [1997] ECR I Case C-60/00 Carpenter [2002] ECR I-6279, paras Case C-117/01 KB [2004] ECR I-541, paras In the case of Goodwin v UK and I v UK, judgment of 11 July 2002, the European Court of Human Rights had held that the fact that it was impossible for a transsexual to marry a person of the sex to which he or she had belonged prior to gender reassignment was a breach of the right to marry. 32 Case C-144/04 Mangold [2005] ECR I-9981; Case C-555/07 Kücükdeveci, judgment of 19 January 2010 nyr. In Kücükdeveci, the problem did not arise in the same way as the deadline for the implementation of Directive 2000/78 had expired. The question of the horizontal application of Union fundamental

7 line for the implementation of the Directive had not yet expired, and the Directive could not therefore be invoked to bring the matter within the scope of Union law. The Court relied instead on the fact that the national legislation at issue also constituted a measure implementing another directive. 33 While these and other cases suggest a fairly wide conception of what measures fall within the scope of Union law, it should be emphasised that the Union Courts are not human rights courts with general jurisdiction over the interpretation of the ECHR or other international human rights instruments. 34 They apply and interpret fundamental rights in the context of their normal day-to-day activities in all areas of Union law. There are no special fundamental rights remedies, and fundamental rights issues can be raised in all types of judicial procedure, including actions for annulment (Article 263 TFEU) and preliminary ruling procedures (Article 267 TFEU). The Lisbon Treaty did not alter this state of affairs. According to Article 6(1) TEU, the provisions of the Charter of Fundamental Rights shall not extend in any way the competences of the Union as defined in the Treaties. Article 51(2) of the Charter is even more explicit, providing that it does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Moreover, Article 51(1) states that the Charter provisions are addressed to the Member States only when they are implementing Union law. In the Convention which drafted the Charter, discussions on the application of fundamental rights at national level were not without difficulties. 35 The UK, in particular, resisted the application of the Charter at national level and, having failed in this objective, instead obtained inclusion of a separate Protocol relating to the application of the Charter in the UK (see below). As Article 51(1) of the Charter refers to a situation of implementing Union law, it may be asked whether this is more restrictive than the scope or field of application of Union law. In the Explanations relating to the Charter, reference is made both to the case law of the ECJ stating that the requirement to respect fundamental rights is binding on the Member States when they act in the scope of Union law and to cases using the notion of implementation. 36 It would therefore appear that the reference to implementation was not meant to exclude situations where Memrights, which was at issue in both Mangold and Kücükdeveci, will be considered in section E below. 33 Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, [1999] OJ L175/43. See Case C-144/04 Mangold, n 32 above, para See, eg Rosas, n 28 above, See, eg G de Búrca, The Drafting of the European Union Charter of Fundamental Rights (2001) 26 European Law Review 126, 136; P Eckhout, The EU Charter of Fundamental Rights and the Federal Question (2002) 39 Common Market Law Review 945, These Explanations were originally prepared under the authority of the Praesidium of the Convention which drafted the Charter and were later updated under the responsibility of the Praesidium of the European Convention which drafted the Constitutional Treaty of 2004, [2007] OJ C303/17. According to Art 6(1) TEU, the Charter shall be interpreted with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. See also J Ziller, Le fabuleux destin des Explications relatives à la Charte des droits fondamentaux de l Union européenne in Chemins d Europe: Mélanges en l honneur de Jean Paul Jacqué (Paris, Dalloz, 2010) 765.

