General Principles of EU law

 There is no indication in the original treaties that directed ECJ to apply general
principles of law in deciding cases.
 Article 6(1) of TEU, as amended by Treaty of Amsterdam, identified that the
union is founded on the principles of liberty, democracy and the rule of law as
well as respect for human rights and fundamental freedoms, and also the
principles that are common to the member states.
 The courts assumed the task of applying those principles above by intepreting
the treaties in compliance with fundamental objectives by pinpointing at their 1
powers under Art 220 of TEU which obliges the court to interpret provisions so as
to ensure that the law is observed by member states.
 The general principles identified by the courts are:
1. Proportionality
2. Equality
3. Legal certainty
4. Natural Justice
5. The Protection of Fundamental Rights
6. Subsidiarity
Proportionality
 The concept was borrowed from German administrative law and is known as
‘verhaltnismassigkeit’
 The basic idea is that any measure taken must be proportionate to the actual end
to be achieved. Nothing should be done that is more than is necessary to
achieve the end.
 Internationale Handelsgesellschaft GmbH v Einfuhr und Vorratsstelle fur
Getreide und Futtermittel (Case 11/70)(1970):
“No burdens should be placed on the citizens except to the extent that it is necessary to achieve
the purpose”
 It should be noted that proportionality applicable across the board in EU for all
measures implemented by European Union.
Equality
 The concept of equal treatment or non-discrimination is the founding principles of
the TEU.
 It includes three specific prohibitions against discrimination:
1. Art 18: Prohibition on discrimination based on nationality.
2. Art 157: Men and women shall receive equal pay for equal work (also
covers all discrimination based on sex and race and religion)
3. Art 40: Prohibits discrimination between producers and consumers in
relation to common agricultural policy (CAP)
 Bilka-Kaufhaus GmbH v weber von Hartz (Case 170/84)(1986):
 Karin Weber von Hartz was a part-time worker, who had worked for 15 years
at Bilka-Kaufhaus.
She was refused pension payments under her contract with her employer
Bilka-Kaufhaus, which required her to have worked full time for 15 years.
She alleged that women work more part-time, so they are at a
disadvantage.
Bilka-Kaufhaus argued it was justified in excluding part-time workers
because there are higher administrative costs for giving pensions to part-
time workers, given the work they do
They also said 81.3 per cent of all occupational pensions were paid to 2
women, even though only 72% of employees were women, so the scheme
was unrelated to sex discrimination.
ECJ held that:
Article 119 of the treaty is infringed by an undertaking which excludes part-time employees
from its occupational pension scheme, where that exclusion affects a far greater number
of women than men, unless the undertaking shows that the exclusion is based on
objectively justified factors unrelated to any discrimination on grounds of sex. Such factors
may lie in the fact that the undertaking seeks to employ as few part-time workers as
possible, where it is shown that that objective corresponds to a real need on the part of the
undertaking and the means chosen for achieving it are appropriate and necessary. If the
national court finds that the measures chosen by Bilka correspond to a real need on
the part of the undertaking, are appropriate with a view to achieving the objectives
pursued and are necessary to that end, the fact that the measures affect a far greater
number of women than men is not sufficient to show that they constitute an
infringement of Article 119
 P v S and Cornwall County Council
The unnamed applicant, P, was a manager of part of an educational unit
operated by Cornwall County Council from 02 April 1991. P claimed that
she has suffered from Gender Identity Disorder since birth.
In April 1992, P, a biological male, announced that she was going to
undergo gender reassignment. Firstly, P intended to undergo a year-long
“life test”, where she would live as a woman, and wrote to the respondent,
S, who was the principal, chief executive and financial director of the unit,
to notify him of this. S informed the governors of the educational
establishment.
During the summer of 1992, P had surgical treatment while on sick leave.
In September 1992, the applicant was dismissed and given three months’
notice. However, P was not prohibited from working in her ‘female gender
role’. The applicant’s final gender reassignment surgery was completed
before the three months’ notice of dismissal had expired. P complained to
a tribunal that she had been discriminated against on grounds of sex
The ECJ ruled that there had been a violation of the principle of equal
treatment in the context of working conditions, more precisely the conditions
governing dismissal
Legal Certainty
 The basic principle is that the law in its application must be both certain and
predictable.
 Officer van Justitie v Kopinghuis Nijmegan BV (Case 80/86)(1987)
The duty of the national courts to intepret EU law in such manner that is limited by
the geenrl principles of law and also that in particular national courts should
observe the principles of legal certainty and non-retroactivity.

3
Natural Justice
 Within English Law there are three distinct strands to the principle:
1. Right to a fair (Audi alteram partem) and unbiased hearing (Nemo iudex in
causa sua)
2. The tight to be heard before the making of potentially adverse decision is
made.
3. The right to a reasoned decision.

Subsidiarity
 Article 5(3) of TEU:
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the
Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently
achieved by the Member States, either at central level or at regional and local level, but can rather,
by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on
the application of the principles of subsidiarity and proportionality. National Parliaments ensure
compliance with the principle of subsidiarity in accordance with the procedure set out in that
Protocol.
 The principle of subsidiarity means that the institutions of the Union should only
act to introduce measures where it is more appropriate than for the member states
to act individually.
EU Human Rights
 The initial EU Treaties had no provisions for fundamental rights.
 While the European Political Community Treaty in 1953 would have made the
European Convention on Human Rights (ECHR) part of the law of the new
Communities, this Treaty was never adopted due to France’s rejection of the
closely linked Defence Community Treaty in 1954.
 Today Article 6 of TEU formally identified three formal sources on EU human
rights:
1. EU Charter of Fundamental Rights 4
2. European Convention of Human Rights
3. General Principles of EU law. (body of legal principles articulated and
developed by ECJ drawing from national constitutional traditions)
 The EU gradually integrated human rights concern into range of its policies
including anti-discrimination law, Data Protection and Privacy.
 EU actively promote its ‘human rights and democratization’ policy in many
countries around the world, and uses human rights clauses in its international
trade and development policies.
 EU also imposed a human rights based ‘political conditionality’ on candidate
member states throughout its common foreign and security policy.
 In 2009, EU incorporated UN Convention on the Rights of Persons with
Disabilities into EU law.
 1999 sanction mechanism for serious and persistent breaches in Article 7 of TEU
and establishment of EU Fundamental Rights Agency in 2007 were clear
examples of EU’s human rights concerns.

