The Charter for the Protection of Fundamental Rights in the EU (CFREU): Its Role; and the Concern about an “Over-constitutionalization” of EU law - Lecture 7 - EU law

What is the historical background behind the European legal orders (Council of Europe’s ECHR and EU’s CJEU and EU law)? Focus on the EU

1. ECHR was founded as a human rights organisation, promotion of democracy and prevention of states collapsing into totalitarianism

2. WHILST the EU focused on establishing the common market as a ‘vehicle for broader social and political ends’. The founding treaties of the EU are silent on fundamental rights

3. Both European legal systems were a response to WW2 and the Holocaust

What are the arguments that Sir Francis Jacobs states in relation to case law intergrating fundamental rights into EU law?

• The Court of Justice has often filled gaps in the treaty by resort to general principles of law

• general principle of law invoked and applied by the Court of Justice is the principle of respect for fundamental rights […] There was no statement of fundamental rights in the original treaty but the Court of Justice developed a substantial body of case law on fundamental rights on the basis of general principles of law, referring in particular to the constitutional principles and traditions of the Member States

• Art. 6 (1) TEU incorporates the Charter of Fundamental Rights of the European Union … and gives it the same legal value as the treaties.

What are some examples of EU law statutes which demonstrate the incorporation of fundamental rights?

• Article 2 TEU - underpins that the EU was founded on values of respect for human dignity, freedom, democracy, equality, the rule of law, respect for human rights

• Article 4 TEU - acknowledges the equality of member states as well as their national identites, respect for state functions

• Article 6 TEU - ECHR has the same legal value as the treaties

In what 2 ways do Article 2 TEU and Article 4 TEU come into conflict with one another? And why is that?

• Article 2 TEU points in a constitutional law, Article 4 TEU addresses the EU as an international organisation due to respect for state functions and constitutions.

• Article 2 TEU outlines values, but what if the values conflict directly with the national identity and beliefs of the member states as outlined in Article 4 TEU?

Why is there a mention of ‘no extended competencies of the union’ in Article 6 TEU?

Article 6 TEU outlines that the ECHR has the same legal value as the treaties.

The reason why there is an emphasis on ‘no extended competences’ (such as the ECHR being a scope of competencies of the EU) is because it acknowledges the member states anxiety of reduced sovereignty and threat to the intergrity of constitutional law in competition of constitutionalised EU law.

What are other two reasons that fundamental rights in EU law come from?

• The charter reflects constitutional laws common to the member states and

• It draws broad nominative standards, rights which are universally shared by all the EU member states and it is an effort to legitimise EU law.

What does the CFREU preamble tell us about the ambitions of the EU, and how does this relate to fundamental rights? (4 central points on the development of goals)

• There is an emphasis of the creation of an ‘ever closer union’ - draws about the original mission behind the EU

• EU is not only inter-state but an entity which puts individuals at the centre of activities

• It focuses on diversity and tradition of member states and acknowledges the sovereignty and individual identities of member states

• The common market/free movement of goods, service and capital remains central to the EU, but it NOW has a wider expansion in the role of transitioning from a common market into a wider entity that expands beyond inter-state functions

What does Article 1 CFREU outline? What is the intention behind this formation? And how has the definition of ‘dignity’ expanded to encompass?

Article 1 outlines that ‘Human dignity is inviolable. It must be respected and protected.’

The article in CFREU is a component of dignitarian constitutionalism, which reflects the member states constitutions similar to Germany's constitution - human rights documents which emerged in WW2.

‘Dignity’ has expanded to consist of material needs of human beings and to the ideal of distributive justice.

German Federal Constitutional Court 2019 Case on ‘dignity’ (article 1 CFREU), how is it defined, and how is it emphasised as a fundamental right within the EU (and reinforced by member states)?

Human dignity is not subject to the condition that persons must be able to independently support themselves; rather

• creating the conditions for leading an independent life is part of the state’s mandate of protection following from Art. 1(1),

Zubair Haqbin v. Federaal Agentschap voor deopvang van asielzoekers on ‘dignity’ (article 1 CFREU), how is it defined, and emphasised as a fundamental right within the EU (and reinforced by member states)?