8 ber States apply Union legal norms directly, including situations where they invoke derogations from such norms. 37 In any event, the ECJ continues to refer to national measures which fall within the scope or field of application of Union law. Indeed, we argue that it would be inconceivable that Member States were obliged to respect Union fundamental rights when they adopt national measures implementing Union norms but would not be so obliged when they apply Union law directly. That said, and despite a significant broadening of the field of application of Union law as a result of the evolving nature of Union citizenship (see chapter 9 above), the fact that a situation may, if it implies restrictions on the right to move and to reside, come under Article 21 TFEU, does not mean that all violations of the fundamental rights of persons who have moved to another Member State become violations of Union fundamental rights. 38 Control by the ECJ continues to depend on a fundamental right (such as freedom of residence, 39 the right to family life 40 or the right to a name 41 ) being read in combination with a national measure which infringes a free movement right, rather than assessing the fundamental right standing alone. Finally, it is interesting to note that the mechanism in Article 7 TEU for sanctioning a Member State if the European Council has determined the existence of a serious and persistent breach of the values referred to in Article 2 TEU is not limited to the field of application of Union law but may be applied in situations of serious and persistent breaches of human rights in general. The provision, introduced by the Treaty of Amsterdam, has never been applied in practice. 42 C. Sources and Material Scope The traditional approach has been to see fundamental rights as part of the general principles of Community (now Union) law. 43 This approach is reaffirmed in Article 6(3) TEU, which repeats, with some minor modifications, Article 6(2) as it existed prior to the Treaty of Lisbon. But where are these principles to be found, given that 37 Eckhout, n 35 above, ; C Ladenburger, L application pratique de la Charte des droits fondamentaux par la Commission européenne (2002) 14 Revue européenne de droit public 817, 828; Kühling, n 18 above, The ECJ has not adopted in full the approach suggested by one of its Advocates General back in 1992, see ch 9B above, fns Case 36/75 Rutili, n 4 above. 40 Case C-60/00 Carpenter, n 30 above. 41 Case C-148/02 Garcia Avello [2003] ECR I In this case, the matter was not explicitly approached as a question of a fundamental right (to a name). Such questions may, however, become human rights questions, covered by the right to private and family life recognised in Art 8 of the ECHR, see P van Dijk et al (eds), Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp, Intersentia, 2006) Sanctions taken by the other Member States against the Austrian government in 2000 were of a purely political nature and were not based on Art 7 TEU, Rosas (2009), n 10 above, On the general principles of Union law, including fundamental rights, as part of primary law, see ch 4C above.

9 most of them are not listed in the Treaties? The Charter of Fundamental Rights, identified in Article 6(1) TEU as having the same legal value as the Treaties, clarifies matters to a great extent. Yet, in view of the retention in Article 6(3) TEU of the general principles of Union law as a source for fundamental rights, account should be taken of the various instruments which have been used by the Union Courts to date as guidelines or sources of inspiration for the determination of which fundamental rights are recognised as general principles of Union law. Article 6(3) TEU mentions the ECHR as well as the constitutional traditions common to the Member States. In view of the differences which exist between the national constitutions, particularly in a Union of 27 Member States, it is not surprising that the ECHR and, as explained above, the case law of the European Court of Human Rights have proved more useful as guidelines than the constitutional traditions common to the Member States. 44 Rather, the reference to the constitutional traditions of the Member States should be seen in the more general context of the relevance of the national constitutional orders to the Union constitutional order as a whole. 45 In any event, it does not imply that a particular Charter right must correspond to a given provision in each of the 27 national Constitutions. In addition to the ECHR, the ECJ has referred to instruments such as the European Social Charter of 1961, revised in 1996, 46 the International Covenant on Civil and Political Rights of 1966, the Convention on the Rights of the Child of 1989 and a number of Conventions adopted by the International Labour Organisation. 47 In a few cases, the Court has even referred to international soft law instruments, such as the Universal Declaration of Human Rights of The Charter of Fundamental Rights, in its preamble, states that it reaffirms rights 44 See also de Witte, n 6 above, 878; A Rosas, The Legal Sources of EU Fundamental Rights: A Systemic Overview in N Colneric et al (eds), Une communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias (Berlin, Berliner Wissenschafts-Verlag, 2003) 87, 92. However, the Court did cite the constitutional traditions rather than the ECHR or other international instruments in eg Joined Cases C- 387/02, 391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, para 68. In Case C-36/02 Omega, n 13 above, the ECJ accepted the principle of human dignity, as expressed in the German Constitution, as a justification of a restriction on an economic freedom. 