The principle of Supremacy

I. The Costa vs Enel

The judgment of the European Court of Justice (ECJ) of 15 July 1964 in the case of Flaminio
Costa v. Ente Nazionale per l'Energia Elettrica is one of the foundations of Community case
law. It enshrines the principle of the primacy of Community law over national legislation. 
The Giudice Conciliatore of Milan then turned to the ECJ for a preliminary ruling on its
interpretation of the said Treaty. On the subject of the legal nature of the EEC, the Court said
that unlike ordinary international treaties, the EEC Treaty (or EC Treaty, or Treaty of
Rome): 
"By creating a Community of unlimited duration, having its own institutions, its own
personality, its own legal capacity and capacity of representation on the international place
and, more particularly, real powers stemming from limitation of sovereignty or transfer of
powers from States to the Community, the Member states have limited their sovereign rights,
albeit within limited fields, and have created a body of law which binds both their nationals
and themselves". 
The Court concluded that the law of the Treaty could not, by reason of its specific and
original nature, be judicially opposed to any domestic text without losing its Community
character + the transfer by the States from their domestic legal order to the Community legal
order of the rights and obligations corresponding to the provisions of the Treaty therefore
entails a definitive limitation of their sovereign rights, against which a subsequent unilateral
act incompatible with the concept of the Community cannot prevail".
EEC = legal order whose provisions irrevocably take precedence over national law in the
limited area where the Member States have transferred part of their sovereignty to it.
Confirmed a few years later by the Simmenthal judgment of 1978.

II. Supremacy and preemption

Primacy principle :

 The principle of the primacy of EU law has developed over time. It is not enshrined in
the EU treaties, although there is a brief declaration annexed to the Lisbon Treaty in
its regard.
 In the Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62),
the Court declared that the laws adopted by European institutions must be integrated
into the legal systems of EU countries, which are obliged to comply with them. EU
law therefore has primacy over national laws.
 In Costa/ENEL and Simmenthal case, the Court clarified that the primacy of EU law
must be applied to all national acts, whether they were adopted before or after the EU
act in question. With EU law becoming superior to national law, the principle of
primacy therefore seeks to ensure that citizens are uniformly protected by an EU law
across all EU territories.
  The primacy of EU law only applies where EU countries have ceded sovereignty to
the EU — fields such as the single market, environment, transport, etc. However, it
does not apply in areas such as social policy and taxation.

III. Supremacy 

Since European Law is directly applicable in member states it must be recognised by national
authorities as well as their national law. BUT problem : Direct effect can cause EU law to
come into conflict with national law. 
⇒ Soluce : The EU’s way of dealing with these conflicts is to apply the concepts of pre-
emption & supremacy to EU law.
⇒ There is no supremacy without pre-emption

⇒ Pre-emption : is there a conflict between a national measure and a rule of European law
⇒ Supremacy : resolution of conflict. 

IV. The EU perspective of absolute supremacy

 The resolution of legal conflicts requires a hierarchy of norms.

 It is possible for a decentralised solution (State Law over Federal Law) and in these
circumstances direct effect of a norm will not imply supremacy (for example
customary international law).

No Member States may call into question the status of Community law as a system to be
applied uniformly and generally throughout the Community.’  Costa v ENEL [1964]

V. The Scope of absolute supremacy 

 The dualist tradition of some state = threat to the unity of the Union legal order in
1958. (Sasse, 1965). 
 Within dualist states, the status of EU law is dependent on the national act
“transposing” the European law/treaties. (possibility of repeal available to member
states who do not wish to transpose the EU law)
 The European Court of Justice, through cases established : the supremacy of EU law
over internal national law and then international treaties.

Supremacy over national laws :

 European law is supreme due to the necessity of uniform application (so is
autonomous from ordinary international law)
 Secondary legislation is supreme (International Handelsgesellschaft - 1970). The ECJ
held that the validity of EU measures cannot be challenged on grounds of national law
rules or concepts, even if that is a violation of fundamental human rights provisions in
 a member state’s constitution. European Community law did, however, respect
fundamental rights, as in member state systems. But here there was no fundamental
right violation.
 "The whole of the European Law prevails over the whole of national law" - Kovar,
1981

Supremacy over International Treaties : 

 Article 351 TFEU : EU law could be disapplied by a member state if it impeded their
obligations to a prior arrangement. Attorney General - 1980
However limitations : this application only includes obligations towards their States +
doesn’t permit any challenge to the fundamental principles that are the foundations of
the Union + for International treaties entered into after 1958, EU law is supreme.
(Commission v Belgium & Luxembourg - 1998)

VI. Executive nature of supremacy 

Consequences of Supremacy over conflicting national laws?

Simmenthal II (Case 106/77) [1978]

National courts are under a direct obligation to give immediate effect to European Law. 
National courts must declare the national law as “incompatible,” even if at a national level
they do not have the power to do this. (para 17)

Ministero delle Finanze v. IN. CO. GE ‘90 (Cases C-10- 22/97)[1998]

According to the Commission in this case provisions that are incompatible with EU law must
be treated as non-existent. ECJ disagreed and reaffirmed that national courts are only under
an obligation to disapply a conflicting provision of national law. (prior or subsequent to the
Union law.)

Article 4(3) TEU :

 provides that legislators will be required to repeal or amend national provisions that
are incompatible
 Supremacy principle is addressed to national executive/judicial branches. 

Remedial ?
 Supremacy is a remedy
 Individuals can use supremacy to enforce their rights. 
 Supremacy only affects legislation to the extent it is inapplicable
 National courts can refuse to apply conflicting national provisions; no need to declare
invalidity
VII. Relative supremacy : national perspective 

The European Union is a federal union of states.

 Characterised by political dualism.
 National view on supremacy doesn’t match the European “Absolute Supremacy,”
perspective.
 Another perspective; European law is supreme over national legislation but is relative
as it is limited by national constitutional law.

National views on Supremacy :

 European law could not violate national fundamental rights. (German Constitutional
Court)
 Ultra Vires Control. States can ignore Kompetenz- Kompetenz (Solange I [1974] 2
CMLR 540) & can decide the competences the EU has.

VIII. Limits of Supremacy : Fundamental Rights :

• Internationale Handelsgesellschaft [1970]

The German Constitutional Court rejected the European Court of Justice’s absolute
supremacy opinion and replaced it with the concept of relative supremacy.
While the German Constitution expressly allows the transfer of sovereign powers to the EU
under Art 24(1) of the German Constitution, such a transfer was limited by the
constitutional identity of the German State. Fundamental constitutional structures were
beyond the supremacy of the EU.
So long as the European legal order had not developed a equivalent standard of fundamental
rights, the German Constitutional Court would disapply conflicting provisions.

Once the European legal order had developed equivalent human rights provisions, the
German Constitutional Court would no longer challenge the supremacy of EU law.

Wünsche Handelsgesellschaft [1987] 3 CMLR 225

The German Constitutional Court recognised the creation of similar fundamental rights and
established the So Long II principle;
So long as generally the EU safeguards the essential content of fundamental rights, the Court
will no longer review EU legislation in light of these rights.
So Long II reaffirmed the limited supremacy of EU law established in So Long I.

IX. Limits of supremacy : competences

Who controls/limits the scope of the European Union? Should national courts be entitled to a
decentralised ultra vires review?
Maastricht Decision [1994] 1 CMLR 57.
National courts cannot disapply- let alone invalidate European Law.
German Constitutional Court;
• Ultra Vires Review Doctrine
• Union ought not to be able to extend its own competences.
• Clear line, “between a legal development within the terms of the Treaties and a
making of legal rules which breaks through the boundaries and is not convered by
valid Treaty law.” (Para 98)
• Lisbon Decision [2010] 3 CMLR 276
• National review power of ultra vires EU legislation confirmed.
Mangold [2005]Case C- 144/04; Established the prohibition of discrimination on grounds of
age.
Honeywell [2011] 3 CMLR 276
• Creation of new prohibition was ultra vires as it read something into the Treaties
that was not there.
• The principle of supremacy was not unlimited.
• National review limited to specific violations of the principle of conferral.

X. Pre-emption: nature & effect

 Supremacy denotes the superior hierarchical status of the Union legal order over the
national legal orders and thus gives European law the capacity to pre-empt national
law.
 The doctrine of preemption denotes the actual degree to which national law will be set
aside by European law. 
 It specifies when conflicts have arisen and to what extent Union law displaces
national law.
  The preemption doctrine is relative; not all European Law preempts all national law.

The preemption tells us how much legislative space European law still leaves to the Member
States. The Union legislator is generally free to choose to what extent it wishes to pre-empt
national law within a certain area. 
However, there are two possible constitutional limits to this freedom. 
 First, the type of instrument used – regulation, directive or international agreement –
might limit the pre-emptive effect of Union law. 
 Second: the type of competence on which the Union act is based might determine the
capacity of the Union legislator to pre-empt the Member States.

Forms of pre-emption :

1. Field preemption
 The Court does not investigate any material normative conflict, excluding the
Member States on the ground that the Union has exhaustively legislated for the field.
 Ratti(Case 148/78) [1979]
 Cannot have different rules for something that is already completely legislated upon.

2. Obstacle preemption
 Requires material conflict between EU law and national law.
 Bussone (Case 31/78)[1978]
 Any obstacle that reduces the effectiveness of the EU may be seen to be in conflict.

3. Rule pre-emption
 National legislation contradicting a specific European rule.
 When a national law does not do this, it will not be preempted.
 Gallaher (Case C-11/92) [1993]

Modes of preemptions :

1. Express preemption
 Union legislation may itself define to what extent State law will be preempted.
 On the other hand this could also allow the Union legislator to explicitly allow
national law to be applied that may be in interference. (Known as express saving.)

2. Implied preemption
 No express legislative intent; The Union judiciary needs to imply the type of pre-
emption intended by the Union Legislator.
 Interpreted from both horizontal and vertical separation of powers.
 It assembles the federal values that influence the federal judiciary as well as the
ordinary means of statutory interpretation.
XI. Union Instruments & their Pre-emptive Capacity

Other federal systems have a normative conflict theory (e.g. USA, Canada, Australia,
AndeanCom.). Lack of an equivalent theory in the EU:
 makes application of primacy unpredictable
 makes national residual powers difficult to determine on the basis of the current
conceptual framework

Pre-emptive Capacity of Regulations:

 Binding in their entirety, instrument of uniformity.
 To protect their direct applicability; Court applied strong pre-emptive criteria.
Bollmann (Case 40/69)[1970]
 Too simple; national laws needed to be examined to establish whether or not they
were incompatible with the provisions of the regulation. Bussone (Case 31/78) [1978]
 Regulations do not automatically field pre-empt.
 A regulation may confine itself to laying down minimum standards.

Pre-emptive Capacity of Directives:

 Directives shall be binding as to the result to be achieved and left to implementation
by national authorities (Art 288(3) TFEU)
 Legislative freedom under a directive; could not preempt national legislation.
(Oldekop, 1972)
 Pre-emptive capacity=regulations. As directives can be exhaustive when strict
legislative uniformity is required. Enka (Case 38/77)[1977]

Pre-emption of International Agreements :

Directly effective Union agreements will preempt inconsistent national law. 
 Commission v Germany [1996]
 National law; Polydor [1982] Restrictive interpretation of Art 34 of TFEU rather than
pre-emption= function of the international treaty will prevail. 
 Only when an international norm fulfils the “same function” as the internal European
norm will the court project the “internal” preemptive effect to the international treaty.

