General Principles / Fundamental Protection Protection

EEC, Common Market no Fundamental Rights Protection

• original treaties contained no protection for fundamental rights

• EEC focused on the creation of a common market

• General principles include
  - relationship between EU and domestic law (supremacy, direct effect, state liability)
  - Define and limit EU competences (conferral, subsidiarity, proportionality)
  - Administration of justice (proportionality, legal certainty, non-discrimination)

Fundamental Rights form parts of general principles cases

International Handelgellschaft

Solange I

Nold

Rutili

Stauder

Haeur

Stauder 69

fundamental rights are enshrined in the general principles of EU law and are protected by the court

International Handelsgellschaft

fundamental rights (arising from tradition common to all MS) form an integral part of the general principles of EU law and prevail over MS constitutions

Solange I

German constitutional court did not accept absolute primacy of EU law ‘as long as as’ it does not protect fundamental rights

• prompted change from the CJEU

Nold

In safeguarding the rights, the court is bound to draw inspiration from constitutional traditions common to the MS

international treaties can supply guidelines which should be followed within the framework of community law

Rutili

ECJ referred to the ECHR

effective HR protection mechanism in Europe

Haeur

considered right to property

so that measures which are incompatible with the fundamental rights recognized by the constitutions of those states are unacceptable in the EU

Constitutional traditions become common to the MS + ECHR

Article 6 (3) TEU

Solange II

Google Spain case

Solange II

So long as the EU protects fundamental rights, the German constitutional courts will accept the supremacy of EU law, even over constitutional rights

Google Spain

right to be forgotten

was protected by the CJEU

The EU Charter of Fundamental Rights

ratified on the 7th December 2000

Article 6 (1) TEU gives the charter the same legal value as the treaties

6 groups of contents

• dignity

• equality

• citizens rights

• freedoms

• solidarity

• justice

Fundamental rights assessment

look to article 52 of the charter of fundamental rights

Accession to the ECHR

Article 6 (2) TEU, + treaty of Maaschricht obligation to accede to the ECHR

Opinion 2/13

Schmidburger v Austria

Opinion 2/13 on accession to the ECHR

when implementing EU law, the member states may not check whether that other MS has actually (in a specific case), observed the fundamental rights guaranteed by the EU

Schmidburger v Austria (pre Lisbon)

MS breach of free movement of goods can be justified if MS needs to ensure the protection of fundamental rights

Other general principles of the EU

Article 19 TEU + Article 263(2) TFEU + Article 340(2) TFEU = justification for recourse to general principles

Proportionality

Legal Certainty

Equality

Proportionality

Codified in Article 5(4) TEU

Legal Certainty

laws must be clear and predictable

obligations imposed on individuals must be clear and understandable

Retroactivity

Retroactivity

True retroactivity

1. Rule of interpretation that, in the absence of a clear provision, legislation is not presumed to be retroactive - societe pour l’exportation

2. True retroactivity is generally prohibited, unless the purpose of the measure could not otherwise be achieved and the legitimate expectation of those affected by the measure is respected - Amylum

Equality

Article 18 TFEU

Article 157 TFEU

Article 20 Charter of FR

Article 21 Charter of FR

Principle of non-discrimination

Directive 2000/43, irrespective of racial or ethnic origin

Directive 2000/78 in employment & occupation - Mangold - age

Directive 2006/54 of men and women in matters of employment and occupation

Sabbatini - gender

Coman - sexual orientation