Article 6(1)TEU
Respect for fundamental rights and
Article 6(2) TEU
freedoms stated in the Charter of
The EU will accede to the European
Fundamental Rights constitutes one of
Convention on Human Rights
the basic principles upon which the
Union is founded

Article 6(3) TEU

Fundamental rights, as guaranteed by the
European Convention iand as they result
from the constitutional traditions
common to the Member States shall
constitute general principles of the
Union's law
Article 7 TEU
Provides a mechanism for sanctioning EU
Member States who violate the principles
in Article 6 in a grave and persistent
manner
  Art. 1 (1) of the new 2010 EU-Korea Framework Agreement now complements
several mentions of human rights in the preamble and reads as follows:
[t]he Parties confirm their attachment to democratic principles, human rights and fundamental
freedoms, and the rule of law. Respect for democratic principles and human rights and fundamental
freedoms as laid down in the Universal Declaration of Human Rights and other relevant
international human rights instruments, which reflect the principle of the rule of law, underpins the
internal and international policies of both Parties and constitutes an essential element of this
Agreement
 Art. 1 (1) of the 2013 EU-Colombia/Peru Free Trade Agreement adopts a more
direct and less detailed formulation:
‘[r]espect for democratic principles and fundamental human rights, as laid down in the Universal 5
Declaration of Human Rights, and for the principle of the rule of law, underpins the internal and
international policies of the Parties. Respect for these principles constitutes an essential element
of this Agreement.
 Very recently, for instance, the Commission proposed to make ‘Inclusion of human
trafficking in the Human Rights Clauses’ a priority of the EU Strategy towards the
Eradication of Trafficking in Human Beings 2012–2016, even though in its own
assessment essential elements clauses encompass human trafficking

History of Human Rights in EU

 Stauder v City of Ulm (1969)
An EU scheme provided cheap butter for welfare benefits, but required to
show a coupon with a person’s name and address. Mr Stauder claimed this
violated his dignity and challenged it.
The Court of Justice held that properly interpreted, the measure did not
require a name to be shown on the coupon. In doing so it acknowledged
that human rights formed part of unwritten general principles of EU law.
 Internationale Handesgesellschaft (Case 11/70)(1970)
The German Constitutional Court was asked to set aside an EU measure
establishing a maize export licensing scheme which required the payment
of a large deposit before the license was granted. The German
Constitutional Court held that this conflicted with the German constitutional
rights of economic liberty and proportionality.
However, the Court of Justice stated that:
‘the protection of [fundamental] rights, whilst inspired by the constitutional traditions
common to the Member States must be ensured within the framework of the structure and
objectives of the [Union]. It must therefore be ascertained... whether the system of deposits
has infringed rights of a fundamental nature, respect for which must be ensured in the
[Union’s] legal system”
Sources of the Human Rights
 Nold v Commission (Case 4/73) (1974)
The court identified the following as the sources of Human Rights:
1. International Human Rights Agreements.
2. Common national constitutional traditions.

European Convention of Human Rights

 Prior to the enactment of the EU charter of Rights, ECHR played a big role or the 6
protection for the human rights in the EU.
 EU legislation concerning the right to pursue claims by judicial process, rights
against sex discrimination, data protection, and privacy were specific EU law
manifestations of general principles enshrined in the ECHR.
 EU had never stated officially that ECHR rights was binding upon the EU or that
its provisions were formally incorporated into EU law.
 Article 6 of TEU referred expressly to ECHR:
The Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Such accession shall not affect the Union's competences as defined
in the Treaties.
Fundamental rights, as guaranteed by the European Convention for the Protection of Human
Rights and Fundamental Freedoms and as they result from the constitutional traditions
common to the Member States, shall constitute general principles of the Union's law.

 By treating ECHR as a source of inspiration rather than a formally binding or

fully incorporated bill of rights, the ECJ retained the freedom to go beyond the
convention in recognizing rights as part of EU law, such as the right to lawyer-
client confidentiality, refugee rights, and data protection which may not be
similarly protected under the ECHR.
Other International Human Rights Agreement
 EU occasionally followed the European Social Charter and the
International Labour Organization Conventions.
 The ECJ also refers to ICCPR (International Covenant on Economic,
Social, and Cultural Rights), International Conventions on the Rights of
the Child in delivering judgments. (C-540/03) (European Parliament v
Council) (2006)
 The UN convention on Refugees (the Geneva Convention) has regularly
been cited in cases dealing with EU’s directive on minimum standards for
asylum seekers.
 ECJ rejected reliance on Oviedo Convention on Human Rights and
Biomedicine when interpreting a provision of an EU directive on transport of
human blood and organs, on the basis that not all member states had ratified
it.
National Constitutional Traditions
 The ECJ’s authorities as to human rights has also drawn only infrequently on
national constitutional provisions.
 The reason for such reluctance by ECJ is because it is more difficult for the ECJ
to assert a ‘common approach’ where a particular right does not appear in every
national constitution.
 The fear of compromising the doctrinal supremacy of EU law by appearing to defer
to a particular national constitutional provision has animated the ECJ’s case law
too.
7
 Hauer v Land Rheinland Pfalz (1979) (Case 44/79)
A German winegrower had to apply for a state permit for planting new vines.
While the application was pending, the European Commission issued an
order prohibiting the planting of that type of vine for three years. The plaintiff
brought her claim before the European Court of Justice.
The ECJ upheld the challenge to the Community regulation which prohibited
the planting of new vines on certain lands against claims that the regulation
violated the landowner's rights to property and to pursue a trade or
profession guaranteed by the German Constitution. Accordingly, there was
no violation of Hauer's property rights emphasizing in particular that the
EEC order was to be valid only for a transitory period of three years.
It is necessary that the restrictions imposed by the regulation correspond to
objectives of general interest pursued by the Community and that they do
not constitute a disproportionate and intolerable interference with the
property rights of the owner. The prohibition of the new planting of vines
land down for a limited period of time by regulation no 1162/76 was justified
by the objectives of general interest pursued by the Community, namely the
reduction of production surpluses and the restructuring of the European
wine industry. It did not therefore infringe the substance of the right to
property.
 A further question arises when the common constitutional traditions are cited as a
source for EU human rights principles is whether the Court should confer EU
recognition only on those rights shared by all states or whether recognition as
fundamental right by even one Member state should suffice for the ECJ to treat
such a right as a part of general principles of EU law.
 AM & S Europe Limited v Commission of the European Communities. Legal
privilege. Case 155/79. (1982)
The court derived the principle of lawyer-client confidentiality from a
comparative survey of the laws of the Member states.
French government argued that the case represented an attempt to foist on
the EU what was no more than a domestic rule of English law.
 P AKZO Nobel (Case C-550/07)
The ECJ refused to extend the EU’s general principle of legal professional
privilege beyond the context of independent lawyers, despite the fact that a
number of member states have since extended the privilege to in-house
lawyers.
However, the court took the view that there was no ‘developing trend’ or
‘uniform tendency’ in this direction across the member states such as to
justify widening the EU’s general principle.
 (Case C-36/02) Omega Speilhallen- und Automatenaufstellungs-GmbH –
Oberburgermeisterin der Budesstadt Bonn (2004) 8
Omega was a German company opened on 01/08/1994 aiming at
commercialization of a UK-manufactured laser-gun game in an installation
known as Laser dome. Since it involved players targeting each other, parts
of community identified Laser dome as “playing at killing” people, which
resulted in the police issuing an order against Omega on14/09/1994
prohibiting its games under threat of fine of 10 ’000 DM per game. The order
claimed Omega simulated homicide, thus constituting danger to public
order and fundamental values of public opinion.
Omega appealed to the highest administrative court of Germany (FAC)
alleging that the order infringed Community Law (in particular Article 49 EC
on freedom to provide services)
FAC stated that fictitious violence for entertainment purposes amounted to
violation of human dignity, a key principle of the German Constitution and
thus on under national law the appeal must be dismissed.
The ECJ followed the line of argument of the Advocate General, namely
that human dignity was one of the general principles of law recognised by
the Community as in need of protection, and that the measure taken in this
context fulfilled the conditions for justifying the service restriction. According
to the ECJ, this finding was not incompatible with the fact that the activity in
question, which involved using laser guns to simulate homicide, was not
subject to any restrictions in the United Kingdom. Omega had imported the
Laserdrome concept as a service provider from a firm in the United
Kingdom.
 Dynamic Medien Vertriebs GmbH v. Avides Media AG
A German company (Dynamic Medien) sued another German company
(Avides) to prohibit it from selling to the general public DVDs of Japanese
“Anime” cartoons that had been approved for children 15 years of age and
older in the United Kingdom, but not yet rated as appropriate for children by
a German authority.
The issues at stake were Freedom of information; protection of health and
morals. The Court agreed that unrated DVDs could not be sold to the
German public, and held that European law did not prevent Germany from
 being able to demand that all video materials on sale within the country be
rated and given age limits in line with national standards.
Germany's requirement that media materials be examined and rated before
going on sale to the German public is fair because it requires all media,
whether German or not, to undergo this process.
The Court also found Germany's rating system to be reasonable, noting in
particular that it was designed to protect young people from materials that
might be harmful to the psychological or physical development of children.
While noting that children generally have a right to freedom of information
under Convention of the Rights of the Child, articles 13 and 17, the Court 9
found that the German law fell within the exception to these rights in seeking
to protect children from information that would be detrimental to their well-
being.

