European Union Law

Charter of Fundamental Rights

Question 1 2016 Zone A/ B

‘The Charter may never achieve in Europe the level of popular awareness enjoyed by the
Bill of Rights in the United States. But the collection in a single place of so comprehensive
a range of rights will prompt European lawyers, judges and students to read them, to
become familiar with them and to apply them.’ Discuss this assessment of the Charter of
Fundamental Rights.
Question 2 2016 Re-sit
‘It must be stressed that protection of fundamental rights in the EU has evolved in an ad
1
hoc, confusing, incremental way and that there exists no clear, conceptual underpinning
to the rights protected under EU law. Hence the importance of the Charter being able to
function as a ‘road map’ and identifier of EU rights - a function which it should be able to
perform more effectively since it became binding.’ Do you agree with this statement?
Discuss.

2015 Re-sit Question 1

‘One can foresee, based on the recent case law of the Court of Justice of the European
Union (CJEU), that the Charter of Fundamental Rights of the European Union (CFREU)
will soon become a standard of constitutional legality which both EU and national
institutions are due to respect, as well as the citizens of the EU.’ Discuss.

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Answer Guideline

 The question required an assessment of the impact of the Charter on EU law.

 The question is suggesting that Charter of Fundamental Rights will not have
popular awareness as the Bill of Rights in the United States.
History before Charter of Fundamental Rights
 Article 6(1) of TEU, as amended by Treaty of Amsterdam, identified that the union
is founded on the principles of liberty, democracy and the rule of law as well as
2 respect for human rights and fundamental freedoms, and also the principles
that are common to the member states.
 The European Court of Justice assumes the primary role of enforcing the values
above.
 Today one can refer to Charter of Fundamental Rights to find collective rights in
European Union. In order to assess whether it could gain any popularity, one may
need to trace the evolution of it to analyze the reasoning behind the enactment of
it.
 Before the arrival of Charter of Fundamental Rights, EU was relying on set of
general principles identified by the court. It should be noted that these principles
were used as just a tool of assistance for interpretation.
 The general principles identified by the courts are:
1. Proportionality
2. Equality
3. Legal certainty
4. Natural Justice
5. The Protection of Fundamental Rights
6. Subsidiarity
P v S and Cornwall County Council (1996)
This case illustrates the view of ECJ in regards to human rights before the
arrival of Charter of Fundamental Rights
An employee at an educational establishment told management that he
intended to undergo gender reassignment. He was given notice of
dismissal.
The ECJ held that the scope of the Directive was not confined to
discrimination based on the fact that a person was of one or other sex but
also extended to discrimination arising from the gender reassignment of a
person.
The Court stated:
‘Such discrimination is based, essentially if not exclusively, on the sex of the person
concerned. Where a person is dismissed on the ground that he or she intends to undergo,
or has undergone, gender reassignment, he or she is treated unfavourably by comparison
with persons of the sex to which he or she was deemed to belong before undergoing
gender reassignment. To tolerate such discrimination would be tantamount, as regards

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such a person, to a failure to respect the dignity and freedom to which he or she is entitled,
and which the court has a duty to safeguard.’
The Advocate General described the applicant as female: ‘I do so
regardless not only of her original sex (male) as it appears on her birth
certificate but also of the moment at which, as a result of the final surgical
operation, she actually changed her physical sex.’
The ECJ ruled that there had been a violation of the principle of equal
treatment in the context of working conditions, more precisely the
conditions governing dismissal
3  The Court also drew inspirations from European Convention of Human Rights as
a tool of Interpretations.
Article 6 of TEU referred expressly to ECHR:
The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union's
competences as defined in the Treaties.
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 also referred to constitutional traditions of a member state to decide on
fundamental breach of human rights.
(Case C-36/02) Omega Speilhallen
 Omega was a German company aiming at commercialization of
a UK-manufactured laser-gun game in an installation known as
Laser dome.
 The Police issued an order against Omega claiming Omega
simulated homicide, thus constituting danger to public order and
fundamental values of public opinion.
 The ECJ followed the line of argument of the Advocate General,
namely that human dignity was one of the general principles
of law recognised by the Community as in need of protection,
and that the measure taken in this context fulfilled the conditions
for justifying the service restriction.

 The EU gradually integrated human rights concern into range of its policies
including anti-discrimination law, Data Protection and Privacy.
 EU actively promote its ‘human rights and democratization’ policy in many
countries around the world, and uses human rights clauses in its international
trade and development policies.
 EU also imposed a human rights based ‘political conditionality’ on candidate
member states throughout its common foreign and security policy.
 1999 sanction mechanism for serious and persistent breaches in Article 7 of TEU
and establishment of EU Fundamental Rights Agency in 2007 were clear
examples of EU’s human rights concerns.

