5. Protection of Human Rights in the European Union READING ITEM 1
Human Rights in the framework of the Union’s Legal System
This Reading Item is based on the relevant case law of the Court of Justice of the European Union. It incorporates a short analysis of the specificities of the EU legal system and the national constitutional background for a better understanding of the subject matter. (Edited by Péter Kruzslicz)
INTRODUCTION AND LEARNING OUTCOMES
A legal dualism characterizes the political and legal reality of the European Union’s Member States. Because of the direct effect of the EU law, implying the direct application of the Union’s legal norms in the national legal system, simultaneously founded on the special, sui generis character of EU law, the protection of Human Rights shall be reconsidered mainly due to the primacy of EU law, meaning that EU-level norms need to be applied with a priority over national ones. As for the national constitutional framework, primacy prohibits national constitutional provisions opposed to the application of EU legal acts, therefore, the only way to maintain an effective protection is to ensure that the above are satisfied within the framework of EU law. The present Reading Item summarizes the evolution of relevant EU case-law and other – inspirational and legal – sources of the protection of Human Rights. To do so, it takes in consideration the theoretical difficulties, especially as regards the specificities of EU law, and also the dialogue established between national constitutional courts and the Court of Justice of the European Union in order to give a general overview on the reasons and the practical background of Union’s protection of Human Rights.
Learning outcomes
1. Understanding the necessity of Human Rights protection in EU law.
2. Knowing the sources of Human Rights protection and their respective roles in EU law.
3. Being able to deal with the relations between national constitutional requirements and Union’s framework for Human Rights protection.
Keywords: direct effect, primacy, sui generis legal system, constitutional reserve, common constitutional traditions, general principles of EU law, ECHR, Charter of Fundamental Rights of the European Union
Necessary time: 1-2 hours
Recommended Reading
1. The ‘Internationale Handelsgesellschaft’ Judgment of the CJEU of 17 December 1970
5.1. The Need for Protection of Human Rights in the framework of EU law
As the result of a reflection about and a long evolution of the Human Rights protection in the framework of EU law, the Preamble of the Charter of Fundamental Rights of the European Union, summarizes the context and the necessity of such a protection:
“The people of Europe, in creating an ever-closer union among them, are resolved to share a peaceful future based on common values,
Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.
The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organization of their public authorities at national regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment.
To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter.
This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights.
Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations.
The Union therefore recognizes the rights, freedoms and principles set out hereafter.”
For a fact, the European Union has got its own legal system. To ensure the effectiveness of its norms, from the beginning, the Court of Justice (CJEU) stated that the EU law is a new branch of international law and considered it as a sui generis legal system. Its norms are to be applied, as a part of such a system, at the same time, directly in national law.
However, the European Union is no sovereign, and is not limited in its actions by a constitutional framework, and even though the norms adopted are applied directly in the national constitutional system there is no guarantee for the respect of complementarity, including the constitutional requirements for the protections of Human Rights.
Even worse, in the case of opposition between a national and an EU legal norm, the second should be applied, and the situation is the same if the national norm has a constitutional nature. This undermines the possibility to pose any constitutional limitation on the actions of the EU completely, within the framework of the national constitutional system.
Specificities of the EU legal system:
1. Direct effect: As a general rule, even if there are some conditions, EU norms are applied in national legal systems to produce all the effects that they have been adopted for.
2. Primacy: Any EU norm should be applied before national legal norms even if those are constitutional provisions. The effects of EU legal norms cannot be limited by national rules.
The EU legal system was and is a very useful tool for European Integration which is first an economic integration. At the beginning, the objective was to create the free movement of goods and then persons, services and capital, so questions of constitutional limits on any EU actions, including the protection of Human Rights have not been raised.
National constitutional requirements:
However, constitutionalism, and by that the constitutional coherence and constancy of the legal hierarchy of norms in the national legal system should still be maintained. Especially for the protection of Human Rights, as it is not acceptable to apply rules without any possibility to control their constitutionality (i.e. their conformity with Human Rights protected) within the national legal system.
With the development of EU law, national constitutional courts, when they review the application of EU norms in conformity with the national constitution, should find the right answer to be able to ensure the effective protection of Human Rights without violating the European engagements of their State. They have formulated constitutional reserves.
