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“EU HUMAN RIGHTS”

 The original three EC Treaties contained no provisions on the protection of human rights
 The Court of Justice has declared that the ‘general principles’ of EU law include protection of
fundamental rights such as human rights and dignity, freedom, democracy, equality,
proportionality and the rule of law
 The Charter of Fundamental Rights of the EU has brought together in a single document, the
fundamental rights protected in the EU and has become legally binding in the EU since 12
December 2007
 Art 6(1) TEU: Declares that respect for fundamental rights and freedoms stated in the
Charter of Fundamental Rights constitutes one of the basic principles upon which the Union is
founded
 Art 6(2) TEU: Declares that the EU will accede to the ECHR
 Art 6(3) TEU: States that fundamental rights, as guaranteed by the EC and as they result from
the constitutional traditions common to the MS, shall constitute general principles of the
Union’s law
 Art 7 TEU: Provides a mechanism for sanctioning EU MS who violate the principles in Art 6 in
a grave and persistent manner. Also the CFR defines further the fundamental rights applicable
at Union level
 The European Fundamental Rights Agency monitors respect for the Union’s core values
FUNDAMENTAL RIGHTS OF THE PEOPLE (CONSTITUTIONAL SUPREMACY)
 Marbury v Madison confirmed the fundamental rights of the people of the USA
 Fransson said that that as the Charter has been guaranteed by Art 51 (as well as Art 6 TEU),
so the Charter Rights would have to be considered by both EU MS and by the EU institutions
 In the case of Siragusa, the court explained some factors which must be taken into account to
establish whether a national legislation is complying with Art 51 or not:
1. Whether the legislation intended to implement the provision of EU law
2. The nature of the legislation and whether it obtains any objectives than covered by the
EU law and even if it is capable of indirectly effecting EU law
3. Whether there are specific rules of EU law on the matter which is conflicting with EU
law or capable of affecting it
ART 53 OF CHARTER:
 The case of Melloni deals with the conflict between fundamental rights guaranteed by the
Spanish constitution and the European Arrest Warrant rules
 In Omega, the authorities prohibited such a game in which the players attempted to kill their
counterparts with laser guns violated the German Constitution which proclaims the
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inviolability of human dignity. The Court held on the facts and in the light of the constitutional
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character of Germany that the prohibition of the game was justified

THE APPLICATION OF CHARTER RIGHTS BY CJEU:
 In the case of NS, the issue was whether the MS can transfer asylum seekers from third
countries to other MS where there is a risk of serious infringement of their right. The court held
that the MS cannot transfer asylum seekers where they would face a real risk of being subjected
to inhuman and degrading treatment as it is prohibited under Art 4 of the Charter
 In Janah, the Employment Tribunal dismissed the claims on the basis that Libya and Sudan
were entitled to state immunity under the State Immunity Act 1978 but the tribunal allowed
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the appeals and held that those sections were incompatible with Art 47. The UKSC upheld that
position
 In Volker, the court has also upheld the fundamental right of data protection (A8) by
invalidating part of EU measure which required the publication of the names of the recipients
of funds. This would be unlawful as it violates the customers’ protection of personal data
 In European Parliament v Council, where the legislative powers are delegated to the
council or the commission then they must take into account the Charter Rights
TFEU AND CHARTER RIGHT BOTH WERE AT ISSUE:
 Test-Achats, a consumer organization appealed to the Court of Justice that the Gender
Directive, as implemented into Belgian law, violated the fundamental rights of gender equality.
Art 5(2) of the Directive allowed insurance companies to derogate from the rule of unisex
premiums and benefits so long they can ensure the actuarial and statistical data
THE COURT DECLARES THE DIRECTIVE INVALID ON THE BASIS THAT:
1. The Directive sets in a generalized manner to all individuals without making any
differentiation, limitation or exception
2. The Directive fails to lay down any objective criteria which would ensure their use only for
purposes of prevention of serious crime
3. The Directive fails to provide guidelines for the data retention period
4. The court also find that the Directive does not provide for sufficient safeguards to ensure
effective protection of the data and it does not ensure the irreversible destruction of data at
the end of their retention period
5. The Directive does not require that the data be retained within the EU
THE APPLICATION OF THE ECHR BY THE COURT OF JUSTICE:
 In Johnston v Chief Constable of the RUC, the court said that the requirement of judicial
control reflected a general principle of law common to the MS as laid down in Art 6 and 13 of
the ECHR
 In AM&S Europe Ltd v Commission, the Court found that the right to legal privilege (i.e.
lawyer-client confidentiality) is protected under EU law, despite not being so protected under
the ECHR
THE APPLICATION OF THE ECHR BY THE CJEU:
 Nold – The ECHR is used as a source of inspiration when interpreting the fundamental
principle of the EU law
 There were two primary sources for the principles of the EU:
1. The common national constitutional traditions
2. International human rights agreements
NATIONAL CONSTITUTIONAL TRADITIONS:
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The CJEU referred less frequently the constitutional traditions than that of international human
rights for two principle reasons:
1. The inherent difficulty in finding common traditions across 27 MS
2. The fear of compromising the supremacy of EU law by deferring to national law
INTERNATIONAL HUMAN RIGHTS AGREEMENTS:
 The European Social Charter (Defrenne v Sabena)
 The International Covenant on Civil and Political Rights (Acme Industry v Council)
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 The International Convention on the Rights of the Child (European Parliament v

Council)
THE EU ACCESSION TO THE ECHR:
Art 6(2) of TEU states that the Union shall accede to the EC for the protection of human rights
and fundamental freedoms
Art 1 of ECHR – “The High Contracting Parties shall secure to everyone within their jurisdiction
the rights and freedoms defined in Section I of this Convention”
CHALLENGES TO THE EU LEGISLATION:
 Bosfhourous – a contest between CJEU and ECtHR
CHALLENGES TO MS LEGISLATION:
 Wachauf – When interpreting and implementing the EU law, MS are under an obligation to
act and legislate in a way that respects Convention rights, even if such rights are not explicitly
provided for under EU law
 Carpenter – When derogating the MS has been required by the court to take adequate
amount of the impact of the proposed action on the right to family life as protected under Art 8
of the Convention
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