“respect for human dignity […] requires that the person concerned not finding themselves […] put in a state of degradation incompatible with human dignity”

Bundesamt für Fremdenwesen und Asyl and Others (Afghan Women) on ‘dignity’ (article 1 CFREU), what is the context, issue and outcome? How is it emphasised as a fundamental right within the EU (and reinforced by member states)?

Context → This case concerned two Afghan women who had been living in Austria for more than five years. They had been granted subsidiary protection because “they would face economic and social difficulties” if returned to Afghanistan, but had been refused refugee status on the grounds that “they had not adopted a ‘Western’ lifestyle that had become such an essential part of their identity that it was impossible for them to renounce it in order to escape the threat of persecution in their country of origin”.

Issue → The question here was in order to be recognised as a refugee, must you adopt a western lifestyle?

Outcome → The court concluded that 'no', the women must not have to prove they have a western lifestyle and there is no way of indicating this and the fact that these women would face difficulties in Afghanistan is enough to fulfill the requirements to obtain refugee status, the persecution was sufficiently serious by its nature.

How is it emphasised as a fundamental right? → There is a posiitve obligation imposed by the Austrian government to provide the women with refugee status as per the persecution and lack of human dignity they are likely to experience in Afghanistan. Any acts to not acknowledge their refugee status would be to deny them human dignity, which is a fundamental right.

What is known as ‘constitutional pluralism’ (or ‘multilevel constitutionalism’) and how does it apply to the EU? How does this vary to classical versus modern day understanding of ‘constitutionalism’? And what levels can ‘constitutionalism’ exist?

Classical understanding → It was assumed that constitutionalism implies the nation state. Within international law, on the classical understanding, was seen as merely “inter-state” but never having a “constitutional” dimension.

Modern-day understanding → We are faced with a plurality of legal orders, intersecting with one another, and each laying claim to its own framework of “constitutionalism”. In the EU, there’s national legal orders of each of the Member States. Non-state entities such as the EU can also have a constitutional element, besides the typical perception that it implied simply nations.

• Now, we have ‘constitutionalism’ at the national, supranational and international level (such as the ECtHR utilising language of ‘constitutional instrument’, similar to the CJEU with the CFREU)

How has the CJEU contributed to this modern-day understanding of the EU’s ‘constitutional pluralism’ (or ‘multilevel constitutionalism’)? And in what case law did the CJEU emphasise this shifting view of ‘constitutionalism’?

The CJEU has repeatedly insisted that the the EU “possesses a constitutional framework that is unique to it.”

The CJEU has often interpreted the treaty in the manner of a constitution rather than a treaty of the traditional kind as per Parti Écologiste ‘Les Verts’ v European Parliament.

What do Kokott and Sobotta observe in regards to the modern-day concepts ‘constitutionalism’, and what criticisms do they raise about this?

Kokott and Sobotta name the modern-day construction of ‘constitutionalism’ as ‘multilevel systems'.’

They criticise it, by saying -

“it is possible that the level of protection of fundamental rights guaranteed by a higher level does not attain the level of protection the lower level has developed and considers indispensable. Refusing to accept the primacy of the higher level can be a proper means of responding to this deficiency.”

Stauder v Stadt Ulm on the supremacy of EU law and its interaction with member states constitutional orders, what is the context, issue and outcome?

Context → This is regarding allowing certain categories of consumers to buy butter at a reduced price and authorizes Member States to make butter available at a reduced price to certain categories of consumers who are beneficiaries under a social welfare scheme and whose income does not enable them to buy butter at normal prices.

Issue →

• Can the fact that the Decision of the Commission of the European Communities of 12 February 1969 make the sale of butter at a reduced price to beneficiaries under certain welfare schemes dependent on revealing the name of the beneficiary to the sellers be considered compatible with the general principles of Community law in force?

• Concerns regarding the supremacy of EU law and why or under what conditions are domestic legal orders willing to accept the supremacy of EU law?

Outcome →

• When a single decision is addressed to all the Member States the necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider one version of the text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim he seeks to achieve

• The most liberal interpretation must prevail, provided that it is sufficient to achieve the objectives pursued by the decision in question […] (no intention to) impose stricter obligations in some Member States than in others.

• Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.