International agreements will preempt inconsistent internal Union Legislation.

 The Netherlands v. Parliament & Council [2001] EU law potentially conflicting with
higher international treaty.

The union legislator usually can choose what preemptive category to apply.  The treaty
guarantees the ability of the national legislator to adopt higher standards that are above
minimum harmonisation requirements. (Schutze,2009)
Lesson 2 : Judicial powers of the European Union

I. The Court of Justice of the EU

 The Court of Justice of the EU (CJEU) constitutes the Judicial Branch of the EU.
 It is composed of various courts : The General Court + Court of Justice. (Art 19(1)
TEU)
 The Courts task = ensure that the interpretation and the application of the Treaties law
= Article 19 of the Treaty on European Union (TEU).It follows from that Treaty
provision that all EU acts must be interpreted so as to guarantee that the European
Union is based on the rule of law.
 National courts are essentially decentralised EU courts however institutionally there is
no bridge between these Courts.
 The Single European Act established the General Court which now deals with appeals
against decisions made in the Specialised Court; The Civil Service Tribunal.

II. The Courts of the EU : Structure

1. The Court of Justice

 Consists of one judge from each member state (Art 19(2) TEU, Art 253 TFEU) 
 They are appointed independently from the state and do not represent their states'
interests. (Art 255 TFEU) 
 Each judge is appointed for 6 years and this can be renewed. (Art 253(4) TFEU)
 The Court normally sits with 3-5 judges and the Grand Chamber consists of 15
judges. 
 In some constitutional cases the Court  will sit as a full court. (Art 16 Court Statute)

2. The General Court

 One judge from each member state. (Art 19(2) TEU) 
 The General Court generally sits  with 3 to 5 judges.
 Art 256 TFEU; Cases heard.
 Decisions can be appealed and reviewed by the Court of Justice

III. The Court of Justice of the EU

 The Court of Justice is composed of 27 Judges and 11 Advocates General. 

 The Judges and Advocates General are appointed by common accord of the
governments of the Member States after consultation of a panel responsible for giving
an opinion on prospective candidates' suitability to perform the duties concerned.
They are appointed for a term of office of six years, which is renewable. 
  The Advocates General assist the Court. They are responsible for presenting, with
complete impartiality and independence, an ‘opinion' in the cases assigned to them.

IV. General practice

 Its judgment of 15 July 1964 in the Costa/Enel case = fundamental

 5 February 1963 in the Van Gend & Loos case = Community law is directly
applicable in the courts of the Member States. 
 14 May 1974 the Nold case : FHRs = integral part of the general principles of law that
it upholds 
 Right of establishment : 8 April 1976 the Royer case : right of a national of a Member
State to stay in any other Member State independently of any residence permit issued
by the host country.
 Free movement of goods: 20 February 1979 the Cassis de Dijon case : any product
legally manufactured and marketed in a Member State must be allowed on the market
of any other Member State; 
 The external jurisdiction of the Community: 31 March 1971, Commission/Council
case : recognised the Community’s right to conclude international agreements in
spheres where Community regulations apply; 
 Recent judgments establishing an obligation to pay damages on Member States that
have failed to transpose directives into national law or failed to do so in good time.

V. Judicial powers

 The State is governed by the rule of law, 

 The judiciary has the power to annul legislative or executive acts, the power to
remedy public wrongs through governmental liability and the power to adjudicate
legal disputes between parties. 
 The Court of Justice is one of the main mechanisms applied within the EU in order to
fulfil these powers in relation to the Union.

VI. Annulment powers : judicial review

 The most powerful function of the ECJ is to annul an act.

 The competence and procedure for judicial review in the EU is established in Article
263 TFEU.
 If an action for judicial review is well-founded, the Act in question will be declared
void by the ECJ. (Article 264(1) TFEU)

4 procedural components are required for a judicial review action, Article 263(2) TFEU
limits judicial review:
 The existence of a reviewable act
 Legitimate grounds for review
  Legal standing before the court
 Time limitation

1. The existence of a reviewable act

 Article 264(1) determines whether there can be judicial review. 
 The Court is entitled to review legislative acts, can review unilateral acts of all Union
institutions other than the Court of Auditors. 
 It cannot judicially review Member States + European Treaties + recommendations or
opinions as there is no binding force= no reason to be challenged. (Article 288(5)
TFEU) + acts that are internal to any Union institution + preparatory acts of the
Commission or Council 

2. Legitimate grounds for review

Article 263(2) TFEU limits judicial review to 4 legitimate grounds; A European Act can be
challenged if
 Lack of competence,
 Infringement of an essential procedural requirement,
 Infringement of the Treaties or any rule of law relating to their application,
 Misuse of powers.

The proportionality principle:

 Proportionality principle exists to protect liberal values.
 Codified via Article 5(4) TEU.
 Has the furthest reach of all of the grounds of review.
 Tripartite test for proportionality; analysis of suitability, necessity and proportionality
in the strict sense is conducted by the Court in order to determine the proportionality
of a Union Act. (Fedesa & Others [1990])
 Union has a wide margin of appreciation, so the proportionality of an Act will only be
tested if the measure is manifestly inappropriate. (Fedesa & Others [1990])


3. Legal Standing before the court 

Article 263 TFEU lists 3 categories of applicants.

 Privileged applicants who can always bring an action for judicial review (Member
States, Parliament, Council & Commission) (Article 263(2) TFEU)
 Semi-Privileged applicants who can bring review proceedings for the purpose of
protecting their prerogatives. (Court of Auditors, European Central Bank &
Committee of Regions)(Article 263(3) TFEU)
 Non-Privileged applicants have to demonstrate that the Union Act affects them
specifically. (natural/legal persons) (Article 263(4) TFEU)
Development of Legal Standing
Rome Treaty Formulation (Article 230(4) EC)
 3 forms of decision
 Severely restricted the standing of private parties. (direct and individual concern
requirement for challenges to a decision.)
Judicial Amendments
 Desertion of the need for a decision.
 Codorniu [1994]
 Still needed to be direct and individual concern.
Direct concern & individual concern
 Les Verts [1986] established what direct concern was
 Plaumann [1963] established the strict test applied for individual concern.
Lisbon Treaty
 Article 263(4) TFEU
 Plaumann test still applied.
 Restrictive stance on direct review for private parties.

4. Time limitations
The action for annulment (i.e. use of Art 263 TFEU) must be brought within two months of
either:
 The publication of the measure (e.g. Regulation or Directive); or
 When there was notification to the applicant (e.g. through a letter or a notice);

VII. Indirect review

1. Plea of Illegality (Article 277 TFEU)

 It is a collateral review
 Applicants can invoke the illegality of a Union act ‘of general application’ (Art 277
TFEU) while they are also conducting a direct action under Art 263 TFEU.
 The primary object of review must be a different act
  Bypasses the two month time limit under Article 263 TFEU & allows individuals the
opportunity to challenge legislative acts or regulatory acts that require further
implementation. (Simmenthal [1979 para 37 & 41)
 Example: Inuit I

2. Preliminary Rulings (Article 267 TFEU)

It is a complementary review (Les Verts [1986]). The conditions for Art 267 are much more
flexible than Art 263 TFEU, which has led the Court to favour preliminary reference
procedures more :
 The challenges may be brought against any Union act
 They can be brought on any grounds
 They can be launched by anyone
 They can be brought anytime.

There are, however, serious disadvantages that make the preliminary reference procedure less
favourable than an action for annulment under Art 263 TFEU.National court has to have
jurisdiction, applicants may need to breach EU law prior to review, individual applicants
have no right to demand the review.

Several things to consider when answering a question on Art 267 TFEU: 

 Art 267(1) TFEU tells us about the jurisdiction of the Court in determining the
validity and interpretation of both Treaties and secondary legislation. o Keep in mind
scenarios where the Court will refuse to accept these references from national courts,
such as when there is no genuine dispute. 
 Art 267(2) TFEU’s wording implies the discretion to make a reference: ‘any court…
may’ → discretion and necessity: o The relevance of the reference, acte clair,
previous rulings, national rules of precedent. 
 Art 267(3) TFEU states an obligation to refer for courts whose decisions will have no
judicial remedy. o Bear in mind relevance, previous rulings, and acte clair.

VIII. Liability actions

Damages for losses granted under Article 268 TFEU with reference to Article 340 TFEU.

Schoppenstedt formula to Bergaderm formula : Distinction between legislative &

administrative Union Acts.

Administrative : low liability threshold (Adams vs. Commission [1985])

Legislative :

⇒ Schoppenstedt formula [1971] 

Liability dependent on : 
  The breach of a superior rule of Union law
 That grants rights to individuals
 The breach is sufficiently serious. 

⇒ Bergaderm [2000] reformed this in 3 ways:

 Distinction between administrative and legislative Acts abandoned.
 Abolished the need for a superior rule.
 To establish seriousness, the Union had to “manifestly and gravely disregard the
limits on its discretion.”

⇒ FIAMM [2008] The Union is not liable for damage caused by actions that are legal.

IX. Enforcement actions : against states

1. Against states

 Enforcement actions against Member States (for actions the State is responsible for)
are conducted under Article 258 and 259 TFEU.
 Other Member States and the Commission (once satisfying the pre-litigation stage)
can raise proceedings.
 Any judgement does not repeal the national law in question, but a declaration of
violation is made and this can be paired with financial sanctions. (France vs.
Commission [1979])
 States are required to take necessary measures to rectify any violations. (Article
260(1) TFEU.)
 Sanctions regime (Article 260(2) & (3) TFEU.)

2. Against the Union

 Infringement proceedings can be brought against Union institutions for failure to act
under Article 265 TFEU.
 Can be brought against any institution other than the Court of Auditors or the
European Court. 
 Actions can be brought by any similar to the criteria set in Article 263(4) TFEU.
 Judicial stages will only commence once the relevant institution has been called upon
to act and hasn’t defined its position in two months. 
 Material scope of Article 265 is wider than that of Article 263 TFEU. (Parliament vs.
Council (Comitology)[1988])
 There needs to be an obligation to act for failure to act to be cited. (Parliament vs.
Council (Common Transport Policy [1985])
 Article 266 TFEU establishes that if it is found that a Union institution has failed to
act they will need to take the necessary measures to rectify this failure.

