Sources of EU Law - Primary Law and Fundamental Rights PDF

Sources of EU law – Primary law the protection of fundamental rights EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  The “silence” of the Treaty of Rome  No disposition of the Treaty of Rome dealt wi...

Sources of EU law – Primary law the protection of fundamental rights EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  The “silence” of the Treaty of Rome  No disposition of the Treaty of Rome dealt with the protection of fundamental rights  After all, at least at the beginning, the main purposes of the EEC (and of the EEC Treaty) was to set the foundations and develop a kind of European integration which had primarily (if not only) an economic nature  The fundamental freedoms (not rights) affirmed in the EEC Treaty were instrumental to this purpose  The protection of fundamental rights thus seemed alien to the Community project, at least as initially outlined  Fundamental rights were, moreover, already protected at the national level by national constitutions  However, it is clear that even economic provisions, such as those provided by the Treaty of Rome, can end up affecting fundamental rights 1 (e.g. property rights)  The first ECJ cases dealing with fundamental rights  In the early 1960s, the Court of Justice affirmed the irrelevance at the Community level of fundamental rights and their protection «the High Authority is only required to apply community law. It is not competent to apply the national law of the member states. […] The Court is only required to ensure that in the interpretation and application of the Treaty, and of rules laid down for implementation thereof, the law is observed. It is not normally required to rule on provisions of national law Consequently, the High Authority is not empowered to examine a ground of complaint which maintains that, when it adopted its decision, it infringed principles of German constitutional law» (Stork, causa 1/58, sentenza 2 4 febbraio 1959).  The first ECJ cases dealing with fundamental rights (2)  «It is not for the Court, whose function is to judge the legality of decisions adopted by the High Authority […] to ensure that rules of internal law, even constitutional rules, enforced in one or other of the Member States are respected.  Therefore the Court may neither interpret nor apply article 14 of the German basic law in examining the legality of a decision of the High Authority.  Moreover community law, as it arises under the ECSC treaty, does not contain any general principle, express or otherwise, guaranteeing the maintenance of vested rights” (ECJ, 15 July 1960, joined cases 36/38/59 e 40/59, Nold). 3  Problem: the contextual affirmation by the ECJ of the principle of the primacy of EU law  Shortly after, the ECJ affirmed principles No EU fundamental rights such as those of direct effect (Feb. 5, 1963, Case 26/62, Van Gend en Loos)) and, above all, of the primacy of Union law over national law, including constitutional law EU primary law (July 15, 1964, Case 6/64, Costa v. E.N.E.L., on which see the relevant class) EU secondary law (adopted  The ECJ “wants” EU (primary and by the EU Institutions) secondary) law to enjoy primacy over national law, including national constitutions, but at the same time the Court National Law, including affirmed that the EU institutions are not national constitutions bound by fundamental rights 4  Problem: the contextual affirmation by the ECJ of the principle of the primacy of EU law  Primacy of EU law + the irrelevance of the respect for fundamental rights by the EU institutions led the Constitutional courts of some Member States (in particular, Italy and Germany, see, respectively, the Frontini Dec. 27, 1973 and Solange I May 29, 1974 judgments) to claim their possibility to scrutinize the compatibility of Community acts with national constitutions in cases where Community institutions had violated the fundamental principles of the national constitutional orders or the inalienable rights of the individual (so-called counter-limit doctrine)  NB: this is a national legal theory, never enshrined by the ECJ  The possibility for national courts to "have the last word" would have substantially undermined the development of the EU legal system and the role of the Court of Justice as the interpreter of EU law by leading EU law to be interpreted and applied divergently at the national level  The Court of Justice comes to find itself in an "awkward" position due to the joint application of two lines of its own case law, i.e. primacy and lack of fundamental rights protection in EU primary law 5  The change of perspective (aka a 360° revirement): fundamental rights as general principles of EU law  To cope with the position taken by the Constitutional courts (especially Italian and German), and to avoid the “disintegration” of the EC legal order, the Court of Justice changed its position (a quite rare event in the Court’s case law and history)  In the late 1960s, the Court of Justice recognized that fundamental rights were (and still are) part of the general legal principles of EU law and that, as a consequence, the Court was going to ensure that EU institutions complied with them  «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» (12 November 1969, case 29/69, Stauder). 6  The balance between EU law and fundamental rights is “attracted” within the EU legal order  While addressing the problem (see slide 4), the solution of the Court of Justice entails a complete change of perspective compared to the one “proposed” by the national constitutional courts  The balance between EU law and fundamental rights is no longer a matter of a relationship between national norms (those protecting fundamental rights) and norms of EU law, but between two EU norms.  