International law obligations (commitments) for the protection of Human Rights
The effective protection of Human Rights is not only a national constitutional requirement but also an international obligation for the Member States of the European Union as all of them are also part to the European Convention for Human Rights and Fundamental Freedoms (ECHR), and their respect of such obligations can be reviewed and controlled externally.
AN INTERESTING DILEMMA: The above issue means (in practice) that if there is a collision between applying an EU legal norm and respecting a Human Rights obligation, the Member States will violate one of their engagements. If the MS applies the EU norm, it will not respect the Convention and could be sanctioned by the European Court of Human Rights, but if it does not, then it will not respect EU law and thus subjects itself for sanctioning by the CJEU.
Finally, to ensure the effective application of EU law, the CJEU also understood that somehow it should ensure the simultaneous protection of Human Rights.
Otherwise, Member States’ non-application of EU law seeking to ensure the respect of Human Rights according to their national constitutional system or under their international obligations would lead to serious risks regarding the integrity of EU law.
For the CJEU, however, ensuring the effectiveness of EU law is the most important, and to that effect certain limits need to be raised in terms of the actions of the EU, especially when the question of the respect of Human Rights is raised.
The logic of the situation can be summarized as follows:
The evolution of this problematic can be traced back along the jurisprudence in the case-law of the German Federal Constitutional Court (FCC) and the CJEU:
Internationale Handelsgesellschaft case:
Because of the primacy, the CJEU (back then ECJ) stated in this case that the application of EU legal norms cannot be limited or restrained because of national constitutional provisions., regardless that in the German legal system the protection of Human Rights has a very important role. It was said that when EU law is to be applied, such constitutional rules cannot be opposed to it.
Solange case:
The FCC, responding to the above-mentioned judgment of the CJEU, stated that until there is not a similar protection guaranteed in the framework of the EU law to the one that exists in the German constitutional system, German courts can apply the EU law.
The solution:
Without harming to the primacy of EU law, to ensure to effectiveness of its application, it is possible to create a system of protection for Human Rights in the framework of EU legal system. And the Court had to be the author of that system.
Finally, the effectiveness of EU law ensures that without regard to their constitutional limits, national courts will apply what the CJEU established as a system of protection for Human Rights. However, this proved to be difficult in a legal system that, at its origin, was not created for this purpose: EU law was and is more about free movement and integration than dealing with intricate constitutional matters.
Direct Effect and Primacy of
EU Law
Constitutional requirement for protection
Protection of Human Rights
in EU Law
5.2. The Judicial Protection of Human Rights in the EU
The sources of the judicial protection of Human Rights:
Even if the CJEU could admit the necessity for the protection of Human Rights in the framework of the EU law, it was not only difficult to ensure such protection because the EU law was not created to deal with constitutional matters but also because, accordingly, there was no legal basis for creating such protection. And since the CJEU cannot adopt new legal norms, only seeks to ensure the protection of Human Rights, had to find some legal sources to guarantee such a protection and by that to be able to continue to ensure the effectiveness of the EU law without violating Human Rights.
The CJEU found different sources of inspiration to protect Human Rights under EU law, and these are all reflected in its case-law.
1. General Principles
In its judgment on the Stauder case (Eric Stauder vs. City of Ulm, 29/62), the CJEU said:
The fundamental Human Rights [are] enshrined in the general principles of Community law and protected by the Court.
The most obvious way to ensure the protection of Human Rights without any proper legal basis in the framework of EU law, is to define them as general principles.
As unwritten sources of protection, general principles are interpreted by CJEU, which then can define and guarantee the respect of Human Rights.
These general principles can appear in the framework of EU law, under the control of the CJEU, without questioning the primacy of EU law in accordance with the interpretation of the CJEU.
Sources of Inspiration
General Principles
Common Constitutional Traditions
European Convention on Human Rights
2. Common Constitutional Traditions
In its judgement in the Internationale Handelsgesellschaf case (11/70) the CJEU said:
Respect for fundamental Rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such Rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community.
This statement is at the origin of the dispute with the FCC, and is a lot more complicated than the above-mentioned reference to general principles.
First, the CJEU repeats that once has already been said: it ensures as general principles a protection of Human Rights.
But, second, with a special mention of the structure and objectives of the EU law, it also says that it will find inspiration for such a protection in common constitutional traditions (of the Member States).
While, it is a good approach to satisfy national constitutional requirements, it is also a very strategic move to make reference to the national constitutional norm:
(i) The CJEU states that it can ensure the same level of protection as the national constitutional system.