Human Rights based challenges to EU action

 The ECJ in recent years has heard growing number of challenges to EU legislation
in which violation of human rights has been pleased as a ground.
 Despite increasing engagement with human rights arguments, the number of
cases in which the court has actually annulled the EU legislation being challenged
remains, with some dramatic exceptions in the anti-terrorism field, relatively low.
 Booker Aquacultur Ltd and Hydro Seafood GSP v The Scottish Ministers (2003)
EU directive on the control of fish diseases which failed to require
compensation for the compulsory destruction of diseased fish by national
authorities did not constitute a disproportionate restriction on the right to
property.
 Netherlands v Council and Parliament (2001) (Case C-377/98)
In proceedings brought by the Dutch government to challenge the legality
of the Biotechnology Directive on the basis that its provisions concerning
the patentability of isolated parts of the body violated the right to human
dignity and to human integrity, ECJ responded that the legislative provisions
in question ensured full respect for human dignity and integrity.
 Advocaten voor de wereld VZW V Leden van de Minisrterraad (2007) (C-303/05)
The court ruled that the abolition of the requirement of double criminality by
the EU Framework Decision establishing a European Arrest Warrant did not
violate the principle of legality, equality or non-discrimination.
 Case C-305/05 Ordre des barreaux francophones et germanophones et al v
Council (2007)
The ECJ ruled that the provisions of EU money laundering Directive 91/308
obliging lawyers to cooperate with the money laundering authorities did not,
properly interpreted, infringe the right to a fair trial protected under Article 6
ECHR and the EU Treaty.
 In the field of anti-terrorism in the post 9/11 ear, however that the ECJ in recent
years has become active and has been prepared to strike down a range of EU
laws for disproportionately violating individual rights.
 ECJ’s judicial activism can be seen clearly in the cases listed below:
1. Cases C-4022 and 415/05 P Yassin Abdullah Kadi and Al Barakaat
International Foundation v Council and Commission (2008)
2. Case T-85/09 Kadi
3. Case T-228/02 Organisation des Modjahedines du people d’Iran (OMPI) v
Council (2006)
4. Case T-256/07 People’s Mojahedin Organisation of Iran v Council (2008) 10
5. Case T-284/08 People’s Mojahedin Organisation of Iran v Council (2008)
6. Case T-253/04 KONGRA-GEL Council (2008)
7. Case T-318/01 Othman v Council and Commission (2009)
8. Case C-309 and 403/06 P Hassan and Ayadi v Council and Commission
(2009)
9. T-135-138/06 Al-Faqihet al v Council (2010)
10. Case T-47/03 Sison v Council (2009)
11. Case T-327/03 Al Aqsa v Council (2007)
12. Case T-348/07 Al Aqsa v Council (2010)
 In the above cases the Court (ECJ and CFI) have struck down a number of EU
laws, both autonomous EU measures which were not specifically required by the
UN Security Council, as well as UN mandated measures for violating a range of
rights, most notably due process (right to defence) and the right to property.
 Cases C-4022 and 415/05 P Yassin Abdullah Kadi and Al Barakaat International
Foundation v Council and Commission (2008) (Kadi I)
Following various resolutions of the United Nations Security Council, all UN
Member States were called upon to freeze the funds and other financial
assets controlled directly or indirectly by individuals or entities designated
by the sanctions committee of the Security Council as being associated with
Usama bin Laden, Al-Qaeda or the Taliban.
In order to implement those resolutions, the Council adopted a common
position within the framework of the CFSP concerning restrictive measures
against the persons concerned and then, on the basis of Articles 60, 301
and 308 EC, adopted Regulation 881/2002, which provides, inter alia, for
the freezing of the funds and other economic resources of those individuals
and entities, which also appear in a list annexed to the regulation and are
regularly updated on the basis of successive UN resolutions.
Mr Kadi, a Saudi resident, and the Al Barakaat International Foundation,
established in Sweden – both of which appear in the list annexed to the
abovementioned regulation – brought actions for annulment before the
Court of First Instance, claiming that the Council was not competent to
adopt that regulation and that the regulation breached several of their
fundamental rights, in particular the right to property and the rights of the
defence.
The Court confirmed that Articles 60, 301 and 308 are the correct legal basis
for the contested regulation. In particular, the Court pointed to the relevance
of Article 308 EC not, as the Court of First Instance had held, to the pursuit
of the objective of combating international terrorism – which is a CFSP
objective and does not therefore fall under the “objectives of the
Community” within the meaning of Article 308 EC – but rather with regard
to enabling the adoption of restrictive measures of an economic nature
under a Community instrument in order to implement the actions decided 11
upon within the framework of the CFSP.
However, the Court did point out that the full review by the Community
judicature of the validity of any act subject to its jurisdiction in the light of
fundamental rights is the expression of a constitutional guarantee stemming
from the EC Treaty.
The fact that the Community judicature may have to review the legality of a
Community act which seeks to implement a resolution of the UN Security
Council does not permit derogation from that constitutional guarantee;
however, this does not call into question the primacy of such a resolution
from the perspective of international law.
The Court therefore concluded that the Court of First Instance erred in law
by holding that the Community judicature was not competent to review the
legality of Regulation 881/2002 with regard to jus cogens. The judgments
appealed against were consequently set aside.
Examining the plea in law relating to respect for the rights of the defence,
the Court stated that the effectiveness of judicial review means that the
Community authority is bound to communicate to the person concerned the
grounds on which the measure adversely affecting him/her is based in order
to enable him/her to exercise his/her right to bring an action.
The Court acknowledged that the effectiveness of measures to freeze funds
requires that those measures take advantage of the element of surprise and
apply with immediate effect. Consequently, even though the Community
authorities were not required to provide a statement of grounds or hold a
hearing of the persons concerned prior to the inclusion of their names in the
list, those authorities should nevertheless have done so within a reasonable
period after those measures were enacted.
As this did not occur in this case, the appellants’ rights of defence, in
particular their right to be heard were not respected. This breach also
resulted in an infringement of the right to judicial review, since the appellants
were likewise unable to defend their rights in satisfactory conditions before
the Community judicature.
With regard to the plea in law relating to the restriction of the right to
property, while, on the one hand, the Court did accept in principle that such
 a restriction could be justified in the fight against the threats to international
peace and security posed by acts of terrorism, on the other hand, it pointed
out that the contested regulation was adopted without furnishing any
guarantee enabling Mr Kadi to put his case to the competent authorities,
whereas, having regard to the general application and effective continuation
of the fund freezing measures affecting him, such a guarantee is necessary
to ensure that his right to property is respected.
In the light of these breaches, the Court was prompted to annul Regulation
881/2002 to the extent that it concerns Mr Kadi and Al Barakaat. However,
taking into account the fact that annulment with immediate effect would be 12
capable of seriously and irreversibly prejudicing the effectiveness of the
restrictive measures and that, furthermore, it cannot be ruled out that
imposing such measures on Mr Kadi and Al Barakaat may nonetheless
prove to be justified, the Court maintained the effects of that regulation for
a period of three months in order to allow the Council to remedy the
infringements found.
 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission, Council,
United Kingdom v Yassin Abdullah Kadi (Kadi II) (2013)
The Court held, in 2008, that the Courts of the European Union must ensure
the review, in principle the full review, of the lawfulness of all European
Union acts, including those designed to implement UN Security Council
resolutions. The Court therefore ruled that obligations imposed by an
international agreement cannot prejudice the principle that European Union
measures must respect fundamental rights.
Consequently, the Court annulled the regulation whereby Mr Kadi’s name
had been added to the list of persons associated with Usama bin Laden,