The balancing thus takes place between internal norms of EU law Full preservation of the principle of the primacy of EU law 7  The balance between EU law and fundamental rights is “attracted” within the EU legal order  “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. In fact, the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called in question.  Therefore the validity of a community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure  however, an examination should be made as to whether or not any analogous guarantee inherent in community law has been disregarded. In fact, 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 (Internazionale Handelsgesellschaft, case 11/70, §§ 3 e8 4)  What practical consequence does the theory of fundamental rights as general principles have?  Fundamental rights become interpretative criteria for the interpretation of EU law rules (both primary and secondary law)  Most importantly, fundamental rights become a yardstick for the assessment of the legitimacy of the activity of the EU institutions and thus, of the validity of EU secondary law  an act of secondary law that does not comply with fundamental rights can be annulled and/or declared invalid by the ECJ  Since they are part of EU (primary) law, fundamental rights shall also be complied with by Member States, when they are implementing Union law  Fundamental rights can also be used by Member States to attempt to justify restrictive measures with respect to other EU law norms (e.g., fundamental freedoms - see the Omega case, among many others) 9  The "sources of inspiration" used by the Court of Justice  Constitutional traditions common to member states (see International Handelsgesellschaft case)  International treaties relating to the protection of human rights to which member States have cooperated or acceded (Nold case, Case 4/73)  European Convention on Huma Rights (ECHR)  Other international agreements 10  The gradual codification of the Court's approach  1975 Joint Declaration by the European Parliament, the Council and the Commission on Respect for Fundamental Rights  The institutions undertook to exercise their powers with respect for the fundamental rights resulting from the constitutions of the Member States and the ECHR.  The document had no binding force  The Declaration was followed by the preamble to the Single Act, in which there is a declaration of similar content but in more abstract terms.  After the adoption of the Maastricht Treaty, Article 6(2) TEU:  faithfully codified the Court's case law on the subject;  expressly qualified fundamental rights as "general principles of Community law" 11  The current version of Article 6 TEU  the Charter of Fundamental Rights (CFREU) has the same legal value as the Treaties  the Union accedes to the ECHR;  the Union continues to have to respect fundamental rights, as guaranteed by the ECHR and as resulting from the constitutional traditions common to the Member States, which form an integral part of Union law, as general principles of EU law. As already seen, moreover, Article 7 TEU gives the Council the power to find clear risks of a serious breach by a member state of the values set forth in Article 2 TEU, among which are respect for human rights, including the rights of persons belonging to minorities. 12  The CFREU: overview  There is no doubt that the use of an open (and unwritten) list of rights has worked (and still works) and, actually, has been one of the greatest successes of the Court of Justice  However, there was a growing need for a codification, in order to have a "written list" of fundamental rights at the EU level  With a view to the European Council to be held in Nice in 2001, a specific document on the matter is drafted by a Convention of mixed composition and then this is proclaimed by 3 Institutions  Initially, however, the Charter of Nice, is not given any binding legal force 13  The CFREU: overview(2)  The CFREU is composed by VII chapters,  Chapters I to Chapter VI contain the list of the rights  Chapter VII contains the general provisions governing the interpretation and application of the CFREU  In light of its historical origin, the list of rights (on which see the next slide) is not as such particularly innovative, precisely because it is largely reproductive of the case law of the Court, which in turn essentially reproduces the constitutional traditions of the Member states  The content of the dispositions of the CFREU is clarified in the so-called “Explanations”, which are annexed to the Charter (however, they are not legally binding)  The CFREU confers fundamental rights also 14 to non EU citizens  The content of the CFREU: the list of rights  Human Dignity = right to life and integrity of the person, prohibition of torture, inhuman or degrading punishment and treatment, slavery and forced labor  Freedoms = liberty and security, respect for private and family life, protection of personal data, right to marry and to found a family, freedom of thought, conscience and religion, as well as freedom of expression and information, of assembly and association, of the arts and sciences, right to education, professional freedom and the right to work, freedom to conduct business, right to property, asylum, protection in the event of removal, deportation and extradition  Equality = declined as non-discrimination, respect for cultural, religious and linguistic diversity, right to equality between men and women, rights of the child and the elderly, inclusion of the disabled; 15  The content of the CFREU: the list of rights  social rights