X. Preliminary rulings
All national courts of Member States are entitled and obliged to apply EU law. (Simmenthal
[1978])
Preliminary ruling procedure allows national courts to ask the EU court questions regarding
the application and interpretation of EU law. (Article 267 TFEU)
Article 267(1) TFEU; Jurisdiction of the ECJ
• Covers all Union law & international agreements entered into by the Union.
(Haegemann [1974]) Doesn’t include national law at all.
• Competence extends to questions of validity and interpretation. (Doesn’t concern
application (Costa vs. ENEL [1964]))
• Blurred lines between interpretation & application.
Article 267(2) TFEU; The Conditions for a Preliminary Ruling
• Dorsch Consult [1997] established the criteria to be met for whether a body is a court
or tribunal in accordance with the Article.
• Wide definition of what a court or tribunal is as seen in Broekmeulen [1981]
• All national courts can make a preliminary reference even if a superior court exists.
(Rheinmuhlen [1974])
• National courts are allowed to make a preliminary reference if it is deemed necessary
for them to make a ruling.
• Rarely will a request be rejected, see Foglia vs. Novello[1980] for an example of
when a preliminary reference will be refused.
Article 267(3)TFEU; The Obligation to Refer and Acte Clair
• If there is no judicial remedy under national law the Court or Tribunal must bring the
action to the attention of the European Court.
• Procedural theory favoured by the Court of Justice; key concept of this obligation is
the appealability of a judicial decision.
• If there is no means of appeal it must be raised with the European Court.
• If there is a question regarding the validity of EU law, national courts are obliged to
bring these to the attention of the EU Court. (Case C-344/04 [2006])
• The obligation is limited; acte clair applies when the answer is so clear, there is no
need for a question regarding interpretation to be raised with the court. (Da
Costa[1963])

Legal Nature of Preliminary References

 • Preliminary rulings cannot bind the parties to a conflict, they do not decide the dispute
in question.
• The interpretation provided by a ruling is binding. (Benedetti vs. Munari [1977])
• Preliminary rulings are not decisions- deemed to be declarations as “the judgements
are assumed to be declaring pre-existing law.”
• Retroactive effect of preliminary rulings? See Kuhne & Heitz [2004]

XI. Conclusion 

 The ECJ has extensive powers and has the power to annul European law, power to
remedy illegal acts of the Union and the power to enforce European Law through
adjudication
 Union is based on the concept of the rule of law. 
 Both the Unions actions and Member States can be judicially reviewed.
 National Courts are European Courts from a functional perspective.
 Preliminary references allow national courts to seek assistance with interpreting EU
Law.

Lesson 3 : Conflicts of norms in the application of fundamental rights

Part 1: Introduction

I. Charter of Fundamental Rights of the European Union

The Charter marks a core step in the codification of fundamental rights protection in the
European Union. It builds upon the Convention for the Protection of Human Rights and
Fundamental Freedoms + the European Social Charter + other human rights conventions +
the constitutional traditions common to the Member States. The introduction of a
fundamental rights regime into EU law is essentially a story of judge-made law.

In accordance with Article 6(1) of the Treaty on European Union, the Union has to recognise
the rights, freedoms and principles set out in the Charter of Fundamental Rights of the
European Union, as adapted by the Treaty of Lisbon, (legal value of a Treaty). This means
that the provisions of the Charter are classified in the category of primary law. At the same
time, the provisions of the Charter fall within the ambit of the constitutional principles of the
Treaties, which constitute the supreme part of the EU law. As to fundamental rights enshrined
in the Charter, the same rules, which have been formulated with regard to fundamental rights
guaranteed as general principles of law, apply.
Advocate General Poiares Maduro in his Opinion in the M. Elgafaji Case C 465/07 stated that
the Charter might have a dual function :
 First, it may create the presumption of the existence of a right which will then require
confirmation of its existence either in the constitutional traditions common to the
Member States or in the provisions of the ECHR. 
 Secondly, where a right is identified as a fundamental right protected by the
Community legal order, the Charter provides a particularly useful instrument for
determining the content, scope and meaning to be given to that right.

II. General principles of Union law

 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. 
 The Union has to respect the fundamental rights as guaranteed by the ECHR and
resulting from the constitutional traditions common to the Member States. 
 Fundamental rights incorporated in the Charter = same legal status as the Treaties. 
 The content and scope of the rights guaranteed in the Charter follow, in particular,
from the constitutional traditions and international obligations common to the
Member States, the ECHR, the Social Charters adopted by the Union and by the
Council of Europe and the case law of the CJEU and of the European Court of Human
Rights.

III. The Constitutional traditions common to the MS (member states)

Article 6(3) of the Treaty on European Union: 

“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.” 

⇒ This provision reflects well-settled case law of the ECJ and the resulting interaction
between primary EU law and national constitutional rules, in the field of fundamental rights.

IV. Examples

In Berlusconi (C- 387/02), the ECJ found that the principle of the retroactive application of
the more lenient penalty forms part of the constitutional traditions common to the Member
States and, as such, amounts to a general principle of EU law. 

Mangold (C-144/04), where the ECJ held that the principle of non-discrimination on grounds
of age, found in various international instruments and in the constitutional traditions common
to the Member States, should be regarded as a general principle of Community law.
Article 4(2) of the Treaty on European Union: “The Union shall respect the [… Member
States’] national identities, inherent in their fundamental structures, political and
constitutional, inclusive of regional and local self government. It shall respect their essential
State functions […].”

Partie 2 : Context and "Lessons from the Past"

2.1. Sovereignty and different legal orders

 EU integration: new transnational legal order;  limitation of sovereignty; plurality of

legal orders
 Main general principles ruling coexistence of multilevel legal orders
 Sovereignty and ‘limitation’ clauses to EU integration (vg ultra vires action,
‘constitutional identity’, ‘constitutional reserve’ (controlimiti)
 Different guardians of FRs (national /EU level): 
- respective scope of competence and ‘border limits’;
- different attitudes: cooperative dialogue; tension, dialogue; refusal / resistance

2.2. Integration and different EU law sources in the field of FRs.

 FRs from Paris to Lisbon: a two step (judicial - conventional) construction and a
Charter of FRs
 FRs: different sources (formal / material) compulsory to Members states when
applying EU Law  (scope of application of EU Law)

The Charter of Fundamental Rights of the European Union covers all the individual, civil,
political, economic and social rights of people living in the European Union.It complements
the national systems without replacing them. If a person's fundamental rights are violated, it
is up to the national courts to decide on the matter. Anyone can also turn to the European
Court of Human Rights, which has jurisdiction over violations of the civil and political rights
enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms.
In specific cases, when a Member State fails to respect EU law and infringes an individual's
rights, the European Commission can take the Member State to the European Court of
Justice.

2.3. The judicial architecture of European integration

 Two levels architecture: multi-level in ‘competition’
 Cooperation (preliminary rulings) and exclusivity (validity EU Law)
 Cooperation, dialogue, interdependence 
 Potential conflict FRs: EU acts judicial control  (EU level or preliminary rulings);
diffuse (constitutional) control
  Future changes : EU accession to ECHR (draft revised agreement) – (material)
hierarchy ECourtHR/CJEU; non binding ‘preliminary rulings’ CJEU/ECourtHR
(Protocol 16)

2.4. Conflicts EU law / national constitutional laws on FRs :origins and self-restriction
 The ‘reserve’ of protection of FRs by national constitutional courts (control of EU
acts and national constitutions)
  The German case: Solange I and II
 The Italian case: Frontini, Granital
 More Safeguard clauses 
 A parallel: ECourtHR’s Bosphorus case and the (rebuttable)  presumption of
sufficient protection within the EU 

Part 3 : Present and Future of Conflicts between EU law and national constitutional law
in the field of Fundamental Rights

3.1. Framework

3.1.1 (General) principles of EU Law as criteria to solve antinomies in respect of FRs

 Primacy
 Direct applicability and direct effect
 Interpretation in conformity with EU Law
 Loyal cooperation
 Effective judicial remedies
 Autonomy and equivalence

3.1.2 The ‘constitutional’ rang of the CFREU: rules on field of application and level of
protection
 The EU FRs catalogue: the Charter (primary Law)
 Field of application (51,1): in/out  implementation of EU Law (grey zone?)
 Level of protection (53): minimum standard, higher level and EU harmonization
(lower minimum standard?)

⇒ Article 51 : The Charter's "field of application"

1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies
of the Union with due regard for the principle of subsidiarity and to the Member States only
when they are implementing Union law. They shall therefore respect the rights, observe the
principles and promote the application thereof in accordance with their respective powers and
respecting the limits of the powers of the Union as conferred on it in the Treaties. 
2.The Charter 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. “
⇒ EU Charter of FR :  Article 52, Scope and interpretation of rights and principles

3.   In so far as this Charter contains rights which correspond to rights guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and
scope of those rights shall be the same as those laid down by the said Convention. This
provision shall not prevent Union law providing more extensive protection.
4.   In so far as this Charter recognises fundamental rights as they result from the
constitutional traditions common to the Member States, those rights shall be interpreted in
harmony with those traditions. Article 52(4)

In its judgment in the Bosphorus case the European Court of Human Rights noted  that the
CJEU has a major role to safeguard the rights following from the ECHR and its protocols
when those rights are applied to the relationships regulated by the Union’s law; this function
may gain even more importance when (and if) the EU accedes to the ECHR Bosphorus Hava
Yolları Turizm v. Ireland ve Ticaret Anonim Şirketi, ECHR.

⇒ EU Charter of FR, article 53, level of protection

Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights
and fundamental freedoms as recognised, in their respective fields of application, by Union
law and international law and by international agreements to which the Union or all the
Member States are party, including the European Convention for the Protection of Human
Rights and Fundamental Freedoms, and by the Member States' constitutions.

3.1.3  Preliminary rulings by national constitutional courts related to FRs (Examples:

harmony vs dissonance)

Spain : the Melloni case and the level of protection of FRs within the EU (C-399/11)
  - ‘higher’ protection according to national constitution interpretation 
- ‘lower’ protection according to harmonized EU law (EAW)

Belgium: the IB case and ‘pro integration’ perspective (C-306/09, pars-48-61 and EAW II,
n.º 9, CC 28/2011, 24.2.11)

The CCB followed the interpretation given by the CJEU and interpreted the national 2003
law in a pro integration sense, by enouncing two possible interpretations – one contrary to the
national constitution (and EU law) and other in conformity with national constitutional and
EU Law :
«Art 8 of 2003 Law violates arts 10 and 11 of the constitution «if it is interpreted as not
permitting the Court to submit the surrender» of the person concerned…«on the condition
that the person be returned to Belgium…» after the final judgement to serve sentence;
  «Art 8 of 2003 Law does not violate arts 10 and 11 of the constitution «if it is interpreted as
permitting the Court to submit the surrender» of the person concerned…«on the condition
that the person be returned to Belgium…» after the final judgement to serve the sentence.
3.2 Case Law: dialogue between CJEU and national constitutional courts on ‘conflicts’
between EU law and national constl’ Law

3.2.1 The Melloni case; which (national higher or EU Lower) level of protection prevails?

Facts: case between Mr. S. Melloni and Ministerio Fiscal regarding the execution of a
European arrest warrant issued by the Italian authorities for the execution of a prison sentence
handed down by judgment in absentia against Mr. Melloni. After being arrested in Spain he
filed a recurso de amparo before the CC against the order to surrender him alleging
infringement of the absolute requirements deriving from the right of a fair trial proclaimed in
art 24(2) of the spanish constitution (18)

Object: 
 Interpretation and secondarily validity of art 4a(1) of Framework decision
2002/584/JHA of 13.6.2002 on the European arrest warrant and surrender procedures
between member states as amended by Framework decision 2009/299/JHA of
26.2.2009); 
 If necessary, issue of whether a member state may refuse to execute such warrant on
the basis of art 53 of the CFREU on grounds of infringement of the fundamental
rights of the person concerned guaranteed by the national constitution.