45 See, eg Art 4 TEU, which instructs the Union to respect, inter alia, the national identities of the Member States, inherent in their political and constitutional structures. According to Art 52(4) of the Charter of Fundamental Rights, fundamental rights resulting from the constitutional traditions common to the Member States shall be interpreted in harmony with those traditions. See also ch 4C above, nn The European Social Charter is mentioned in Art 151 TFEU. See also the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (1995). See further O De Schutter, Le statut de la Charte sociale européenne dans le droit de l Union européenne in Chemins d Europe, n 36 above, A Rosas, The European Union and International Human Rights Instruments in V Kronenberger (ed), The European Union and the International Legal Order: Discord or Harmony? (The Hague, TMC Asser Press, 2001) 53 59; A Rosas, International Human Rights Instruments in the Case-Law of the European Court of Justice in Law in the Changing Europe: Liber Amicorum Pranas Kūris (Vilnius, Mykolo Romero Universitas, 2008) 363, 373. For recent examples see Case C-438/05 International Transport Workers Federation, n 13 above, para 79 and Case C-341/05 Laval un Partneri [2007] ECR I , para 105, 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 1948; Case C-244/06 Dynamic Medien, n 13 above (citing the International Covenant of 1966 and the Convention on the Rights of the Child). 48 Rosas, n 21 above, at 420.

10 as they result, inter alia, from the constitutional traditions and international obligations common to the Member States, the ECHR and the Social Charters adopted by the Union and the Council of Europe. 49 And, according to Article 53 of the Charter, nothing therein shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, inter alia, by international law and by international agreements to which the Union or all the Member States are party. These references in the Charter to international instruments seem to confirm their continued relevance for EU fundamental rights as general principles of Union law. Perhaps in recognition of the rapprochement referred to above, the Charter also contains a provision (Article 52(3)) which provides that the meaning and scope of the Charter rights which correspond to rights guaranteed by the ECHR shall be the same as those laid down by the said Convention. Moreover, the ECJ has acknowledged that it should reconsider its position as stated in its case law in the light of subsequent developments before the European Court of Human Rights. 50 Contrary, then, to allegations in legal doctrine, the risk of conflict between Strasbourg and Luxembourg case law has become negligible. 51 For its part, the European Court of Human Rights has recognised these developments and held that, since the Union system for the protection of fundamental rights has become equivalent to that of the Convention, there is therefore a presumption that an EU Member State does not depart from the requirements of the Convention when it implements legal obligations following from its membership of the Union. 52 These developments have taken place despite the fact that the EU is not a Contracting Party to the ECHR. Article 6(2) TEU now specifically accords the competence (denied by the ECJ in 1996) to accede to that Convention. 53 The provision even seems to lay down a constitutional obligation to seek accession ( [t]he Union shall accede ). That said, accession would require the consent of all the current parties to the Convention, including the non-eu Members of the Council of Europe; Protocol 14 to the ECHR, which entered into force in June 2010, includes a provision enabling EU accession but the modalities of accession will have to be established in a separate agreement. 54 As this book goes to print, it is too early to predict when and how accession will take place; negotiations are only scheduled to begin in 2010, and Protocol No 8 annexed to the Treaties, which deals with the arrangements for accession, merely 49 See, in addition to the European Social Charter mentioned above, the 1989 Community Charter on the Fundamental Rights of Workers, which is also mentioned in Art 151 TFEU. 50 Joined Cases C-238/99 P Limburgse Vinyl Maatschappij et al [2002] ECR I-8375, para 274; Case C-94/00 Roquette Frères [2002] ECR I-9011, para Rosas (2005), n 10 above, 170. See also R Turner, Human Rights Protection in the European Community: Resolving Conflict and Overlap between the European Court of Justice and the European Court of Human Rights (1999) 5 European Public Law 453, with references. 52 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland [GC], No 45036/98, 165, ECHR 2005 VI (30 June 2005). 53 Opinion 2/94, n 9 above. 54 According to Art 59 of the Convention, as amended by Art 17 of the Protocol amending the control system of the Convention (2004), the EU may accede to the Convention. The entry into force of Protocol 14 was held up by a Russian refusal to ratify it, see Press Release of the Council of Europe No 140(2010), 18 February 2010, announcing Russian ratification, (accessed on 26 February 2010).