since that regulation infringed a number of fundamental rights which Mr Kadi
enjoyed under European Union law (rights of the defence, right to effective
judicial protection). None of the evidence relied on against Mr Kadi had
been disclosed to him, not even the reasons for his being named on that
list.
Following that judgment, the European Commission disclosed to Mr Kadi
the summary of reasons for his being listed which had been provided to it
by the Sanctions Committee. After obtaining Mr. Kadi’s comments on those
reasons, the Commission decided, by means of a further regulation, to
maintain his name on the European Union list relating to persons subject to
restrictive measures.
Interpreting the Court’s Kadi judgment, the General Court annulled5 the
Commission’s further regulation, holding that it was its task to ensure full
and rigorous judicial review of the lawfulness of that measure, extending to
the information and evidence substantiating the reasons underpinning the
measure. Since that information and evidence had not been disclosed, and
since the indications contained in the summary of reasons provided by the
Sanctions Committee appeared, in general, to be too vague, the General
Court concluded that Mr Kadi’s rights of defence and his right to effective
judicial protection had been infringed.
The Commission, the Council and the United Kingdom challenged that
judgment by bringing these appeals
In its judgment delivered to-day, the Court states, first, that in proceedings
relating to listing or maintaining the listing of the name of an individual on
the list of persons suspected of being associated with terrorism, the
competent European Union authority must disclose to the individual
concerned the evidence underpinning its decision. Accordingly, that 13
individual must be able to obtain, at the very least, the summary of reasons
provided by the Sanctions Committee to support that committee’s decision
to impose restrictive measures on him.
Further, that authority must ensure that that individual is placed in a position
in which he may effectively make known his views on the grounds relied on
against him and must examine, in the light of comments made by the
individual concerned, whether those reasons are well founded. In that
context, if necessary, it is the task of that authority to seek the assistance
of the Sanctions Committee and, through that committee, the Member of
the UN which proposed the listing of the individual concerned on the
Consolidated List, in order to obtain the disclosure of information or
evidence, confidential or not, to enable it to undertake a careful and
impartial examination of whether the reasons concerned are well founded.
It is the task of that authority to establish, in the event of challenge, that the
reasons relied on against the person concerned are well founded, and not
the task of that person to adduce evidence of the negative, that those
reasons are not well founded. If the authority is unable to accede to the
request by the Courts of the European Union, it is then the duty of those
Courts to base their decision solely on the material which has been
disclosed to them, namely, in this case, the indications contained in the
summary of reasons provided by the Sanctions Committee, the
observations and any exculpatory evidence submitted by the person
concerned and the authority’s response to those observations. If that
material is insufficient to allow a finding that a reason is well founded, the
Courts of the European Union shall disregard that reason as a basis for the
contested decision to list or maintain a listing.
it is nonetheless the task of the Courts of the European Union, before whom
the secrecy or confidentiality of that information or evidence is no valid
objection, to determine, when examining all the matters of fact or law
produced by the competent Union authority, whether the reasons relied on
by that authority as grounds to preclude that disclosure are well founded.
If the Courts of the European Union conclude that those reasons do not
preclude disclosure, at the very least partial disclosure, of the information
 or evidence concerned, it shall give the competent European Union
authority the opportunity to make such disclosure to the person concerned.
If that authority does not permit the disclosure of that information or
evidence, in whole or in part, the Courts of the European Union shall then
undertake an examination of the lawfulness of the contested measure solely
on the basis of the material which has been disclosed to that person
it is for the Courts of the European Union to assess whether and to what the
extent the failure to disclose confidential information or evidence to the
person concerned and his consequential inability to submit his observations
on them are such as to affect the probative value of the confidential 14
evidence
In the present case, the majority of the reasons relied on against Mr Kadi
are sufficiently detailed and specific to allow effective exercise of the rights
of the defence and judicial review of the lawfulness of the contested
measure. On the other hand, the Court holds that, since no information or
evidence has been produced to substantiate the allegations, roundly refuted
by Mr Kadi, of his being involved in activities linked to international terrorism,
those allegations are not such as to justify the adoption, at European Union
level, of restrictive measures against him.
Consequently, the Court considers that, notwithstanding errors of law
committed by the General Court in the interpretation of the rights of the
defence and the right to judicial protection, the Commission’s further
regulation must be annulled. The Court therefore dismisses the appeals
brought by the Commission, the Council and the United Kingdom.
 In number of cases involving sanctions of a more political nature, for example as
compared with these cases involving suspected individual assistance to terrorism,
the CFI/ General Court and ECJ have upheld EU sanctions and dismissed
allegations of violation of procedural rights.
1. Case T-181/08 Pye Phyo Tay Za v Council (2010)
Concerning sanctions against an individual associated with the Myanmar
regime.
2. Case T-390/08 Bank Melli Iran v Council (2009)
Concerning sanctions against an Iranian bank accused of providing
financial support for nuclear proliferation.
Challenges to EU Administrative Action
 Bui Van v Commission (2008) (Case F-51/07)
Civil Service Tribunal (CST) ruled that the EU staff regulations and conditions of
employment must be read in the light of the provisions of the Charter of
Fundamental Rights.
 The actions of EU anti-fraud office (OLAF) in conducting investigations or
forwarding information to national judicial authorities in the context of investigations
 into alleged misconduct by EU employees or officials, must comply with the rights
of the defence.
 Hoechst AG v Commission (1989) (Cases 46/87 and 227/88)
The applicants are companies involved in the polyvinyl chloride and
polyethylene business. They were suspected of unlawful agreements with
respect to fixing of prices and delivery quotas for such products.
Accordingly, European Commission officials conducted searches and
seizures of the offices of three publicly held limited liability companies
The applicants claimed that the European Commission Officials had
violated their obligations under Article 8 of the European Convention on
Human Rights 15
The Court held that corporate privacy protection was considered a
fundamental principle of Community law. It found that respect for private life
and home, as protected under Articles 8 and 9 of the ECHR, does not apply
to business premises
The ECJ stated that there was a general principle of Community law that
"any intervention by the public authorities in the sphere of private activities
of any person, whether natural or legal, must have a legal basis and be
justified on the grounds laid down by law, and . . . provide . . . protection
against arbitrary or disproportionate intervention."
The court simultaneously stressed, however, that this was not the same as
saying that there existed a general fundamental right concerning the
inviolability of the business premises of legal persons. The court conceded
that individuals had a fundamental right to inviolability of their homes, but
an extension of this principle to encompass corporate premises did not
necessarily follow from this conclusion. The court, in making this distinction,
relied on ECHR Article 8, whose protective scope, the ECJ considered, "is
concerned with the development of man's personal freedom and may not
therefore be extended to business premises."
 Orkem (Case 374/87)
The court ruled that Article 6 did not confer the right ‘not to give evidence
against one-self, was at odds with the subsequent ruling of the ECtHR in
Funke v France in which the Court ruled that Article 6 protected the right to
remain silent and not to contribute to incriminating oneself.
 Case T-99/04 AC- Treuhand
“The court has no jurisdiction to assess the lawfulness of an investigation under competition law in
the light of provisions of the ECtHR, inasmuch as those provisions do not as such form part of
Community law.”

