Fundamental Rights in the European Union

Fundamental Rights in the European Union Language of the course: English No. of Hours: 30 Hours per week: 3 Level: Level 7 EQF (master level) ECTS: 4 without final paper or 5 with final paper Principal Lecturer: Siniša Rodin Table of Contents I. Course description 2 II. General and specific learning outcomes 2 1. General learning outcomes 2 2. Specific learning outcomes 3 III. Course Delivery 5 IV. Examination 5 V. Reading 5 VI. Class materials and Learning Objectives 6 VII. Quality Assessment 9

2 I. Course description The main objective of the course is to develop advanced understanding of methodology and practice of protection of fundamental rights in the European union. Within this general objective students will learn about the theoretical foundation of fundamenal rights, their normative ordering and how are they incorporated into the law of the EU. The course will present evolution of judicial protection of fundamental rights before the European Court of Justice, how are they crystallized in its case law and codified by the Founding Treaties and secondary legislation. The course will explore tension between fundamental rights and market freedoms and how it is resolved by the judiciary, particularly through development and application of judicial doctrines of proportionality and margin of appreciation. While the course is focused on the law of the EU, it will also address issue of relationship between the European Court of Justice, the European Court of Human Rights and national courts of EU Member States. The course is organized in 10 three- hour units. II. General and specific learning outcomes 1. General learning outcomes Application of law and problem solving Students will have demonstrated basic skills in application of knowledge at situations of limited complexity in order to reach reasoned solutions to real or hypothetical problems. (examination: discussion in class, short student paper, end- term exam, oral exam) Sources and research Student will have demonstrated basic ability to identify legal issues, to find and retrieve legal sources in paper and electronic format, to use relevant primary and secondary legal sources. (examination: discussion in class, short student paper, end- term exam, oral exam) Analysis, synthesis, critical judgment and evaluation Student will have ability to identify sources and problems and to rank the materials as to their relevance and importance, to gather information from a variety of sources, to demonstrate synthesis of relevant doctrinal problems, to critically evaluate arguments, to choose among several possibilities and to explain the choice. (examination: discussion in class, oral exam)

3 Independence and ability to learn Student will have demonstrated basic capacity to implement student research supervised by a professor, regardless whether the area of research was previously discussed in class or not, to reflect upon process of learning and to be able to ask for and use advice of his or her supervisor. (examination: short student paper and its presentation) Communication and literacy Student will have been able to use professional language and to present information in a way that is comprehensible to others, to read and discuss legal materials written in technical and complex language, and to write a student essay and be able to present it in appropriate way. (examination: discussion in class and/or at oral exam. Short student paper and its presentation) Other general learning outcomes Student will have ability to use internet, including e- mail, to work in a group and to contribute to achievement of group goals. (examination: discussion in class and/or at oral exam. Short student paper and its presentation) 2. Specific learning outcomes Knowledge of law and legal skills After having completed the course students will have developed: (1) basic knowledge about liberal doctrine of fundamental rights; (2) ability to identify how fundamental rights are integrated in constitutional instruments of liberal democratic states; (3) basic understanding of major legal instruments for protection of fundamental rights in Europe and the United States; (4) understanding of differences between different systems of judicial review; (5) ability to distinguish and understand national, supranational and international levels of protection of fundamental rights; (6) ability to apply complex facts to actual or hypothetical situations within one of the three legal frameworks; (7) understanding of evolution of fundamental rights in the EU; (8) understanding of the doctrine of incorporation and ability to apply it in actual or hypothetical situations; (9) skill of applying fundamental rights guarantees in practical situations within framework of EU law;