For the Tribunal Constitucional, the question therefore arises whether Framework Decision
2002/584 precludes the Spanish courts from making surrender of Mr Melloni conditional on
the right to have the conviction in question reviewed. (par. 24) 
and
The object of the main proceedings is to determine not whether the order of 12 September
2008 infringed that framework decision, but whether it indirectly infringed the right to a fair
trial protected by Article 24(2) of the Spanish Constitution. Framework Decision 2009/299
should be taken into account for determining what part of that right has ‘external’ effects,
because it constitutes the European Union (‘EU’) law applicable at the time constitutionality
is assessed. It must also be taken into account by virtue of the principle that national law is to
be interpreted in accordance with framework decisions (Case C-105/03 Pupino [2005] ECR
I-5285, paragraph 43). (par. 25)

EUCJ Answers:

1. Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the

European arrest warrant and the surrender procedures between Member States, as amended
by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as
precluding the executing judicial authorities, in the circumstances specified in that provision,
from making the execution of a European arrest warrant issued for the purposes of executing
a sentence conditional upon the conviction rendered in absentia being open to review in the
issuing Member State.
2. Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision
2009/299, is compatible with the requirements under Articles 47 and 48(2) of the Charter of
Fundamental Rights of the European Union. [right to effective judicial remedy and to a fair
trial and rights of the defence]

3. Article 53 of the Charter of Fundamental Rights of the European Union must be interpreted
as not allowing a Member State to make the surrender of a person convicted in absentia
conditional upon the conviction being open to review in the issuing Member State, in order to
avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by
its constitution.

In short:

At stake was the issue of «higher level of protection conferred by the national constitution
(24(2) as interpreted by the Tribunal Constitucional)

The level of EU harmonisation was considered: not only to give sufficient protection of FR
according to the standards of the Charter (47 and 49(2)) but to prevent a higher protection
according to the general clause of art. 53 of the Charter if that ‘higher protection’ would cast
doubt on the uniformity of the level of protection of FRs defined by the framework decision,
would undermine the principles of mutual trust and recognition that the framework decision
purports to hold and would compromise  its efficacy (pars. 63 and 64).

3.2.2 The  Akerberg Fransson (CJEU) and the counter-terrorism database (BVerG) cases:
which (National or EU) catalogue of FRs is applicable and which judge is competente (Scope
of application /execution of EU Law)? (C-617/10 and 1 BvR 1215/07  sentence   24.4.13)

The CJEU give a wider interpretation of art 51(1) CFREU: “scope” (of EU Law) notion (par.
19): basically it assimilates “implementation” of EU law to “scope”, which enlarges/expand
the scope for intervention of the CJEU
The BVerG gave an ‘opposite’ interpretation and did not make a preliminary reference
explaining why: it gave a more restrict interpretation of article 51(1) of the Charter,
considering that «neither the national law nor the actions put into practice “implemented” the
Law of the EU» according to art. 51(1), first sentence; therefore there was no need to clarify
the EU law (acte clair) nor was necessary to refer the a question to the Luxembourg Court (a
‘refusal’ for a preliminary ruling?). It considered that the CJEU set a solution limited to the
criminal procedure and meaning of the ne bis in idem principle.). Therefore the CJEU is not
the FRs competent judge.
The issue: a wider concept of “implementation of the Law of the EU” (a condition for the
applicability of the CFREU) implies the downsizing of the national (constitutional) court
competence regarding the protection of FRs (1 BvR 1215/07, C 88-91): 
3.3. Conflicts vs european multilevel dialogue
 Conflicts 
 The need for multilevel dialogue (on common ground of european values)
 EU accession to the ECHR: the need for more (multilevel) dialogue and maintain the 
(possible) higher level of protection of FRs

Lesson 4 : Application of the European Union Charter of fundamental rights at national level

I. The Charter

The Charter is :
 of increasing relevance at EU level
 and yet – it is still underused at national level. Why ?

⇒ The Charter of Fundamental Rights performs several functions:

 A source for the interpretation of the EU law, because the EU secondary legislation
and national rules, falling within the scope of EU regulation, must be interpreted in
the light of the provisions of the Charter. 
 Claims (complaint) before the judiciary can be founded on the provisions of the
Charter as well as on general principles of the EU law. The provisions of EU
legislation incompatible with the provisions of the Charter have to be recognised as
unlawful, while the provisions of national law falling within the scope of EU
regulation, which contradict the provisions of the Charter, have to be repealed. 
 A source for the formulation of general principles of the EU law.

Why should Charter matter ? Charter adds value by  :

 offering more in terms of procedural aspects/ effects
 offering additional remedial avenues for fundamental rights violations
 covering more and wider reaching/stronger rights.

II. The Charter's potential to "offer more" in terms of procedural aspects/effects 

 Supremacy and direct effect can play a role when interpreting national law;
interpreting EU law; checking national law against the Charter; checking EU
legislation against the Charter
 National courts and authorities are under a duty to apply EU law and set aside
conflicting norms of national law (example of Benkharbouche case, 2017)

III. The Charter : additional access to justice avenues

IV. The Charter covers more and wider reaching rights!

Charter and ECHR - Art. 52(3):
“In so far as this Charter contains rights which correspond to rights guaranteed by the
[ECHR] the meaning and scope of those rights shall be the same as those laid down by the
said Convention. This provision shall not prevent Union law providing more extensive
protection.”

Article 51 : The Charter's "field of application"

“1. The provisions of this Charter are addressed to the institutions, bodies, offices and
agencies of the Union with due regard for the principle of subsidiarity and to the Member
States only when they are implementing Union law. They shall therefore respect the rights,
observe the principles and promote the application thereof in accordance with their
respective powers and respecting the limits of the powers of the Union as conferred on it in
the Treaties.” 
“2. The Charter 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.”

Access to justice : Charter vs ECHR 

V. The Charter's use in practice: a case example

Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs

(Appellant) and Secretary of State for Foreign and Commonwealth Affairs and Libya
(Appellants) v Janah (Respondent) [2017] UKSC 62
The case concerned two employees of the embassies of Sudan and Libya in the UK. They
made several employment claims, which the Employment tribunal turned down because the
employees were considered ‘members of the mission’ under the State Immunity Act 1978.
This raised the question of whether this procedural limitation imposed by the State Immunity
Act was compatible with the right to an effective remedy and a fair trial under Article 47 of
the Charter and Article 6 of the ECHR. 

Section 16(1)(a) and Section 4(2)(b) of the State Immunity Act 1978 (“SIA”) barred the
claimants’ employment law claims from being pursued before the Employment Tribunals on
grounds of State Immunity. Some of the claims were derived from EU law, namely
discrimination, harassment and breach of the Working Time Regulations. 

UK courts needed to resolve :

  firstly, whether Article 47 could be given direct horizontal effect, meaning that the
appellants could rely on it even though Libya is not a Member State or one of the EU
institutions referred to in Article 51 of the Charter (Libya, not bound by EU law, is
here equated to a private party). 
 had to decide if it could simply disapply the relevant sections of the State Immunity
Act.

Granting direct horizontal effect to the procedural provision of Article 47 of the Charter
allowed the UK courts to disapply the provisions of the State Immunity Act that conflict with
the Charter, enabling the two claimants to further pursue their substantive claims under the
relevant provisions of the Working Time Regulations and the Racial Equality Directive. 

Lesson 5 : CJEU jurisprudence impact on judicial dialogue and remedial national laws :
effective judicial protection

I. Context

 The gradual erosion of the principle of procedural autonomy through application of

general principles
 The role for the principles of equivalence and effectiveness 

II. Article 47. 

Article 47, CFREU:

 Everyone whose rights and freedoms guaranteed by the law of the Union are violated
has the right to an effective remedy before a tribunal in compliance with the
conditions laid down in this Article.
  Everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal previously established by law. Everyone shall have
the possibility of being advised, defended and represented.
 Legal aid shall be made available to those who lack sufficient resources in so far as
such aid is necessary to ensure effective access to justice.
 
III. EU legislative harmonization
 Article 19 TEU : Member States shall provide remedies sufficient to ensure effective
legal protection in the fields covered by Union law.
 The increasing relevance of sanctions and remedies in EU secondary legislation
 No real harmonization with different rules on sanctions and remedies at national level
 Partial harmonization of substantive law
 Very limited harmonization of procedural law
 The combined effect of legislative, administrative and judicial harmonization

IV. Judicial rule making

 The role of CJEU in relation to enforcement
 The principle of effective judicial protection
 The role of art. 47 CFR and the impact on national legislations
 The substantive and the procedural effects
 Judicial harmonization of remedial laws? The persisting degree of differentiation

V. The case law art. 19 TUE and art. 47 CFR

CJEU 216/18, Associação Sindical dos Juízes Portugueses, C-64/16

“50 In accordance with Article 19 TEU, which gives concrete expression to the value of the
rule of law affirmed in Article 2 TEU, it is for the national courts and tribunals and the Court
of Justice to ensure the full application of EU law in all Member States and judicial
protection of the rights of individuals under that law (see, to that effect, judgments of 27
February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117,
paragraph 32 and the case-law cited, and of 6 March 2018, Achmea, C-284/16,
EU:C:2018:158, paragraph 36 and the case-law cited).
51 The very existence of effective judicial review designed to ensure compliance with EU
law is of the essence of the rule of law (judgment of 27 February 2018, Associação Sindical
dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 36 and the case-law cited).
52 It follows that every Member State must ensure that the bodies which, as ‘courts or
tribunals’ within the meaning of EU law, come within its judicial system in the fields covered
by EU law meet the requirements of effective judicial protection (judgment of 27 February
2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 37).

CJEU, C-682/15, Berlioz Investment Fund :

According to Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair
trial’, everyone whose rights and freedoms guaranteed by the law of the Union are violated
has the right to an effective remedy before a tribunal. The obligation imposed on the Member
States in the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to
ensure effective legal protection in the fields covered by Union law, corresponds to that right.

VI. Article 47 

 Within the scope of EU law article 47 is directly applicable and does not need to be
combined with secondary legislation
 CJEU 414/2016 Egemberger: “Secondly, it must be pointed out that, like Article 21 of
the Charter, Article 47 of the Charter on the right to effective judicial protection is
sufficient in itself and does not need to be made more specific by provisions of EU or
national law to confer on individuals a right which they may rely on as such.”
 It applies to contractual parties.

VII. Article 47 and the principle of effectiveness

“The principle of effective judicial protection is a general principle of EU law, which is now
set out in Article 47 of the Charter. Article 47 secures in EU law the protection afforded by
Article 6(1) and Article 13 of the ECHR. It is necessary, therefore, to refer only to Article 47
(see, to that effect, judgment of 6 November 2012, Otis and Others, C-199/11,
EU:C:2012:684, paragraphs 46 and 47).” Berlioz Investment Fund, C-682/15

VIII. Article 47 and the right to be heard

Sacko Moussa, case C-348/16

The CJEU held that the “failure to give the applicant the opportunity to be heard in an appeal
procedure constitutes a restriction of the rights of the defence, which form part of the
principle of effective judicial protection enshrined in Article 47 of the Charter” (para. 37).
The Court acknowledged nevertheless that the right to a fair and public hearing is not
absolute, and restrictions can be established according to the wording of Article 52 CFR.