Nord v Commission on the supremacy of EU law and its interaction with member states constitutional orders, what is the issue and outcome?

Issue → In order to establish whether an undertaking can be found to have infringed Article 85(1) of the Treaty, the only relevant questions are whether it participated with other undertakings in an agreement having the object or effect of restricting competition and whether that agreement was liable to affect trade between Member States.

Outcome →

• In safeguarding these rights, the Court is bound to draw inspiration from the constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those states.

• International treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law.

  • We can see the derivative nature of how these fundamental rights are drawn up from international bodies creations (such as ECtHR, UN charter and national constitiutional set ups on fundamental rights) - reaffirms the uniform nature of EU law in terms of aligning itself with national courts and member states agreements

Internationale Handelsgesellschaft mbH on the supremacy of EU law and its interaction with member states constitutional orders, what is the outcome and reasonings behind this decision?

“Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law”

• If we can challenge EU acts by utilising national recourse, the EU law would no longer exist and national law would superceed and dominate over EU law, hence it would impact the uniformity and effiacy.

• We cannot judge the validity of EU law against the standard of national law, as it would have an adverse effect and counteract the EU law. Otherwise the supremacy of EU law would be lost.

• Court argued that fundamental rights is protected by the ECJ in the charter, responding to the concerns of domestic constitutional courts and ECJ by emphasising that they don't only observe the law but general principles of law, such as protecting fundamental rights should be protected within the framework of the charter and EU law.

• The ECJ tried to diffuse tension with constitutional national courts, even if they have supremacy of EU law, they are bound by fundamental rights even if they aren't written in the treaties at the time, they are bound to observe those fundamental rights - that is their pledge and promise to domestic legal orders in accepting the supremacy of EU law

Solange I on the supremacy of EU law and its interaction with member states constitutional orders, what is the issue, outcome and concerns of the CJEU in response to Solange I?

Issue → There were concerns about the status of EU law when it came into conflict with provisions of national law, especially those provisions concerning fundamental rights protection. There were concerns regarding competences given from member states to these inter-state entites such as EU.

• Concerns that the EU’s CFREU and protection of fundamental rights alter the German constutional framework, and goes beyond the transfer of sovereign rights to inter-state institutions (like the EU) that the German constitution gave them

Outcome → As long as there is a deficiency in terms of fundamental rights protection at EU law level, we will not recognise the supremacy of EU law, but we retain the competence to review EU law against domestic law.

• “in the hypothetical case of a conflict between Community law and […] guarantee of fundamental rights in the Constitution prevails as long as the competent organs of the Community have not removed the conflict of norms in accordance with the Treaty mechanism.”

Concerns by CJEU →

• adverse effect on the uniformity and efficacy of Community law, especially in adherence to fundamental rights

Solange II on the supremacy of EU law and its interaction with member states constitutional orders, what is the impact and outcome? (compare to Solange I)

(continuation from Solange I)

Impact → This case reserved the Solange I doctrine, concluding that the EU law jurisprudence is satisfactory in fundamental rights protection irrespective of deficities.

Outcome → The ECJ ruled that no EU measures could be contested employing national legal rules or concepts, even if such contestation was premised on potential infringement of constitutional rights. The German courts followed suit, stipulating that they would desist from reviewing the legality of EU measures so long as the EU guaranteed protection at least equivalent to the one accorded by the German Constitution.

• There is a shift in language from Solange I, so long as the case law and content of ECJ ensure a protection of fundamental rights, the domestic court will no longer review the EU law in light of domestic law - there is reversial in the Solange I approach. Hence, we can say AS LONG AS you continue to approach the problem of fundamental rights with the correct attitude and provide a similar/equivalent standard of our domestic standards in fundamental rights portection, the domestic law will refrain from reviewing EU law according to the domestic standard.

• There must be conditions of legitimate primacy, as long as the ECJ approaches fundamental rights correctly and ensures the presence of it within the EU, domestic courts will defer to them and not assert their own compotence to review EU law

Why does EU law require supremacy - and how does this conflict with member states legal orders? And how to address these tensions between the ECJ/EU and member states?

EU law must have supremacy to ensure the common law market and ensure fundamental rights conformity of EU law, this is necessary to have the common market and the EU is an international organisation in regards to member states being the masters of the treaties.

