Week 4b - Fundamental rights

Defrenne II

• important case law for non-discrimination

• art. 157 TFEU = direct effect for cases with direct discrimination

how are fundamental rights classified?

• fundamental rights as unwritten general principles of law

• Internationale handelgesellschaft

General principles and fundamental rights when are they applicable?

• always applicable to all acts of EU institutions

• applicable to some acts of MS

what were fundamental rights inspired by?

1. Common constitutional traditions of MS

2. ECHR

How is ECHR applied?

• ECHR not binding on EU institutions

• but it is indirectly applicable through art. 6(3) TFEU

what is the difference between fundamental rights and fundamental freedoms?

• fundamental rights = human rights and constitutional protection

• fundamental freedoms = free movement of goods, services, capital, workers

when are MS bound by EU fundamental rights? (+relevant case)

• when MS are implementing EU law (Wachauf)

• when MS derrogate from a fundamental freedom (ERT)

Charter of fundamental rights (CFR) applicability (+art, +relevant case)

• art. 51(1) CFR

• EU institutions = applies always

• MS = applies only when implementing EU law (Akerberg Fransson)

what is the relationship between ECHR and CFR

• art. 53(3) CFR = maternal incorportation

• CFR contains rights which correspond to rights guaranteed by the ECHR

structure of CFR

• list of fundamental rights and freedoms in art. 1 - 50

• art. 52 = justification of interference with fundamental rights

soft principles

• often not directly effective = Individuals cannot use them as an independent basis to sue or claim a direct right

• Acts as an objective policy goal or standard for lawmakers to observe

• A court can only use them to interpret an existing law or test whether an executive/legislative act implementing it is legal

hard princples

• directly effective = Individuals can directly invoke them in court to claim a legal remedy

• Creates a subjective legal entitlement for the individual

• A judge can annul an EU or national law simply for violating the right

what are the requirments for justification of interference with fundamental rights in CFR?

• art. 52 CFR

1. provided by law

2. requirment to respect essence of rights

3. principle of proportionality

what 2 main directives is art. 19 TFEU used for?

1. Directive 2000/78 on employment equality

2. Directive 2000/43 on race discrimination

Directive 2000/78 on employment quality

• discrimination based on relgion, belief, disability, age or sexual orientation

• but narrow material scope (only for employment)

directive 2000/43 on race discrimination

• discrimination based on race and ethnic origin

• but wide material cope (labour, healthcare, housing)

what is the difference between Directive 2000/78 on employment equality and directive 2000/43 on race discrimination?

• the material scope is narrow for directive 2000/78 as it only concerns employment

• whereas the material scope for directive 2000/43 is wider because it concerns hosing, healthcare etc.

how did prohibition of age discrimination become a general principle of EU law? (+what role does directive 2000/78 plays in it)

• directives do not have horizontal direct effect (mashall)

• CJEU bypassed this limitation by declaring age discrimination as a general principle of EU law

• directive 2000/78 is a concrete form of that unwritten principle

direct effect of charter rights

• most charter rights have both horizontal and vertical direct effect

what applies in horizontal disputes (charter or directives? + why?)

• charter often applies

• because directives do not have horizontal direct effect (Marshall)

what must be applied before charter?

• indirect effect (dansk industri)

ASFJ

area of freedom, security and justice

what is the ASFJ

• policy domain and legal objective of EU (much like the internal market)

• represents a whole field of EU competence under which the EU passes specific regulations, directives, policies

which art describes the ASFJ as a goal of the EU?

• art. 3(2) TEU

• goal of the EU is to offer citizens an area of freedom, security, justice

which art establishes the general principles of ASFJ?

• art. 67 TFEU

where are the legal basis of ASFJ found?

• title V TFEU = area of freedom, security and justice

European arrest warrant framework decision (what is it based on? what is it?)

• based on Council framework decision 2002/584

• MS A issues a European arrest warrant for concluding a criminal prosecution or executing a sentence

• MS B obligated to execute arrest warrant

what is the execution of EWA based on? (+art)

• art. 1(2) EAW

• execution of EWA based on mutual recognition

mutual trust

a legal presumption that all EU Member States share common values (Art. 2 TEU) and offer equivalent protection of fundamental rights and fair trial standards

mutual recognition

the practical rule that a decision made by a judicial authority in one Member State must be accepted and enforced in another Member State with minimal formality

what makes police and judicial cooperation work?

• principle of mutual trust

Mutual recognition of national court judgements

The requirement that MS accept foreign judgements and warrants without retrying the case or re-evaluating the evidence

purpose of assuming fundamental rights compliance in surrender procedures

to prevent judges from routinely delaying surrenders to investigate foreign court or prison conditions

Can MS apply a higher standard of protection of a fundamental right?

• no MS cannot apply a higher national standard of fundamental rights if it undermines privacy, unity or effectiveness of EU law

• higher MS standard would disturb principle of mutual recognition in AFSJ

What is the relevant case for MS applying a higher national standard for fundamental rights?

Melloni

Can EAW not be carried out to protect fundamental rights?

• yes, if conditions are met

• principle of mutual trust is not absolute

• relevant case = arayosi and caldararu + L.M

what is the 2 step test to justify EAW delay?

• aranyosi and caldararu

1. Is there a real risk of human or degrading treatment (art. 4 CFR) due to systemic, generalized or group wide deficiencies in issuing MS detention?

2. Are there substantial grounds for believing that this specific individual will be exposed to that risk in specific prison facility?

what does step 1 have to be based on to justidy EAW delay?

• must be based on objective, reliable, updated reports for evidence (ECtHR judgements)

step 1 and step 2 in delaying of EAW are…

cumulative

what is the relevance of L.M case?

confirmation of 2 step test from arayosi and caldararu