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Charter of Fundamental Rights

 The Charter of Fundamental Rights of the European Union was solemnly
proclaimed by Parliament, the Council and the Commission in Nice in 2000.
After being amended, it was proclaimed again in 2007.
 However, the solemn proclamation did not make the Charter legally binding.
 The adoption of the draft Constitution for Europe, signed in 2004, would have
granted it binding force. The failure of the ratification process meant that the
Charter remained a mere declaration of rights until the adoption of the Treaty
of Lisbon.
4
 On 1 December 2009, the Charter became legally binding.
 Article 6(1) of the Treaty on European Union (TEU) now provides that
‘[t]he 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’.
 The Charter, therefore, constitutes primary EU law; as such, it serves as a
parameter for examining the validity of secondary EU legislation and national
measures.
 After the arrival of Charter of Fundamental Rights, EU is empowered with a
very powerful tool to enforce human rights more than ever.
 The shift in attitude could be seen in many subsequent cases of ECJ taking
Charter as a benchmark of legality rather than a tool of assistance in
interpretation.
 Google v Spain (2014) (Case C-131/12)
In 2010 a Spanish citizen lodged a complaint against a Spanish
newspaper with the national Data Protection Agency and against
Google Spain and Google Inc.
The citizen complained that an auction notice of his repossessed home
on Google’s search results infringed his privacy rights because the
proceedings concerning him had been fully resolved for a number of
years and hence the reference to these was entirely irrelevant.
He requested
(1) First, that the newspaper be required either to remove or alter the
pages in question so that the personal data relating to him no longer
appeared;
(2) Second, that Google Spain or Google Inc. be required to remove
the personal data relating to him, so that it no longer appeared in
the search results.
In its ruling of 13 May 20141 the EU Court said:
i. On the territoriality of EU rules: Even if the physical server of a
company processing data is located outside Europe, EU rules apply
to search engine operators if they have a branch or a subsidiary in a
Member State which promotes the selling of advertising space
offered by the search engine;

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ii. On the applicability of EU data protection rules to a search engine:

Search engines are controllers of personal data. Google can
therefore not escape its responsibilities before European law when
handling personal data by saying it is a search engine. EU data
protection law applies and so does the right to be forgotten.
iii. On the “Right to be Forgotten”: Individuals have the right - under
certain conditions - to ask search engines to remove links with
personal information about them. This applies where the formation is
inaccurate, inadequate, irrelevant or excessive for the purposes of
5 the data processing
The court found that in this particular case the interference with a
person’s right to data protection could not be justified merely by the
economic interest of the search engine.
At the same time, the Court explicitly clarified that the right to be
forgotten is not absolute but will always need to be balanced against
other fundamental rights, such as the freedom of expression and of the
media (para 85 of the ruling).
A case-by-case assessment is needed considering the type of
information in question, its sensitivity for the individual’s private life and
the interest of the public in having access to that information. The role
the person requesting the deletion plays in public life might also be
relevant.
The Court in its judgement did not elevate the right to be forgotten to a
“super right” trumping other fundamental rights, such as the freedom of
expression or the freedom of the media.
On the contrary, it confirmed that the right to get your data erased is not
absolute and has clear limits. The request for erasure has to be
assessed on a case-by-case basis.
It only applies where personal data storage is no longer necessary or is
irrelevant for the original purposes of the processing for which the data
was collected. Removing irrelevant and outdated links is not tantamount
to deleting content.
The Court also clarified, that a case-by-case assessment will be needed.
Neither the right to the protection of personal data nor and the right to
freedom of expression are absolute rights.
A fair balance should be sought between the legitimate interest of
internet users and the person’s fundamental rights. Freedom of
expression carries with it responsibilities and has limits both in the online
and offline world.
This balance may depend on the nature of the information in question,
its sensitivity for the person’s private life and on the public interest in
having that information. It may also depend on the personality in
question: the right to be forgotten is certainly not about making

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prominent people less prominent or making criminals less criminal. The

case itself provides an example of this balancing exercise.

 Case C-617/10 Fransson [2013]

“the fundamental rights guaranteed in the legal order of the European Union are applicable in all
situations governed by European Union law, but not outside such situations… Since the
fundamental rights guaranteed by the Charter must therefore be complied with where national
legislation falls within the scope of European Union law, situations cannot exist which are covered
in that way by European Union law without those fundamental rights being applicable. The
applicability of European Union law entails applicability of the fundamental rights guaranteed by
the Charter.”
6  C-362/14 Maximilian Schrems v Data Protection Commissioner (2015)
A Facebook user, he stepped up against Facebook’s business practice of
transferring the personal data of its European subscribers to servers located
in the United States
Schrems complained to the Irish Data Protection Commissioner who is
responsible for overseeing Facebook’s compliance with data protection
laws within the EU as the subsidiary is established in Ireland.
The Irish Data Protection Commissioner, however, refused to investigate
the case because a July 2000 decision by the European Commission
affirmed that the US protected personal data to an adequate level
The Commission’s decision is known as the Safe Harbour Agreement.
Schrems challenged the decision of the Irish Data Protection Commissioner
before the Irish courts which referred two questions for preliminary ruling to
the Court of Justice of the EU (CJEU)
In his complaint, Schrems relies on the 2013 revelations by Edward
Snowden which brought to light the mass surveillance programmes
operated by US intelligence agencies.
In light of the scale and scope of US spy programmes, Schrems claimed
that the laws and practices of the US did not provide for a sufficient level of
protection of one’s personal data and did not meet the requirements
enshrined in Union law (i.e. the Data Protection Directive of 1995, DPD).
He alleged, in short, that the US could no longer be considered a safe
harbour for personal data of EU users of Facebook.
ECJ stated that:
 The Schrems case was rendered on 6 October 2015, in the midst of
the on-going reform of data protection legislation at the EU level.
(1) Independence of Member States Supervisory Authorities
 Firstly, the Court reinforces the independence of
Member States’ supervisory authorities.
 It points out that these are vested with the power
to check compliance with the DPD in cases where
data is transferred from the national territory to a
third country.
 As a result, a person cannot be prevented from
lodging a complaint with a national supervisory
authority concerning the protection of their rights

