Lecture 9 – European Union Law (3)

BDROI1242 – Legal English

Academic year – 2023-2024

Catarina DERAEDT – catarina.deraedt@uclouvain.be

Cassandra BOCKSTAEL – cassandra.bockstael@uclouvain.be
Fundamental
Rights in the
EU
1. Beyond an Economic Union
• Article 3 TEU (aims of the Union)
1.The Union’s aim is to promote peace, its values and the well-being of its peoples.
2.The Union shall offer its citizens an area of freedom, security and justice without internal
frontiers, in which the free movement of persons is ensured in conjunction with appropriate
measures with respect to external border controls, asylum, immigration and the prevention
and combating of crime.
3.The Union shall establish an internal market. It shall work for the sustainable development of
Europe based on balanced economic growth and price stability, a highly competitive social
market economy, aiming at full employment and social progress, and a high level of
protection and improvement of the quality of the environment. It shall promote scientific and
technological advance.
It shall combat social exclusion and discrimination, and promote social justice and protection,
equality between women and men, solidarity between generations and protection of the rights
of the child.
1. Beyond an Economic Union
• The EU is built on fundamental rights, democracy and the rule of law.

“The Union is founded on the values of respect for human dignity,

freedom, democracy, equality, the rule of law and respect for human
rights, including the rights of persons belonging to minorities. These
values are common to the Member States in a society in which
pluralism, non-discrimination, tolerance, justice, solidarity and equality
between women and men prevail” (Art. 2 TEU)
1. Beyond an Economic Union
• These values set the standard for countries wishing to join the EU in the future
• What about current MS? Can a MS be penalised if there is a serious and persistent
breach of these values and principles?
Yes, (Article 7 TEU) the Eu institutions can intervene and adopt some measures:
The European Council must unanimously determine the existence of a serious
and persistent breach of the values and principles of the Union. This determination is
made on a proposal by one third of the Member States or by the European
Commission, and after obtaining the assent of the European Parliament.
The Council may then, acting by a qualified majority, suspend certain rights
deriving from the application of the EU Treaty and the TFEU to the Member State in
question, including voting rights in the Council. On the other hand, the obligations on
the Member State in question under the treaties continue to be binding.
2. EU Citizenship
• What does it mean to be a Union Citizen?
• TEU introduced the concept of Union citizenship into the EC Treaty,
together with the right of all Union citizens to move freely and reside
in another MS. The TFEU now incorporates these provisions. Art. 20
TFEU: ‘Citizenship of the Union is hereby established’ and that every
national of a MS is a Union citizen.
• Citizenship Directive 2004/38: consolidated the legislation as well as
clarifying and supplementing the rights of Union Citizens and their
family members.
2. EU Citizenship
• With the adoption of Directive 2004/38, EU Law moved further
towards breaking the link between rights and economic status.
However, the economically active (workers and the self-employed) and
their families, together with students and persons with independent
means, still enjoy more extensive rights than are granted to persons
simply by virtue of Union citizenship.
• Union citizenship rights are subject to the ‘limitations and conditions’
in the TFEU and secondary legislation. MS can impose restrictions on
grounds of public policy, public security, or public health, though the
ECJ interprets these grounds restrictively.
2. EU Citizenship
• Originally free movement and non-discrimination rights were largely
confined to the economically active and their families, though the ECJ
consistently stressed the importance of free movement as a matter of
social justice, as the means for individuals to pursue enhanced life
quality through increased mobility.
The ECJ began to use Union citizenship as the basis of rights, declaring
that “Union citizenship is destined to be the fundamental status of the
nationals of the MS”.
3. Development of Fundamental rights in the
EU
• The fundamental values and concepts at the heart of the EU also include the
fundamental rights of individual citizens of the Union.
• 1969: the CJEU first established a body of case-law to serve as a framework of
fundamental rights.
Prior to that, the Court had rejected all actions relating to basic rights on the grounds that
it need not concern itself with matters falling within the scope of national constitutional
law.