11 sets general parameters, such as preserving the specific characteristics of the Union and Union law, including arrangements for the Union s possible participation in the control bodies of the Convention, or ensuring that accession shall not affect the competences of the Union or the powers of its institutions. 55 If and when accession takes place, it will not be the first human rights convention to be concluded by the Union; in November 2009 the Union concluded the UN Convention on the Rights of Persons with Disabilities and its Optional Protocol of Human rights conventions are no different to other international agreements and becoming a Contracting Party implies that the convention constitutes an integral part of the Union legal order; as regards the ECHR in particular, this could also entail direct effect. 57 While the EU Charter of Fundamental Rights only now constitutes a binding part of Union primary law, it was already solemnly proclaimed by the European Parliament, the Council and the Commission on 7 December 2000 following its preparation by a Convention comprising representatives of both the European Parliament and national parliaments as well as national governments. 58 This soft law version of the Charter quickly became a source of reference for the Advocates General of the ECJ and for the Court of First Instance. 59 The ECJ first cited the Charter only in June 2006, in a case in which the directive in question itself proclaimed to respect the rights set forth in the Charter. 60 Since then, the ECJ has referred to several provisions of the Charter, although primarily to back up a statement on the scope and substance of a general principle of Community law. 61 Any reticence on the part of the ECJ of course fell away with the elevation of the Charter to the rank of primary law. The entry into force of the Treaty of Lisbon clearly enhances the importance of the Charter, in its new adapted version of December 2007, as the Union s Bill of Rights. The Charter has a broad material scope, including, to use an old but not always accurate or relevant distinction, both civil and political rights and economic, 55 In June 2010, a Commission recommendation that it be authorised to open negotiations received a favourable response from the Council. See also Protocol No 8 relating to Article 6(2) of the Treaty of European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms, and Declaration No 2 on Article 6(2) of the Treaty on European Union annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. 56 Council Decision 2010/48/EC of 26 November 2009 [2010] OJ L23/ On the status of international agreements see ch 4D above and on their direct effect, see ch 5D above, at nn 78 et seq. On the status of the ECHR in the domestic legal orders of the Contracting Parties, see R Blackburn and J Polakiewitcz (eds), Fundamental Rights in Europe: The ECHR and Its Member States, (Oxford, Oxford University Press, 2001). 58 See n 8 above. 59 See notably the Opinion of Advocate General Tizzano of 8 February 2001, para 28, in Case C- 173/99 BECTU [2001] ECR I For further details see, eg Rosas (2009), n 10 above, Case C-540/03 Parliament v Council, n 22 above, para 38. The directive in question was Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, [2003] OJ L251/ See, eg Case C-411/04 Salzgitter Mannesmann [2007] ECR I-965, para 50; Case C-432/05 Unibet [2007] ECR I-2271, para 37; Case C-438/05 International Transport Workers Federation, n 13 above, paras 43 44; Case C-341/05 Laval un Partneri, n 47 above, paras 89 90; Case C-244/06 Dynamic Medien, n 13 above, para 41.