and solidarity = workers' rights (e.g., information and consultation within the enterprise, collective bargaining and action, access to employment services, protection in the event of unjustified dismissal, fair and equitable working conditions, prohibition of child labor and protection of young people in the workplace, right to reconcile family and professional life, right) but also rights to social security and social assistance, health protection, access to services of general economic interest, environmental protection, consumer protection  European citizenship = the right of each citizen of the Union to vote and stand for election in elections to the European Parliament and municipal elections, the right to good administration, access to documents, the Ombudsman and diplomatic and consular protection, the right to petition, fundamental freedoms, those of movement and residence.  Justice = which includes the right to an effective remedy and an impartial judge, the presumption of innocence and rights of defense, the principles of legality and proportionality 16 of crimes and punishments, the right not to be tried or punished twice for the same offense.  The scope of application of the CFREU Chapter VII According to Article 51 CFREU:  The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.  This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties NB = fundamental rights are horizontal dispositions which, per se, would have a broad and undefined scope of application 17  What does «implementing EU law» mean? «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. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law» (Akerberg Fransson, C-617/10 § 19) In other words, according to the Court:  the scope of the Charter coincides with the scope of EU law  the Charter applies if EU law applies  as the Charter does not increase the competences conferred to the EU, the fundamental rights guaranteed by the legal order of the EU are applicable only (but in all) situations which are already governed by EU Law (see also AKT 18 TSN case)  Scope of guaranteed rights (and their limitation) According to Article 52 CFREU, any limitation on the exercise of the rights and freedoms recognized by the CFREU must:  be provided for by law  respect the essence of those rights and freedoms.  Comply with the principle of proportionality, so that limitations may be made only if they are necessary, adequate and not excessive  genuinely meet objectives of general interest recognized by the EU or the need to protect the rights and freedoms of others. 19 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)  Adopted within the framework of the Council of Europe, an international organization with 47 contracting States  Adopted in 1950, obliges States to respect the rights it provides for  It is an international convention that is not part of the EU legal system  The ECtHR  Has jurisdiction to hear individual claims brought against States for violations of the ECHR  Upon finding a violation, may order reparations and (pilot judgments) urge changes in national practice or legislation 20  ECHR (2)  As already mentioned, EU accession to the ECHR is explicitly foreseen in Art. 6 TEU  “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms”  However, the accession of the EU to the ECHR was rejected a first time by the Court already years ago in Opinion 2/94  There was a long course of negotiations leading to a draft accession treaty  In Opinion 2/13 of December 2014, the ECJ again rejected the accession process and ruled that the accession agreement that had been negotiated for the Union's accession to the ECHR was incompatible with EU law because of the risks posed to the autonomy of EU law and the role of the Court of Justice itself.  Although Article 52(3) CFREU requires that the rights covered by the CFREU, corresponding to rights covered also by the ECHR, shall be interpreted in such a way as to have the same meaning and scope as those conferred on them by the ECHR, even after the entry into force of the Lisbon Treaty, the ECHR does not constitute a legal act formally integrated into the legal order of the Union (Court of Justice Feb. 26, 2013, Case C-617/10 Åkerberg Fransson, EU:C:2013:105). 21  The principle of equivalent protection  The rights provided for by the CFREU which are also provided for by the ECHR must be interpreted as offering at least the same level of protection offered under the ECHR (e.g. the right to life provided for by the CFREU must be interpreted as offering at least the same level of protection as that afforded to the right to life under the ECHR, and thus not only by the text of the ECHR but also and the case law of the ECHR).  The EU legal order (i.e. the CGUE), however, may decide to raise the level of protection in relation to the standards applicable within the ECHR.  The reference to the level of protection recognised under the ECHR is, moreover, a direct consequence of the fact that the CFREU is in essence a recognition of rights already existing in the EU legal order because general principles of EU law deriving from the constitutional traditions of the Member States and from international agreements on fundamental rights to which the Member States are party (i.e. above all the ECHR)  It is therefore inevitable that the CFREU recognises that the rights it protects are protected at least at the same level as in the ECHR from which, precisely, and albeit indirectly, they originated.  Art. 53 CDFUE: so-called compatibility clause (MA: primacy and effectiveness of EU law - Case C-399/11, Melloni 22  Thank you for your attention! - questions? PROF. AVV. LUCA CALZOLARI, LL.M, PH.D [email protected] 23