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and freedoms and domestic authorities must be

able to examine, in complete independence,
whether the transfer of data complies with
European standards.
(2) Measures Contrary to Commission
 The Court notes that domestic authorities cannot,
however, take measures contrary to those adopted
by the Commission.
 This is why, in a second step, the Court declares
the Commission’s decision of July 2000 invalid. It
7 interprets the notion of “adequate level of
protection” as implying that a third country
effectively guarantees an equivalent - though not
identical - level of protection of fundamental rights
and freedoms to that offered to citizens in the EU
 The Court observes that the safe harbour
principles only apply to US companies which have
subscribed to a system of self-certification.
 By contrast, US public authorities are exempt from
the scheme. What is more, the Court notes the
broad formulation of the derogations from the
principles on grounds of national security, public
interest and law enforcement.
 In case of conflict, the latter prevail over the safe
harbour agreement. Finally, the Court calls on the
Commission to regularly review its decisions and
verify whether the level of protection remains
adequate, in particular when new evidence
emerges.
Evaluation

 The Schrems judgement also further strengthens the respect for private and family
life and the right to protection of personal data as enshrined in Articles 7 and 8 of
the EU Charter of Fundamental Rights (CFR).
 The Court found that the essence of the fundamental right to respect for private
life (Art. 7 CFR) was seriously compromised by US legislation permitting public
authorities to access on a general basis the content of electronic communications.
 Due to the lack of legal remedies for EU citizens to have access to, modify or delete
personal data relating to themselves, the Court held that the right to an effective
judicial remedy as prescribed by Art. 47(1) CFR was also violated.
 The Court's clear statement regarding the disrespect of the essence of the rights
of the Safe Harbour Agreement guaranteed by the CFR is all the more remarkable
as Advocate General Bot had been more cautious in his opinion, stating that “it
could be considered that (…) the essence of the fundamental right to protection of
personal data [is compromised]” (para. 177).

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 Thus, the Schrems case can be regarded as a continuation of the Court’s recent
data protection jurisprudence, in particular, Digital Rights Ireland (regarding the
validity of the Data Retention Directive) and Google Spain (regarding “the right to
be forgotten”), both of which were decided in 2014.
 It will stimulate the debates about the appropriate level of data protection within
the EU as well as those on the differences between the EU and the US.
 Importantly, in the Schrems decision, the CJEU has demonstrated its readiness
to assert EU fundamental rights, thereby elevating the status of the CFR for the
EU legal order.
8

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EU and ECHR (Opinion 2/13)

Introduction
 The Court of Justice delivers its opinion on the draft agreement on the accession
of the European Union to the European Convention for the Protection of Human
Rights and Fundamental Freedoms and identifies problems with regard to its
compatibility with EU law.
 By an Opinion given in 1996, (Opinion 2/94) the Court had then concluded that, as
Community law stood at the time, the European Community had no competence
9 to accede to the ECHR.
 Since then, the European Parliament, the Council of the European Union and the
Commission have, in 2000, proclaimed the Charter of Fundamental Rights of the
European Union (‘the Charter’), which has been given the same legal value as the
Treaties by the Treaty of Lisbon, which entered into force on 1 December 2009.
 The Treaty of Lisbon also amended Article 6 of the EU Treaty, which now provides
(i) That fundamental rights, as guaranteed by the ECHR and as they
result from the constitutional traditions common to the Member States,
constitute general principles of EU law, and
(ii) That the EU is to accede to the ECHR
 As regards such accession, Protocol No 8 provides, however, that the accession
agreement must fulfil certain conditions so as, in particular, to make provision for
preserving the specific characteristics of the EU and EU law and to ensure
that accession of the EU does not affect its competences or the powers of
its institutions.
 In its Opinion delivered today, the Court, after noting that the problem of the lack
of any legal basis for the EU’s accession to the ECHR has been resolved by the
Treaty of Lisbon, points out that since the EU cannot be considered to be a State,
such accession must take into account the particular characteristics of the EU,
which is precisely what is required by the conditions to which accession is subject
under the Treaties themselves.
Consequences of the accession
 Having clarified this, the Court observes first of all that, as a result of accession,
the ECHR, like any other international agreement concluded by the EU, would be
binding upon the institutions of the EU and on its Member States, and would
therefore form an integral part of EU law.
 The EU and its institutions would thus be subject to the control mechanisms
provided for by the ECHR and, in particular, to the decisions and judgments of the
European Court of Human Rights (‘the ECtHR’).
 The Court notes that it is admittedly inherent in the very concept of external control
that, on the one hand, the interpretation of the ECHR provided by the ECtHR would
be binding on the EU and all its institutions and that, on the other, the interpretation
by the Court of Justice of a right recognised by the ECHR would not be binding on