How to address conflict? -

• cooperation in accordance to mutual considerations, only through a cooperative stance can we ease the tension, but we cannot definitively say which side has the final say.

Conflicts -

• Who has the final say, is uncertain as to whether it is the domestic constitutional courts or ECJ?

• Domestic and EU law dynamics don't harmonise, since member states are the masters of the treaties and the EU is a judge of its own cause and competences

• BVG (German constitutional court) in Solange II outlined that the CJEU has a ‘right to tolerance of air’, which is patronising and acknowledgment that the member states domestic courts know what is an 'error' or 'unlawful' in comparison to the ECJ, hence we see the continued tension between who has the final say in interpretation and rulings - whether it is the ECJ or domestic national courts?

Kadi II on the supremacy of EU law and its interaction with member states constitutional orders in relation to fundamental rights, what is the context, issue and outcome? And the consequent appeal outcome?

Context → Kadi was a Saudi businessman, he was suspected as supporting Osama Bin Laden by America. Kadi argued that this was incorrect, these allegations were false and he had realised his bank accounts were frozen, due to the US freezing his assess and nominated him to the UN security council and there were no reason given to him, nor any review mechanism. This was binding on him due to the UN security Council.

Issue → Whether (and under what conditions) a United Nations Security Council resolution should enjoy primacy over EU law?

Outcome → In the end, the CJEU’s Grand Chamber did not allow for this primacy but also signaled that it might in the future be willing to change its position, if sufficient safeguards for human rights and the rule of law were established at the (higher) level of UN Security Council measures.

• They would only be competence, utilising international rules of jus cogens (norms which are fundamental that you would violate your judicial oath if you don't observe the norms, such as provision of torture - there is a small number of provisions/principles which are deemed so fundamental), but the general court said it wasn't the case in the Kadi case which arent jus cogens.

• Solange Principle was struck when considering relationship between international and domestic law, “so long as under that system of sanctions the individuals or entities concerned have an acceptable opportunity to be heard through a mechanism of administrative review forming part of the United Nations legal system, the Court must not intervene in any way whatsoever”

Appeal Outcome → The ECJ construed the relationship between the EU and UN, outlining that it follows from all these considerations that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty.

What two observations did Piet Eeckhout make in relation to the ruling of the Kadi II case?

• The main lesson which international law needs to draw from the Kadi judgment is that, since it increasingly affects the position of individuals, it needs to develop much better mechanisms for the protection of individual rights.

• The court intimated that a kind of Solange approach towards international law is not excluded […] And there would have been no need to engage with the argument if no Solange approach were conceivable.

Al-Dulimi and Montana Management Inc. v Switzerland on the supremacy of EU law and its interaction with member states constitutional orders in relation to fundamental rights, what is the context, issue and outcome?

Context → Mr Khalaf Al-Dulimi was, according to the UN Security Council, the head of finance for the Iraqi secret services under the regime of Sadam Hussein.  The second applicant in the decision was a corporation, Montana Management Inc, Mr Al-Dulimi being its managing director.  The Swiss Federal Council as a result adopted an ordinance providing for economic measures against the Republic of Iraq.  The applicants alleged that since then their assets in Switzerland had remained frozen and they wished to remove their names from this list, however required permission from the Sanctions Committee. (Federal Court dismissed claims, then they subsequently brought their case to the CJEU, which was then appealled by the claimants)

Issue → Whether the Federal Court has jurisdiction to review the legality and the conformity of the Sanctions Committee’s decision to add their names to the list with the ECHR and the ICCPR?

Outcome → The Grand Chamber noted that the sanctions imposed by the Security Council could have extremely serious consequences to those affected by it, but argued that it did not contain any clear or explicit wording which excluded the possibility of judicial supervision, and taking in account of the Security Council’s role whilst fully respecting and promoting human rights and this cannot be understood to preclude any judicial scrutiny.

• Consequently there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights.

• If there is any ambiguity, the Court must interpret the resolution in a way that allows for the most harmony with the ECHR and avoids any conflict of obligations.  In the absence of explicit wording excluding or limiting respect for human rights in the context of the implementation of sanctions, the Court must always presume that those measures are compatible with the ECHR.