However: The Court had to alter its position because of the primacy of Union law and its
precedence over national law.
 This primacy can only be firmly established if Union law is sufficient in itself to
guarantee the protection of basic rights with the same legal force as under the national
constitutions.
3. Development of Fundamental rights in the
EU
• Initially, the Court developed its safeguards for fundamental rights from a number of
provisions in the treaties.

• The Court of Justice has steadily developed and added to these initial attempts at
protecting fundamental rights through Union law.

How?
By recognising and applying general legal principles, drawing on the concepts that are
common to the constitutions of the Member States and on the international
conventions on the protection of human rights to whose conclusion the Member States
have been party. Prominent among the latter is the ECHR, which helped to shape the
substance of fundamental rights in the Union and the mechanisms for their protection.
3. Development of Fundamental rights in the
EU
• On this basis, the Court has recognised a number of freedoms as basic rights
secured by Union law.

Ex: right of ownership, freedom to engage in an occupation, the inviolability of the

home, freedom of opinion, the protection of the family (e.g. family members’ rights
to join a migrant worker), freedom of religion or faith

Ex: fundamental procedural rights:

the right to due legal process, the principle of confidentiality of correspondence
between lawyer and client (known as ‘privileged communications’ in the
common law countries), the ban on being punished twice for the same offence or
the requirement to provide justification for an EU legal act.
3. Development of Fundamental rights in the
EU
• The jurisprudence of the ECJ has also given the Union an extensive body of quasi-
constitutional law. In practical terms, the principle of proportionality is foremost among
these.
What does it mean? The objectives pursued and the means deployed must be weighed
up and an attempt made to keep them in proper balance so that the citizen is not
subjected to excessive burdens.

• Particular value is also attached to greater transparency, which means that decisions
should be taken as openly as possible, and as closely as possible to the citizen.
An important aspect of this transparency is that any EU citizen or legal person registered in
a Member State may have access to Council or Commission documents. All grants and
subsidies from the EU budget must also be disclosed to natural or legal persons by means
of databases accessible to every Union citizen.
3. Development of Fundamental rights in the
EU
• However, this process of deriving ‘European fundamental rights’ had a serious
disadvantage: the ECJ was confined to the particular case in point.
- unable to develop fundamental rights from the general legal principles for all areas
in which this appeared necessary or desirable.
- unable to elaborate the scope of and the limits to the protection of fundamental
rights as generally and distinctively as was necessary.

 As a result, the EU institutions could not assess with enough precision

whether they were in danger of violating a fundamental right or not. Nor could any
Union citizen who was affected judge without further effort in every case whether
one of his or her fundamental rights had been infringed.
 Could the ECHR be the solution?
Exercise
• In which source of law was EU citizenship established?

• On which grounds could Union citizenship rights be restricted?

• Which principle of EU law led the ECJ to review its position on

reviewing cases dealing with fundamental rights?
4. EU and ECHR
• For a long time, EU accession to the ECHR was regarded as a way out of this situation.
• However, the ECJ had held that, as Union law stood at that time, the EU had no
competence to accede to the ECHR. The Court stated that :
 Respect for human rights was a condition for the lawfulness of EU acts. However,
accession to the convention would entail a substantial change in the present Union
system for the protection of human rights in that it would involve the EU entering into
a distinct international institutional system as well as integration of all the provisions of
the convention into the Union legal order.
 Such a modification of the system for the protection of human rights in the EU, with
equally fundamental institutional implications for the Union and for the Member
States, would be of constitutional significance and would therefore go beyond the
scope of the dispositive powers provided for in Article 352 TFEU.
4. EU and ECHR
• What would accession of the EU to the ECHR mean?
• Easier to complain to the ECtHR about fundamental rights violations
committed by the EU and its institutions
• ECtHR would become the ‘ultimate arbiter’: ECJ would be subject to the
jurisdiction of the ECtHR and the ECtHR, having the last word, could solve a
conflict between case law of both courts.
• ECJ could apply ECHR directly and not just use ECtHR judgments as inspiration
• Could make tasks easier for national courts (instead of dealing with differing
standards)
• Impact for CFSP jurisdiction
4. EU and ECHR
• The EU’s accession to the ECHR is now specifically provided for
in Article 6(2) TEU.

