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11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 WEBVTT NOTE This is an automatically generated transcription file. The accuracy of the transcription may vary depending on the speaker, audio quality, and environmental noise. NOTE Recording for: LW302-5-AU, LW302-5-ZA, LW302-6-AU, LW302-6-ZA, LW430-4-AU, LW430-4-ZA : Lecture : Tuesday 29 October 2024 9:00AM : EBS.2.2 NOTE generated at : Sunday 03 November 2024 12:36AM 00:00:04.600 --> 00:00:07.600 We expect a welcome. Right. 00:00:17.430 --> 00:00:20.430 Good morning, everyone. Welcome to our lecture of Week five on human rights and fundamental freedoms in the EU and the Court of Justice. 00:00:30.990 --> 00:00:33.990 This will be our last lecture on, let's say, constitutional law aspects of the EU. 00:00:40.110 --> 00:00:43.110 We started in week two by examining the institutional architecture of the European Union and how it works. 00:00:49.350 --> 00:00:52.350 Then we moved into the legal order of the European Union, the basic principles on which it operates and the basic parameters of its legal order, 00:00:57.600 --> 00:01:00.600 the direct effect supremacy, the principle of conferral. 00:01:01.350 --> 00:01:04.350 And now we are moving into the final debate, which is human rights and fundamental freedoms, and of course, 00:01:06.990 --> 00:01:09.990 something that we are very interested in because we are lawyers, the Court of Justice of the European Union. 00:01:12.840 --> 00:01:15.840 With that, we are going to conclude, let's see the set of lectures on the most on the more constitutional aspects of the EU. 00:01:21.030 --> 00:01:24.030 And from next week we are moving into something way more practical, which is the single market. 00:01:27.600 --> 00:01:30.600 How the single market works, what is the free movement of goods trade, the free movement of people, 00:01:34.290 --> 00:01:37.290 the free movement of professionals, and the free movement of businesses, namely in the form of the freedom of establishment. 00:01:42.510 --> 00:01:45.510 So from next week, our lectures will change character a bit in the sense that they will focus more on the trade aspects of EU law, 00:01:52.860 --> 00:01:55.860 namely the internal market. So let's examine the protection of human rights and fundamental freedoms within the context of the European Union. 00:02:03.180 --> 00:02:06.180 How are they protected? Which is the legal basis, as we said from the beginning of this class? 00:02:09.900 --> 00:02:12.900 Every time that we talk about something in our capacity as lawyers, both in our capacity as students and later on in our capacity as professionals, 00:02:19.680 --> 00:02:22.680 https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 1/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 we will need to identify the legal basis on which everything we are going to talk about depends on. 00:02:26.550 --> 00:02:29.550 So when you are talking about fundamental freedoms and human rights in the EU, 00:02:31.290 --> 00:02:34.290 the starting point is the Treaty of Rome, as it always is, where there was no provision in relation to this matter, 00:02:41.010 --> 00:02:44.010 There was no human rights or fundamental freedoms provision for the sole reason that if you 00:02:48.180 --> 00:02:51.180 remember back in our first lecture when we talked about the evolution of the European Union, 00:02:53.850 --> 00:02:56.850 it didn't start as a European Union, it started as a European economic Community. 00:02:59.940 --> 00:03:02.940 This is why it was called back then in 19 5758 with the Treaty of Rome and what the six founding states did at that point, 00:03:09.780 --> 00:03:12.780 if you remember, was to join forces. 00:03:13.200 --> 00:03:16.200 Europe was coming out of the Second World War and the stated that in order to make sure that war will will not happen again, 00:03:21.630 --> 00:03:24.630 we will not just sign a treaty because this has happened in many occasions in human history and then word around it. 00:03:29.310 --> 00:03:32.310 What we said is that they found a more regional way to deal with this issue, 00:03:36.090 --> 00:03:39.090 which was to unite their economies to such a degree that war will not only become unfeasible but economically destructive. 00:03:45.390 --> 00:03:48.390 As soon as another world was starting was about to start in Europe, 00:03:49.560 --> 00:03:52.560 then everybody would know that their economies would be eliminated because their economies 00:03:55.380 --> 00:03:58.380 have connected to such a degree that the war would be financially unsustainable as well. 00:04:01.500 --> 00:04:04.500 So they created what started as the European Economic Community, as we mentioned in our first lecture, 00:04:06.630 --> 00:04:09.630 and then evolved as the treaty evolved into something way more substantial, the European Union. 00:04:12.840 --> 00:04:15.840 So at the first treaty, which is the treaty that we have up to now, of course, but it has been revised in many ways. 00:04:20.880 --> 00:04:23.880 The Treaty of Rome did not contain any relevant provisions. 00:04:24.420 --> 00:04:27.420 The Treaty of Rome was all about the economy, was all about doing this or doing that in order to connect our economies in some way. 00:04:33.090 --> 00:04:36.090 https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 2/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 But it didn't have any human rights provision, mostly because the six leaders, there were six at that point thought, well, why should it? 00:04:42.090 --> 00:04:45.090 We are creating a European economic community. It's new. 00:04:45.630 --> 00:04:48.630 We are creating something new that we don't know how it is going to be evolved, but it's going to focus on the economy. 00:04:51.780 --> 00:04:54.780 So basically any human rights provision would be irrelevant. However, as we moved on, 00:04:59.640 --> 00:05:02.640 the Court of Justice noticed that the EU is expanding into new fields because it's becoming successful and new countries are joining in. 00:05:09.270 --> 00:05:12.270 But the treaty has this gap. It has no human rights or fundamental freedoms. 00:05:15.050 --> 00:05:18.050 Provision. So with this case, the international handles Gazelle soft case, if I pronounce it right. 00:05:22.610 --> 00:05:25.610 The court told us something that we have explained last week, that respect for fundamental rights is a part of general principles of law. 00:05:32.060 --> 00:05:35.060 We explained what general principles of law in the EU context mean. 00:05:35.600 --> 00:05:38.600 Last week when we said that this was a means on the part of the court to incorporate the national constitutions into the European Union legal order. 00:05:46.670 --> 00:05:49.670 So last week, when we examined the primary sources of law, we said that at the top stands the treaty. 00:05:53.420 --> 00:05:56.420 But next to the treaty, we also have the general principles of law, 00:05:56.900 --> 00:05:59.900 which are a distinctive feature of the EU legal order, a unique feature of the EU legal order. 00:06:03.140 --> 00:06:06.140 And when we asked ourselves What are the general principles of law, we said, 00:06:07.580 --> 00:06:10.580 The general principles of law refer to all the rights included and provided for by all the national constitutions of the Member States. 00:06:16.970 --> 00:06:19.970 This was a trick in brackets that the Court found employed, created in order to incorporate into the EU legal order the most substantial, 00:06:27.620 --> 00:06:30.620 the most fundamental, the most important legal text of its member states, which is the Constitution. 00:06:34.280 --> 00:06:37.280 So what that case basically said was something very simple. We are the European Economic Community. 00:06:40.550 --> 00:06:43.550 We are in the early 1960s very heavily, and we don't have any provision of the protection of human rights because we are an economic community. 00:06:49.550 --> 00:06:52.550 https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 3/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 But. The protection of human rights at the EU level will take place through the general principles of law. 00:06:58.340 --> 00:07:01.340 What does that mean? Taking into account that the general principles of law involve the national constitutions of Member States, 00:07:05.810 --> 00:07:08.810 which involve heavy protection of human rights and fundamental freedoms. 00:07:10.250 --> 00:07:13.250 We adopt those texts and turn them into European Union texts. 00:07:16.910 --> 00:07:19.910 So what the court basically stated here is there is no legal basis for the protection of human rights in the European Economic Community. 00:07:27.620 --> 00:07:30.620 Back then in the early sixties, because there's nothing in the treaty, 00:07:32.270 --> 00:07:35.270 but what I have created is something called the general principles of law, which is a unique EU creation. 00:07:40.760 --> 00:07:43.760 And that basically means that the general principles of law is a collection of rights copy pasted from national constitutions of the Member States. 00:07:50.450 --> 00:07:53.450 So the EU has created a new body of law, which is simply the national constitutions of Member States. 00:07:57.620 --> 00:08:00.620 So the Court stated, Is there a legal basis right now in the Treaty for the protection of human rights? 00:08:04.070 --> 00:08:07.070 No, there is nothing in the treaty to provide for that. 00:08:08.150 --> 00:08:11.150 Do we have to protect human rights in the European Union context? 00:08:12.170 --> 00:08:15.170 Yes. On which basis? On the basis of the general principles of law. 00:08:16.610 --> 00:08:19.610 And what are they? The collection of provisions of rights and of human rights protections existing in the national Constitutions of Member States. 00:08:27.050 --> 00:08:30.050 We copy paste them into a common body. We put that next to the treaty, and we consider that the legal basis for protecting human rights in the EU. 00:08:38.540 --> 00:08:41.540 So this was how it started. It started as an economic community. 00:08:44.030 --> 00:08:47.030 Therefore, the leaders in 1958 thought about regulating the trade of goods, etc., etc. But in the European Economic Community, in its embryonic form, 00:08:55.430 --> 00:08:58.430 that nobody could predict that it will evolve in the way that it involved in the 00:08:59.450 --> 00:09:02.450 27 Member States Union with activities at all levels of public life almost. 00:09:07.460 --> 00:09:10.460 The leaders did not put a provision in relation to the protection of human rights because they said it is an economic creature, an economic entity. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 4/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:09:16.820 --> 00:09:19.820 They are a bit irrelevant and in any case, we have protections of our own in a national constitution. 