4 (10) ability to determine the scope of application of EU law and limits of national regulatory autonomy; (11) ability to develop arguments challenging supremacy of EU law in general and in area of protection of fundamental rights and counterarguments claiming supremacy of national constitutional systems of protection; (12) understanding of the basic elements of German doctrine of fundamental rights that determine relationship of German law with EU law in area of fundamental rights, such as the untouchable core, the eternity clause and the ultra vires doctrine; (13) ability to identify and apply doctrines of margin of appreciation and proportionality and understanding of the differences in their application within the legal framework of EU law and law of the EHRC; (14) ability to to determine situations in which such doctrines are applied from a perspective of national judge, and ability to determine their proper application, depending on applicable legal framework; (15) capacity to develop reasoning leading to resolution of conflicts in application of these doctrines in context of overlapping EU law and law of the EHRC; (16) ability to identify and apply, as a judicial test, concepts of subsidiary and proportionality; (17) skill of balancing fundamental rights and market freedoms within the legal framework of EU law; (18) capacity to distinguish concepts of horizontal direct effect and horizontal indirect effect, including the German doctrine of Drittwirkung; (19) ability to apply human rights guarantees within scope of EU law and ability to determine the scope of EU law within which fundamental rights operate; (20) understanding of different concepts of how indirect discrimination is applied to factual situations and ability to distinguish direct from indirect discrimination in complex actual or hypothetical cases; (21) understanding why and when ECJ and EctHRts defer their jurisdiction and / or reasoning to each other and to other national and international courts or tribunals; (22) understanding of how ECJ applies international law standards of protection of fundamental rights, and understanding how international restrictive measures are implemented and applied within the framework of EU law. Analytical and generic skills (1) To be familiar with the basic terminology of fundamental rights law and to know how to use it in oral and written form in appropriate and articulate way;

5 (2) To have ability to link complex factual situations with legal norms and concepts of EU law in area of fundamental rights and ability to articulate linked factual and legal elements into legal issues. To have ability to suggest alternative solutions to legal problems; (3) To have ability to connect complex facts involving protection of fundamental rights with concrete legal problems and ability to use such examples in new actual or hypothetical situations; (4) To have ability to express, in form of a commentary of a particular legal issue, or in form of an answer to a legal question, and to explain it in clear and concise way, orally or in written, being aware of alternative approaches to their solving; (5) To have ability to argue legal and factual issues, taking into account broader legal, economic and social context, being aware of alternative and different opinions and understandings; (6) To have ability to solve legal issues from perspective of different actors and by playing different roles, such as the role of an European Commission representative, a Member State representative, an Advocate General, etc.; (7) To have advanced skills of searching relevant electronic information systems, particularly the EUR- LEX. To know how to develop a search strategy, and to be able to find a required document, even without a full reference; (8) To have ability to analyze a legal source of EU law and to identify its relevant parts and interpret them in legal, economic and social context. III. Course delivery The course will be delivered in Winter or Summer semester, depending on student interest. Each of its ten units will comprise three teaching hours, totaling 30 hrs. Lectures will be interactive and students will have to prepare for each class. IV. Examination Final grade comprises the following elements: end term written exam, class attendance and discussion, short student paper and oral exam. V. Reading General Reading Philip Alston (ed.) THE EU AND HUMAN RIGHTS, Oxford University Press, 1999 John Fairhurst, LAW OF THE EUROPEAN UNION, Longman 2006