• The Court should therefore interpret the sanctions in a way that allows for systemic harmonisation.

Bosphorus Hava Yollari Turizm v Ireland on the supremacy of EU law and its interaction with member states constitutional orders in relation to fundamental rights within CJEU and ECtHR, what is the context, CJEU ruling AND then ECtHR ruling, importance?

Importance → The ECtHR declared its deference to the protection of fundamental rights ensured by the European Union

CJEU Context → Relates to the impounding by Ireland of a Yugoslav-owned aircraft, in implementation of UN and EU sanctions against Serbia

CJEU ruling → The case was first decided by the CJEU, which had held that the EU regulation did not violate the company’s fundamental rights.

ECtHR Context → Following the unsuccessful case at the CJEU, Bosphorus Airways then went to Strasbourg, who looked at whether Ireland could rely on its EU law obligations.

ECtHR ruling (council of europe - distinct from EU) →

The ECtHR emphasized that -

1. where state action was taken in compliance with international legal obligations and

2. where the relevant international organization protected fundamental rights at a level at least equivalent to what the Convention provides, there was a presumption that the state had not departed from the Convention; a presumption that could be rebutted, if “in the circumstances of a particular case” the protection of Convention rights was “manifestly deficient.”

What are the two points that Wightman makes in regards to the EU’s ‘constitutional identity’ - how is it founded on a core of common values within Article 2 TEU? What does he base his argument on?

• Common values referred to in Article 2 of that Treaty and in the preamble to the Charter of Fundamental Rights of the European Union, and which thus form part of the very foundations of the European Union legal order

• The European Union is composed of States which have freely and voluntarily committed themselves to those values, and EU law is thus based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values

What does Article 51 CFREU state in relation to the scope/extent of fundamental rights protection under the CFREU (in EU law)? And an example of this?

You cannot rely on the charter at any instances or bring a case against domestic entities for EU law, you can only rely on it when the member states only implementing EU law.

An example is the domestic state transposing EU law into domestic law period.

What does Article 52 CFREU state in relation to the scope/extent of fundamental rights protection under the CFREU (in EU law)?

Proportionality analysis is written into statute.

There is reference to the convention on the protection of human rights, the charter must be aligned with the convention and vice versa, hence there is a mutual alliance with both and EU law will provide an extensive protection of fundamental rights.

What does ‘implementing EU law’ actually mean? In regards to Article 51 CFREU, Article 6(2) TEU and member states as per the Wachauf case?

The aim of Article 51 is to determine the scope of the Charter. It seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity.

This provision was drafted in keeping with Article 6(2) of the Treaty on European Union, which required the Union to respect fundamental rights

As regards the Member States, it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law as per the Wachauf case.

What are concerns of ‘implementing EU law’? And counter-arguments to these concerns?

Concerns -

• By incorporating fundamental rights into the EU law, you risk the member states resenting EU law by expanding its scope beyond what member states want

Counter-arguments -

• The Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Union. Explicit mention is made here of the logical consequences of the principle of subsidiarity and of the fact that the Union only has those powers which have been conferred upon it.

• Paragraph 2 of Article 52 and Article 6 TEU cannot be understood as extending by itself the range of Member State action considered to be ‘implementation of Union law’

Víctor Manuel Julian Hernández and Others v Reino de España attempts to provide a definition of ‘implementing EU law’, there are 4 factors which are defined as constituting ‘implementing’, what are they?

In order to determine whether a national measure involves the implementation of EU law for the purposes of Article 51(1) of the Charter, it is necessary to determine -

• whether that national legislation is intended to implement a provision of EU law;

• the nature of the legislation at issue and

• whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and

• also whether there are specific rules of EU law on the matter or rules which are capable of affecting it

Åklagaren v Hans Åkerberg Fransson attempts to provide a definition of ‘implementing EU law’, what does it state in regards to addressing the purpose of Article 5(1) TEU, whether ‘implementation’ includes fundamental rights, and inter-state differences with fundamental rights applications by member states, and uncertainties with fundamental rights application?

Purpose of Article 5(1) TEU → It reinforces the notion that Article 5(1) TEU is only addressed to member states when they are implementing European Union law.