00:09:21.770 --> 00:09:24.770 But as the EU was expanding, the court state that, no, we need to have protections as well. 00:09:27.440 --> 00:09:30.440 There is nothing in the treaty, but I create a separate legal basis called the general principles of law, 00:09:34.910 --> 00:09:37.910 which I place on equal standing with the treaty, and that basically means copy pasting the rights existing in national constitutions 00:09:44.510 --> 00:09:47.510 into a body which is considered to be a binding body for the EU institutions as well. 00:09:52.400 --> 00:09:55.400 So how did we get the first layer of protection through the court, not through the treaty with this creation? 00:10:00.890 --> 00:10:03.890 That's called the general principles of law, which as I said many times last week, but today already as well, 00:10:07.730 --> 00:10:10.730 it's basically a collection of the rights existing in the national constitutions of Member States, 00:10:14.120 --> 00:10:17.120 bringing the national constitution of the member States into the very core of the EU legal order. 00:10:22.970 --> 00:10:25.970 Is that clear? Any questions? So the EU fundamental rights regime consists of the following things that are easy to define. 00:10:39.610 --> 00:10:42.610 And then it became even easier to define as we got our own Bill of Rights that we are going to examine today, article by article to see what it is. 00:10:51.430 --> 00:10:54.430 Nothing complicated about it. We are just going to examine the nature of human rights protection in the EU. 00:10:58.600 --> 00:11:01.600 So the EU fundamental rights regime consists of, very importantly, the general principles of EU law, which are basically what a copy paste, as I said, 00:11:08.350 --> 00:11:11.350 of the common constitutional traditions, common constitutional rights, 00:11:12.310 --> 00:11:15.310 common constitutional provisions regarding the protection of human rights across Member states, which means what? 00:11:18.790 --> 00:11:21.790 It means something really profound that if there is a human rights protected in one member state of the EU, 00:11:24.670 --> 00:11:27.670 then it is adopted into the general principles of law and protected by the EU as well, 00:11:29.920 --> 00:11:32.920 which is a very largely protected area, encompassing everything that the Member States consider as worth protecting. 00:11:39.310 --> 00:11:42.310 Of course, there is convergence at a great degree because the human rights are not a fluid area https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 5/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 where no one can predict what they are. 00:11:48.130 --> 00:11:51.130 They are quite easily definable and they have found their place in all constitutions of member states. 00:11:53.530 --> 00:11:56.530 Therefore, it is easy to bring them under the EU umbrella as well. 00:11:57.760 --> 00:12:00.760 But the general principles of law cover the common constitutional traditions of the Member States and very importantly, the international instruments, 00:12:05.920 --> 00:12:08.920 the international treaties on human rights protection, such as U.N. principles or even more importantly, the European Convention of Human Rights. 00:12:16.180 --> 00:12:19.180 Small footnote here in the public debates and the public discourse. 00:12:19.840 --> 00:12:22.840 A lot of people think that the European Convention of Human Rights has something to do with the EU. 00:12:25.390 --> 00:12:28.390 It has nothing to do with the EU. 00:12:27.400 --> 00:12:30.400 The European Convention on Human Rights is a convention of a way different organisation that has nothing to do with the European Union, 00:12:35.710 --> 00:12:38.710 the European Council, 00:12:37.240 --> 00:12:40.240 the Council of Europe excuse me, the Council of Europe is a human rights organisation with a very different membership of the European Union. 00:12:46.870 --> 00:12:49.870 For example, Turkey is a member of the Council of Europe and for this reason the fact that the word European exists 00:12:55.870 --> 00:12:58.870 in the title of both organisations doesn't mean that they are connected in any way which they are not. 00:13:02.080 --> 00:13:05.080 They operate on the basis of a different legal basis. 00:13:06.880 --> 00:13:09.880 The European Union has the Treaty of Rome turned into the Treaty of Lisbon. 00:13:11.740 --> 00:13:14.740 The Council of Europe has the European Convention of Human Rights, 00:13:16.630 --> 00:13:19.630 the European Union has the Court of Justice, the Council of Europe has the European Court of Human Rights. 00:13:23.170 --> 00:13:26.170 So in public debates, people confuse them. And they said the European Union did this and provided for that in the European Convention of Human Rights. 00:13:31.390 --> 00:13:34.390 But the European Union has nothing to do with a European Convention of Human Rights, which is another document of another organisation. 00:13:39.940 --> 00:13:42.940 But what do we have here? https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 6/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:13:41.140 --> 00:13:44.140 Basically, the court clarified that human rights in the EU context are going to be protected through the general principles of law, 00:13:49.240 --> 00:13:52.240 which includes, as we said, the national constitutions, 00:13:52.450 --> 00:13:55.450 but also the international treaties on human rights that Member States are already parties to all Member States of the European Union, 00:14:02.140 --> 00:14:05.140 are signatory parties to the European Convention of Human Rights. So the Court basically stated the following If you all signed the convention, 00:14:10.330 --> 00:14:13.330 then the convention is binding upon the European Union as well, and it becomes part of the general principles of law. 00:14:17.980 --> 00:14:20.980 So what are the general principles of law? As we said, there was no legal basis in the treaty for many years. 00:14:25.900 --> 00:14:28.900 We are going to see when we have the legal basis in the treaty for the protection of human rights and fundamental freedoms. 00:14:32.230 --> 00:14:35.230 But there was no legal basis within the treaty for the protection of human rights, 00:14:38.380 --> 00:14:41.380 mostly because the European Union started as a European Economic Community and therefore the leaders thought this would be irrelevant. 00:14:46.750 --> 00:14:49.750 But the Court introduce a quite heavy protection of human rights within the European Union through one avenue, 00:14:54.580 --> 00:14:57.580 the so-called general principles of law. And when we asked What are they? 00:14:59.290 --> 00:15:02.290 The court stated the following The general principles of law are all human rights protections included in the national constitutions of Member States, 00:15:08.680 --> 00:15:11.680 plus the human rights international treaties that Member States have signed, namely the European Convention of Human Rights and the Rest. 00:15:18.940 --> 00:15:21.940 And what are they now? They are parts of the EU legal order enjoying the same legal status as the treaty at the top of. 00:15:28.330 --> 00:15:31.330 The legal order. So what we have is a legal construction where without a legal basis in the treaty itself. 00:15:38.790 --> 00:15:41.790 Human rights finds a quiet civil protection within the EU context stemming 00:15:46.620 --> 00:15:49.620 from the general principles of law which enjoy the same status as the treaty. 00:15:51.900 --> 00:15:54.900 And they consist of national constitutions and international instruments on 00:15:57.510 --> 00:16:00.510 human rights protection that now acquire the same legal value as the treaty. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 7/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:16:04.890 --> 00:16:07.890 A parallel system of protection of human rights is not clear. 00:16:12.180 --> 00:16:15.180 Any questions? However, we arrive at 2000. 00:16:19.760 --> 00:16:22.760 So imagine how many years passed when this system was in place from 1958 to 2000. 00:16:25.790 --> 00:16:28.790 42 years. Actually, 50 years. Because we are going to go to 2009 right after that. 00:16:31.610 --> 00:16:34.610 But anyway, we are the Treaty of Rome in 1958. What happened was the things that we are explaining from the beginning of our lecture, 00:16:39.470 --> 00:16:42.470 no legal basis but protection of human rights at the highest possible level of the legal structure of the EU through the general principles of law. 00:16:48.350 --> 00:16:51.350 And we finally come to 2000, 42 years after the inception of the EU and the leaders state. 00:16:56.060 --> 00:16:59.060 No, let's create something more concrete. 00:17:00.650 --> 00:17:03.650 Let's create our own Bill of Rights in the same way that the American Constitution has it, 00:17:05.690 --> 00:17:08.690 in the same way that the European Convention of Human Rights is basically a Bill of Rights in the same way, 00:17:11.360 --> 00:17:14.360 for example, that the French or the German constitutions have a bill of human rights protected at the highest level. 00:17:18.920 --> 00:17:21.920 We do protect human rights at the highest level now. 00:17:21.710 --> 00:17:24.710 But through this construction of the general principles of law, which has which runs in parallel to the treaty with the same legal value, 00:17:28.760 --> 00:17:31.760 but we don't have an actual text when we have to protect the human right within the EU. 00:17:34.160 --> 00:17:37.160 We look at the European Convention of Human Rights, which is not ours, or we look at the Constitution of that member State or the other member State. 00:17:42.350 --> 00:17:45.350 Why not? Since we agree on the protection of human rights and and on which human rights should be protected, not create our own Bill of Rights. 00:17:51.650 --> 00:17:54.650 And this is exactly what the Charter of Fundamental Rights was, which was created in 2000, 00:17:59.240 --> 00:18:02.240 but it was vetoed by the United Kingdom and later on by Poland. 00:18:03.740 --> 00:18:06.740 And we are going to see in a few minutes why. 00:18:06.530 --> 00:18:09.530 So it remained only an advisory text, a text with no legal value up to 2009, where it became an integral part of the Treaty of Lisbon. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 8/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:18:19.730 --> 00:18:22.730 It became a part of the text of the Treaty of Lisbon, and only in 2009, the European Union acquired a legal basis, 00:18:30.290 --> 00:18:33.290 a strong legal basis within the Treaty for the protection of human rights within the EU. 00:18:36.890 --> 00:18:39.890 We are going to see both the Charter and the reasons behind the two vetoes. 00:18:43.850 --> 00:18:46.850 The Treaty of Lisbon therefore created a new article. This is completely new. 00:18:49.370 --> 00:18:52.370 We are in 2009 and after everything that we talked about, which was in place for 42 and nine, 00:18:58.640 --> 00:19:01.640 51 years in 2009, the European Union leaders said enough. 00:19:05.690 --> 00:19:08.690 For 51 years we had quite strong human rights protections in the EU. 00:19:10.610 --> 00:19:13.610 But through the general principles of law, we needed to look at the text, which is good, but it's not ours. 00:19:16.970 --> 00:19:19.970 The European Convention on Human Rights are going to look at the French, the German, 00:19:21.470 --> 00:19:24.470 the Italian constitutions, etc. We have explicit legal basis for a lot of things in our treaty. 