6 Mark Janis, Richard Kay and Anthony Bradley, EUROPEAN HUMAN RIGHTS LAW (3 rd edition) Oxford University Press, 2008 Armin Von Bogdandy and Jurgen Bast, PRINCIPLES OF EUROPEAN CONSTITUTIONAL LAW, Hart Publishing 2006 John Locke THE 2ND TREATISE ON CIVIL GOVENMENT Stephen Weatherill, CASES AND MATERIALS ON EU LAW, 7th edition Oxford University Press, 2006 Treaty on European Union OJ C 115/13 Treaty on Functioning of the European Union, OJ C 115/47 Charter of Fundamental Rights of the EU OJ C 364/01 VI. Class materials and Learning Objectives Students have to prepare for each class by reading the assigned class materials. Unit 1 Life, Liberty, Property Unit 2 Legal Frameworks of Protection Unit 3 Learning objectives: to get acquainted with liberal doctrine of fundamental rights and how it is integrated into the basic constitutional texts such as the US Constitution (the Bill of Rights) and Declaration of Independence, the European Convention on Human Rights and Fundamental Freedoms, the EU Charter of Rights, and constitutions of European States, notably Germany. To acquire basic knowledge about different systems of judicial review and how the courts protect fundamental rights in the United States and Europe. To acquire ability to distinguish different models of judicial review and critically discuss their theoretical and practical differences. John Locke The 2nd Treatise on Civil Government German Constitution - Fundamental Rights US Constitution - Bill of Rights and Declaration of Independence Select articles of the Charter of Fundamental Rights of the European Union O.J. C 83/389 Select articles of the European Convention for Protection of Human Rights and Fundamental Freedoms Learning objectives: To understand the three distinctive legal frameworks of protection of fundamental rights in Europe national, supranational and international. To get acquainted with legal mechanisms of legal protection, on national level, before European Court of Human Rights and before the European Court of Justice. To develop ability to place a factual situation within one or more of the three frameworks, depending on facts of the case and applicability of a legal framework. Relevant provisions of German Constitution applicable to constitutional Complaint (Verfassungsbeschwerde) Relevant provisions of the European Convention Case C- 159/90 SPUC v. Grogan Learning objectives: To understand how protection of fundamental rights developed in the legal system of the EU and how the substantive criteria were

7 Human Rights Framework of the EU Unit 4 Protection of Fundamental Rights as a principle of EU law Unit 5 Judicial Quest for Supremacy and Constitutional Pluralism Unit 6 Margin of Appreciation and Proportionality before the incorporated. To understand the legal basis for protection of fundamental rights in the EU and to be able to discuss relevance of accession of the EU to the European Convention for protection of Human Rights and fundamental freedoms. To acquire knowledge about application of Charter of Fundamental Rights of the EU by EU institutions and in the Member States. Case 29/69 Stauder v. Ulm Sozialamt Case 4/73 Nold Case 5/88 Hubert Wachauf Opinion of the ECJ 2/94 and relevant provisions of the TFEU Select articles of the Charter of Fundamental Rights of the European Union O.J. C 83/389 Opinion of AG Sharpston in Case C- 34/09 Ruiz Zambrano Learning objectives: To understand in which situations fundamental rights can be invoked being aware of their recognition as fundamental principles of EU law. To understand the scope of application of EU law in protection of fundamental rights and to be able to determine limits of national regulatory autonomy in areas falling within and outside scope of EU law. To understand exclusionary effects of EU law in areas of Member State competence. Opinion of AG Sharpston in Case C- 427/06 Birgit Bartsch Case C- 144/04 Mangold v. Helm Case C- 267/06 Maruko Case C- 555/07 Kücükdeveci Learning objectives: To get acquainted with differences in understanding of supremacy of EU law that exist between the ECJ and national courts. To understand national arguments that challenge supremacy of EU law and counterarguments that contend the opposite. To familiarize with the major national judicial decisions that challenge supremacy of EU law, particularly the doctrine of the German Bundesverfassungsgericht. To get acquainted with emerging theories of constitutional pluralism that conceptualize the quest for and balance of power in the EU. Case 11/70 Internationale Handelsgesellschaft Case C- 118/08 Transportes Urbanos Joined cases C- 188/10 and C- 189/10 Aziz Melki and Sélim Abdeli Selected pages of decisions of the German Federal Constitutional Court in cases: Case Solange I (BVerfGE 37, 271) Case Solange II (BVerfGE 73, 339) Case Maastricht (BVerfGE 89, 155) Case Lisbon (BVerfG, 2 BvE 2/08 of 30. 06.2009) Judgment of the BVerfG Honeywell (2 BvR 2661/06 of 06. 07. 2010.) Learning objectives: To understand concepts of margin of appreciation and proportionality as applied in judicial reasoning of the European Court of Human Rights. To understand how margin of appreciation is defined in different situations and how public interest is interpreted by the ECtHRts and under what circumstances restrictions of fundamental rights can be justified. To understand concept of being "necessary in democratic society" and to develop ability to apply proportionality analysis in new hypothetical and actual