IX. Article 47 and evidence

CJEU Alheto 585/16

«110 In that context, the words ‘shall ensure that an effective remedy provides for a full and
ex nunc examination of both facts and points of law’ must, in order not to deprive them of
their ordinary meaning, be interpreted as meaning that the Member States are required, by
virtue of Article 46(3) of Directive 2013/32, to order their national law in such a way that the
processing of the appeals referred to includes an examination, by the court or tribunal, of all
the facts and points of law necessary in order to make an up-to-date assessment of the case at
hand.
111 In that regard, the expression ‘ex nunc’ points to the court or tribunal’s obligation to
make an assessment that takes into account, should the need arise, new evidence which has
come to light after the adoption of the decision under appeal.
112  Such an assessment makes it possible to deal with the application for international
protection exhaustively without there being any need to refer the case back to the determining
authority. Thus, the court’s power to take into consideration new evidence on which that
authority has not taken a decision is consistent with the purpose of Directive 2013/32, as
referred to in paragraph 109 of this judgment.
«113    For its part, the adjective ‘full’ used in Article 46(3) of Directive 2013/32 confirms
that the court or tribunal is required to examine both the evidence which the determining
authority took into account or could have taken into account and that which has arisen
following the adoption of the decision by that authority.
114    Furthermore, since that provision must be interpreted in a manner consistent with
Article 47 of the Charter, the requirement for a full and ex nunc examination implies that the
court or tribunal seised of the appeal must interview the applicant, unless it considers that it is
in a position to carry out the examination solely on the basis of the information in the case
file, including, where applicable, the report or transcript of the personal interview before that
authority (see, to that effect, judgment of 26 July 2017, Sacko, C-348/16, EU:C:2017:591,
paragraphs 31 and 44). In the event that new evidence comes to light after the adoption of the
decision under appeal, the court or tribunal is required, as follows from Article 47 of the
Charter, to offer the applicant the opportunity to express his views when that evidence could
affect him negatively.”

X. Article 47 and ex officio power

Banif Plus case, C-472/11, para. 29 

(…) in implementing European Union law, the national court must also respect the
requirements of effective judicial protection of the rights that individuals derive from
European Union law, as guaranteed by Article 47 of the Charter of Fundamental Rights of the
European Union. Among those requirements is the principle of audi alteram partem, as part
of the rights of defence and which is binding on that court, in particular when it decides a
dispute on a ground that it has identified of its own motion (see, to that effect, Case C 89/08
P, Commission v Ireland and Others [2009] ECR I 11245, paragraphs 50 and 54).

XI. Article 47, ex officio powers and burden of proof

Online Games case, C-685/15 

Articles 49 and 56 TFEU, as interpreted in particular in the judgment of 30 April 2014,
Pfleger and Others (C-390/12, EU:C:2014:281), read in light of Article 47 of the Charter,
must be interpreted as not precluding a national procedural system according to which, in
administrative offence proceedings, the court called upon to rule on the compliance with EU
law of legislation restricting the exercise of a fundamental freedom of the European Union,
such as the freedom of establishment or the freedom to provide services within the Union, is
required to examine of its own motion the facts of the case before it in the context of
examining whether administrative offences arise, provided that such a system does not have
the consequence that that court is required to substitute itself for the competent authorities of
the Member State concerned, whose task it is to provide the evidence necessary to enable that
court to determine whether that restriction is justified.
Faber, Sporting Odds case (C-3/17), 
Art. 56 TFEU and Article 4(3) TEU, read in conjunction with Articles 47 and 48 CFR, admit
national legislations not providing for the ex officio examination of the proportionality of
measures restricting the freedom to provide services and which puts the burden of proof on
the parties to the proceedings.

XII. Effectiveness and res judicata

Banco Primus, C-421/14

Directive 93/13 must be interpreted as not precluding a rule of national law, such as that
resulting from Article 207 of the LEC, which prohibits national courts from examining of
their own motion the unfairness of contractual terms where a ruling has already been given
on the lawfulness of the terms of the contract, taken as a whole, with regard to that directive
in a decision which has become res judicata.
By contrast, where there are one or more contractual terms the potential unfair nature of
which has not been examined during an earlier judicial review of the contract in dispute
which has been closed by a decision which has become res judicata, Directive 93/13 must be
interpreted as meaning that a national court, before which a consumer has properly lodged an
objection, is required to assess the potential unfairness of those terms, whether at the request
of the parties or of its own motion where it is in possession of the legal and factual elements
necessary for that purpose.
Para. 52: (...) In the absence of such a review, consumer protection would be incomplete and
insufficient and would not constitute either an adequate or effective means of preventing the
continued use of that term, contrary to Article 7(1) of Directive 93/13 (see, to that effect,
judgment of 14 March 2013, Aziz, C 415/11, EU:C:2013:164, paragraph 60).

XIII. Article 47 : individual and collective redress

 Applicability of article 47 CFR to collective redress (standing of qualified entities)
 The relationship between individual claims and collective redress and article 47 CFR
(the reinterpretation of Sales Sinuès)
 Domestic v. cross-border collective claims (Schrems II, C-362/14)
 Effectiveness, proportionality and dissuasiveness and collective redress

XIV. Judicial and administrative enforcement

The rise of administrative enforcement

The relationship between administrative and judicial enforcement : alternative or
complementary?
What kind of complementarity? 
The role of art. 47 CFR in the definition of complementarity
Different models of complementarity in consumer, data protection and asylum
CJEU Puskar

XV. Judicial cooperation, mutual trust and judicial independence

Judicial cooperation and mutual trust
Opinion 2/2013
CJEU 216/2018: systemic or generalized deficiencies
79. In the light of the foregoing considerations, the answer to the questions referred is that
Article 1(3) of Framework Decision 2002/584 must be interpreted as meaning that, where the
executing judicial authority, called upon to decide whether a person in respect of whom a
European arrest warrant has been issued for the purposes of conducting a criminal
prosecution is to be surrendered, has material, such as that set out in a reasoned proposal of
the Commission adopted pursuant to Article 7(1) TEU, indicating that there is a real risk of
breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article
47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the
independence of the issuing Member State’s judiciary, that authority must determine,
specifically and precisely, whether, having regard to his personal situation, as well as to the
nature of the offence for which he is being prosecuted and the factual context that form the
basis of the European arrest warrant, and in the light of the information provided by the
issuing Member State pursuant to Article 15(2) of the framework decision, there are
substantial grounds for believing that that person will run such a risk if he is surrendered to
that State.

XVI. Judicial cooperation and independence

CJEU 216/2018, LM
«53      In order for that protection to be ensured, maintaining the independence of those
bodies is essential, as confirmed by the second paragraph of Article 47 of the Charter, which
refers to access to an ‘independent’ tribunal as one of the requirements linked to the
fundamental right to an effective remedy (judgment of 27 February 2018, Associação
Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 41).
54      The independence of national courts and tribunals is, in particular, essential to the
proper working of the judicial cooperation system embodied by the preliminary ruling
mechanism under Article 267 TFEU, in that, in accordance with the Court’s settled case-law,
that mechanism may be activated only by a body responsible for applying EU law which
satisfies, inter alia, that criterion of independence (judgment of 27 February 2018, Associação
Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 43).
58      The high level of trust between Member States on which the European arrest warrant
mechanism is based is thus founded on the premiss that the criminal courts of the other
Member States — which, following execution of a European arrest warrant, will have to
conduct the criminal procedure for the purpose of prosecution, or of enforcement of a
custodial sentence or detention order, and the substantive criminal proceedings — meet the
requirements of effective judicial protection, which include, in particular, the independence
and impartiality of those courts.
59      It must, accordingly, be held that the existence of a real risk that the person in respect
of whom a European arrest warrant has been issued will, if surrendered to the issuing judicial
authority, suffer a breach of his fundamental right to an independent tribunal and, therefore,
of the essence of his fundamental right to a fair trial, a right guaranteed by the second
paragraph of Article 47 of the Charter, is capable of permitting the executing judicial
authority to refrain, by way of exception, from giving effect to that European arrest warrant,
on the basis of Article 1(3) of Framework Decision 2002/584.

XVII. Judicial cooperation, independence and impartiality

CJEU 216/2018, LM

The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure
that an equal distance is maintained from the parties to the proceedings and their respective
interests with regard to the subject matter of those proceedings. That aspect requires
objectivity and the absence of any interest in the outcome of the proceedings apart from the
strict application of the rule of law (judgment of 19 September 2006, Wilson, C-506/04,
EU:C:2006:587, paragraph 52 and the case-law cited).

66      Those guarantees of independence and impartiality require rules, particularly as regards
the composition of the body and the appointment, length of service and grounds for
abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in
the minds of individuals as to the imperviousness of that body to external factors and its
neutrality with respect to the interests before it. In order to consider the condition regarding
the independence of the body concerned as met, the case-law requires, inter alia, that
dismissals of its members should be determined by express legislative provisions (judgment
of 9 October 2014, TDC, C-222/13, EU:C:2014:2265, paragraph 32 and the case-law cited).

67      The requirement of independence also means that the disciplinary regime governing
those who have the task of adjudicating in a dispute must display the necessary guarantees in
order to prevent any risk of its being used as a system of political control of the content of
judicial decisions. Rules which define, in particular, both conduct amounting to disciplinary
offences and the penalties actually applicable, which provide for the involvement of an
independent body in accordance with a procedure which fully safeguards the rights enshrined
in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay
down the possibility of bringing legal proceedings challenging the disciplinary bodies’
decisions constitute a set of guarantees that are essential for safeguarding the independence of
the judiciary.

68      If, having regard to the requirements noted in paragraphs 62 to 67 of the present
judgment, the executing judicial authority finds that there is, in the issuing Member State, a
real risk of breach of the essence of the fundamental right to a fair trial on account of
systemic or generalised deficiencies concerning the judiciary of that Member State, such as to
compromise the independence of that State’s courts, that authority must, as a second step,
assess specifically and precisely whether, in the particular circumstances of the case, there are
substantial grounds for believing that, following his surrender to the issuing Member State,
the requested person will run that risk (see, by analogy, in the context of Article 4 of the
Charter, judgment of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU,
EU:C:2016:198, paragraphs 92 and 94).
XVIII. RE-JUS PROJECT - THE CONCEPTUAL FRAMEWORK:  (I) JUDICIAL
DIALOGUE -

The geometry of judicial dialogue: vertical and horizontal

The pathway of vertical judicial dialogue: conforming interpretation, disapplication,
preliminary references
 Preliminary reference
1) framing the reference
2) providing an answer: 
I. defining detailed rules
II. offering general guidance: setting the principles
III. deferring to national courts
3) the application of the ruling
I. by the referring court
II. by other MS’ courts 

XIX. THE CONCEPTUAL FRAMEWORK:  (II) THE IMPACT OF JUDICIAL

DIALOGUE -

Possible outcomes of judicial dialogue:

 Setting legislation aside /changing legislation
 Changing judicial interpretation of current legislation implementing EU law 

Evaluating and measuring the impact of EU judgments across MSs

 Adhesion, adaptation, resistance, failure to consider

The challenges: how uniformly binding judgments may have different impact on the MSs?