00:19:29.810 --> 00:19:32.810 We need to create a legal basis for the protection of human rights and fundamental freedoms within the 00:19:35.270 --> 00:19:38.270 actual treaty and not taking all the time this constitution or that constitution to protect our rights. 00:19:43.760 --> 00:19:46.760 And therefore, they drafted Article six. 00:19:46.220 --> 00:19:49.220 Remember what I have mentioned many times in this class that when we use the phrase the treaty provides that according to the treaty, 00:19:54.140 --> 00:19:57.140 what we basically means the 27 countries on the basis of unanimity decided to expand the EU in that area, 00:20:03.050 --> 00:20:06.050 no human rights or limit the European Union competences in other areas, as we have seen in our first three lectures. 00:20:13.640 --> 00:20:16.640 So Article six is short. It's very clear. It's not obscure or complicated at all. 00:20:19.790 --> 00:20:22.790 And it basically establishes a human rights regime that is equally clear and nothing controversial about it at all. 00:20:27.680 --> 00:20:30.680 Article six, Paragraph one The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of December 2002. 00:20:37.340 --> 00:20:40.340 The Charter should have the same legal value as the Treaties. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 9/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:20:41.330 --> 00:20:44.330 This was the first major reform. 00:20:44.930 --> 00:20:47.930 Here, the leaders stated the Charter of Fundamental Rights that we drafted in 2000, which was of advisory nature of soft regulation. 00:20:53.870 --> 00:20:56.870 It did not have a legal value ceases to exist like that, and it becomes a major instrument in EU law by being incorporated into the treaty itself. 00:21:05.720 --> 00:21:08.720 So not only it acquires legal value, but it acquires the same legal value as the treaties. 00:21:12.920 --> 00:21:15.920 So the Charter of Fundamental Rights. 00:21:14.800 --> 00:21:17.800 Now stands at the top of the legal order of the EU as it is a part of the document that is the most important legal document in the EU. 00:21:24.700 --> 00:21:27.700 The treaty last week, when we talked about the hierarchy in legal orders, we said that even at the nation state, 00:21:33.430 --> 00:21:36.430 at the member state level, the most important document in the legal order is its constitution. 00:21:39.700 --> 00:21:42.700 Something similar to that, although we cannot employ this term because legally speaking it will not be precise, 00:21:46.210 --> 00:21:49.210 but something similar to that as a parallel. In order to understand what we are talking about, the Treaty of the European Union, the Treaty of Lisbon, 00:21:53.920 --> 00:21:56.920 which used to be the Treaty of Rome, is something like the Constitution of the EU. 00:21:58.660 --> 00:22:01.660 It stands at the top of the legal order. So the leaders decided that not only they are going to change the status and the legal 00:22:07.090 --> 00:22:10.090 basis of the protection of human rights and fundamental freedoms within the EU, 00:22:11.830 --> 00:22:14.830 but they are going to do it in a rather spectacular way in the sense that something that didn't 00:22:16.000 --> 00:22:19.000 even exist was elevated into the treaty and integrated into it as an integral part of the treaty. 00:22:26.170 --> 00:22:29.170 So what in Article six, paragraph one, do? 00:22:29.260 --> 00:22:32.260 It created a legal basis for the protection of human rights and fundamental freedoms within the EU by the EU institutions. 00:22:38.290 --> 00:22:41.290 Every time they act, every time they legislate, every time we have any activity from any body of the EU, 00:22:46.000 --> 00:22:49.000 that activity needs to be in full compliance with all human rights and fundamental freedoms enshrined in the Charter, 00:22:53.770 --> 00:22:56.770 which we are going to examine in a few minutes. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 10/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:22:56.680 --> 00:22:59.680 So basically what we said in our first part of the lecture that we did not have a legal basis in the treaty and we had the general principles of laws, 00:23:06.550 --> 00:23:09.550 no changes. But look how many years it took from 1958 to 2009, 51 years. 00:23:16.690 --> 00:23:19.690 But now we have Article six, paragraph one, which integrates the Charter of Fundamental Rights into the treaty, 00:23:25.600 --> 00:23:28.600 and it creates a legal basis for the protection of human rights and fundamental freedoms within the EU. 00:23:34.320 --> 00:23:37.320 Article six, paragraph two, we have three paragraphs three reforms. 00:23:39.960 --> 00:23:42.960 Article six Paragraph two recognises how important the European Convention for Human Rights is for the Member States of the EU. 00:23:49.680 --> 00:23:52.680 And it recognises that all 27 Member States are parts signatory parts of the European Convention of Human Rights and IT states. 00:24:00.270 --> 00:24:03.270 If the EU wants to accede to the European Convention of Human Rights, it can do so. 00:24:06.390 --> 00:24:09.390 The EU now as an organisation, which means even the institutions of the EU to subscribe to that neutrality will change anything because 00:24:16.980 --> 00:24:19.980 all of the rights of the European Convention of Human Rights are in the Charter of Fundamental Rights, 00:24:22.110 --> 00:24:25.110 which is now a part of the treaty. 00:24:23.850 --> 00:24:26.850 But I guess the leaders wanted to emphasise further that they are placing another obligation upon the EU to act in a 00:24:32.430 --> 00:24:35.430 certain way and we are going to come back to that when in a few minutes we are going to ask why the reform has happened. 00:24:40.980 --> 00:24:43.980 And last but not least. 00:24:43.370 --> 00:24:46.370 Paragraph three clarified the structure of human rights protection in the EU, which is this very heavy web of legal texts that can be invoked. 00:24:57.190 --> 00:25:00.190 In order to protect human rights within that context. 00:25:00.190 --> 00:25:03.190 And it says Article six, paragraph three, fundamental rights as guaranteed number one by the European Convention on Human Rights. 00:25:08.410 --> 00:25:11.410 Number two, by the constitutional traditions of the Member States self constitute general principles of Union's law. 00:25:15.820 --> 00:25:18.820 So now the treaty clarifies that everything can be a legal basis for the protection of human https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 11/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 rights in the EU, the constitutions of the Member States. 00:25:26.200 --> 00:25:29.200 The actual treaty in Article six, paragraph one, and the European Convention of Human Rights. 00:25:32.620 --> 00:25:35.620 Basically, there is no other human rights text left out of this situation that somebody can 00:25:38.380 --> 00:25:41.380 invoke to bring a claim for human rights abuses against the European Union. 00:25:46.210 --> 00:25:49.210 So to recap before you may ask any questions. 00:25:51.100 --> 00:25:54.100 What did the Treaty of Lisbon do? It reformed the landscape of human rights by filling in the gap that we had since 1958. 00:26:03.220 --> 00:26:06.220 What was that gap? The lack of a legal basis for the protection of human rights within the EU context in the actual treaty. 00:26:12.520 --> 00:26:15.520 As we said, the EU started as a European Economic Community and the leaders thought that this will be unnecessary because remember, 00:26:20.140 --> 00:26:23.140 if the treaty doesn't say something, it means that the leaders don't want the treaty to say something. 00:26:25.450 --> 00:26:28.450 And if the treaty provides for something, it means that the leaders want the treaty to provide for something. 00:26:32.560 --> 00:26:35.560 This is not a text that's divine and emanating from something that we cannot define. 00:26:37.390 --> 00:26:40.390 This is a text drafted by member states on the basis of unanimity. 00:26:42.640 --> 00:26:45.640 So we started our search 1958. We reached 2009. Half a century later, what the leaders said. 00:26:50.800 --> 00:26:53.800 Now we are going to create a legal basis within the treaty to protect human rights, namely Article six, paragraph one. 00:26:58.840 --> 00:27:01.840 The Charter of Fundamental Rights is now a part of the treaty. 00:27:02.980 --> 00:27:05.980 This is the legal basis You need to protect human rights within the EU and to bring 00:27:08.200 --> 00:27:11.200 the European Union and all of its bodies accountable in case one of their activities, 00:27:12.940 --> 00:27:15.940 laws or whatever else acts or actions is in breach of human rights. 00:27:18.790 --> 00:27:21.790 Paragraph two said If the EU wants, it can even accede as a union within the European Convention of Human Rights. 00:27:24.760 --> 00:27:27.760 Hasn't happened still. But it doesn't really make any material difference. 00:27:28.600 --> 00:27:31.600 It's mostly symbolic. In paragraph three, it clarified what's the human rights protection in the EU now? https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 12/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:27:36.280 --> 00:27:39.280 Number one, Article six. But I'm going to add one which has created a legal basis for the protection of human rights in the EU. 00:27:43.780 --> 00:27:46.780 Number two, the national constitutions, which have so many human rights protections. 00:27:48.520 --> 00:27:51.520 And number three, the international instruments focussed on human rights protection, such as the European Convention of Human Rights. 00:27:59.560 --> 00:28:02.560 All of the three can operate as a legal basis to protect human rights within the EU. 00:28:07.060 --> 00:28:10.060 What's the most popular? Obviously, Article six, paragraph one, because it's clear and because it refers to the Charter of Fundamental Rights, 00:28:15.550 --> 00:28:18.550 which embodies both of the convention but also the national constitutions, as it has to put it bluntly, copy, paste it. 00:28:25.450 --> 00:28:28.450 All of the rights that those two head into its body, creating a single body of human rights list in the EU context. 00:28:42.070 --> 00:28:45.070 Any questions? Recently our. 00:28:48.660 --> 00:28:51.660 Okay. Now somebody may ask. Okay. 00:28:54.300 --> 00:28:57.300 There was no human rights legal basis in the treaty in 1958 because, as we said, this was the European Economic Community. 00:29:02.940 --> 00:29:05.940 And when you create an economic community, 00:29:04.830 --> 00:29:07.830 leaders thought that human rights would be irrelevant as they normally are in in a purely economic organisation context, 00:29:13.860 --> 00:29:16.860 depending on what it focuses upon. So how come they moved so radically into creating into shifting their position 00:29:25.110 --> 00:29:28.110 from a no legal basis at all into a web of protection that includes the treaty, 00:29:32.880 --> 00:29:35.880 the constitutions, and the convention? And there are four reasons, all of which are included in your slides. 