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the ECtHR. However, it states that that cannot be the case as regards the
interpretation of EU law, including the Charter, provided by the Court itself.
 The Court points out in particular that, in so far as the ECHR gives the Contracting
Parties the power to lay down higher standards of protection than those
guaranteed by the ECHR, the ECHR should be coordinated with the Charter.
 Where the rights recognised by the Charter correspond to those guaranteed by the
ECHR, the power granted to Member States by the ECHR must be limited to that
which is necessary to ensure that the level of protection provided for by the Charter
and the primacy, unity and effectiveness of EU law are not compromised. The
10 Court finds that there is no provision in the draft agreement to ensure such
coordination.
 The Court considers that the approach adopted in the draft agreement, which is to
treat the EU as a State and to give it a role identical in every respect to that of any
other Contracting Party, specifically disregards the intrinsic nature of the EU
 In requiring the EU and the Member States to be considered Contracting Parties
not only in their relations with Parties which are not members of the EU but also in
their relations with each other, the ECHR would require each Member State to
check that the other Member States had observed fundamental rights, even though
EU law imposes an obligation of mutual trust between those Member States. In
those circumstances, accession is liable to upset the underlying balance of the EU
and undermine the autonomy of EU law.
Preliminary Ruling
 The Court notes that Protocol No 16 to the ECHR, signed on 2 October 2013,
permits the highest courts and tribunals of the Member States to request the
ECtHR to give advisory opinions on questions of principle relating to the
interpretation or application of the rights and freedoms guaranteed by the ECHR
or the protocols thereto.
 Given that, in the event of accession, the ECHR would form an integral part of EU
law, the mechanism established by that protocol could affect the autonomy and
effectiveness of the preliminary ruling procedure provided for by the TFEU Treaty,
notably where rights guaranteed by the Charter correspond to rights secured by
the ECHR.
 It cannot be ruled out that a request for an advisory opinion made pursuant to
Protocol No 16 by a national court or tribunal could trigger the procedure for the
‘prior involvement’ (This procedure is envisaged by the draft agreement itself and
is designed to enable the Court to be involved in cases brought before the ECtHR
in which EU law is at issue but has not yet been interpreted by the Court) of the
Court, thus creating a risk that the preliminary ruling procedure might be
circumvented.
 The Court considers that the draft agreement fails to make any provision in respect
of the relationship between those two mechanisms.

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 Next, the Court recalls that the TFEU Treaty provides that Member States
undertake not to submit a dispute concerning the interpretation or application of
the Treaties to any method of settlement other than those provided for by the
Treaties. (Article 344 TFEU). Consequently, where EU law is at issue, the Court
has exclusive jurisdiction in any dispute between the Member States and between
those Member States and the EU regarding compliance with the ECHR.
 The draft agreement still allows for the possibility that the EU or Member States
might submit an application to the ECtHR concerning an alleged violation of the
ECHR by a Member State or the EU in relation to EU law. The very existence of
11 such a possibility undermines the requirements of the FEU Treaty.
 In those circumstances, the draft agreement could be compatible with the TFEU
Treaty only if the ECtHR’s jurisdiction were expressly excluded for disputes
between Member States, or between Member States and the EU, regarding the
application of the ECHR in the context of EU law.
Co-Respondent
 The draft agreement provides that a Contracting Party is to become a co-
respondent either by accepting an invitation from the ECtHR or by decision of the
ECtHR upon the request of that Contracting Party.
 If the EU or Member States request leave to intervene as co-respondents in a case
before the ECtHR, they must prove that the conditions for their participation in the
procedure are met, with the ECtHR deciding on that request in the light of the
plausibility of the reasons given.
 In carrying out such a review, the ECtHR would be required to assess the rules of
EU law governing the division of powers between the EU and its Member States
as well as the criteria for the attribution of their acts or omissions.
 The ECtHR could adopt a final decision in that respect which would be binding
both on the Member States and on the EU. To permit the ECtHR to adopt such a
decision would risk adversely affecting the division of powers between the EU and
its Member States.
Prior Involvement
 The Court also expresses its view on the procedure for the prior involvement of the
Court. 8 It notes, first, that, to that end, the question whether the Court has already
given a ruling on the same question of law as that at issue in the proceedings
before the ECtHR can be resolved only by the competent EU institution, that
institution’s decision having to bind the ECtHR.
 To permit the ECtHR to rule on such a question would be tantamount to conferring
on it jurisdiction to interpret the caselaw of the Court.
 Consequently, that procedure should be set up in such a way as to ensure that, in
any case pending before the ECtHR, the EU is fully and systematically informed,
so that the competent institution is able to assess whether the Court has already