XX. Administrative and judicial cooperation

 The new legislative design in consumer and data protection suggests 
 Regulation 679/2016
 Regulation  2394/2017
 Two models of administrative cooperation
 The model of judicial cooperation
 The problem: How should administrative and judicial enforcers cooperate given the
principle of procedural autonomy?

XXI. THE RELATIONSHIP BETWEEN ART, 47 AND THE PRINCIPLE OF

EFFECTIVENESS

 The relevance for national judges

 The case law of CJEU: continuity?
  Scope of application of art. 47 and the Charter
 Scope of application of EU principles
  Effects of the application of art. 47 to the Treaties and to secondary legislation

XXII. Sanctions and remedies

I) The principles : Effective, proportionate and dissuasive sanctions and remedies
II) From judicial to legislative definitions 
III) Only sanctions or also administrative and civil remedies? The principles apply also to
remedies
IV) Integrating article 47 and the principles
Effective judicial protection and proportionality
Effective judicial protection and dissuasiveness

XXIII. PROPORTIONALITY OF SANCTIONS IN DATA PROTECTION

Art. 83 Reg. 269/2016: 1.Each supervisory authority shall ensure that the imposition of
administrative fines pursuant to this Article in respect of infringements of this Regulation
referred to in paragraphs 4, 5 and 6 shall in each individual case be effective, proportionate
and dissuasive. 2.Administrative fines shall, depending on the circumstances of each
individual case, be imposed in addition to, or instead of, measures referred to in points (a) to
(h) and (j) of Article 58(2). When deciding whether to impose an administrative fine and
deciding on the amount of the administrative fine in each individual case due regard shall be
given to the following: (a) the nature, gravity and duration of the infringement taking into
account the nature scope or purpose of the processing concerned as well as the number of
data subjects affected and the level of damage suffered by them; (b) the intentional or
negligent character of the infringement; (c) any action taken by the controller or processor to
mitigate the damage suffered by data subjects; (d) the degree of responsibility of the
controller or processor taking into account technical and organisational measures
implemented by them pursuant to Articles 25 and 32; (e) any relevant previous infringements
by the controller or processor; (f) the degree of cooperation with the supervisory authority, in
order to remedy the infringement and mitigate the possible adverse effects of the
infringement; (g) the categories of personal data affected by the infringement; (h) the manner
in which the infringement became known to the supervisory authority, in particular whether,
and if so to what extent, the controller or processor notified the infringement; (i) where
measures referred to in Article 58(2) have previously been ordered against the controller or
processor concerned with regard to the same subject-matter, compliance with those measures;
(j) adherence to approved codes of conduct pursuant to Article 40 or approved certification
mechanisms pursuant to Article 42; and (k) any other aggravating or mitigating factor
applicable to the circumstances of the case, such as financial benefits gained, or losses
avoided, directly or indirectly, from the infringement.

XXIV. Proportionality of sanctions in consumer protection

Art. 10 Reg. 2394/2017

4. Competent authorities shall have at least the following enforcement powers: (…)
(h) the power to impose penalties, such as fines or periodic penalty payments, for
infringements covered by this Regulation and for the failure to comply with any decision,
order, interim measure, trader’s commitment or other measure adopted pursuant to this
Regulation.
The penalties referred to in point (h) shall be effective, proportionate and dissuasive, in
accordance with the requirements of Union laws that protect consumers’ interests. In
particular, due regard shall be given, as appropriate, to the nature, gravity and duration of the
infringement in question

XXV. Proportionality of remedies

Should the rules on proportionality of sanctions apply to proportionality of remedies?
Proportionality of civil remedies: single remedy
Invalidity
Injunctions
Restitution 
Termination 
Proportionality of remedies: the choice between alternative remedies

XXVI. Corrective remedies in consumer protection

Art. 10 Reg. 2394/2017

4. Competent authorities shall have at least the following enforcement powers:

(a) the power to adopt interim measures to avoid the risk of serious harm to the collective
interests of consumers;

(b) the power to seek to obtain or to accept commitments from the trader responsible for the
infringement covered by this Regulation to cease that infringement;

(c) the power to receive from the trader, on the trader’s initiative, additional remedial
commitments for the benefit of consumers that have been affected by the alleged
infringement covered by this Regulation, or, where appropriate, to seek to obtain
commitments from the trader to offer adequate remedies to the consumers that have been
affected by that infringement;

(d) where applicable, the power to inform, by appropriate means, consumers that claim that
they have suffered harm as a consequence of an infringement covered by this Regulation
about how to seek compensation under national law;

(e) the power to order in writing the cessation of infringements covered by this Regulation by
the trader;
(f) the power to bring about the cessation or the prohibition of infringements covered by this
Regulation;

(g) where no other effective means are available to bring about the cessation or the
prohibition of the infringement covered by this Regulation and in order to avoid the risk of
serious harm to the collective interests of consumers:

(i) the power to remove content or to restrict access to an online interface or to order the
explicit display of a warning to consumers when they access an online interface;

(ii) the power to order a hosting service provider to remove, disable or restrict access to an
online interface; or

(iii) where appropriate, the power to order domain registries or registrars to delete a fully
qualified domain name and to allow the competent authority concerned to register it;

including by requesting a third party or other public authority to implement such measures;

(h) the power to impose penalties, such as fines or periodic penalty payments, for
infringements covered by this Regulation and for the failure

XXVII. Corrective remedies in data protection

Article 58(2), GDPR

2.Each supervisory authority shall have all of the following corrective powers: (a) to issue
warnings to a controller or processor that intended processing operations are likely to infringe
provisions of this Regulation; (b) to issue reprimands to a controller or a processor where
processing operations have infringed provisions of this Regulation; (c) to order the controller
or the processor to comply with the data subject's requests to exercise his or her rights
pursuant to this Regulation;
(d) to order the controller or processor to bring processing operations into compliance with
the provisions of this Regulation, where appropriate, in a specified manner and within a
specified period; (e) to order the controller to communicate a personal data breach to the data
subject; (f) to impose a temporary or definitive limitation including a ban on processing; (g)
to order the rectification or erasure of personal data or restriction of processing pursuant to
Articles 16, 17 and 18 and the notification of such actions to recipients to whom the personal
data have been disclosed pursuant to Article 17(2) and Article 19; (h) to withdraw a
certification or to order the certification body to withdraw a certification issued pursuant to
Articles 42 and 43, or to order the certification body not to issue certification if the
requirements for the certification are not or are no longer met; (i) to impose an administrative
fine pursuant to Article 83, in addition to, or instead of measures referred to in this paragraph,
depending on the circumstances of each individual case; (j) to order the suspension of data
flows to a recipient in a third country or to an international organisation.
XXVIII. Balacing effectiveness and proportionality

In the light of the principle of effectiveness and proportionality

Where information requirements are not included in a consumer credit contract:

“the agreement is deemed to be interest-free and free of charges, provided that the
information covers matters which, if not included, may compromise the ability of the
consumer to assess the extent of his liability” (Home Credit, C- 42/15)

Weber and Putz, C-65/09 and 87/09

It must be observed in that regard that, concerning in particular the specific situation referred
to by the referring court, in which replacement of the defective goods, as the only possible
remedy, involves disproportionate costs because of the need to remove the goods not in
conformity from where they were installed and to install the replacement goods, Article 3(3)
of the Directive does not preclude the consumer’s right to reimbursement of the cost of
removing the defective goods and installing the replacement goods from being limited, where
necessary, to an amount proportionate to the value the goods would have if there were no
lack of conformity and the significance of the lack of conformity. Such limitation leaves
intact the consumer’s right to seek replacement of goods not in conformity.

In that context, it must be pointed out that Article 3 aims to establish a fair balance between
the interests of the consumer and the seller, by guaranteeing the consumer, as the weak party
to the contract, complete and effective protection from faulty performance by the seller of his
contractual obligations, while enabling account to be taken of economic considerations
advanced by the seller.

XXIX. Balancing proportionality an dissuasiveness

Le Crédit Lyonnaise, C 565/12

the Court has held that the severity of penalties must be commensurate with the seriousness
of the infringements for which they are imposed, in particular by ensuring a genuinely
dissuasive effect, while respecting the general principle of proportionality (Texdata Software,
paragraph 51). (...)

If, after carrying out the abovementioned comparison, the referring court were to conclude
that, in the dispute before it, the application of the penalty of forfeiture of entitlement to
contractual interest is liable to confer an advantage on the creditor, since the amounts which it
forfeits are less than those resulting from the application of interest at the increased statutory
rate, it would follow that, clearly, the system of penalties at issue in the main proceedings
does not ensure that the penalty incurred is genuinely dissuasive.
INTERACTION BETWEEN THE STATES̕ OBLIGATIONS UNDER THE
EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR) AND THE EUROPEAN
UNION LAW
Council of Europe and European Union: two different legal systems:

Council of Europe – international regional organization created in 1949 by the Treaty

of London (10 States).

NOW (2021) – 47 Member States;

Main task – protection and promotion of human rights, rule of law and democracy in
the European region.

The European Union (with 3 original EU organisations (European Economic

Community, European Coal and Steel community, Euratom) – is a unique economic
and political union;

supranational organization (NOW - 27 Member States); unique features - direct effect

and supremacy [primacy] of EU law over national law.

All 27 Member States of the European Union are at the same time Member States of
the Council of Europe (and, also, States Parties to the ECHR);

Therefore, the States must fulfil all obligations arising out of international treaties
adopted withing the framework of the Council of Europe,

and, also, all obligations arising from the EU law (including The EU Charter of
Fundamental Rights (CFR)).

Council of Europe – regional International Organization:

Based in Strasbourg, France; 47 Member States.
Under the ECHR – the European Court of Human Rights (ECtHR) was established (and also,
the European Commission on Human Rights which was abolished in 1998).
The main task of the ECtHR – to observe how the States Parties are implementing the
standards of the Convention at national level (Art. 19 of the Convention).
Individual petition (Art. 34) – Central aspect of the Convention system;
Art. 46 – the judgments of the ECtHR are obligatory.

The European Union (EU)/history in brief:

The predecessor of the EU was created after the Second World War. The first steps - to foster
economic cooperation: to create a single market;
Treaty of Rome (EEC), signed on 25 March 1957 established the European Economic
Community (EEC); at the same time – another Treaty established the European Atomic
Energy Community (EAEC or Euratom).
EEC brought together 6 countries (Belgium, Germany, France, Italy, Luxembourg and the
Netherlands) to work towards integration and economic growth, through trade. It created a
common market based on the free movement of: goods, people, services, capital.
• The Treaty of Rome has been amended on a number of occasions, today - the Treaty
on the Functioning of the EU.