Fundamental rights included? → They outlined that the applicability of European Union law ALSO entails applicability of the fundamental rights guaranteed by the Charter.

Dealing with national discrepancies in the EU on fundamental rights? → They outlined that national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised.

Uncertainties as to whether member states’ fundamental rights are in line with EU law standards? → Where national courts find it necessary to interpret the Charter they may, and in some cases must, make a reference to the Court of Justice for a preliminary ruling under Article 267 TFEU.

Melloni case on the application of Article 53 CFREU and concerns of judicial centralisation of fundamental rights protection, what is the context and outcome?

Context → Meloni was a dishonest businessman, there was an italian arrest warrant due to his fraudulant business schemes, though this wasn't the issue and he absconded and left to Spain. EU law has legislation on this issue, having a framework on arrest warrants which lists all the reasons why a member state can refuse to extradite a person from one member state to another, though the reason issued here was not listed within the list and issue arose from the case that standards in Spain and Italy are different, such as in Italy with people being convicted if they're informed, but Spain believes in no conviction in absencure.

Issue → Though this issue wasnt not listed as an exemption in EU law and framework decision, the question was whether Spain able to refuse extradition of Meloni to Italy given its domestic constitutional rules, even if it wasnt a recognised cause under EU law?

Outcome → The court said the framework decision is compatible with Art 47 as everything was possible for Meloni to defend himself and he waivered his rights, by absconding to Spain. Plus the supremacy of EU law prevailed over the Spanish constitutional law - this is a case of varied application of protections and interpretations by both EU law and domestic law.

• The issue is the provision of Spanish constitutional law about no conviction in absention, the EU law said that you CAN be convicted in absencion if you are made aware and placed in a position to defend yourself.

• If the framework of 4(a) can be compatible with the requirements of right to effective judicial remedy and fair trial - the system compatible with the charter? - The court said YES, it is compatible.

What are criticisms against the Meloni case ruling, and what are arguments in favour of the Meloni case ruling?

Criticisms -

• The extension of the principle of mutual recognition to constitutionally-sensitive procedural safeguards by pre-empting national law is dangerous and may jeopardize the level of protection.

• Full harmonization may have a problematic effect of constitutional over-centralization.

Arguments for -

• CJEU argued in Melloni, it is also the case that full harmonisation “reflects the consensus reached by all the Member States regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant.”

• This is further reinforced by the Spanish Constitutional Court subsequently adapting its doctrine to square it with EU law

• The Meloni ruling (as stated by the CJEU) must be seen a direct consequence of Internationale Handelsgesellschaft where the ECJ confirmed its responsibility for maintaining and upholding shared fundamental rights standards. This allows consistency across EU law, following precedent.

Coman case on the application and extent of Article 53 CFREU, what is the context and outcome?

Context → Mr Coman (dual Romanian and American citizen) and Mr Hamiliton (American citizen) They were married in Brussels. In December 2012, Mr Coman and Mr Hamilton contacted the Inspectorate to request information on the procedure and conditions under which Mr Hamilton, a non-EU national, in his capacity as member of Mr Coman’s family, could obtain the right to reside lawfully in Romania for more than three months. In reply to that request, the Inspectorate informed Mr Coman and Mr Hamilton that the latter only had a right of residence for three months because, under the Civil Code, marriage between people of the same sex is not recognised, and extension of temporary residence could not be granted on grounds of family reunion.

Outcome → The Court held that the obligation to recognise marriages between persons of the same sex, concluded in another Member State in accordance with the law of that State, for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage, which falls within the exclusive competence of the Member States.

• The reason for this is that the recognition of such a marriage for the sole purpose of granting a right of residence does not require that Member State to provide for the institution of marriage between persons of the same sex in its national law.

Pancharevo case on the application and extent of Article 53 CFREU, what is the context and outcome?

Context → Concerning a child, being a minor and a Union citizen, whose birth certificate was drawn up by the host Member State (Spain) and designates as parents two persons of the same sex: the Member State of which the child is a national (Bulgaria) is obliged to issue an identity card or a passport to that child without requiring a birth certificate to be drawn up beforehand by its national authorities. The Member State is also obliged to recognise the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the European Union.

Issue → Is Bulgaria in Violation of its Obligations under EU law?