(ii) The CJEU gives a concrete reference, even though it is only a source of inspiration.
(iii) The CJEU highlights the fact that the protections of Human Rights are very similar, the rules can be considered as common to the Member States.
However, after this judgment the FCC started to question the effective level of protection of Human Rights based on the following arguments:
(i) The CJEU can find inspiration in the national constitutional rules, but cannot substitute national protections.
(ii) The common traditions do not cover the whole area of protection of Human Rights in the national constitutional framework.
(iii) The framework of the structure and objectives of the EU law can restrain the effective protection of Human Rights.
Consequently, a more comprehensive system and actual protection are required.
3. The European Convention on Human Rights In its judgment in the Nold case (4/73) the CJEU said:
International treaties for the protection of Human Rights on which Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law.
As for the common constitutional traditions, the CJEU found a source of inspiration in the international cooperation for the protection of Human Rights.
The CJEU mentions – very sophisticatedly – not only international conventions to which the Member States are part but also those that they have been working on together with other States.
More importantly, those treaties are guidelines, more precise than general principles, but give as much flexibility to interpretation as a source of inspiration, allowing the CJEU to orient its protection as it sees fit.
And, of course, it is also in the framework of its own legal system where such guidelines should be used as sources of interpretation for the protection of Human Rights.
In judgments following the above, the CJEU will finally use references to the ECHR in growing numbers, but continues to refer to other international treaties and general principles, declarations.
The CJEU is very reticent to accept any formal legal source for the protection of Human Rights in EU law, as stated in their advisory opinion 2/94:
… [S]uch a modification of the system for the protection of Human Rights in the Community law […] would be of constitutional significance and would therefore such as to go beyond the scope of Article 235. It could be brought about only by way of Treaty amendment.
5.3. The Structure of Human Rights Protection in EU law
First, the Maastricht Treaty tries to give a more comprehensive structure:
This first structure for the protection of Human Rights is entrusted in the Treaty to the case- law of the CJEU:
Protection of Human Rights
It is also in the framework of the EU law and under the control of the CJEU that protections of Human Rights will be guaranteed.
However, the fact that the Treaty stipulates on such a protection is an important step forward, as there is a written basis to ensure protection and by that also on obligation.
Article 6. 1. The Union is founded on the principles of liberty, democracy, respect for Human Rights and fundamental freedoms, and the rule of law, principles which are common to Member States.
2. The Union shall respect fundamental rights, as guaranteed by the European Convention on the Protection of Human Rights and Fundamental Freedoms […], and as they result from constitutional traditions common to the Members States, as general principles of Community law.
1. General Principles
2. European Convention on Human Rights
3. Constitutional traditions common to the Member States
After the adoption of the Charter which first is a declaration serving as another source of inspiration, the Lisbon Treaty will make the system whole (and legally binding):
By this provision of the Treaty the circle has been closed.
(i) The EU
has
got its
own legal
instrument for the protection of Human Rights a. it has the same legal value as the treaties
b. as primary EU law, secondary acts shall be in conformity with it c. its control is guaranteed by the CJEU
d. even though the CJEU is reluctant to become an actual constitutional jurisdiction in the framework of EU law.
(ii) The EU should become part to the ECHR a. but the process is very complicated
b. there is no real prevision for the accession of the EU
(iii) The EU should continue to respect the content of the ECHR just as the common constitutional traditions
a. those remain general principles b. with the guarantee of the Court
Article 6. 1. The Union recognises the rights, freedoms and principles set out in the Charter […] which shall have the same legal value as the Treaties.
2. The Union shall accede to the European Convention […]. Such an accession shall not effect the Union’s competencies defined in the Treaties.
3. Fundamental Rights as guaranteed by the European Convention […] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
Questions for Self-Check 1. What does the primacy of EU law imply?
2. What is a constitutional reserve?
3. Why is there a logical connection between the effectiveness of EU law and the protection of Human Rights?
4. What are the references for the judicial protection of Human Rights in the EU law?
5. What is the legal force of the Charter of Fundamental Rights of the European Union?
6.Why are general principles preserved by the Lisbon Treaty as sources for the protection of Human Rights?
This teaching material has been made at the University of Szeged, and supported by the European Union. Project identity number: EFOP-3.4.3-16-2016-00014