00:29:42.150 --> 00:29:45.150 The first one is the expansion of the EU to new areas, as we said, as the EU evolved. 00:29:49.470 --> 00:29:52.470 It was quite successful in attaining one target after the other, the single market free trade cooperation. 00:29:57.480 --> 00:30:00.480 Then the member States realised that the world is becoming more complicated and challenging, 00:30:02.160 --> 00:30:05.160 even so now, and they need to cooperate in areas that they didn't predict, so they will never cooperate. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 13/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:30:09.480 --> 00:30:12.480 And one of those areas was justice and home affairs, namely criminal law, immigration, 00:30:15.210 --> 00:30:18.210 asylum, etc. There was not much immigration to Europe in the sixties and the seventies, 00:30:21.000 --> 00:30:24.000 mostly because there were many also totalitarian regimes in the world which didn't allow their citizens to to exit this places. 00:30:29.160 --> 00:30:32.160 But then crime evolved, and we had international criminal gangs operating across borders. 00:30:36.810 --> 00:30:39.810 Many wars around the world where people asked for asylum, illegal immigration, legal immigration, etc.. 00:30:44.460 --> 00:30:47.460 So right at the beginning of the 21st century, they said this is another area we cannot cope alone. 00:30:52.200 --> 00:30:55.200 This is another area where we thought that it's not they thought it was a part of the court of law of our national sovereignty. 00:31:00.540 --> 00:31:03.540 And it was not a part of the treaty because we didn't want the EU to meddle into it because it was only under our umbrella. 00:31:09.450 --> 00:31:12.450 But we cannot do it alone. The criminal gangs operate around the world and they are very well- armed and they are very well funded. 00:31:18.060 --> 00:31:21.060 Immigration is exploding into numbers that we haven't seen before. 00:31:22.170 --> 00:31:25.170 Each country alone cannot deal with this. So let's deal with this together. 00:31:26.790 --> 00:31:29.790 Let's deport criminals together and let's create Europol, 00:31:30.810 --> 00:31:33.810 which is going to have a common list of criminals that if somebody is in Denmark but has escaped Italy, 00:31:36.480 --> 00:31:39.480 the Danish authorities will know exactly his identity and they can arrest him, etc., etc.. 00:31:42.570 --> 00:31:45.570 So as the European Union moved to areas that were very sensitive and areas that the leaders in 1958 or in the 00:31:50.430 --> 00:31:53.430 sixties or in the seventies never imagined that they will agree to bring up at the European Union level. 00:31:59.250 --> 00:32:02.250 It was thought that as the EU is expanding to sensitive areas, we need to create additional safeguards for its actions. 00:32:07.830 --> 00:32:10.830 And the most significant safeguard was a very rigid protection of human rights, 00:32:15.300 --> 00:32:18.300 which it in the good sense, let's say strong, but a very strong protection of human rights. 00:32:21.450 --> 00:32:24.450 So the leaders because remember that nothing, as I have said so many times in this room, nothing https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 14/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 is created on its own in the EU. 00:32:30.240 --> 00:32:33.240 The leaders on the one hand, agreed that the EU has to expand to justice and home affairs, 00:32:35.790 --> 00:32:38.790 namely immigration, crime, asylum, etc. But on the other hand, they said we need to cooperate on this. 00:32:45.000 --> 00:32:48.000 But on the other hand, it can be tricky if we don't set up the limitations. 00:32:48.870 --> 00:32:51.870 What are the limitations? Let's bring human rights into the context and subject any EU action to that strong human rights protection. 00:32:58.440 --> 00:33:01.440 So if the EU exceeds its mandate, its limitations, its order to do things in a specific way in this field, 00:33:06.690 --> 00:33:09.690 then we will dump upon it the Charter of Fundamental Rights and its actions are going to be invalidated. 00:33:13.650 --> 00:33:16.650 So the compromise was we expand the EU to new areas of sensitive nature while placing upon it. 00:33:23.080 --> 00:33:26.080 A heavier safeguard against exceeding its mandate in the form and in the name of heavier human rights protections. 00:33:32.110 --> 00:33:35.110 And that was even more relevant because they feel that they allowed the EU to expand was a very sensitive one in the core of national sovereignty, 00:33:41.410 --> 00:33:44.410 asylum, immigration, crime, cooperation, 00:33:46.000 --> 00:33:49.000 in issues that before the beginning of the 21st century, which is basically 2000 member states, 00:33:55.480 --> 00:33:58.480 thought that this is exclusively a part of their national sovereignty and the EU was not allowed to act according to the treaty. 00:34:04.030 --> 00:34:07.030 Why? Because the Member States didn't want it to act when the Member States change their opinions because the conditions changed. 00:34:11.290 --> 00:34:14.290 Then the EU was allowed to act. Secondly. 00:34:16.560 --> 00:34:19.560 Something we have seen last week when we talked about the primacy or the supremacy of EU law. 00:34:22.920 --> 00:34:25.920 And we said that in order for the EU to operate smoothly and to attain its objectives, the EU law needs to be supreme domestic law, 00:34:31.500 --> 00:34:34.500 something that will become very evident from next week when we are going to examine the internal market. 00:34:36.930 --> 00:34:39.930 Without harmonised legal standards, the internal market cannot work. 00:34:41.400 --> 00:34:44.400 We are going to see what that means from next week and onwards. So they said we agree. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 15/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:34:48.630 --> 00:34:51.630 In order for the EU to operate and to be successful, which means in order for the aims that we have established as Member States to be attained, 00:34:56.850 --> 00:34:59.850 we need to have supremacy of EU law over national law. But we have looked at the guarantees against the EU exceeding its power, 00:35:06.040 --> 00:35:09.040 and last week and the week before human rights operate as yet another guarantee. 00:35:12.180 --> 00:35:15.180 The leaders stated We accept the supremacy of EU law. 00:35:17.010 --> 00:35:20.010 The member States established they accept the supremacy of EU law. 00:35:20.910 --> 00:35:23.910 But let's introduce yet another safeguard against any breach of powers or any acting outside powers on the part of the EU. 00:35:34.950 --> 00:35:37.950 We dump upon it a very heavy human rights text and if anything within that text is breached, 00:35:41.820 --> 00:35:44.820 then the EU action will be invalidated and the EU will be brought before the European Court of Justice for a breach of its human rights obligations. 00:35:51.780 --> 00:35:54.780 So basically we see that as it normally happens with law, especially in the context of international relations. 00:35:59.730 --> 00:36:02.730 There is a political motivation behind the law. 00:36:03.180 --> 00:36:06.180 So on the one hand we see human rights protection, which is always a good thing because human rights are. 00:36:09.750 --> 00:36:12.750 That's why they are called fundamental freedoms. They are fundamental aspects of a democratic society. 00:36:16.410 --> 00:36:19.410 But if somebody bluntly asks why have human rights protections been introduced in the treaty? 00:36:22.710 --> 00:36:25.710 Was it a noble cause? Well, of course, to protect the citizens. 00:36:26.040 --> 00:36:29.040 But the cause was also political to protect the member states from any attempt of the European 00:36:34.050 --> 00:36:37.050 Union to extend its power outside its mandate in the field of justice and home affairs. 00:36:40.860 --> 00:36:43.860 And in the context of the supremacy of European Union law over national law, 00:36:46.830 --> 00:36:49.830 along with the other safeguards that we examined last week and the week before, what the European Union leaders did through the treaty, 00:36:54.780 --> 00:36:57.780 as it's always the case, is to introduce a very strong human rights protection regime, 00:37:00.960 --> 00:37:03.960 which means that if the EU went beyond its mandate, then we will also have a breach of human rights protection. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 16/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:37:10.590 --> 00:37:13.590 Is that clear? Any question so far? 00:37:19.150 --> 00:37:22.150 Now. The third reason was also something that we have seen in the last couple of lectures, 00:37:27.600 --> 00:37:30.600 which was that the European Union leaders, again on the basis of political motivation, stated We want the EU to expand. 00:37:35.880 --> 00:37:38.880 It expands because we want it and we put that in the treaty, but we want our own legal borders into the EU legislative arena, into the EU legal order. 00:37:46.840 --> 00:37:49.840 How do we do that? Through the general principles of law, 00:37:50.730 --> 00:37:53.730 through incorporating our human rights provisions into the EU legal order as a part of the general principles of law? 00:37:58.500 --> 00:38:01.500 We have explained what they are in most of our lecture today. Again, the general principles of law, the creation of the EU, 00:38:05.070 --> 00:38:08.070 a very distinctive feature which basically says the copy pasting of national constitutions into the EU legal order. 00:38:12.570 --> 00:38:15.570 So the leader states we have created the human rights regime, now protection regime within the European Union. 00:38:21.120 --> 00:38:24.120 And one of the reasons behind it is once again political in because this is a great way to throw our national constitution are most 00:38:31.110 --> 00:38:34.110 important legal texts into the EU legal order since the EU has recognised that the first legal basis is Article six but are going to form. 00:38:40.080 --> 00:38:43.080 But the second one are the national Constitutions of Member States of the EU. 00:38:45.300 --> 00:38:48.300 So again, politics the Member States thought they use. 00:38:48.810 --> 00:38:51.810 Great. We have decided to to be a part of it because it promotes our national interests, but not in a general mandate in a supranational manner. 00:38:59.220 --> 00:39:02.220 Let's throw the most important piece of our national legal order, namely our Constitution, into the EU legal order. 00:39:07.800 --> 00:39:10.800 What is a good avenue for that? Human rights? With a regime that we have created through Article six of the treaty. 00:39:17.980 --> 00:39:20.980 Our human rights protection, as enshrined and provided in our constitutions, are now part of the EU human rights regime, 00:39:26.080 --> 00:39:29.080 which means that every time the European Union acts, it will have to be subject to our human rights provisions in our Constitution as well. 00:39:34.390 --> 00:39:37.390 So as a country, as a member state, we have yet another means of control over the European Union. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 17/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:39:41.890 --> 00:39:44.890 This is how politics and international relations work. 00:39:45.220 --> 00:39:48.220 There is always a motivation for something, even if that even in the case when what happens is actually quite good or noble. 00:39:55.840 --> 00:39:58.840 It's all a part of a national agenda and national interests, and you can see that in the context of the European Union a lot. 00:40:02.950 --> 00:40:05.950 Taking into account that this is not, as we said, just another organisation, 00:40:07.240 --> 00:40:10.240 but an organisation of a special nature that has harmonised Member States policies to a great degree. 00:40:14.680 --> 00:40:17.680 And last but not least, among many, many excuse me, Member States wanted the EU to come closer to the European Convention of Human Rights, 00:40:24.310 --> 00:40:27.310 and therefore the Charter was important because it could be based that great parts of the convention into its body and created a very elevated, 00:40:34.870 --> 00:40:37.870 a very advanced level of protection of human rights within the EU. 00:40:40.450 --> 00:40:43.450 So this was basically the four grounds on which the European Union leaders decided to introduce Article six and to make the Charter of 00:40:53.860 --> 00:40:56.860 Fundamental Rights a part of the treaty and to create a legal basis within the treaty for the protection of human rights in the EU. 00:41:05.810 --> 00:41:08.810 Any questions? No. 00:41:11.150 --> 00:41:14.150 A very simple question would be when does the charter apply? 00:41:16.520 --> 00:41:19.520 We talk about it, but when does it apply? You are going to find several complicated replies in literature, but actually the reply is quite simple. 00:41:24.530 --> 00:41:27.530 The provisions of the charters are addressed to the European Union, to its institutions and bodies, 00:41:30.620 --> 00:41:33.620 but also to national authorities when they implement the European Union law. 00:41:36.290 --> 00:41:39.290 It is as easy as that. So we are talking about anything that is EU related. 00:41:42.530 --> 00:41:45.530 The charter cuts applies upon every single act or activity or law of any European Union institution or body. 00:41:51.860 --> 00:41:54.860 What does that mean? That every single European Union, institution or body has to comply with the human rights law of the Charter in its acts, 00:42:01.820 --> 00:42:04.820 actions, decisions, etc. But it also applies to national authorities when they are implementing the European Union law, https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 18/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:42:09.110 --> 00:42:12.110 which means that we catch European Union law, European activities at every single level where they are unfolding, 00:42:16.220 --> 00:42:19.220 whether this is from the EU itself or whether a member state is implementing the European Union law. 00:42:25.040 --> 00:42:28.040 And as you see on your screen as well, that means that Member states can sue on the basis of the charter. 00:42:36.110 --> 00:42:39.110 But that also means that private citizens can use the charter to sue the European Union if there is a breach of the charter, 00:42:45.230 --> 00:42:48.230 which means if there is a breach of human rights, we are not going to go through that list one by one because it will get very legalistic. 00:42:53.660 --> 00:42:56.660 But it goes back to this thing. When does the charter apply? 00:42:57.470 --> 00:43:00.470 Every time that any EU body or any EU institution issues any decision Act activity or a piece of law. 00:43:08.270 --> 00:43:11.270 So it catches up on anything produced flowing or emanating from the European Union, number one. 00:43:15.620 --> 00:43:18.620 And number two, it also catches any activity on the part of a member state implementing an EU law. 00:43:23.260 --> 00:43:26.260 Activity. Not sure what happened. 00:43:32.210 --> 00:43:35.210 Let's see. Right. 00:43:50.550 --> 00:43:53.550 Okay. So how does it work in practice? 00:43:56.440 --> 00:43:59.440 In a very as a way, as I said, 00:43:58.260 --> 00:44:01.260 this lecture doesn't contain anything that's obscure or complicated like we did last week with the direct effect of directives. 00:44:08.700 --> 00:44:11.700 The charter applies in a very simple way. If an EU law is breached in a way that interferes with human rights, 00:44:17.160 --> 00:44:20.160 then the European Commission can sue the member state or the other institution before the Court of Justice or an EU. 00:44:24.750 --> 00:44:27.750 Citizens can do that themselves. It is as easy as that. Nothing complicated. 00:44:30.360 --> 00:44:33.360 Following what we've said a minute ago, if we have an EU action and EU activity, an EU law which is in breach of the charter, 00:44:39.300 --> 00:44:42.300 which means which is in breach of human rights, then the Commission can assume or a private individual, https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 19/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:44:47.100 --> 00:44:50.100 a citizen of the Member States of the European Union, 00:44:50.130 --> 00:44:53.130 can bring the Council of Ministers into the European Parliament or the Commission or anyone really before the Court and state. 00:44:57.300 --> 00:45:00.300 This is what they did, and I believe that this is in breach of that right in the Charter of Fundamental Rights. 00:45:06.420 --> 00:45:09.420 As easy as that. Nothing complicated. Nothing more to out here. 00:45:11.750 --> 00:45:14.750 Any questions? 00:45:17.110 --> 00:45:20.110 And very quickly, before we move on to our break, we have this interrelationship between the charter and the European Convention of Human Rights. 00:45:27.460 --> 00:45:30.460 As I said, it's called the European Convention of Human Rights. 00:45:32.530 --> 00:45:35.530 But don't confuse it with the European Union. 00:45:35.530 --> 00:45:38.530 The European Convention of Human Rights is a legal instrument of the Council of Europe, which has nothing to do with the European Union. 00:45:45.040 --> 00:45:48.040 So the relationship is not a complicated one, mostly because they both belong to different organisations. 00:45:53.920 --> 00:45:56.920 The Charter of Fundamental Rights is now a part of the European Treaty and therefore a part of the European legal order. 00:46:02.500 --> 00:46:05.500 The European Convention of Human Rights is the main legislative instrument of another organisation, the Council of Europe. 00:46:10.510 --> 00:46:13.510 It operates on the basis of another court, the European Court of Human Rights, which is the Court of the Council of Europe. 00:46:16.810 --> 00:46:19.810 Nothing to do with the European Union. Of course, in terms of substance, if you read the two texts, you will find a lot of floods arising. 00:46:27.820 --> 00:46:30.820 To put it in academic student terms, the Charter of Fundamental Rights has copied the great parts of the European Convention into its facts. 00:46:38.770 --> 00:46:41.770 So when you read the two texts, you are going to have the impression that you read that some were. 00:46:45.650 --> 00:46:48.650 Very recently. And this is because the European Convention of Human Rights was created, I think, in the 1950s by the Council of Europe. 00:46:55.730 --> 00:46:58.730 The Charter of Fundamental Rights was drafted in 2000. For decades afterwards, and having as a main source of inspiration, 00:47:03.590 --> 00:47:06.590 the European Convention of Human Rights and the National Constitutions of the Member States. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 20/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:47:08.600 --> 00:47:11.600 So are they similar to a great extent, if not to the greatest extent? 00:47:14.660 --> 00:47:17.660 Going back to the UK, as you said, the bottom of the screen, the Charter of Fundamental Rights, 00:47:21.440 --> 00:47:24.440 was abolished here in with the Withdrawal Act of the 2008 of 2018. 00:47:28.310 --> 00:47:31.310 But the European Convention of Human Rights is still in application here by the Human Rights Act of 1998, although, for example, 00:47:37.370 --> 00:47:40.370 as you know, one of the two big parties has in its agenda to withdraw from the European Convention of Human Rights. 00:47:44.630 --> 00:47:47.630 It was an it's not in its manifesto, but in some of its leadership contenders. 00:47:50.780 --> 00:47:53.780 So let's do a break. Actually, before we do a break, do you have any questions? 00:47:59.840 --> 00:48:02.840 No. Let's come back at 5 to 10 and then we will talk about the content of the charter. 00:48:08.360 --> 00:48:11.360 As I said, nothing too complex or complicated to explain. 00:48:12.170 --> 00:48:15.170 Thank you. Oh, my God. 00:48:41.350 --> 00:48:44.350 I'm sorry about this. 00:48:48.300 --> 00:48:51.300 Yeah, it's 75%, some of which is more than 55%, which doesn't come back for more. 00:49:04.020 --> 00:49:07.020 Oh, yes. And it's the Academy Award for compulsory. 00:49:10.320 --> 00:49:13.320 Not used to make alone. 00:49:15.060 --> 00:49:18.060 Sorry. I'm really sorry. I was living in New York on, you know, the other module. 00:49:19.950 --> 00:49:22.950 I'm going I was completely I was going to make the strike that, you know, this module has failed my. 00:49:35.310 --> 00:49:38.310 Yeah. You know, so I was just reading Labour Market this summer. 00:49:44.210 --> 00:49:47.210 So I have to go through and the distribution of things. 00:49:52.440 --> 00:49:55.440 She had some of the me. Yeah. 00:49:59.760 --> 00:50:02.760 I mean most I'm not most money. 00:50:05.020 --> 00:50:08.020 Okay. What's this thing before only 4% for quite some time. 00:50:15.720 --> 00:50:18.720 I know it's because this module comes from a people who want to this pool and sort of just to give some treatment. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 21/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:50:23.820 --> 00:50:26.820 So this is why we have so many movies and books. 00:50:29.760 --> 00:50:32.760 Yeah, but really Hebrew, as I said in our first study work at 7:00 in the morning, I think, you know, mysteriously annoying. 00:50:53.610 --> 00:50:56.610 I want to be a person for a long time. 00:50:59.280 --> 00:51:02.280 He was born in the U.S. and so that's really cool. 00:51:12.970 --> 00:51:15.970 And he's not with us because university school of regulations of inflation distant, 00:51:19.320 --> 00:51:22.320 simple girlfriend but something we've always done by the end of every year, 00:51:24.900 --> 00:51:27.900 along with the agreement that a group of people will have another interpretation of whatever you do it. 00:51:39.420 --> 00:51:42.420 I hear that usually the government pushing those boxes and you know what the said some students are if you're looking for more help, 00:51:51.810 --> 00:51:54.810 you can learn the removal of you, but maybe you can find someone who was raised in the discipline. 