Outcome → Supreme Court referred to the Spanish law that Spanish citizens by origin are persons born in Spain when the national law of neither of their parents confers nationality on the child, rather than being of Bulgarian nationality. As a consequence, the child is also an EU citizen and therefore has the right to free movement.

• The Pancharevo ruling does not require the Member States to mutually recognize the contents of birth certificates in regard to matters that do not relate to free movement rights. If the request had concerned indeed the right to free movement on the basis of the child’s being a direct descendant and V.M.A.’s family member, the authorities would not have had grounds to refuse.

• With the Supreme Court judgment Bulgaria does not create obstacles to the child’s freedom of movement because “to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU” is not at all what was requested from the Bulgarian authorities. The two mothers requested a Bulgarian birth certificate intended to be used to apply for a Bulgarian identity document and the legal nature of this request inevitably triggered the application of Bulgarian law on nationality.

Egenberger case on religious affiliation and private employment (as per article 4(2) of Directive 2000/78), what is the context and outcome?

Context → The claimant, Ms Egenberger, sought compensation from the Evangelisches Werk, a charitable organization of the German Protestant Church, contending that she suffered discrimination on grounds of religion during a recruitment procedure. As was undisputed between the parties, Ms Egenberger had been the subject of a difference of treatment since her job application was dismissed because she was of no denomination. However, the Evangelisches Werk argued that the difference of treatment was justified by the churches’ right to self-determination under the German constitution.

Issue → The meaning of the term “genuine, legitimate and justified occupational requirement” in Article 4(2) of Directive 2000/78 had to be clarified in a constellation where the privilege of self-determination of churches/ethos-based organisations, on the one hand, and the right of workers to non-discrimination on grounds of religion or belief clashed with one another.

Outcome → The Grand Chamber held that what must count as a “genuine, legitimate and justified occupational requirement” must be established in the light of the CFREU through proportionality analysis. The CJEU thereby rejected the German legal framework which had been developed through the case law of the German Federal Constitutional Court (Bundesverfassungsgericht) and which, in essence, allowed a church itself to unilaterally and authoritatively determine the meaning of justified occupational requirements in employment relations.

Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV (Achbita case) on on religious symbols and private employment (as per article 4(2) of Directive 2000/78), what is the context and outcome?

Context → The applicant had worked for some time as a receptionist for her employer—a company offering security and guarding services, but also reception services, to private and public customers—, wearing the headscarf exclusively outside working hours. When she announced that, in future, she firmly intended to wear a headscarf during working hours as well, for religious reasons, she was dismissed on the basis of a codified strict company “neutrality” policy which had already been in place as an occupational requirement when the applicant had joined the company and to which she had never objected in the past.

Issue → Is a private employer, exercising his right to conduct a business which is recognised in Art. 16 of the Charter, permitted to dismiss a female employee of Muslim faith, employed in a customer-facing role, if she refuses to remove the headscarf at work? Concerns of clashes between Article 10 and Article 16 - whose rights prevail when they conflict with one another?

Outcome → The court must take into account in carrying out the proportionality test and striking a balance between the substantive interests involved. They concluded that an employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers.

Ritual Slaughter Case on (as per article 4(2) of Directive 2000/78), what is the context and outcome?

Context → A new Belgian decree brought that derogation to an end in the case of the Flemish Region by providing that ‘if the animals are slaughtered according to special methods required for religious rites, the stunning must be reversible and the animal’s death must not be caused by stunning’. The preparatory documents for this Belgian decree stated: ‘Flanders attaches great importance to animal welfare. The objective is, therefore, to eliminate all avoidable animal suffering in Flanders. The dispute arose between Jewish and Muslim organisations and the Flemish government.

Issue → The referring Grondwettelijk Hof (Constitutional Court, Belgium) wanted to know whether point (c) of the first subparagraph of Article 26(2) of Regulation No 1099/2009 may be interpreted as authorising Member States to adopt national rules which ban ritual slaughter of an animal without prior stunning—and without derogations for ritual slaughter according to traditional Jewish and Muslim rites.

Outcome → It is apparent from the case-law of the European Court of Human Rights that where matters of general policy, such as the determination of relations between the State and religions, are at stake, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight.