12 social and cultural rights. 62 Some rights constitute fairly modern developments, not always found in older human rights instruments such as the ECHR: for example, an absolute and unconditional prohibition of the death penalty (Article 2(1)), a prohibition of human cloning (Article 3(2)), a prohibition of discrimination on grounds of, inter alia, disability, age or sexual orientation (Article 21(1)), rights of the elderly (Article 25), a right to take collective action (Article 28) and a right to a judicial remedy (Article 47). 63 It should be recalled, on the other hand, that these rights are to be applied at the national level only in situations which fall within the scope of Union law. Thus, for instance, the prohibition of the death penalty as a Union fundamental right would probably only apply to situations where the nature and level of criminal punishments have been harmonised at Union level. 64 Moreover, it is a separate question whether, and to what extent, rights recognised in the Charter can be directly invoked by individuals (see section E below). Finally, reference should be made to Protocol No 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the UK, annexed to the Treaties. According to Article 1(1) of this Protocol, the Charter does not extend the ability of the Union Courts, or any court or tribunal of Poland or of the UK, to find that laws, regulations or administrative provisions, practices or action of Poland or of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. While the Protocol is often referred to as an opt-out from the Charter, the preamble of the Protocol states that Article 6 TEU requires the Charter to be applied and interpreted by the courts of Poland and of the UK strictly in accordance with the Explanations referred to in that Article. 65 This suggests that the Charter is not outside the jurisdiction of the national courts concerned and that the Protocol simply limits the ability of the Union Courts or relevant national courts to find that national measures are inconsistent with the rights reaffirmed in the Charter to what was already possible under national law. What is at least clear is that a legal assessment of the precise meaning and scope of the Protocol remains elusive. 66 For instance, Article 1(2) of the Protocol provides that [i]n particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the UK except insofar as Poland or the UK has provided for such 62 Many rights (eg property rights, trade union rights and minority rights) are difficult to categorise according to this dichotomy, see, eg A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights: A Textbook, 2nd rev edn (Dordrecht, Martinus Nijhoff Publishers, 2001). 63 The right to a judicial remedy also exists in the ECHR (Art 6) and some other international human rights instruments, but in the Convention it is limited to civil rights and obligations and criminal charges. On the wide interpretation of this expression by the European Court of Human Rights see, eg van Dijk, n 41 above, 511 et seq. 64 As, for example, in Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, which provides for minimum penalties for terrorist offences, [2002] OJ L/164/3 (see also amendments in Council Framework Decision 2008/919/JHA of 28 November 2008, [2008] OJ L330/21). 65 On these Explanations, see at n 36 above. 66 See, eg M Wyrzykowski, Introduction: Limits of Power and Limits of Interpretation in J Barcz (ed), Fundamental Rights Protection in the European Union (Warsaw, CH Beck, 2009) 25 and other contributions in Part I of the same volume; J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 161 ( One thing is obvious: the legal effects of the Protocol are not easy to determine ).

13 rights in its national law. If the idea behind the second paragraph is to specify what is said in the first paragraph ( [i]n particular, and for the avoidance of doubt ), the first paragraph may only, or essentially, be about the issue of the justiciability (or direct effect) of certain rights and principles of a mainly social character (Title IV of the Charter, entitled Solidarity contains mainly labour rights and principles, some social and health rights and principles). 67 A Polish unilateral Declaration concerning the Protocol provides a further question mark, stating as it does that Poland, having regard to the contribution of the Polish Solidarity movement to the struggle for social and labour rights, fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter of Fundamental Rights. 68 The political problems and legal uncertainties surrounding the adoption of the Charter and Article 6(1) TEU are further underlined by the decision of the heads of state or government, expressed at the European Council of October 2009, to agree to attach a new Protocol to the TEU and the TFEU when the next Accession Treaty is concluded (for instance, concerning Croatia and/or Iceland). This new Protocol would extend Protocol No 30 to the Czech Republic as well. 69 This political agreement was reached in order to encourage the President of the Czech Republic to ratify the Treaty of Lisbon, which he did a few days later. D. Non-discrimination The Treaty establishing the European Economic Community (the Treaty of Rome of 1957) did not contain any general non-discrimination principle. As the objective was the gradual establishment of a common market, it was natural to focus on preventing discrimination on grounds of nationality. According to what is now Article 18 TFEU (ex Article 12 TEC), any discrimination on grounds of nationality shall be prohibited and specific examples of that prohibition are to be found in the provisions regulating each of the economic freedoms. 70 The provisions concerning citizenship of the European Union, notably the right of Union citizens to move and reside freely within the territory of the Member States, may be seen as the first step beyond that economic focus. 71 The inclusion in the original Treaty of Rome of the principle of equal pay for 67 K Lenaerts, La solidarité ou le chapitre IV de la Charte des droits fondamentaux de l Union européenne (2010) 21 Revue trimestrielle des droits de l homme Declaration No 62 by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the UK, [2008] OJ C115/ Brussels European Council of October 2009, Presidency Conclusions, Council of the European Union, Brussels, 1 December 2009, 15265/1/09 Rev 1, para 2. The text of a Protocol on the Application of the Charter of Fundamental Rights of the European Union to the Czech Republic is contained in Annex 1. See also ch 7B above, n The free movement of goods, workers, services and capital. There are five freedoms if the right of establishment is seen as a distinct freedom. See Arts 34 (goods), 45 (workers), 49 (establishment), 56 (services) and 63 (capital) TFEU and ch 12B below. 71 See ch 9D above.