Human Rights-Based Challenges To Member State Action

 Over time, the ECJ also ruled that fundamental rights are binding not only on the
EU institutions but also on the Member States when they are acting within the
scope of EU law.
 Case 36/75 Rutili [1975]
The Court of Justice said that French measures restricting Mr Rutili’s movement in
France had to be examined as to their compliance with Directive 64/221 which sets
 out the limitations on the right of free movement of workers under Article 45(3)
TFEU and also in the light of provisions of the ECHR.
 Johnston v RUC (Case 222/84) (1986)
The ECJ described the requirement of judicial control stipulated in the 1976 Equal
Treatment Directive as reflecting a general principle of EU law derived both from
national constitutional traditions and from Articles 6 and 13 ECHR (and Article 47
of Charter) which meant that this requirement had to be interpreted as providing
the right to an effective remedy.

Derogation from EU Rules or Restricting EU Rights

16
 Member states are also sometimes permitted by the Treaty or by analogous
principles developed by the ECJ to derogate from or restrict EC rules on public
policy, public interest, or other grounds.
 Case C-260/89 Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia
Pliroforissis and Sotirios Kouvelas (1991)
Elliniki Radiophonia Tileorassi Anonimi Etairia (hereinafter referred to as
"ERT"), a Greek radio and television undertaking, to which the Greek State
had granted exclusive rights for carrying out its activities, and Dimotiki
Etairia Pliroforissis (hereinafter referred to as "DEP"), a municipal
information company at Thessaloniki, and S. Kouvelas, Mayor of
Thessaloniki. Notwithstanding the exclusive rights enjoyed by ERT, DEP
and the Mayor, in 1989, set up a television station which in that same year
began to broadcast television programmes. ERT sought an injunction
against DEP.
The defence relied mainly on EU law rrelating to the free movement of
goods and to the rules on competition and monopolies, as well as on the
provisions of the ECHR concerning Freedom of Expression.
The Court held that it has no power to examine the compatibility with the
European Convention on Human Rights of national rules which do not fall
within the scope of Community law.
On the other hand, where such rules do fall within the scope of Community
law, and reference is made to the Court to determine whether those rules
are compatible with the fundamental rights the observance of which the
Court ensures and which derive in particular from the European Convention
on Human Rights.
 Familia press (Case C-368/95)(1997)
The Court stated that even where a member state does not rely on the Treaty-
based derogations, they may still rely on broad range of ‘public interest
justifications’ developed by the ECJ for non-discriminatory or indistinctly applicable
national measures.
 Schmidberger v Austria (2003) (Case C-112/00)
The court held that the protection of human rights in itself constitutes a
legitimate interest which will justify a restriction on EU free movement rules.
An environmental protest group planned and executed an anti-traffic
protest, blocking a major motorway in Austria.
 The protest group had received permission from the Austrian authorities to
go ahead with the protest
Diversions had been put in place to assist with traffic flow during 30-hour
disruption to motorway traffic
The issues were:
1. Had Austria breached Art 34 TFEU on the free movement of goods
between EU Member States by allowing, and not preventing, the
protest?
2. Was Schmidberger, a haulage company, entitled to damages from the
Austrian state, for failing to prevent the protest?
The Court held that: 17
1. Although a Member State is obliged to remove obstacles to trade
between Member States, doing so in this case would have
disproportionately infringed on the rights of the protestors – the breach
of Art 34 was justifiable under Art 36 TFEU
2. The ECJ found that the objectives of the protest group were irrelevant
3. As there had been no unjustifiable breach of Art 34 TFEU, there was
no basis for a state liability claim by Schmidberger for the loss caused
to them by the protest.
 International Transport Worjers’ Federation & Finnish Seamen’s Union v
Viking Line (Case C-438/05)(2007)
Viking Line, a Finnish company, owned seven vessels which it used to
sail the Baltic Sea route between Helsinki in Finland and Tallinn in
Estonia.
These ships were registered in Finland, which meant that the crew
were protected by Finnish Law and entitled to wages comparable to
those payable in Finland generally.
Viking Line was, however, operating at a loss as it was competing with
Estonian ferry companies whose crew wages and hence operating
costs were much lower.
Consequently, Viking Line gave notice that it intended to re-flag one its
ships, the Rosella, under Estonian Flag. The crew were all members
of the Finnish Seamen’s Union (the FSU) (which was affiliated to the
International Transport Workers’ Federation (the ITF).
The ITF had a ‘flag of convenience’ policy, which meant that it opposed
ship owners flagging their ships under the flag of a country with which
it had no connection, in order to exploit lower wages and/or weaker
protection in that country.
Consequently, the FSU and ITF threatened strike action against Viking
Line. Eventually Viking Line brought an action, alleging that the
threatened strike was to contrary to Art 49. The ECJ ruled that:
1. The threatened strike was a prima facie breach of Art 49 but
2. The breach was-in principle-, at least – justified on the basis of
worker protection.
 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet
[2007]
The case is concerned collective action organised by the Swedish
building and public works trade union, against a Latvian company,
Laval, which had posted construction workers from Latvia to work on
its building projects in Sweden.
The Swedish unions sought to impose a blockade against the Latvian
company, intending to force the company to sign a collective
agreement respecting Swedish wage conditions and employment 18
terms.
Laval asked the police for assistance but they explained that since the
collective action was lawful under national law they were not allowed
to intervene.
The company was eventually forced to withdraw its work force and
declared bankruptcy. The reference was from a court hearing its action
for damages. Because of the temporary nature of the Latvian
company’s operations, the matter concerned the free movement of
services under Article 56.
The Court of Justice ruled that since the Latvian company protected its
employees to the standards required by EU law, an attempt to force it
to comply with further standards in Sweden breached its rights under
Article 56 TFEU.
 The ECJ agreed in both cases that the nature of the right to strike as a
fundamental right must be taken into account in determining whether a
restriction on the free movement of services or freedom of establishment
caused by collective industrial action could be justified on the basis of the
protection of workers, the court ultimately ruled that the restrictions were
disproportionate and unjustified.
Charter of Fundamental Rights

The Fundamental Human Rights Agency

 EU Fundamental Rights Agency (FRA) was established in 2007 to subsume
and replace the existing EU monitoring Centre for Racism and Xenophobia
which was founded in 1977.
 FRA remit mainly covers the collection of information, formulating opinions,
highlighting good practices, networking with civil society, and publishing
thematic reports.
19
Emergence of Charter of Fundamental Rights
 The Charter of Fundamental rights was first drawn up in 1999-2000, following
an initiative of the European Council to showcase the achievements of the
EU in this field.
 The Charter was solemnly proclaimed by the Commission Parliament and
Council and politically approved by Member States at the Nice European
Council summit in December 2000.
 Today by virtue of Treaty on European Union, Article 6, Charter of
Fundamental Rights have the same legal status as the Treaties themselves.
 Article 6 TEU:
The Union recognises the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg,
on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as
defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the
general provisions in Title VII of the Charter governing its interpretation and application and
with due regard to the explanations referred to in the Charter, that set out the sources of
those provisions.
The Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Such accession shall not affect the Union's competences as defined
in the Treaties.
 At the time of the Lisbon Treaty, Britain and Poland (with Czech Republic later
to join) negotiated a protocol to the Treaties which on its face purports to limit
the impact of the Charter in those states.
 Protocol 30 to the Lisbon Treaty:
Article 1
1. The Charter does not extend the ability of the Court of Justice of the European Union, or
any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or
administrative provisions, practices or action of Poland or of the United Kingdom are
inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates
justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or
the United Kingdom has provided for such rights in its national law.

Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only
apply to Poland or the United Kingdom to the extent that the rights or principles that it contains
are recognised in the law or practices of Poland or of the United Kingdom.
  Declaration 53 by the Czech Republic on the Charter of Fundamental
Rights of the European Union
1. The Czech Republic recalls that the provisions of the Charter of Fundamental Rights of
the European Union are addressed to the institutions and bodies of the European Union with
due regard for the principle of subsidiarity and division of competences between the
European Union and its Member States, as reaffirmed in Declaration (No 18) in relation to
the delimitation of competences. The Czech Republic stresses that its provisions are
addressed to the Member States only when they are implementing Union law, and not when
they are adopting and implementing national law independently from Union law.
2. The Czech Republic also emphasizes that the Charter does not extend the field of
application of Union law and does not establish any new power for the Union. It does not
diminish the field of application of national law and does not restrain any current powers of 20
the national authorities in this field.
3. The Czech Republic stresses that, in so far as the Charter recognizes fundamental rights
and principles as they result from constitutional traditions common to the Member States,
those rights and principles are to be interpreted in harmony with those traditions.
4. The Czech Republic further stresses that nothing in the Charter may be interpreted as
restricting or adversely affecting human rights and fundamental freedoms as recognized, in
their respective field of application, by Union law and by international agreements to which
the Union or all the Member States are party, including the European Convention for the
Protection of Human Rights and Fundamental Freedoms, and by the Member States'
Constitutions.
 Declaration 61 by the Republic of Poland on the Charter of Fundamental
Rights of the European Union
The Charter does not affect in any way the right of Member States to legislate in the sphere
of public morality, family law, as well as the protection of human dignity and respect for human
physical and moral integrity.
 Declaration 62 by the Republic of Poland concerning the Protocol on the
application of the Charter of Fundamental Rights of the European Union
in relation to Poland and the United Kingdom
Poland declares that, having regard to the tradition of social movement of "Solidarity" and its
significant contribution to the struggle for social and labour rights, it fully respects social and
labour rights, as established by European Union law, and in particular those reaffirmed in
Title IV of the Charter of Fundamental Rights of the European Union.

Application of Charter of Fundamental Rights

 Article 51 of Charter of Fundamental Rights:

The provisions of this Charter are addressed to the institutions and bodies of the Union with due
regard for the principle of subsidiarity and to the Member States only when they are implementing
Union law. They shall therefore respect the rights, observe the principles and promote the
application thereof in accordance with their respective powers.
 The expression ‘Member states when implementing EU law’ was the object of
much disagreement among the drafters of the Charter. Its wording reflects the
attempts made by Member States to limit the scope of the Charter mainly to the
mere implementation of Directives
 Case C-617/10 Fransson [2013]
“the fundamental rights guaranteed in the legal order of the European Union are applicable in all
situations governed by European Union law, but not outside such situations… Since the
fundamental rights guaranteed by the Charter must therefore be complied with where national
 legislation falls within the scope of European Union law, situations cannot exist which are covered
in that way by European Union law without those fundamental rights being applicable. The
applicability of European Union law entails applicability of the fundamental rights guaranteed by
the Charter.”
 Case C-206/13 Cruciano Siragusa v Regione Sicilia - Soprintendenza Beni
Culturali e Ambientali di Palermo EU:C:2014:126
The Court held that a national measure will be considered as implementing
EU law when ‘a certain degree of connection’ is established and where that
link with EU law ‘is above and beyond the matters covered being closely
related or one of those matters having an indirect impact on the other’.
The Court reminded that a number of elements must be taken into account 21
to establish whether national legislation involves the implementation of
Article 51 of the Charter,
1. Whether the legislation is intended to implement a provision of EU
law;
2. The nature of that legislation and whether it pursues objectives other
than those covered by EU law, even if it is capable of indirectly
affecting EU law;
3. Whether there are specific rules of EU law on the matter or capable
of affecting it.
 Article 53 of Charter:
Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and
fundamental freedoms as recognised, in their respective fields of application, by Union law and
international law and by international agreements to which the Union, the Community or all the
Member States are party, including the European Convention for the Protection of Human Rights
and Fundamental Freedoms, and by the Member States’ constitutions.
 Article 53 defines the relationship between Charter and other International
Conventions and this was clearly illustrated in Melloni (2013)
 Case C-399/11 Melloni (2013)
Melloni was convicted in Italy for bankruptcy fraud, where he was tried in
absentia (without his presence) and sentenced to 10 years in prison
Many years later, he was apprehended by Spanish authorities, who sought
to extradite Melloni to Italy, where he would be required to serve his
sentence.
The European Arrest Warrant is a uniform system of extradition between
Member States of convicted persons or suspects for the purpose of
enforcing judgments or of conducting prosecutions.
Melloni argued in front of the Spanish Constitutional Court that his right to
a fair trial (in Italy) had been violated.
The issue the Court has to deal with here is whether the Spanish
Constitutional Court should comply with EU law and extradite Melloni,
violating its own national constitution in the process; or could the national
constitution’s integrity be upheld?
The Court held that Melloni should be extradited in compliance with EU law.
The Court stated that:
 The Charter of Fundamental Rights of the European Union did not
oppose trial in absentia.
  The concept of a trial in absentia had been previously permitted by
the European Court of Human Rights.
 EU law is supreme over both national law and national constitutions
The Spanish Constitutional Court changed the Spanish Constitution
 Advocate General Bot, in his opinion on this case, suggested that the
Court of Justice’s attitude towards fundamental rights is based on an
‘EU way of life’