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given a ruling on the question at issue and, if not, to arrange for the prior
involvement procedure to be initiated.
 Secondly, the Court observes that the draft agreement excludes the possibility of
bringing a matter before the Court in order for it to rule on a question of
interpretation of secondary law by means of that procedure. Limiting the scope of
that procedure solely to questions of validity adversely affects the competences of
the EU and the powers of the Court.
Common Foreign Security Policy
12  The Court analyses the specific characteristics of EU law as regards judicial review
in matters of the common foreign and security policy (‘CFSP’). It notes that, as EU
law now stands, certain acts adopted in the context of the CFSP fall outside the
ambit of judicial review by the Court.
 That situation is inherent to the way in which the Court’s powers are structured by
the Treaties, and, as such, can only be explained by reference to EU law alone.
 Nevertheless, on the basis of accession as provided for by the draft agreement,
the ECtHR would be empowered to rule on the compatibility with the ECHR of
certain acts, actions or omissions performed in the context of the CFSP, notably
those whose legality the Court cannot, for want of jurisdiction, review in the light of
fundamental rights.
 Such a situation would effectively entrust, as regards compliance with the rights
guaranteed by the ECHR, the exclusive judicial review of those acts, actions or
omissions on the part of the EU to a non-EU body.
 Therefore, the draft agreement fails to have regard to the specific characteristics
of EU law with regard to the judicial review of acts, actions or omissions on the part
of the EU in the area of the CFSP.

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Additional Readings
Proposed Data Protection Regulation
 The 1995 Data Protection Directive (on which the Google v Spain is based on)
already includes the principle underpinning the right to be forgotten.
 A person can ask for personal data to be deleted once that data is no longer
necessary (Article 12 of the Directive). Claims that the Commission has proposed
something fundamentally new in the Data Protection Regulation are therefore
wrong.
13  They have been contradicted by the Court of Justice.

Why the proposed Data Protection Regulation is needed?

 The proposed Data Protection Regulation is about much more than the right to be
forgotten.
 It is a fundamental modernization of Europe’s data protection rules, establishing a
number of new rights for citizens of which the right to be forgotten is only one (data
portability, data breach notifications for instance), creating a single market for data
in the European Union and streamlining cooperation between the Member States’
regulators.
 In recognizing that the right to be forgotten exists, the Court of Justice established
a general principle.
 This principle needs to be updated and clarified for the digital age. The Data
Protection Regulation strengthens the principle and improves legal certainty
(Article 17 of the proposed Regulation):
(1) The right to be forgotten would be an empty shell if EU data protection rules
were not to apply to non-European companies and to search engines. The
proposed data protection Regulation, for the first time, leaves no legal doubt
that no matter where the physical server of a company processing data is

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located, non-European companies, when offering services to European

consumers, must apply European rules
(2) To make the right to be forgotten more effective for individuals, the Commission
has proposed reversing the burden of proof: it is for the company – and not the
individual – to prove that the data cannot be deleted because it is still needed
or is still relevant.
(3) The proposed Data Protection Regulation creates an obligation for a controller
who has made the personal data public to take ‘reasonable steps’ to inform
third parties of the fact the individual wants the data to be deleted. The
14 European Parliament went even further by including, in its compromise text, an
obligation for the controller to ensure an erasure of these data. It also adds that
individuals have the right to erasure where a court or regulatory authority based
in the Union has ruled as final and absolute that the data concerned must be
erased.
(4) The proposed Data Protection Regulation allows data protection authorities to
impose fines of up to 2% of annual worldwide turnover where companies do
not respect the rights of citizens, such as the right to be forgotten.
(5) The proposed Data Protection Regulation is also specific as to the reasons of
public interest that would justify keeping data online – the limitations of the right
to be forgotten. These include the exercise of the right of freedom of
expression, the interests of public health as well as cases in which data is
processed for historical, statistical and scientific purposes.

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15

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Question 2 2015 Zone B

‘As for its human rights case-law, the Court is only using the Charter as an instrument to
enforce the economic freedoms, subordinating such rights to the demands of market
integration.’
Question 3 2015 Zone A
‘The attraction of an EU law scheme of protection of human rights risks sacrificing the
national, legal, historical, and cultural traditions that characterise the pluralistic nature of
Europe. The Court of Justice of the European Union (CJEU) should reflect very seriously
16
on how to use the Charter of Fundamental Rights.’

Answer Guideline
 The questions trying to criticize Charter of Fundamental Rights citing it is only
protecting economic freedoms and it risks sacrificing national, legal, historical
and cultural traditions.
 It is humbly submitted that the above view might be inaccurate.

Gist of Answer
 The best case illustrates the current attitude or protection of Charter of
Fundamental Right is the Case of Kadi.
 Cases C-4022 and 415/05 P Yassin Abdullah Kadi and Al Barakaat International
Foundation v Council and Commission (2008) (Kadi I)
Mr Kadi, a Saudi resident with assets in Sweden, and Al Barakaat, a
charity for Somali refugees, claimed that his assets being frozen was
unlawful.
Their property was seized without any court hearing or right of redress or
allegation of wrongdoing.
The UN Security Council adopted resolutions under Chapter VII to freeze
assets of people and groups associated with the Taliban and Osama Bin
Laden.
Mr Kadi, a Saudi resident, and the Al Barakaat International Foundation,
established in Sweden – both of which appear in the list annexed to the
abovementioned regulation – brought actions for annulment before the
Court of First Instance, claiming that the Council was not competent to
adopt that regulation and that the regulation breached several of their
fundamental rights, in particular the right to property and the rights of the
defence.
General Court
 The General Court held that the Regulation was valid.