The EU has, among others, created a single currency, the euro, making the single
market more efficient.

A purely economic union has evolved into an organization spanning policy areas,
from climate, environment and health to external relations and security, justice and
migration.

Maastricht Treaty (signed on 7 February 1992, in force from 1 November 1993).

• It creates the European Union.
• This encompasses 3 separate strands (so-called pillars): the European Communities,
• a common foreign and security policy, and cooperation between EU governments on
justice and home affairs.

Common foreign and security policy (2nd pillar) aims to inter alia:

- safeguard the EU’s common values, fundamental interests and independence;

• - develop and consolidate democracy and the rule of law, and respect for human rights
and fundamental freedoms.
Maastricht Treaty, Article F § 2:

2. The Union shall respect fundamental rights,

as guaranteed

by the European Convention for the Protection signed in Rome on 4 November 1950
and of Human Rights and Fundamental Freedoms

as they result from the constitutional traditions common to the Member States,

as general principles of Community law. […]

Article 6 of the Treaty on the EU - 3 sources of Fundamental Rights (presentation of
Judge Edith Zeller):

1.   The Union recognises the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the European Union […], which shall have the same legal
value as the Treaties. <…>.

2.   The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms <…>.

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.

EU Charter of Fundamental Rights (CFR):

The Charter brings together the fundamental rights of everyone living in the EU.

It sets out the full range of civil, political, economic and social rights based on:

• - the fundamental rights and freedoms recognised by the European Convention on

Human Rights
• - the constitutional traditions of the EU Member States,
• - the Council of Europe's Social Charter, […]
• - other international conventions to which the EU or its Member States are parties.

The Charter became legally binding on EU Member States when the Treaty of Lisbon
entered into force on 1 December 2009.

CFR and ECHR:

Although containing overlapping human rights provisions, the two operate within
separate legal frameworks:
• The Charter of Fundamental Rights was drafted by the EU and is interpreted by the
Court of Justice of the European Union (CJEU).
• The European Convention on Human Rights, on the other hand, was drafted by the
Council of Europe and is interpreted by the European Court of Human Rights
(ECtHR).
 The Charter can be seen as the overarching framework for human rights in the EU, of
which the European Convention on Human Rights forms only one part, albeit an
important one.

EU Charter of Fundamental Rights (CFR):

Article 52

Scope and interpretation of rights and principles

3.   In so far as this Charter contains rights which correspond to rights guaranteed by
the Convention for the Protection of Human Rights and Fundamental Freedoms, the
meaning and scope of those rights shall be the same as those laid down by the said
Convention. This provision shall not prevent Union law providing more extensive
protection.

4.   In so far as this Charter recognises fundamental rights as they result from the
constitutional traditions common to the Member States, those rights shall be
interpreted in harmony with those traditions.

Article 53
Level of protection
Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights
and fundamental freedoms as recognised, in their respective fields of application, by Union
law and international law and by international agreements to which the Union or all the
Member States are party, including the European Convention for the Protection of Human
Rights and Fundamental Freedoms, and by the Member States' constitutions.

Fundamental Rights in FRC and ECHR:

1. SOME FR are the same in both documents – the right to Life, the right to respect for
family and private life, prohibition of torture, inhuman and degrading treatment, non-
discrimination, freedom of assembly and associations, prohibition of slavery, etc.;
2. Some FR in the FRC – of broader content than in the ECHR – the right to marry and
to found a family, the right to education, freedom of thoughts and religion, etc.;
3. Some FR of the FRC are not enshrined in the ECHR – the right to asylum, the rights
of the elderly, different social and economic rights;
4. Some FR of the FRC do not exist separately in the text of the ECHR, but they are
protected in the case law – Art. 3 of the Charter (The right to integrity of the person),
Art. 8 (protection of personal data) – can be protected under Art. 8 of the ECHR as
interpreted by the ECtHR.

Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR):
co-operation v. conflict:
Very important to keep the same standards of interpretation and application of the same
fundamental rights;
Art. 59 § 2 of the Convention – The European Union may accede to this Convention; the
same – Art. 6 § 2 of the TEU).
BUT - On 18 December 2014, the Court of Justice of the European Union delivered its
Opinion 2/13, concluding that
the agreement on the accession of the European Union to the European Convention on
Human Rights is not compatible with Article 6(2) of the Treaty on European Union […].

Co-operation between different International Organizations:

Another body - Universal level – United Nations (UN), 193 Member States:
The Charter of the United Nations (signed on 26 June 1945 in San Francisco):
Art. 103 of the Charter – sets a clear priority of international obligations of States under the
UN Charter:
In the event of a conflict between the obligations of the Members of the United Nations under
the present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail.

Beginning of cooperation and/or conflict/ECHR/UN Charter:

Council of Europe level (regional) v. United Nations (universal level):
European Court of Human Rights:
Case of Behrami and Behrami v. France and Saramati v. France, Germany and Norway
(dec.) [GC] (Appl. No 71412/01).
Decision 02/05/2007 [Grand Chamber (17 judges)]
Article 35-3; Inadmissible Ratione personae.
Applications concerning acts performed by KFOR and UNMIK in Kosovo (special bodies of
the UN) under the aegis of the UN: INADMISSIBLE
Another example – case of CONNOLLY v. 15 Member States of the European Union (No
73274/01, Decision on the inadmissibility of 09/12/2008)
Complaints against Germany, Austria, Denmark, Spain, Belgium, Finland, France, Greece,
Ireland, Italy, Luxembourg, the Netherlands, Portugal, United Kingdom and Sweden – ALL
EU Member States.
Complaint under Art. 6 § 1 of the ECHR – not fair proceedings before the European Union
bodies including the Court of Justice of the EU.
Art. 6 § 1 taken with Art. 13 – no possibility to obtain the opinion of the Advocate General
and to reopen the case.
ECtHR: EU Member States ARE NOT RESPONSIBLE for the acts of the European Union
acting in the name of that Organization.

Co-operation v. conflict/the same scope of the same fundamental rights:

Hoechst case 46/87, CJEU and the ECtHR in the case Niemietz v. Germany (No. 13710/88,
judgment of 16/12/1992):
Niemietz v. Germany (ECtHR) - Search of a lawyer's office in course of criminal proceedings
against a third party: violation of Art. 8 of the Convention (respect for home and
correspondence);
ECtHR - interpreting "private life" and "home" as including certain professional or business
activities or premises is consonant with object and purpose of Article 8 and would not unduly
hamper the Contracting States.
Hoechst case (CJEU) – Different (opposite conclusion, see next slide).

Judgments of 21 September 1989 in Joined cases 46/87 and 227/88 Hoechst v.

Commission [1989], CJEU:
Since the applicant has also relied on the requirements stemming from the fundamental right
to the inviolability of the home, it should be observed that, although the existence of such a
right must be recognized in the Community legal order as a principle common to the laws of
the Member States in regard to the private dwellings of natural persons,
the same is not true in regard to undertakings, because there are not inconsiderable
divergences between the legal systems of the Member States in regard to the nature and
degree of protection afforded to business premises.
No other inference is to be drawn from Article 8(1)) of the European Convention on Human
Rights. The protective scope of that article is concerned with the development of man’s
personal freedom and may not therefore be extended to business premises. Furthermore, there
is no case-law of the European Court of Human Rights on that subject.
This statement was affirmed in the same court’s judgments of 17 October 1989 in Case 85/87
Dow Benelux v. Commission [1989] ECR 3137 at 3157 and Joined Cases 97 to 99/87 Dow
Chemical Ibérica and Others v. Commission [1989] ECR 3165 at 3185-6.

CJEU:
Later on the CJEU has mildened its position – in case Roquette Freres, C-94/00 – Judgment
of the Court of 22 October 2002.
Roquette Frères SA v Directeur général de la concurrence, de la consommation et de la
répression des fraudes, and Commission of the European Communities.
Reference for a preliminary ruling: Cour de cassation - France.
Competition Law - Protection against arbitrary or disproportionate intervention by public
authorities in the private activities of a legal person - Scope of the review which a competent
national court is required to carry out for the purposes of authorising coercive measures
against undertakings - Commission's duty to provide information, etc…
For the purposes of determining the scope of that principle in relation to the protection of
business premises, regard must be had to the case-law of the European Court of Human
Rights subsequent to the judgment in Hoechst. According to that case-law, first, the
protection of the home provided for in Article 8 of the ECHR may in certain circumstances
be extended to cover such premises (see judgment of 16 April 2002 in Colas Est and Others
v. Prance, No 37971/97 § 41) and, second,
the right of interference established by Article 8(2) of the ECHR 'might well be more far-
reaching where professional or business activities or premises were involved than would
otherwise be the case' (Niemietz v. Germany, § 31).

Obligations of national courts:

Although the national court with jurisdiction to authorise coercive measures must take into
account the particular context in which its jurisdiction has been invoked,
those requirements cannot prevent or absolve it from performing its obligation to ensure, in
the specific circumstances of each individual case, that the coercive measure envisaged is not
arbitrary or disproportionate to the subject-matter of the investigation ordered
(see, Eur. Court HR, Funke v. France judgment of 25 February 1993, § 55, Camenzind v.
Switzerland judgment of 16 December 1997, § 45, and in Colas Est and Others v. France, §
47).

Co-operation v. Conflict:
Orkem, 374/87, CJEU and Funke v. France, ECtHR: DIFFERENT approaches:
ECtHR- Funke v. France, No. 10828, 25/02/1993 - Violation of Article 6 § 1 of the ECHR
(fair trial) (as regards the conviction of the applicant for refusing to disclose the documents
asked for by the customs).
The customs thus attempted to compel him to provide himself the evidence of offences he
had allegedly committed – the special features of customs law could not justify such an
infringement of the right of anyone "charged with a criminal offence" to remain silent and not
to contribute to incriminating himself.

Orkem v. Commission of the European Communities, judgment of 18/10/1989, Case

374/87:
Competition - Commission's investigative powers - Rights of the defence.
In general, the laws of the Member States grant the right not to give evidence against oneself
only to a natural person charged with an offence in criminal proceedings.
A comparative analysis of national law does not therefore indicate the existence of such a
principle, common to the laws of the Member States, which may be relied upon by legal
persons in relation to infringements in the economic sphere, in particular infringements of
competition law.

Presumption of the “Equivalent protection”

Some specific cases of the ECtHR:
Case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi c. Irlande, [GC], No
45036/98, judgment of 30/06/2005.
Art. 1 § 2 of Prot. No. 1 of the Convention (Control of the use of property/Protection of
property)
Impounding of leased aircraft in pursuance of United Nations sanctions regime and EC
Council Regulation.
In May 1993 an aircraft leased by “Bosphorus Airways”, an airline charter company
registered in Turkey, from Yugoslav Airlines (“JAT”) was seized by the Irish authorities.
It had been in Ireland for maintenance by TEAM Aer Lingus, a company owned by the Irish
State.