Content of Charter of Fundamental Rights

 The charter is divided into seven chapters: 22

1. Dignity
2. Freedoms
3. Equality
4. Solidarity
5. Citizen’s rights
6. Justice
7. Horizontal Clauses
 Rights recognized in the Charter of Fundamental Rights
1) Rights to human dignity (Articles 1 – 5)
A. Right to life
B. Integrity of the person
C. Prohibition of torture or inhuman and degrading treatment
D. Prohibition of slavery or forced labour
E. Prohibition on cloning or eugenics
2) Freedoms (Articles 6 – 19)
A. Right to liberty and security
B. Respect for private and family life
C. Protection of personal data
D. Right to marry and found a family
E. Freedom of thought, conscience and religion
F. Freedom of expression and information
G. Freedom of assembly
H. Freedom of the arts and sciences
I. Right to education
J. Freedom to choose an occupation and right to engage in work
K. Freedom to conduct a business
L. Right to asylum
M.Right to property
3) Equality (Articles 20 – 26)
A. Equality before the law
B. Non-discrimination on sex, race, color, ethnic or social origin,
genetic features, language, religion or belief or political opinion,
disability, sexual orientation, birth
 C. Cultural, religious and linguistic diversity
D. Equality between men and women
E. Rights of the elderly, integration of persons with disabilities
4) Solidarity
A. Workers’ right to information and consultation
B. Right of collective bargaining
C. Protection in the event of unfair dismissal
D. Right to placement services
E. Fair and just working conditions
F. Prohibition on child labor 23
G. Right to social security
H. Right to healthcare
I. Protection of the family
J. High level of environmental and consumer protection
K. Access to services of general economic interest
5) Citizens’ rights
A. Right to vote and stand in municipal and European Parliament
elections
B. Right to good administration
C. Right to access to documents
D. Right to refer matters to European Parliament and petition
ombudsmen
E. Freedom of movement and residence
F. Right to diplomatic protection
6) Justice
A. Right to an effective remedy and a fair trial
B. Presumption of innocence
C. Right not to be tried or punished twice for same offence
D. Principle of non-retroactivity and proportionality
The Horizontal Clauses
 The Final chapter VII contains the general clauses which relate to the scope and
applicability of the Charter, its addressees, it relationship to other legal instruments
and the standard of protection.
 Below are the summaries of it:
Article 51(1) – Indicates that the charter is addressed to the various
institutions and agencies of the EU, but to the member states only when
they are ‘implementing’ Union law. The principle of subsidiarity is mentioned
in this Article too. Article 51 goes on to specify that the EU and the Member
states respect the rights, observe the principles and promote the application
thereof in accordance with their respective powers and respecting the limits
of the EU’s powers under the Treaties.
Article 51(2) – Indicates that Charter does not create any new power or task
for the EU nor modify any existing task.
Article 52(1) – Draws on the jurisprudence of both the ECHR and the ECJ,
contains general derogation clause, indicating the nature of the restriction
on Charter rights which will be acceptable. Any limitations on the exercise
of rights and freedoms contained in the Charter must be provided by law
and must respect the essence off those rights and freedoms. Limitations
must meet the requirements of proportionality and must be necessary and
genuinely meet objectives of general interest recognized by the Union, or
need to protect the rights and freedom of others. 24
Article 52(2) –Addresses the overlap between provisions of EU law and the
provisions of the charter, providing that rights recognized by the Charter ‘for
which provision is made in the Treaties shall be exercised under the
conditions and within the limits defined by those treaties.
Article 52(3) – Addresses the relationship between ECHR, other
international human rights instruments, national constitutional provisions,
and the charter. Article 52(3) relates specifically to the ECHR and is clearly
intended to promote harmony between the provisions of the ECHR and
those of the Charter, while not preventing the EU from developing more
extensive protection than is provided for under the ECHR.
Article 53 – Indicates the non-regression clause.
Article 54 - Contains a clause modelled on Article 17 of the ECHR which
provided that no provision of the Charter shall imply the right to engage in
any activity aimed at the destruction or excessive limitation of any of the
rights contained therein.
The Application of the Charter by Court of Justice
 C-555/07 Kücükdeveci (2010)
German national legislation allowed for redundancy notice (in employment) to
be calculated by only accounting for the employees age beyond the age of 25
The EU Directive (2000/78) provides for the equal treatment (including on the
grounds of age) of people in employment
The Directive had not been implemented by Germany
Kucukdeveci was laid off with notice calculated in accordance with national
rules from his private employer
25
The Court held that Kucukdeveci could rely on the directive horizontally.
The Court held that the directive mirrored a general principle of law (non-
discrimination), allowing the directive to be relied upon.
 Cases C-92/09 and C-93/09 Volker und Markus Schecke (2010)
The Court upheld the fundamental right of data protection by invalidating
part of an EU measure which required the publication of the names of
recipients of funds from the European Agricultural Guarantee Fund and the
European Agricultural Fund for Rural Development.
Seized by the Wiesbaden Administrative Court, the Court of Justice, having
stressed that the right to protection of personal data refers to natural
persons, firstly recognised the existence of such interference, as these are
data by name which, although concerning activities of a professional nature
of the parties concerned, constitute personal data that publication makes
accessible to third parties.
It emphasises that such processing of personal data is not based on the
consent of the parties concerned and that it is therefore appropriate to
investigate whether the interference with the rights of the latter is justified
having regard to the conditions provided for under Article 52(1) of the
Charter.
 Case C-70/10 Scarlet v SABAM (2010)
The Court declared that obliging an internet service provider to install a
filtering system in order to prevent the infringement of intellectual property
rights would violate the right of the provider’s customers to the protection of
their personal data.
This was because such a filtering system would involve a systematic
analysis of all content and the collection and identification of users’ IP
addresses.
 C-362/14 Maximilian Schrems v Data Protection Commissioner (2015)
Facts
Maximilian Schrems, an Austrian law student and co-founder of the initiative
and website “europe-v-facebook.org” has become the face of data
protection in Europe.
A Facebook user, he stepped up against Facebook’s business practice of
transferring the personal data of its European subscribers to servers located
in the United States.
 Schrems complained to the Irish Data Protection Commissioner who is
responsible for overseeing Facebook’s compliance with data protection
laws within the EU as the subsidiary is established in Ireland.
The Irish Data Protection Commissioner, however, refused to investigate
the case because a July 2000 decision by the European Commission
affirmed that the US protected personal data to an adequate level.
The Commission’s decision is known as the Safe Harbour Agreement.
Schrems challenged the decision of the Irish Data Protection Commissioner
before the Irish courts which referred two questions for preliminary ruling to
the Court of Justice of the EU (CJEU).
In his complaint, Schrems relies on the 2013 revelations by Edward 26
Snowden which brought to light the mass surveillance programmes
operated by US intelligence agencies. In light of the scale and scope of US
spy programmes, Schrems claimed that the laws and practices of the US
did not provide for a sufficient level of protection of one’s personal data and
did not meet the requirements enshrined in Union law (i.e. the Data
Protection Directive of 1995, DPD).
He alleged, in short, that the US could no longer be considered a safe
harbour for personal data of EU users of Facebook.

Ruling
The Schrems case was rendered on 6 October 2015, in the midst of the on-
going reform of data protection legislation at the EU level.
The centerpiece of this reform is the General Data Protection Regulation
which is currently being finalised in so-called trilogue meetings between the
European institutions. The Court of Justice, in its ground-breaking Grand
Chamber judgment, follows Advocate General Bot’s opinion delivered only
a fortnight earlier on 23 September. Two aspects are especially noteworthy.

Powers of national data protection authorities

 Firstly, the Court reinforces the independence of Member States’
supervisory authorities
 It points out that these are vested with the power to check
compliance with the DPD in cases where data is transferred from
the national territory to a third country.
 Thus, they are empowered to verify whether the level of protection
provided by the third country is adequate and in line with the DPD.
 As a result, a person cannot be prevented from lodging a complaint
with a national supervisory authority concerning the protection of
their rights and freedoms and domestic authorities must be able to
examine, in complete independence, whether the transfer of data
complies with European standards.
 It follows that the Irish Data Protection Commissioner will have to
investigate the complaint lodged by Schrems.
 Invalidity of the Commission’s decision regarding the US as a safe harbor
 The Court notes that domestic authorities cannot, however, take
measures contrary to those adopted by the Commission.
 This is why, in a second step, the Court declares the Commission’s
decision of July 2000 invalid.
 It interprets the notion of “adequate level of protection” as implying
that a third country effectively guarantees an equivalent - though
not identical - level of protection of fundamental rights and
freedoms to that offered to citizens in the EU.
 The Court observes that the safe harbour principles only apply to
US companies which have subscribed to a system of self- 27
certification. By contrast, US public authorities are exempt from the
scheme.
 What is more, the Court notes the broad formulation of the
derogations from the principles on grounds of national security,
public interest and law enforcement. In case of conflict, the latter
prevail over the safe harbour agreement.
 Finally, the Court calls on the Commission to regularly review its
decisions and verify whether the level of protection remains
adequate, in particular when new evidence emerges.