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 It held that Security Council resolution was binding on all UN members (UN
and prevailed over all treaties. It had to be carried out even if it conflicted with
the EU Treaties
 There was, also, no infringement of a jus cogens norm by the Resolution.
Advocate General
 In the Opinion of Advocate General Maduro, EU law did not need to
unconditionally bow to international law, if the consequence could be
a violation of basic constitutional principles.
 AG stated that it would be wrong to conclude that, once the
Community is bound by a rule of international law, the Community
17
Courts must bow to that rule with complete acquiescence and apply
it unconditionally in the Community legal order.
 He stated that the fact that the measures at issue are intended to
suppress international terrorism should not inhibit the Court from
fulfilling its duty to preserve the rule of law. In doing so, rather than
trespassing into the domain of politics, the Court is reaffirming the
limits that the law imposes on certain political decisions.
 Especially in matters of public security, the political process is liable
to become overly responsive to immediate popular concerns, leading
the authorities to allay the anxieties of the many at the expense of
the rights of a few. This is precisely when courts ought to get
involved, in order to ensure that the political necessities of today
do not become the legal realities of tomorrow. Their responsibility
is to guarantee that what may be politically expedient at a particular
moment also complies with the rule of law without which, in the long
run, no democratic society can truly prosper.
 In the words of Aharon Barak, the former President on the Supreme
Court of Israel:
‘It is when the cannons roar that we especially need the laws … Every struggle of
the state – against terrorism or any other enemy – is conducted according to rules
and law. There is always law which the state must comply with. There are no "black
holes". … The reason at the foundation of this approach is not only the pragmatic
consequence of the political and normative reality. Its roots lie much deeper. It is
an expression of the difference between a democratic state fighting for its life and
the fighting of terrorists rising up against it. The state fights in the name of the law
and in the name of upholding the law. The terrorists fight against the law, while
violating it. The war against terrorism is also law's war against those who rise up
against it.
(The Public Committee Against Torture in Israel et. al. v. The Government of Israel
et. Al)(HCJ 769/02 [2006])
Court of Justice of European Union:
 The Court of Justice held the resolution was invalid in EU law.
 The court had no jurisdiction to review the legality of Security Council
Resolutions, but it could review EU regulations. The regulation was
adopted to give effect to Member State obligations.

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 European Union Law
Charter of Fundamental Rights

 Although under international law Security Council Resolutions

prevail, under EU law the hierarchy of norms differs.
 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission, Council,
United Kingdom v Yassin Abdullah Kadi (Kadi II) (2013)
Following Kadi (I), the Court annulled the regulation whereby Mr Kadi’s
name had been added to the list of persons associated with Usama bin
Laden, since that regulation infringed a number of fundamental rights
which Mr Kadi enjoyed under European Union law (rights of the defence,
right to effective judicial protection)
18 None of the evidence relied on against Mr Kadi had been disclosed to him,
not even the reasons for his being named on that list.
Following that judgment, the European Commission disclosed to Mr Kadi
the summary of reasons for his being listed
After obtaining Mr. Kadi’s comments on those reasons, the Commission
decided, by means of a further regulation, to maintain his name on the
European Union list relating to persons subject to restrictive measures.
Interpreting the Court’s Kadi judgment, the General Court annulled the
Commission’s further regulation, holding that it was its task to ensure full
and rigorous judicial review of the lawfulness of that measure, extending to
the information and evidence substantiating the reasons underpinning the
measure.
Since that information and evidence had not been disclosed, and since the
indications contained in the summary of reasons provided by the Sanctions
Committee appeared, in general, to be too vague, the General Court
concluded that Mr Kadi’s rights of defence and his right to effective judicial
protection had been infringed.
The Commission, the Council and the United Kingdom challenged that
judgment by bringing these appeals
Court of Justice of European Union:
 In listing of the name of an individual on the list of persons suspected
of being associated with terrorism, the competent European Union
authority must disclose to the individual concerned the evidence
underpinning its decision.
 that authority must ensure that that individual is placed in a position
in which he may effectively make known his views on the grounds
relied on against him and must examine, in the light of comments
made by the individual concerned, whether those reasons are well
founded
 It is the task of that authority to establish, in the event of challenge,
that the reasons relied on against the person concerned are well
founded, and not the task of that person to adduce evidence of the
negative, that those reasons are not well founded