Facts of the case:

The aircraft was seized under EC Council Regulation 990/93
which, in turn,
had implemented the United Nations (UN) sanctions regime against the Federal Republic of
Yugoslavia (Serbia and Montenegro).
when the sanctions regime against FRY (Serbia and Montenegro) had been relaxed, the Irish
authorities returned the aircraft directly to JAT.
The applicant consequently lost approximately three years of its four-year lease of the
aircraft, which was the only one ever seized under the relevant EC Council and UN
regulations.
A preliminary reference by the Supreme Court of Ireland to the ECJ on 12 February
1995:
the following question:
“Is Article 8 of [Regulation (EEC) no. 990/93] to be construed as applying to an aircraft […]”
52.  On 30 July 1996 the ECJ ruled that Regulation (EEC) no. 990/93 applied to the type of
aircraft referred to in the Supreme Court's question to it.  
The applicant company's second argument - the application of Regulation (EEC) no. 990/93
would infringe its right to peaceful enjoyment of its possessions and its freedom to pursue a
commercial activity - the CJEU stated that the provisions of this Regulation contribute in
particular to the implementation at Community level of the sanctions against the [FRY]
adopted, by several resolutions of the Security Council of the United Nations. ...
the impounding of the aircraft in question, which is owned by an undertaking based in or
operating from the [FRY], cannot be regarded as inappropriate or disproportionate.

Arguments of the European Court of Human Rights:

Basic principle - The protection of fundamental rights by European Communities (EU) law
could have been considered to be “equivalent” to that of the Convention system.
Consequently, a presumption arose that Ireland had not departed from the requirements of the
Convention when it had implemented legal obligations flowing from its membership of the
EC.
Such a presumption could be rebutted if it was considered that the protection of Convention
rights was manifestly deficient.
It could not be said that the protection of Bosphorus Airways’ Convention rights had been
manifestly deficient.
Therefore, the impoundment of the aircraft did not give rise to a violation of Art.1 of Prot.
No. 1 (Protection of property).

Principle of the „Equivalent protection“:

MAIN legal principle developed by the European Court of Human Rights as regards the level
of protection of fundamental rights in both systems:
Protection of fundamental rights by EU law equivalent to that of the Convention system,
unless the presumption to that effect was rebutted.

Another case in the ECtHR - M.S.S. v. Belgium and Greece [GC], Appl. No 30696/09,
Judgment of 21/01/2011
Article 3 (Degrading treatment)
Expulsion case:
Conditions of detention and subsistence of asylum-seeker expelled under the Dublin
Regulation (EU Law): VIOLATION.
Article 13 (Effective remedy)
Deficiencies in the asylum procedure in Greece and risk of expulsion without any serious
examination of merits of asylum application or access to effective remedy: VIOLATION.

Cooperation or conflict between the European Convention on Human Rights and the
European Union Law:
Facts of the case:
The applicant, an Afghan national, entered the European Union via Greece. In February 2009
he arrived in Belgium and applied for asylum.
In accordance with the Dublin Regulation (directly applicable, obligatory EU law), Greece
was responsible for the examination of his asylum application; the Aliens Office asked the
Greek authorities to take responsibility for the asylum application
In May 2009 the Aliens Office ordered the applicant to leave Belgium for Greece.

ECtHR - in the case of M.S.S. v. Belgium and Greece:

The Court - the Convention did not prevent the Contracting Parties from transferring
sovereign powers to an international organisation (Bosphorus case, § 152).
The States nevertheless remain responsible under the Convention for all actions and
omissions of their bodies under their domestic law or under their international legal
obligations (§ 153).
State action taken in compliance with such legal obligations is justified as long as the relevant
organisation is considered to protect fundamental rights in a manner which can be considered
at least equivalent to that for which the Convention provides.
Arguments by the ECtHR:
(a) Conditions of detention in Greece:
The difficulties caused by the increasing numbers of migrants and asylum-seekers from
States around the external borders of the European Union did not absolve the States of their
obligations in respect of Art. 3.
(b) Living conditions in Greece:
In spite of the obligations incumbent on the Greek authorities under their own legislation and
the European Union’s Reception Directive, the applicant had lived for months in the most
abject poverty, with no food and nowhere to live or to wash.
He also lived in constant fear of being attacked and robbed, with no prospect of his situation
improving.
Effective remedies in Greece:
a violation of Art. 13 taken in conjunction with Art. 3:
the deficiencies in the Greek authorities’ examination of the applicant’s asylum application
and
the risk he faced of being removed directly or indirectly back to his country of origin,
without any serious examination of the merits of his application and
without having had access to an effective remedy.
Legal question - ECHR against the obligations of the States under the EU law?

M.S.S. v. Belgium and Greece case:

The Court concludes that, under the Dublin Regulation, the Belgian authorities could have
refrained from transferring the applicant if they had considered that the receiving country,
namely Greece, was not fulfilling its obligations under the Convention.
Consequently, the Court considers that the impugned measure taken by the Belgian
authorities did not strictly fall within Belgium’s international legal obligations.
Conclusion - Accordingly, the presumption of equivalent protection does not apply in this
case.

M.S.S. v. Belgium and Greece [GC]:

The principle of „equivalent protection“ developed in the Bosphorus case was not applicable
in this case:
Such a presumption was rebutted (...);
It was considered by the ECtHR that the protection of Convention rights was manifestly
deficient when implementing the requirements of the EU law.

Follow-up case: “Milder” position of the ECthR towards the EU law/Tarakhel v.

Switzerland, no. 29217/12, 4 November 2014:
– also a Dublin transfer of a family with children by Switzerland to Italy – complaints under
Articles 3, 13 and 8 of the ECHR.
Position of the ECtHR – it would be a violation of Article 3 of the Convention if the
applicants
were to be returned to Italy without the Swiss authorities having first obtained individual
guarantees from the Italian authorities that the applicants would be taken charge of in a
manner adapted to the age of the children and
that the family would be kept together.
Conditional violation established (IF...).
Avotiņš v. Latvia [GC], No. 17502/07,
Judgment of 23 May 2016 [GC]/coming back to the «equivalent protection»:
ECtHR - Civil proceedings/Article 6-1/Fair hearing/Equality of arms
Enforcement in Latvia of judgment delivered in Cyprus in the debtor’s absence: no violation
The applicant – enforcement of the Cypriot judgment in Latvia was clearly defective
breaching his defence rights under Art. 6 § 1.
The summons to appear before the court in Cyprus had not been duly served on him in good
time, he had been unable to defend his case - consequently, the Latvian courts should have
refused to enforce the Cypriot judgment

Presumption of equivalent protection (Bosphorus presumption):

The application of the presumption of equivalent protection in the legal system of the
European Union was subject to two conditions:
1) the absence of any margin of manoeuvre on the part of the domestic authorities,
2) the deployment of the full potential of the supervisory mechanism provided for by
European Union law.

Presumption of equivalent protection (Bosphorus presumption):

With regard to the first condition - the Senate of the Supreme Court of Latvia acted within the
limits contained in a Regulation (Brussels I), which was directly applicable in the Member
States; the refusal of recognition or enforcement of a foreign judgment was very limited.
The interpretation given by the Court of Justice - this provision did not confer any discretion
on the court from which the declaration of enforceability was sought.
The Strasbourg Court - the Senate of the Latvian Supreme Court had not enjoyed any margin
of manoeuvre in this case.

Second condition - the Senate of the Supreme Court had not requested a preliminary ruling
from the CJEU.
ECtHR - this condition had to be applied without excessive formalism...
The applicant had not advanced any specific argument concerning the interpretation of the
Regulation and its compatibility with fundamental rights such as to warrant a finding that a
preliminary ruling should have been requested.

Hence, the fact that the matter had not been referred for a preliminary ruling was not a
decisive factor in the present case.
The second condition for application of the Bosphorus presumption should therefore be
considered to be satisfied.
Conclusion - the presumption of equivalent protection was applicable in the present case, as
the Senate of the Supreme Court of Latvia had done no more
than implement Latvia’s legal obligations arising out of its membership of the European
Union.

Co-operation between different International Organizations/bodies (including judicial):

Co-operation is always possible/Co-operation should prevail over conflicting jurisprudences
on the interpretation and application of the same FR;
Legal possibility – the presumption of the Equivalent protection of Fundamental Rights in
both systems – the ECHR and the EU law – should further be applied;
Another possibility – to consider and apply all international obligations of the States (under
different instruments) together; no court can function in the vacuum…

JUSTICE FOR CITIZENS AND BUSINESS: QUALITY OF JUSTICE SYSTEMS

AND THEIR ECONOMIC IMPACT
Background paper

Independence, quality, and efficiency are the essential elements of an effective justice
system. They are crucial for upholding the values upon which the EU is founded, for the
implementation of EU law, for mutual trust, and for an investment-friendly environment.
Whatever the model of the national justice system or the legal tradition in which it is
anchored, these components need to be guaranteed. For this reason, any justice reform should
comply with EU law, and European standards on rule of law and judicial independence.
The quality of justice is also particularly important for citizens' and businesses' trust in
justice systems. Although there is no single agreed way of measuring the quality of justice
systems, the EU Justice Scoreboard i - the European Commission's annual comparative tool
on national justice systems, identifies four categories of factors that can help to improve the
quality of justice:
i) Accessibility of justice for citizens and businesses (e. g. legal aid, availability of electronic
means, online access to judgments);

ii) Adequate resources (e. g. financial and human resources, training);

iii) Effective assessment tools (e. g. monitoring and evaluation of court activities, use of
surveys); and

iv) Appropriate standards (e. g. on timeframes, information to parties about their case).

Beyond these four categories of factors ("input indicators"), the assessment of the quality of
results of justice systems ("output indicators", e. g. quality of judicial decisions, level of
satisfaction of court users) is a complex and sensitive question, which has to be addressed
with care.

The Commission has been supporting projects of collecting national practices on further
improving the quality of justice systems.

Different court users have different needs and expectations as regards the quality of a justice
system. This is why it is important to look at citizens and businesses from a separate
perspective, and to further distinguish the specific needs of various groups, including
children, and visually/hearing impaired.

Adjusting the justice system to cater to the needs of different court users requires an
appropriate allocation of financial and human resources, the management of which relies
on advanced ICT monitoring and assessment tools. Appropriate training of court
professionals is essential for being able to address the specific needs of citizens and
businesses.
Besides identifying key elements of quality of justice systems, it is important to explore how
the measurement of their impact on the economy could be improved. Where justice
systems guarantee the enforcement of rights, creditors are more likely to lend, businesses are
dissuaded from opportunistic behaviour, transaction costs are reduced and innovative
businesses are more likely to invest.

The beneficial impact of well-functioning national justice systems for the economy has
already been identified in a range of literature and research. A 2017 study by the European
Commission's Joint Research Centre vi identifies correlations between the improvement of
court efficiency and the growth rate of the economy, and businesses’ perception of judicial
independence and the growth in productivity. The importance of the effectiveness of national
justice systems for small and medium-sized enterprises has been highlighted in a 2015 survey
of almost 9 000 European SMEs on innovation and intellectual property rights (IPR) vii. The
survey revealed in particular that cost and excessive length of judicial proceedings were
among the main reasons for not starting court proceedings over infringement of IPR. Other
research viii and studies include those from the World Bank ix, the OECD x, the International
Monetary Fund xi, the European Central Bank xii, and the World Economic Forum xiii.