00:52:02.730 --> 00:52:05.730 You should look because coming back from a film with students so you can do certain things. 00:52:13.030 --> 00:52:16.030 Well, yeah. So this is what I'm talking about. You can love for it, but this is you only want to do. 00:52:24.580 --> 00:52:27.580 Again, again and again and again. 00:52:32.810 --> 00:52:35.810 Once we get a rubric, you get a rubric, of course. 00:52:35.720 --> 00:52:38.720 But sometimes the rubric will be faced with a succession of legal disputes, and that's the most visible sign in terms of the fall. 00:52:50.880 --> 00:52:53.880 So you get on the second place, for example, a lot series on these things. 00:52:57.060 --> 00:53:00.060 To is a group, a low mark and a common problem. 00:53:01.640 --> 00:53:04.640 One of the nice things over there in the students so that they would have a more cohesive group instead of a new order. 00:53:16.720 --> 00:53:19.720 Okay. Because for example, we know that for goodness sake, they get above it, since it depends on what the instruments are actually excellent. 00:53:28.250 --> 00:53:31.250 But because we been having so many innovation problems, I don't think you find out what the answer is. 00:53:49.410 --> 00:53:52.410 Right. I'm sorry. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 22/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 00:53:59.250 --> 00:54:02.250 I couldn't. She was like, Hey, we going to write a book? 00:54:15.570 --> 00:54:18.570 A it? But be. 00:54:31.920 --> 00:54:34.920 When I. 00:54:36.400 --> 00:54:39.400 You know, I read this whole thing. 00:54:47.770 --> 00:54:50.770 Right. But he had no money. 00:54:56.050 --> 00:54:59.050 No, I have gun. Yes. 00:55:08.470 --> 00:55:11.470 Is. Okay, So I just wanted to ask. 00:55:33.450 --> 00:55:36.450 Comment on the statement. 00:55:50.410 --> 00:55:53.410 But you know the party. 00:56:06.660 --> 00:56:09.660 I was like, Oh, my God. 00:56:11.080 --> 00:56:14.080 Oh, my God. 00:56:20.190 --> 00:56:23.190 On. 000000000000. 00:56:42.120 --> 00:56:45.120 300. Five. 00:56:47.880 --> 00:56:50.880 000. That's why it's so difficult. 00:57:23.050 --> 00:57:26.050 Panel is. 00:57:57.940 --> 00:58:00.940 I didn't want to say. 00:58:12.710 --> 00:58:15.710 I didn't want to. 00:58:23.060 --> 00:58:26.060 I was. 00:58:56.450 --> 00:58:59.450 Oh, my gosh. 00:59:19.050 --> 00:59:22.050 You know, I think I to say. 00:59:53.400 --> 00:59:56.400 Oh. Oh. Oh. 00:59:57.780 --> 01:00:00.780 Oh. Oh. Oh. 01:00:04.840 --> 01:00:07.840 Oh. Oh. I think. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 23/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 01:00:24.990 --> 01:00:27.990 Oh. Is that something that, you know. 01:00:34.110 --> 01:00:37.110 Uh, it's not so much, you know, it's more just what we're going to do from now on is so in the moment. 01:00:45.450 --> 01:00:48.450 Oh, really? I love the reshoring. It's very interesting. 01:00:51.570 --> 01:00:54.570 But it would be impossible to be in the second year of the French Revolution because and I am I will tell you, 01:01:03.800 --> 01:01:06.800 I can give you an overview of the reasons because you have one correlation between the national units of chance and radioactive 01:01:20.910 --> 01:01:23.910 waste from Sierra Leone about the cause for some of the mothers and the you only mothers have had the cross-border relations time. 01:01:36.900 --> 01:01:39.900 An Italian doing something is always the only chance of becoming aware of the idea. 01:01:49.350 --> 01:01:52.350 But in in the same position, of course, that's a very different perspective. 01:02:00.690 --> 01:02:03.690 Do you honestly think that we don't know what is of. 01:02:16.290 --> 01:02:19.290 But it's a hard. Hello, everyone. 01:02:23.130 --> 01:02:26.130 Hello. So we are going to examine the content of the charter. 01:02:30.750 --> 01:02:33.750 As I said in the beginning of our class, nothing complicated. Just look what it is. 01:02:35.970 --> 01:02:38.970 What it has in it. Just to examine a couple of vetoes very quickly and then to move on to the court and to come to an end with our lecture. 01:02:46.800 --> 01:02:49.800 And as I said, next week, we are moving into very different territory. 01:02:51.070 --> 01:02:54.070 Trade, namely the single market and the free movement of goods, which we are going to examine through three lectures, very important lectures. 01:03:01.590 --> 01:03:04.590 Also for your exam, as the free movement of goods are always a part of it. 01:03:07.440 --> 01:03:10.440 Now, of the content of the Charter of Fundamental Rights very quickly. 01:03:13.060 --> 01:03:16.060 We don't really have to say much in the sense that if you Google the charter and you download it to read it, 01:03:19.530 --> 01:03:22.530 you will see that it's a very easy text to read. 01:03:24.120 --> 01:03:27.120 So we have 50 articles on dignity and freedoms and equality and solidarity, citizens rights and justice. 01:03:33.810 --> 01:03:36.810 https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 24/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 Very quick summaries. We are not going to stand in each one of that because we cannot examine 50 articles. 01:03:39.510 --> 01:03:42.510 But as I said, there is nothing in this charter which is obscure or particularly complicated. 01:03:49.470 --> 01:03:52.470 Articles one and five are the core of the charter because they contain all those rights that without them you cannot call a country a democracy, 01:03:56.790 --> 01:03:59.790 namely human dignity, the right to life, the right to integrity, the prohibition of torture and inhuman or degrading treatment or punishment, 01:04:06.000 --> 01:04:09.000 the prohibition of slavery and of forced labour from the nature of their rights. 01:04:10.510 --> 01:04:13.510 You can understand that this is a hard core mainstream human rights text. 01:04:17.160 --> 01:04:20.160 Article six and nine are very important because they go beyond the European Convention of Human Rights, 01:04:22.920 --> 01:04:25.920 which was a text written in the fifties to protect things like personal data. 01:04:28.890 --> 01:04:31.890 Extremely important in 2024, not so important the 1950s, because in the 1950s there was no internet. 01:04:36.210 --> 01:04:39.210 Now everything we do online and we are online a lot produces personal data that can be 01:04:42.870 --> 01:04:45.870 accessed by potentially actors that you wouldn't want to have access to our personal data, 01:04:48.960 --> 01:04:51.960 whether that involves our personal life, economic choices, life choices, sexual orientation, religious views, political views, etc.. 01:05:00.270 --> 01:05:03.270 So Article six and 19 are quite progressive in the sense that they offer a strong protection of of our personal data, 01:05:06.930 --> 01:05:09.930 not just privacy, as the European Convention of Human Rights has it, 01:05:10.860 --> 01:05:13.860 and also liberties, security, the right to private and family life, the right to marry, 01:05:16.710 --> 01:05:19.710 education, freedom of expression, freedom of religion, freedom of property, etc.. 01:05:22.710 --> 01:05:25.710 Articles 2226 are very important because this brought to the police veto. 01:05:27.480 --> 01:05:30.480 As we said, we had two vetoes to the Charter of Fundamental Rights, a UK one and a Polish one. 01:05:34.140 --> 01:05:37.140 The Polish one was based on Article 2026, which was equality, equality before the law non- discrimination, 01:05:41.220 --> 01:05:44.220 cultural, religious, linguistic men and women, child, elderly. 01:05:45.330 --> 01:05:48.330 But also this included gay marriage. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 25/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 01:05:49.770 --> 01:05:52.770 So the principle of equality is the principle upon which most countries in the European Union legislated the right to equal marriage. 01:06:01.350 --> 01:06:04.350 Most countries, except a few Eastern European ones, and Poland got an exemption from the charter because of that article. 01:06:13.170 --> 01:06:16.170 But the next set of articles are the reason why the UK vetoed the Charter of 01:06:17.790 --> 01:06:20.790 Fundamental Rights because it had it didn't want to accept Articles 27 to 38, 01:06:24.360 --> 01:06:27.360 namely the solidarity bid concerning worker rights on information and consultation within the company, 01:06:31.260 --> 01:06:34.260 the right of collective bargaining and action, the right to placements for young people, the protection in the event of unjustified dismissal, 01:06:40.440 --> 01:06:43.440 further unjust working conditions, the protection of young people at work, 01:06:44.490 --> 01:06:47.490 social and security, security of social assistance and the right to health care. 01:06:51.030 --> 01:06:54.030 This was the bit that the British government blocked in 2000 for nine years. 01:06:56.520 --> 01:06:59.520 And then as we are going to see in a couple of minutes, it accepted the fundamental the Charter of Fundamental Rights. 01:07:03.900 --> 01:07:06.900 As long as Articles 27 to 38 do not apply in the UK, Article 39 to 46 is about citizens rights, right to vote, right to stand as a candidate. 01:07:15.840 --> 01:07:18.840 The administration and equally importantly, 01:07:18.390 --> 01:07:21.390 the access to all documents of the European Union as a citizen of the European Union can have access to that. 01:07:25.710 --> 01:07:28.710 And last but not least, justice the right to an effective remedy, to a fair trial, to the presumption of innocence until proven guilty. 01:07:34.890 --> 01:07:37.890 The right to a defence. The principles of legality and proportionality. 01:07:39.390 --> 01:07:42.390 The right not to be tried twice for the same criminal offence, etc., 01:07:44.690 --> 01:07:47.690 are all the basis of the civil and criminal procedure that we have in place in the West. 01:07:52.230 --> 01:07:55.230 So what happened in 2000? 01:07:54.780 --> 01:07:57.780 This charter was introduced and it received two vetoes from Poland and the United Kingdom for two very different grounds of reasoning. 01:08:12.450 --> 01:08:15.450 And they lifted the veto in 2009 because the other 26 member states gave them an ultimatum that https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 26/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 01:08:19.980 --> 01:08:22.980 the charter will pass because we all want it and we cannot have the situation between 2062. 01:08:27.300 --> 01:08:30.300 So Poland and the UK, when it was a member of the EU, got an exception. 01:08:33.360 --> 01:08:36.360 Poland in relation to. Articles 2226 Equality in Marriage and the UK. 01:08:43.460 --> 01:08:46.460 Articles 27 to 38 The Rights of Workers and the Rights of Young People in their Employment. 01:08:52.190 --> 01:08:55.190 So basically the two countries had a very different agenda. 01:08:57.530 --> 01:09:00.530 The UK said that they do not have any problem with equality in marriage. 01:09:01.910 --> 01:09:04.910 In fact, it was one of the first countries to legislate it. 01:09:06.170 --> 01:09:09.170 The only thing I can't accept is increased worker rights and rights for young people in their own employment environment. 