14 male and female workers for equal work or work of equal value (originally Article 119, later to become Article 141 TEC and now Article 157(1) TFEU) was therefore born of internal market rather than fundamental rights considerations. Interestingly, it was this prohibition of wage discrimination on grounds of gender that provided the ECJ with the opportunity (in 1976) to hold for the first time that a provision of the Treaty could produce horizontal direct effect in other words, it could be invoked directly by private parties in litigation against other private parties. 72 That judgment has paved the way for the idea of the horizontal application and direct effect of fundamental freedoms and fundamental rights more generally. 73 The original principle of equal pay has evolved towards a concept of equality between men and women in general and the ECJ has held that the principle of equal treatment of men and women is one of the fundamental principles of Community law and one of the fundamental rights the observance of which the Court has a duty to ensure. 74 Article 2 TEU, when describing the values on which the Union is founded, envisages a society where pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail. In order to build such a society, Article 8 TFEU provides that in all its activities the Union shall aim to eliminate inequalities, and promote equality, between men and women, and Article 10 TFEU takes equality beyond gender, stipulating that, in defining and implementing its policies and activities, the Union shall aim to combat discrimination based not only on sex, but also racial or ethnic origin, religion or belief, disability, age or sexual orientation. However, this provision is formulated as a general objective and not as a subjective right. 75 It was in the Treaty of Amsterdam that this new phase in EU non-discrimination law was first heralded with the introduction of a general legal basis for taking legislative action to combat discrimination based on a number of different grounds (Article 13 TEC, now Article 19(2) TFEU). As a general rule, such action had to be taken by the Council, acting unanimously. 76 While this provision was, and remains, devoid of direct effect, it was inevitable that the grounds of discrimination listed in Article 13 TEC would start to influence not only legal thinking but also concrete developments. 77 In that respect, it is perhaps only to be regretted that those develop- 72 Case 43/75 Defrenne ( Defrenne II ), n 16 above. See also ch 5D above, at nn For a fairly recent example relating to the right of establishment, see Case C-438/05 International Transport Workers Federation, n 13 above. In this judgment, the Court also recognised the right of workers to take collective action as a fundamental right and held that trade unions could, in principle, invoke it as a possible defence against legal action by employers based on the right of establishment. See further section E below. 74 Case 149/77 Defrenne ( Defrenne III ) [1978] ECR 1365, paras 26 27; Case C-423/04 Richards [2006] ECR I-3585, paras See also C Barnard, EC Employment Law, 3rd edn (Oxford, Oxford University Press, 2006) 298 et seq. 75 See also Art 23 of the Charter of Fundamental Rights. 76 When the Council, by application of Art 13(2) TEC, adopted incentive measures, not implying the harmonisation of the laws of the Member States, it could act in accordance with the co-decision procedure (full participation of the European Parliament and qualified majority decision-making in the Council). 77 Case C-427/06 Bartsch [2008] ECR I-7245, paras See also the Opinion in that case of Advocate General Sharpston of 22 May 2008, para 73. The Treaty of Lisbon did not amend Art 13 TEC in any significant respect, other than to subject harmonisation measures under Art 19(1) TFEU to the consent instead of mere consultation of the European Parliament.