• The State should thus, in principle, be afforded, within the scope of Article 9 of the ECHR, a wide margin of appreciation in deciding whether, and to what extent, a limitation of the right to manifest religion or beliefs is ‘necessary’.

• The margin of appreciation thus afforded to the Member States in the absence of a consensus at EU level must, however, go hand in hand with a European supervision consisting in determining whether the measures taken at national level were justified in principle and proportionate

• the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today …, with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States

What is AG Hogan’s 4 opinions on the outcome of the Ritual Slaughter Case?

• That provision thereby gives effect, in my view, to the EU’s commitment to a tolerant, plural society where divergent and, at times, conflicting views and beliefs subsist and must be reconciled

• Rather, point (c) of the first subparagraph of the Regulation No 1099/2009 maintains that derogation while permitting, pursuant to the principle of subsidiarity and in order to take into account national sensibilities to animal welfare

• This in turn would compromise the essence of the religious guarantees contained in Article 10(1) of the Charter for those adherents of Judaism and Islam respectively for whom, as we have seen, these religious rituals are of profound personal religious importance

• Such an approach (indicating to all customers animals that have derived from without prior stunning), which is neutral and non-discriminatory, by providing additional information to all consumers through the traceability and labelling of products derived from animals will allow them to make free and informed choices in relation to the consumption of such products

What are the 3 reasons as to why accession EU to ECHR is considered desirable? And what is one concern regarding this?

Reasons for desirability →

1. first, as a signal of the EU’s commitment to being a human-rights based polity;

2. second, as a guarantor of overall coherence in human rights protection in Europe;

3. third, as providing a mechanism that would enable individuals to submit EU acts to the external review and control by the Strasbourg Court.

Concerns →

These concerns focus on the adverse effects of accession on the autonomy of EU law, such as concerns on constitutional magnitude both for the union and for member states.

How do we address these concerns of EU accession to ECHR? What are the 4 mechanisms that could be used to address these issues? And how does the ECHR accession influence/distort the legal order of the EU?

The general rule, action by the Union takes effect as against individuals only through the intermediary of national measures of implementation or application. Thus, in order to secure protection of their fundamental rights in the face of action by the Union, individuals usually have to approach the national authorities, in particular the courts of the Member States. If in a particular case an individual is not satisfied with the protection given him at national level, he may, after exhausting domestic remedies, lodge an application against the Member State concerned before the European Court of Human Rights.

• Mechanism must be available which is capable of ensuring that the question of the validity of a Union act can be brought effectively before the Court of Justice before the European Court of Human Rights rules on the compatibility of that act with the Convention.

• In particular, it should not be possible for the ECtHR to call into question the Court’s findings in relation to the scope ratione materiae of EU law, for the purposes, in particular, of determining whether a Member State is bound by fundamental rights of the EU.

• The interpretation of the ECHR provided by the ECtHR would, under international law, be binding on the EU and its institutions, including the Court of Justice

• The autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU

Schrems II on the external effects of the CFREU, what is the context, issue and context?

Context → The case originated from activist Maximilian Schrems’ call for the Irish Data Protection Commissioner to invalidate the SCC for Facebook’s use of transferring personal data to its headquarters in the US. The personal data, both in transit to and when stored in the US, it was argued, could be accessed by US intelligence agencies. This, according to Schrems, would be in violation of the GDPR and, more broadly, EU law.

Outcome → The Court found that data subject rights were not actionable before the courts against US authorities. The Privacy Shield had contemplated a protection mechanism in the form of an Ombudsman. Still, the role did not have the power to adopt decisions that would be binding on US intelligence services. The court decided that, while SCCs are still valid, they require additional work. Companies must ensure that the recipient country has equivalent data protection to that of the EU. They cannot rely on SCCs alone. However, it follows that Article 1 of the Privacy Shield Decision is incompatible with Article 45(1) of the GDPR, read in the light of Articles 7, 8 and 47 of the Charter, and is therefore invalid.

• The third country ‘should ensure effective independent data protection supervision and should provide for cooperation mechanisms with the Member States’ data protection authorities’,

• “Since by their inherently contractual nature standard data protection clauses cannot bind the public authorities of third countries…”