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 European Union Law
Charter of Fundamental Rights

 it is nonetheless the task of the Courts of the European Union, before

whom the secrecy or confidentiality of that information or evidence is
no valid objection, to determine, when examining all the matters of
fact or law produced by the competent Union authority, whether the
reasons relied on by that authority as grounds to preclude that
disclosure are well founded.
 it is for the Courts of the European Union to assess whether and to
what the extent the failure to disclose confidential information or
evidence to the person concerned and his consequential inability to
19 submit his observations on them are such as to affect the probative
value of the confidential evidence
 In the present case, the majority of the reasons relied on against Mr
Kadi are sufficiently detailed and specific to allow effective exercise
of the rights of the defence and judicial review of the lawfulness of
the contested measure.
 On the other hand, the Court holds that, since no information or
evidence has been produced to substantiate the allegations, roundly
refuted by Mr Kadi, of his being involved in activities linked to
international terrorism, those allegations are not such as to justify the
adoption, at European Union level, of restrictive measures against
him.
 Consequently, the Court considers that, notwithstanding errors of
law committed by the General Court in the interpretation of the rights
of the defence and the right to judicial protection, the Commission’s
further regulation must be annulled.
 The case of Kadi clearly showing the attitude of the court in protecting the rights of
a citizen against the harshness of the decision of United Nation. This clearly shows
that the court has moved on from merely enforcing economic rights to
enforcing human rights.
 C-236/09 Test-Achats (2011)
Directive 2004/113/EC implements the principle of equal treatment between
men and women in the access to and supply of goods and services.
As regards the insurance sector, the Directive, in principle, imposes
"unisex" premiums and benefits for contracts concluded after 21 December
2007
However, it provides for an exception to this principle in Article 5(2), with the
possibility for Member States to permit differences in treatment between
women and men after this date, based on actuarial data and reliable
statistics which are updated regularly and available to the public
Five years after the transposition of the Directive – i.e. on 21 December
2012 – Member States are to review the justification for these derogations
in the light of a Commission report.

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 European Union Law
Charter of Fundamental Rights

However, the Directive does not provide for any time limit for the application
of these derogations.
The Association belge des Consommateurs Test-Achats ASBL and Mr van
Vugt and Mr Basselier had considered that the Belgian Law of 21 December
2007, implementing the derogation offered by Article 5(2) of Directive
2004/113/EC, to be contrary to the principle of equality between men and
women.
Court of Justice of European Union:
 In its judgment, the Court of Justice first points out that the validity of
20 Article 5(2) of that Directive must be assessed in the light of Articles
21 and 23 of the Charter of Fundamental Rights of the EU, to which
Directive 2004/113/EC explicitly refers.
 These Articles prohibit any discrimination on grounds of sex and
require equality between men and women to be ensured in all areas.
 The Court also refers, inter alia, to Article 19(1) TFEU which gives
competence to the Council to take appropriate action to combat
discrimination based on sex, the second subparagraph of Article 3(3)
TEU which provides that the Union is to promote equality between
men and women and Article 8 TFEU, under which, in all its activities,
the Union is to aim to eliminate inequalities, and to promote equality,
between men and women.
 The Court dismisses the arguments that the derogation introduced
by Article 5(2) does not conflict with the principle of equality between
men and women as men and women are in objectively different
situations with regard to premiums and benefits in view of the insured
risk.
 The Court nevertheless stresses that Article 5(2) of Directive
2004/113/EC creates the risk that the derogation from the equal
treatment between men and women persists indefinitely, which is
contrary to the achievement of the objective pursued by the Directive.
 Accordingly, the Court rules that derogation from the principle of
equal treatment between men and women in the field of insurance,
provided for by this provision, is unlawful in so far as this derogation
is not subject to a time limit.
 Google v Spain (Right to be forgotten)
Refer to earlier discussions
 Judgment in Case C-81/12 Asociaţia Accept v Consiliul Naţional pentru
Combaterea Discriminārii (2013)
The directive on equal treatment in employment and occupation (Directive
2000/78) lays down a general framework for combating discrimination on
the grounds of religion or belief, disability, age or sexual orientation as
regards employment and occupation.

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 European Union Law
Charter of Fundamental Rights

On 3 March 2010, Accept, a non-governmental organisation whose aim is

to promote and protect lesbian, gay, bisexual and transsexual rights in
Romania, lodged a complaint before the National Council for Combatting
Discrimination (CNCD) against SC Fotbal Club Steaua București SA (‘FC
Steaua’) and Mr Becali, who presents himself as being the ‘patron’ of that
club.
In an interview concerning the possible transfer of a professional footballer,
Mr Becali had stated essentially that he would never hire a homosexual
player. As regards the other defendant before the CNCD, FC Steaua,
21 Accept maintains that the club has at no time distanced itself from Mr
Becali’s statements.
The CNCD held, in particular, that since Mr Becali’s statements could not
be regarded as emanating from an employer or a person responsible for
recruitment, those circumstances did not fall within the sphere of
employment.
However, the CNCD took the view that those statements constituted
discrimination in the form of harassment and gave Mr Becali a warning.
That penalty was the only one then possible under Romanian law, since the
CNCD’s decision had been given more than six months after the date on
which the facts complained of occurred. Accept brought an action against
that decision before the Curtea de Apel București (Court of Appeal,
Bucharest, Romania), which referred questions for a preliminary ruling to
the Court of Justice on the interpretation of the directive.
Court of Justice of European Union:
 As regards the position of FC Steaua in the case in the main
proceedings, the Court points out that the mere fact that statements
such as Mr Becali’s do not come directly from a given defendant is
not necessarily a bar to establishing, with respect to that defendant,
the existence of ‘facts from which it may be presumed that there has
been … discrimination’ within the meaning of the directive
 Consequently, a defendant employer cannot deny the existence
of facts from which it may be presumed that it has a
discriminatory recruitment policy by asserting that the
statements indicative of a homophobic recruitment policy come
from a person who, while claiming to play an important role in
the management of that employer and appearing to do so, is not
legally capable of binding it in recruitment matters.
 Case C-399/11 Melloni (2013)
Melloni was convicted in Italy for bankruptcy fraud, where he was tried in
absentia (without his presence) and sentenced to 10 years in prison
Many years later, he was apprehended by Spanish authorities, who sought
to extradite Melloni to Italy, where he would be required to serve his
sentence.