01:09:13.730 --> 01:09:16.730 Poland, on the other hand, said My own labour legislation is even more advanced than this one, so I have no problem with worker rights. 01:09:21.740 --> 01:09:24.740 But I cannot accept equality in marriage. So the two countries got a protocol which you can see here. 01:09:28.160 --> 01:09:31.160 Article two are the charter, so only apply to Poland or the United Kingdom to the extent that the rights or 01:09:36.440 --> 01:09:39.440 principles that it contains are recognised in law in Poland and the United Kingdom. 01:09:41.780 --> 01:09:44.780 What does it mean that the Charter applied in the UK except the worker rights provisions and it applied in Poland, 01:09:50.600 --> 01:09:53.600 except the quality of marriage provisions? 01:09:54.320 --> 01:09:57.320 They found this way to accommodate their needs and those two countries lifted their veto and the charter was incorporated into the treaty. 01:10:05.540 --> 01:10:08.540 As we have said from the beginning of our lecture today, 01:10:09.680 --> 01:10:12.680 without creating rights of equal equality in marriage in Poland and workers rights in the United Kingdom, this protocol was attached to the treaty. 01:10:21.380 --> 01:10:24.380 So it created a treaty exception for those countries in relation to the charter. 01:10:31.420 --> 01:10:34.420 Any questions? Talked about that. 01:10:39.980 --> 01:10:42.980 Now let's talk about the Court of Justice. Our final piece of our let's call them constitutional law is you lectures before us, https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 27/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 01:10:51.470 --> 01:10:54.470 we say we change course next week when we will move on to the internal markets and to more practical issues. 01:11:01.460 --> 01:11:04.460 The treaty clarified the role of the Court of Justice, creating a few acts that can be raised before it. 01:11:11.480 --> 01:11:14.480 Nothing complicated here either. We are just going to look at some legal issues, the things that lawyers have to take, 01:11:21.290 --> 01:11:24.290 despite the fact that sometimes they are a bit tedious as preliminary actions, etc.. 01:11:27.410 --> 01:11:30.410 The relevant article, the relevant legal basis is article 19, and it's very clear and it says exactly what we expected it to say. 01:11:36.380 --> 01:11:39.380 The Court of Justice of the European Union. So rule on actions brought by a member state is what we knew. 01:11:43.670 --> 01:11:46.670 The country may sue the European Union or one of its institutions, or the European Commission may sue a country for a breach of EU law. 01:11:53.660 --> 01:11:56.660 What we are very interested, because these are things that we expect is something that's unique to the European Union as 01:12:01.610 --> 01:12:04.610 an expression of this interrelationship between the national legal order with EU legal order, 01:12:09.680 --> 01:12:12.680 and these are the so-called preliminary rulings. Now, what puts the definition of preliminary rulings in your actual materials? 01:12:19.700 --> 01:12:22.700 It's that in bold letters. 01:12:22.720 --> 01:12:25.720 So I'm going to mention them because I didn't want you to take any notes because you don't need to just to try to understand what they are. 01:12:30.440 --> 01:12:33.440 And they are nothing complicated. 01:12:33.200 --> 01:12:36.200 So as you see on your screens, a preliminary ruling is a question raised by a national court to the Court of Justice of the European Union. 01:12:44.660 --> 01:12:47.660 Within the framework of a national case before the National Court. 01:12:50.360 --> 01:12:53.360 There is an issue arising which relates to the interpretation of EU law that the National Court doesn't know what it is. 01:12:58.960 --> 01:13:01.960 So the national judge will pause the national case until he receives the relevant clarification from the judge. 01:13:08.350 --> 01:13:11.350 That's what it is. I'll repeat it once again. We are in the context of a national court, of a national case, 01:13:17.290 --> 01:13:20.290 of a national company in France versus a municipality in France for breaching some trading rules. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 28/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 01:13:24.610 --> 01:13:27.610 But within the context of that national case, 01:13:28.750 --> 01:13:31.750 the national judge realises that he reaches the point where he needs to implement EU law applicable in this case. 01:13:37.270 --> 01:13:40.270 And she doesn't know how. She doesn't know how to do it. 01:13:41.650 --> 01:13:44.650 So she poses the case. He says, I'm sorry, but I have to stop it. 01:13:46.330 --> 01:13:49.330 To pause it is the right verb. I have to send the preliminary question to the European Court of Justice. 01:13:52.540 --> 01:13:55.540 How do I do it? What does this directive mean and how does it apply to my case? 01:13:58.450 --> 01:14:01.450 And when the European Court of Justice comes back to us, then we are going to do it that way. 01:14:05.680 --> 01:14:08.680 So what we have here is a procedure introduced by the treaty, which means by who? 01:14:12.520 --> 01:14:15.520 By the leaders, which relates the national courts with the Court of Justice as to how is a particular piece of law that is relevant 01:14:23.590 --> 01:14:26.590 in a given case to interpret that the national judges have studied the law in their respective law schools, 01:14:30.970 --> 01:14:33.970 in their member States, 01:14:32.800 --> 01:14:35.800 and they may not be accustomed about how an EU directive on the disposal of toxic waste of ex materials is implemented in their particular case. 01:14:45.220 --> 01:14:48.220 So that basically states we are here because we have a lawsuit of one member of this 01:14:53.080 --> 01:14:56.080 community against this company because apparently did not dispose toxic waste correctly. 01:14:58.660 --> 01:15:01.660 But I don't know how to apply the directive and don't have the know how. 01:15:03.040 --> 01:15:06.040 I don't understand what exactly it means that we should do A, B, and C, 01:15:07.780 --> 01:15:10.780 So what am I going to do now is I'm going to pause this trial in our little tribunal in France, 01:15:14.020 --> 01:15:17.020 in rural France, I'm going to raise a question with the European Court of Justice as to this is our trial. 01:15:21.340 --> 01:15:24.340 The issue refers to some damages suffered by a member of the local community because of toxic waste of the factory nearby. 01:15:31.570 --> 01:15:34.570 There is a directive on how to dispose toxic waste, but I don't really get it. 01:15:36.280 --> 01:15:39.280 https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 29/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 Tell me how to apply it, how to interpret it, how to implement it in my case. 01:15:42.190 --> 01:15:45.190 So what happens here is a great inter-relationship between the national courts and the EU court as to how to apply EU law. 01:15:51.160 --> 01:15:54.160 The treaty, which means the Member States gave the capacity to the national judges, basically to be educated, 01:15:58.690 --> 01:16:01.690 to be enlightened about that without having to disregard EU law, which would be a breach of an EU law obligation or without having to second guess. 01:16:08.800 --> 01:16:11.800 Does it apply in this way or in that way? 01:16:11.410 --> 01:16:14.410 I don't get it, but I guess even randomly I may opt for one or the other way and let's hope it's the right one and then having counter trials, 01:16:20.590 --> 01:16:23.590 etc. instead of having all that, we created a legislative way in which national and European courts can interact. 01:16:30.160 --> 01:16:33.160 About what? About the interpretation of EU law new. 01:16:34.590 --> 01:16:37.590 Obviously, you cannot send a preliminary question in relation to how do I apply the French Penal code. 01:16:40.290 --> 01:16:43.290 The European Court of Justice will come back to say this is irrelevant. You cannot ask me how to apply national legislation. 01:16:46.150 --> 01:16:49.150 This is all yours. But what happens here is that we open the process through which a national judge can simply say in my national Court, before, 01:16:56.250 --> 01:16:59.250 in my national case, before my national court, there is an issue arising which depends on EU law and environmental and employment issue. 01:17:04.830 --> 01:17:07.830 Somebody was dismissed from work when they were pregnant or they received a 01:17:08.940 --> 01:17:11.940 lower salary because they were a woman compared to a man in the same position. 01:17:14.730 --> 01:17:17.730 And the judge says, I'm sorry, I don't understand how that piece of EU law, which is clearly relevant here, can be implemented. 01:17:23.250 --> 01:17:26.250 Can you tell me how it's as simple as that? And the European Court of Justice will come back with this? 01:17:30.030 --> 01:17:33.030 Your national case is a the relevant directive is directive B on how you dispose toxic waste from a factory which is close to a village, 01:17:40.200 --> 01:17:43.200 and it's implemented in this way. You need to have, I don't know, a truck with this sort of equipment doing this and that. 01:17:49.140 --> 01:17:52.140 If you don't have that, it means that the factory was in breach of EU law and you need to condemn them. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 30/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 01:17:54.840 --> 01:17:57.840 You need to find them liable. So this is a very good process in the sense that the actual tribunals that are very much related to EU law. 01:18:07.950 --> 01:18:10.950 But physically, the national judges are not involved in its creation. 01:18:13.710 --> 01:18:16.710 It's the Council of Ministers, which means the governments and the European Parliament, as we have explained in this class. 01:18:19.230 --> 01:18:22.230 This is how these people get educated to how to implement a union. 01:18:23.790 --> 01:18:26.790 This is how they accumulate. Know how because you sent a preliminary ruling, you learn about the directive in employment, 01:18:31.560 --> 01:18:34.560 you send a preliminary learning, you learn about the directive on the environment. 01:18:36.270 --> 01:18:39.270 Then you know, in the life of a judge, cases become a bit similar and they have know how. 01:18:42.330 --> 01:18:45.330 So that's how the judges in member states start to acquire knowledge of how to implement European Union law. 01:18:49.680 --> 01:18:52.680 So I repeat, it's called preliminary ruling or preliminary questions, 01:18:54.390 --> 01:18:57.390 and it's basically as easy as a question referred to by a national court and a national judge to the European Court of Justice, 01:19:03.840 --> 01:19:06.840 when they realise that in the context of the national case before the National Tribunal, 01:19:09.750 --> 01:19:12.750 suddenly there is an issue of EU law application emerging and they don't know how to do it. 01:19:16.500 --> 01:19:19.500 As simple as that, the judge will not employ any particularly challenging terminology or wording. 