Implications
EU policymakers to stand up for legal certainty and a coordinated approach
 On both sides of the Atlantic, the Court’s decision has been received
with great attention by politicians as well as businesses.
 The Commission immediately announced it would renegotiate the
scheme under which personal data would be transferred from the EU
to the US. In the aftermath of the Snowden revelations, the
Commission had already proposed several amendments to the Safe
Harbour Agreement (in response to the European Parliament’s
repeated demands for its suspension) and the judgment will certainly
give new impetus to these negotiations.
 Should these fail to succeed by the end of January 2016, the Article
29 Working Party composed of representatives of national data
protection authorities, the European Data Protection Supervisor and
the European Commission are prepared to take coordinated action
regarding the enforcement of the judgment.
 In addition, the Commission is negotiating an Umbrella Agreement
with US authorities which would strengthen EU citizen’s rights to
effective judicial remedies in case of privacy breaches in the US. In
the meantime, transatlantic flows of personal data are still possible
provided they comply with the requirements of the DPD which sets
out mechanisms like standard data protection clauses in contracts or
binding corporate rules for transfers within a corporate group.
  Yet, such tools may be more complex and burdensome to implement
as companies will have to seek authorisation either from the
Commission or national supervisory authorities. Furthermore,
industry representatives from the EU as well as the US addressed
an open letter to the Commission in which they called for the
harmonised implementation of the judgment, a transitional period for
companies and the timely resolution of the uncertainties brought
about by the Court’s invalidity decision.
 Hence, it is essential for European media companies which process
their users' personal data to ensure respect of EU data protection 28
law, in particular when using data storing or processing centres
located in the US or their cloud computing services.
EU fundamental rights protection given higher priority
 The Schrems judgement also further strengthens the respect for
private and family life and the right to protection of personal data as
enshrined in Articles 7 and 8 of the EU Charter of Fundamental
Rights (CFR).
 The Court found that the essence of the fundamental right to respect
for private life (Art. 7 CFR) was seriously compromised by US
legislation permitting public authorities to access on a general basis
the content of electronic communications.
 Due to the lack of legal remedies for EU citizens to have access to,
modify or delete personal data relating to themselves, the Court held
that the right to an effective judicial remedy as prescribed by Art.
47(1) CFR was also violated.
 The Court's clear statement regarding the disrespect of the essence
of the rights of the Safe Harbour Agreement guaranteed by the CFR
is all the more remarkable as Advocate General Bot had been more
cautious in his opinion, stating that
“it could be considered that (…) the essence of the fundamental right
to protection of personal data [is compromised]” (para. 177).
 Thus, the Schrems case can be regarded as a continuation of the
Court’s recent data protection jurisprudence, in particular, Digital
Rights Ireland (regarding the validity of the Data Retention Directive)
and Google Spain (regarding “the right to be forgotten”), both of
which were decided in 2014.
 It will stimulate the debates about the appropriate level of data
protection within the EU as well as those on the differences between
the EU and the US. Importantly, in the Schrems decision, the CJEU
has demonstrated its readiness to assert EU fundamental rights,
thereby elevating the status of the CFR for the EU legal order.
The EU and the ECHR
 The Lisbon Treaty finally settled the question of whether EU should accede to the
European Convention on Human Rights.
 Article 6(2) of TEU today stated that the EU “shall” accede to the ECHR.
 The decision to accede did not rest in the power of the EU alone since the Council
of Europe’s statute also had to be amended, requiring the assent of some 47
Council of Europe member states.
 Following many years of blockage by Russia’s failure to ratify Protocol 14 to the
ECHR, the provisions of Article 59(2) of ECHR permitting accession finally came
29
into force in 2010.
 However accession will mean that ECJ will no longer be the final official arbiter of
the lawfulness of EU action which is alleged to violate human rights.
 The EU will have its own judge on the ECtHR, as each Member State of the Council
of Europe does.
 There are many issues needs to be addressed including:
1. Whether a mechanism can be introduced to ensure the ECtHR does not
rule on the compatibility of an EU act with the Convention until such time as
the ECJ has first ruled on the matter.
2. Whether EU should accede to all ECHR protocols.
3. How the EU’s judge will be elected
4. In what circumstances the EU will be a co-defendant before the ECtHR
when a complaint is brought against an EU Member State.
5. Whether EU Member States will be formally barred from bringing inter-state
complaints against one another under the ECHR.
 Bosphorus Airways” v. Ireland (2005)
The ECJ was asked to rule whether the Irish authorities had been entitled under
Regulation (EEC) No 990/93 to impound an aircraft which belonged to a
company established in Yugoslavia but had been leased without crew to a
Turkish company
The Court held that Article 8 of Council Regulation (EEC) No 990/93 of 26 April
1993 concerning trade between the European Economic Community and the
Federal Republic of Yugoslavia applies to an aircraft which is owned by an
undertaking based in or operating from Yugoslavia, even though the owner has
leased it for four years to another undertaking and in which no person or
undertaking based in or operating from that Republic has a majority or
controlling interest.
The court took a broad interpretation of the Regulation but ruled it did not entail
any violation of fundamental rights or any breach of the proportionality principle.
One of the objectives pursued by the regulation was to dissuade Yugoslavia,
by the imposition of sanctions, from continuing to violate the integrity and
security of the Republic of Bosnia-Herzegovina.
The impoundment of the aircraft could not be regarded as inappropriate or
disproportionate because it was a basic objective in the general interest of the
 international community to end the state of war in the region and the large-
scale violations of human rights in Bosnia-Herzegovina.

 Bosphorus Presumption / Doctrine of Equivalent Protection

In its present form, the doctrine of equivalent protection derives from the 2005
judgment of the European Court of Human Rights Bosphorus Hava Yollari v.
Ireland.
Under the doctrine, any activity of a Member States arising from obligations to
an international organisation is compliant with the Convention for Protection of
Human Rights and Fundamental Freedoms (CPHRFF) insofar as the 30
organisation protects human and basic rights, both in substance as well as in
its control mechanisms, in a way which can be considered to be equivalent to
that provided by the convention.
If the organisation to which a State has transferred competences does not
ensure the equivalent protection of the rights set out in the convention, the
State becomes liable for a breach of the international organisation.
The doctrine was introduced mainly due to the relationship between the Council
of Europe and the protection mechanism of the CPHRFF and the European
Union.
This relationship has changed over time. Article 6 of the Lisbon Treaty, which
entered into force on 1 December 2009, sets out that the European Union shall
accede to the convention.
The article gives an overview of the development of the relevant case-law of
the European Court of Human Rights and the potential fate of the Bosphorus
doctrine after the European Union accedes to the convention.
The second objective of the article is to turn attention to the breakthrough
events in the current court system of Europe.