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 European Union Law
Charter of Fundamental Rights

The European Arrest Warrant is a uniform system of extradition between

Member States of convicted persons or suspects for the purpose of
enforcing judgments or of conducting prosecutions.
Melloni argued in front of the Spanish Constitutional Court that his right to
a fair trial (in Italy) had been violated.
The issue the Court has to deal with here is whether the Spanish
Constitutional Court should comply with EU law and extradite Melloni,
violating its own national constitution in the process; or could the national
constitution’s integrity be upheld?
The Court held that Melloni should be extradited in compliance with EU law.
22 The Court stated that:
 The Charter of Fundamental Rights of the European Union did not
oppose trial in absentia.
 The concept of a trial in absentia had been previously permitted by
the European Court of Human Rights.
 EU law is supreme over both national law and national constitutions
The Spanish Constitutional Court changed the Spanish Constitution
 Advocate General Bot, in his opinion on this case, suggested that the
Court of Justice’s attitude towards fundamental rights is based on an
‘EU way of life’
 Case C-617/10 Fransson [2013]
Fransson, a Swedish Fisherman, was fined for tax avoidance in 2007
2 years later, in 2009, criminal proceedings were started against him based
on the same tax avoidance
Fransson claimed that this was in violation of Art 50 of the Charter of
Fundamental Rights of the European Union, which provides that someone
should not be punished twice by criminal law (the principle of ne bis in
idem).
CFREU article 50 says that nobody shall be tried or punished twice for a
criminal conviction (ne bis in idem, not the same thing
twice). ECHR Protocol 7, article 4 contains the same.
Court of Justice of European Union:
 Article 51(1) of the Charter of Fundamental Rights of the European
Union is to be interpreted as granting jurisdiction to the Charter
whenever a situation is governed by EU law (much wider than
“interpreting” in the Article itself)
 The first punishment, the fine, was merely an administrative penalty,
and not a criminal penalty
 A criminal penalty can be judged based on the national classification
of the offence, the nature of the offence and the severity of its penalty
 Deutsches Weintor eG v Land Rheinland-Pfalz (2012) C-544/10
The Rheinland-Pfalz food regulator claimed that a wine cooperative should
not describe its wine as ‘easily digestible’ (‘bekömmlich’), accompanied by
a reference to the wine's reduced acidity level, because that was a ‘health
claim’ under Regulation No 1924/2006 art 2(2)(5), and should therefore not
be allowed generally for alcoholic beverages.

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 European Union Law
Charter of Fundamental Rights

Deutsches Weintor argued they were making a claim of general well-being,

not health.
The Bundesverwaltungsgericht (Federal Administrative Court) referred to
the CJEU, suggesting that ‘easily digestible’ was not a health claim, but a
comparative claim about the effect of the wine compared to others, and
asked what the status might be regarding CFREU articles 15 and 16
(freedom to choose an occupation and run a business).
Court of Justice of European Union:
 The protection of health, it must be pointed out that in view of the
risks of addiction and abuse as well as the complex harmful effects
23 known to be linked to the consumption of alcohol, in particular the
development of serious diseases, alcoholic beverages represent a
special category of foods that is subject to particularly strict
regulation.
 The claim highlights a certain quality that facilitates digestion, but is
silent as to the fact that, regardless of a sound digestion, the dangers
inherent in the consumption of alcoholic beverages are not in any
way removed, or even limited.
 Thus, the European Union legislature was fully entitled to take the
view that claims such as that at issue in the main proceedings are
ambiguous or even misleading where they relate to an alcoholic
beverage
 By highlighting only the easy digestion of the wine concerned, the
claim at issue is likely to encourage its consumption and, ultimately,
to increase the risks for consumers’ health inherent in the
immoderate consumption of any alcoholic beverage.
 Consequently, the prohibition of such claims is warranted in the light
of the requirement to ensure a high level of health protection for
consumers.
 he freedom to choose an occupation and the freedom to conduct a
business, it must be borne in mind that, according to the case-law of
the Court, the freedom to pursue a trade or profession, like the right
to property, is not an absolute right but must be considered in relation
to its social function
 Consequently, restrictions may be imposed on the exercise of those
freedoms, provided that those restrictions in fact correspond to
objectives of general interest pursued by the European Union and do
not constitute, with regard to the aim pursued, a disproportionate and
intolerable interference, impairing the very substance of those rights
 C-438/05, International Transport Workers‘ Federation, Finnish Seamen‘s
Union, v. Viking Line ABP (2007)
Please refer to earlier outlines
 Case C-112/00 Schmidberger v Austria [2003]
Please refer to earlier outlines

Sharavanaa Mahendran