8 ECtHRts Unit 7 Balancing Fundamental Rights and Fundamental Freedoms in the European Union Unit 8 Horizontal Effect of Fundamental Rights Unit 9 The ECJ and the ECtHrts Who Protects Better? situations and to be able to develop argumentation in cases involving such analysis. Cases of the EctHRts - Handyside (pornography) Application No. 5493/72 - Oberschlick (libel, public word) Application No. 11662/85 - - The Observer and Guardian v. The United Kingdom (Spycatcher, national security) Application No. 13585/88 Sunday Times (integrity of judicial proceedings) Application No. 6538/74 Learning objectives: To understand relationship between market freedoms and fundamental rights in the EU and how are they balanced by the ECJ. To acquire ability to critically assess the balance between market freedoms and fundamental rights in the legal order of the EU. To understand different sources of fundamental rights and how to interpret and apply them in the legal order of the EU. To understand how national measures restricting market freedoms can be justified. To be able to perform basic proportionality analysis, based on the facts of a case. Case 44/79 Liselotte Hauer Case C- 112/00 Schmidberger Case C- 36/02 Omega Case C- 368/95 Familiapress Opinion of AG Maduro in C- 434/04 Leppik Joined cases C- 570/07 and C- 571/07 Pérez and Gómez Case C- 208/09 Sayn- Wittgenstein Opinion of AG Cruz Villalon in Case C- 515/08 Palhota Learning objectives: To understand why, how and under what circumstances fundamental rights may have horizontal direct effect and/or horizontal indirect effect. To get acquainted with the German doctrine of Drittwirkung. Do develop skill to identify situations in which national judges have a legal duty to give effect to fundamental rights guarantees under EU law and law of the ECHR. To be able to determine scope of EU law within which fundamental rights operate. Case Lüth of the German Federal Constitutional Court Case C- 341/05 Laval i Partneri Opinion of AG Maduro in C- 438/05 Viking (Rosella) Case C- 555/07 Kücükdeveci Learning objectives: To identify differences in approach to protection of fundamental rights before the ECJ and EctHRts, particularly in areas of protection of privacy and non- discrimination. To understand different approaches to indirect discrimination and theoretical underpinning of those differences. To develop skill to argue different approaches related to non- discrimination. To understand concepts of privacy, direct discrimination and indirect discrimination and to be able to apply them in hypothetical and practical situations. Privacy Joined cases 46/87 and 227/88 Hoechst v. Commission

9 Unit 10 Solange Progeny and overview of the course Case Niemietz ECHR Application No. 13710/88 Case C- 94/00 Roquette Indirect discrimination Case C- 167/97 Seymour- Smith and Perez Case D.H. v. Czech Republic ECHR Application no. 57325/00 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin Learning objectives: To understand different situations of subsidiary judicial protection and how the ECJ and EctHRts understand their own and each other's position within the broader European and global framework. To understand how the ECJ applies international law standards and how it understands the role of EU law within the global arena, particularly related to international restrictive measures. To receive the general overview of the course and to develop systemic and cross- issue understanding of protection of fundamental rights in the EU. Case C- 84/95 Bosphorus Case Bosphorus ECHR Application No. 45036/98 Council Regulation 1993/990 Joined cases C- 402/05 P and C- 415/05 P C- Kadi and Al Barakaat including the opinion of AG Maduro VII. Quality Assessment Quality of the course will be assessed by self- evaluation, student evaluation and institutional evaluation.