01:19:24.000 --> 01:19:27.000 He will simply say this is the case. A woman employed by this company receiving less of a salary than her male colleague in the same position. 01:19:35.100 --> 01:19:38.100 I know there is a directive or a treaty article or a regulation article about that. 01:19:41.880 --> 01:19:44.880 I'm not sure how to apply it. Can you tell me how? And the court will go back and say the relative legislation here is that article of the treaty, 01:19:50.970 --> 01:19:53.970 that article of the directive and that article of the regulation which prohibited the company from doing this and that therefore, 01:19:57.450 --> 01:20:00.450 on the basis of EU law applicable in your country, since you are a member, 01:20:01.890 --> 01:20:04.890 please find the business liable for not giving the same salary to a woman in comparison to a man holding the same position. 01:20:12.900 --> 01:20:15.900 So this is basically it. When you read it in literature, it may come as more complex, but that's https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 31/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 basically it. 01:20:20.040 --> 01:20:23.040 It's when a judge expresses in a very good way, 01:20:24.090 --> 01:20:27.090 because no one can know everything his ignorance in relation to how you apply a piece of EU law in his case. 01:20:32.310 --> 01:20:35.310 And she basically asks the court, How can I do it? Help me. 01:20:36.300 --> 01:20:39.300 And the court helps them. That creates a body of of analysis. 01:20:41.340 --> 01:20:44.340 If you think about it. 01:20:42.870 --> 01:20:45.870 Imagine the thousands of preliminary questions sent every year or every couple of years to the court and judges having access to all of them. 01:20:52.680 --> 01:20:55.680 And as I said, the cases are unique, but they are also similar. 01:20:56.700 --> 01:20:59.700 So then they can go into that pool of preliminary questions and say, this is my case as well. 01:21:02.730 --> 01:21:05.730 What happened in France in relation to that woman receiving a lesser of a salary 01:21:07.620 --> 01:21:10.620 for the same position happened also in Italy to that woman before my court. 01:21:12.540 --> 01:21:15.540 Therefore, I'm going to read that preliminary question sent to the French judge and I'm going to reference it in my case and apply to. 01:21:20.700 --> 01:21:23.700 So it also helps as a guideline of how you apply EU law on the part of the European Court of Justice to national courts and judges. 01:21:33.570 --> 01:21:36.570 Now. When we talked. Any question in relation to preliminary rulings? 01:21:41.490 --> 01:21:44.490 No. One, we talked about the EU at the very beginning. From the very beginning we said that this is a constant I want to use the word fight, 01:21:51.270 --> 01:21:54.270 but let's say contest between national legal order and national sovereignty and the European Union 01:21:58.830 --> 01:22:01.830 legal order and the European Union ability to act as defined by the Member States in the treaty. 01:22:05.640 --> 01:22:08.640 And everything is political in the sense that if somebody asks what the EU can do or cannot do, as we said, the correct replies look at the treaty. 01:22:16.260 --> 01:22:19.260 The EU can do certain things just because the member States decided that these are the things that the EU should do, 01:22:22.140 --> 01:22:25.140 because these are the things that are very much into their interests. 01:22:25.650 --> 01:22:28.650 For example, the internal market, the euro, the international negotiations for a treaty. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 32/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 01:22:31.680 --> 01:22:34.680 But these are the things that the EU cannot do. So look at that. Within the treaty, the Member States placed these provisions. 01:22:39.780 --> 01:22:42.780 The Court of Justice can adjudicate on everything EU law related except foreign policy. 01:22:46.890 --> 01:22:49.890 It's ours. Jim, the French government take the next decision in foreign policy on a French citizen or an Italian citizen who disagrees with it, 01:22:57.930 --> 01:23:00.930 or the European Union who disagrees with it. The commission sue France before the European Court of Justice? 01:23:04.110 --> 01:23:07.110 No. The European Court of Justice does not have jurisdiction for such a case. 01:23:10.320 --> 01:23:13.320 Who says so? The treaty. Who wrote the treaty? The Member States. 01:23:14.820 --> 01:23:17.820 Why? Because the Member States have their own foreign policy and they didn't want the EU to meddle with it and their own foreign policy to be subject. 01:23:26.470 --> 01:23:29.470 To the scrutiny of the Court of Justice because it's within their own national sovereignty and incompetence. 01:23:35.220 --> 01:23:38.220 Is there a legal reason for that? No. There's a political reason for that. 01:23:38.910 --> 01:23:41.910 And is the fact that member states want to develop their own foreign policy without an intervention? 01:23:46.670 --> 01:23:49.670 What's the second area? Justice and Home Affairs. We talked about the expansion of the EU to justice and home affairs in our first hour, 01:23:55.700 --> 01:23:58.700 and we said that this was one of the principal reasons why we have such a rigid protection of human rights, 01:24:03.110 --> 01:24:06.110 rooted in the sense of strong protection of human rights in the EU. 01:24:06.560 --> 01:24:09.560 Now, because the leaders expanded the EU to justice and home affairs at the same time as placing an additional safeguard on it, 01:24:15.170 --> 01:24:18.170 but at the same time to say, look, you expand that to justice and home affairs, asylum, immigration, international crime, 01:24:23.930 --> 01:24:26.930 which has a cross-border element, but we are not allowing the court to come into our own affairs. 01:24:32.030 --> 01:24:35.030 If somebody murders somebody in Italy, this is a breach of the Italian criminal law and the criminal case before the Italian criminal court, period. 01:24:43.380 --> 01:24:46.380 Not in the jurisdiction of the Court of justice. So criminal law remains national. 01:24:51.150 --> 01:24:54.150 Unless we are talking about things of cross-border elements like an international gang operating across Europe. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 33/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 01:24:58.140 --> 01:25:01.140 Terrorism, obviously. Money laundering. Asylum and immigration. 01:25:04.050 --> 01:25:07.050 People moving legally across borders, etc.. So the member states said these things that we cannot handle alone. 01:25:11.610 --> 01:25:14.610 And they have a cross-border element. How can I deal alone as Italy with an international criminal gang operating in ten European countries? 01:25:20.460 --> 01:25:23.460 These things we deal together. But the rest of the criminal law is mine. 01:25:26.740 --> 01:25:29.740 I voted for it. I introduced it. I adjudicate on it. 01:25:31.300 --> 01:25:34.300 So what does the treaty say? Articles two seven, five and 276. 01:25:35.170 --> 01:25:38.170 Which means what did the Member States dictate That the Court of Justice has no jurisdiction 01:25:42.910 --> 01:25:45.910 in issues that they still consider us at the very core of their national sovereignty, 01:25:48.280 --> 01:25:51.280 namely foreign policy, criminal law. 01:25:53.420 --> 01:25:56.420 Can you go to the Court of Justice to appeal a decision of your criminal court in relation to murder? 01:26:01.160 --> 01:26:04.160 No. Can you say I disagree with the stance of my country in relation to the crisis in that part of the world? 01:26:11.680 --> 01:26:14.680 And I saw my government for its foreign policy and also the government of another EU member states for its foreign policy? 01:26:19.600 --> 01:26:22.600 No. Articles 275276. 01:26:26.900 --> 01:26:29.900 You see how the treaty is so detailed and explicit as to what the EU cannot do and what the EU can do. 01:26:36.670 --> 01:26:39.670 And it goes back to what we have been repeating in every single lecture, because those lectures were constitutional lectures that the leaders, 01:26:44.980 --> 01:26:47.980 meaning the countries, decide that what the EU can or cannot do with every single detail. 01:26:52.330 --> 01:26:55.330 Can the court decide on this issue is No. If it does decide, it means that it charges are completely ignorant of law, 01:26:59.080 --> 01:27:02.080 a decision that's going to be invalidated immediately as being in breach of either Article 2754276. 01:27:11.020 --> 01:27:14.020 Any questions? So let's see the two types of actions that fall under the umbrella of the Court of Justice, 01:27:24.330 --> 01:27:27.330 which is what we are going to do for the rest of our lecture. https://listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 34/44 11/3/24, 12:42 AM listenagain.essex.ac.uk/secure/Transcription.ashx?format=webvtt&deliveryguid=9d0c24b1-9a82-43cc-a7b8-b21701779d01 01:27:28.020 --> 01:27:31.020 Nothing complicated, as I keep saying from the beginning of the lecture to the annulment actions and the preliminary rulings, 01:27:36.690 --> 01:27:39.690 both defined really detailed by the treaty. There is a legal basis for everything, as you can see. 01:27:45.390 --> 01:27:48.390 We cannot improvise. No one can improvise when it comes to what any EU institution can do or cannot do. 01:27:52.710 --> 01:27:55.710 As I said, even as a student, because you will have the treaty, you can bring the treaty into your exam or later on as a professional. 01:28:00.780 --> 01:28:03.780 If somebody asks you, can the EU do that? Or do you think there are limits upon the capacity of the EU to do that? 01:28:07.560 --> 01:28:10.560 Your reply is the same. Look at the treaty. Let's look at the treaty. 01:28:11.290 --> 01:28:14.290 The treaty will tell us everything. The treaty will tell us what they can do, up to what extent and what the EU is not allowed to do. 01:28:18.840 --> 01:28:21.840 No one else will tell us. So Article 263 says that the Court of Justice can receive actions relating to the legality of legislative acts. 01:28:32.050 --> 01:28:35.050 You're going to find a lot of analysis of that. 01:28:34.570 --> 01:28:37.570 But what is simply basically means is this is yet another limitation placed upon the member states of the European Union. 01:28:43.330 --> 01:28:46.330 The said what? We can introduce annulment actions before the court. 01:28:48.520 --> 01:28:51.520 If you want to be beyond your power, if any of your institutions has produced a decision, inaction, enact or laws that are beyond their powers. 01:29:00.190 --> 01:29:03.190 This is the constant thing that we have to do. Look at the legal basis for every single piece of EU law action in the treaty 01:29:08.050 --> 01:29:11.050 and see what they allowed the EU to do and whether the EU went beyond that. 01:29:13.060 --> 01:29:16.060 So as you see the rationale of a very wide definition coming from the Commission versus Council case that I have included in your handout, 01:29:19.990 --> 01:29:22.990 the

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