• Accession negotiations were then promptly reopened in 2010. In the

spring of 2013, agreement was reached on the draft accession agreement.

• The Commission sent this draft to the ECJ and requested an opinion on its
compatibility with EU law.
The Court concluded that, in the form proposed, the draft agreement on
the accession of the EU to the ECHR was not compatible with EU law.
4. EU and ECHR
• Critical arguments made by the ECJ:
- If the EU were to accede to the ECHR, the ECJ would have to submit to the
decisions of the ECtHR.
- The Union’s CFSP would also be subject to the human rights supervision of
the ECtHR.
The judges took the view that this was contrary to important structural
principles of the EU.
 Although, in theory, accession of the European Union to the ECHR remains
possible after this decision, in practice it is more complicated as a number of
technical details in the accession draft need to be amended beforehand.
EU Charter
1. From the ECHR to the Charter
• Irrespective of the EU’s accession to the ECHR, the Treaty
of Lisbon made a further, decisive step towards the creation
of a common constitutional law for the EU and put the
protection of fundamental rights in the EU on a new footing.

• A new article on fundamental rights (Article 6 TEU) subjects

the actions of the EU institutions and the Member States,
insofar as they apply and implement Union law, to
the Charter of Fundamental Rights of the European
Union, which is made legally binding at EU level by
a reference in that article.
1. From the ECHR to the Charter
• Article 6 TEU:
1. 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.
2. 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.
3. 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.
2. EU Charter
• Preamble of the Charter:
“Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal
values of human dignity, freedom, equality and solidarity; it is based on the principles of
democracy and the rule of law. It places the individual at the heart of its activities, by
establishing the citizenship of the Union and by creating an area of freedom, security and
justice.
The Union contributes to the preservation and to the development of these common values
while respecting the diversity of the cultures and traditions of the peoples of Europe as well as
the national identities of the Member States and the organisation of their public authorities at
national, regional and local levels; it seeks to promote balanced and sustainable development
and ensures free movement of persons, services, goods and capital, and the freedom of
establishment.
To this end, it is necessary to strengthen the protection of fundamental rights in the light of
changes in society, social progress and scientific and technological developments by making
those rights more visible in a Charter. »
EU Charter
• Title I: Dignity
• Title II: Freedoms
• Title III: Equality
• Title IV: Solidarity
• Title V: Citizens’ rights
• Title VI: Justice
2. EU Charter
• Adopted in 2000 and entered into force in 2009
• The EU Charter brings together the rights enjoyed by people in the EU: The
Charter of Fundamental Rights is the European Union’s bill of human rights.
• It strengthens the protection of fundamental rights by making them more
explicit for citizens
• Among its 54 articles, it sets out democratic rights such as the right to vote,
freedom of expression and information, freedom of assembly and association,
human dignity, right to non-discrimination, right to a fair trial

 Can citizens invoke Charter’s rights before the national courts?

YES
2. EU Charter
• The provisions of the Charter are addressed to (are binding for):
• the institutions and bodies of the EU in all their actions
• national authorities when they are implementing EU law

For example, the Charter applies when EU countries adopt or apply a national law
implementing an EU directive or when their authorities apply an EU regulation directly.

• In cases where the Charter does not apply, the protection of fundamental rights is
guaranteed under the constitutions or constitutional traditions of EU
countries and international conventions they have ratified.
• The Charter does not extend the scope of the EU to matters not part of its normal
remit.
EU Charter and ECHR
EU Charter ECHR

• applicable only to EU MS • applicable to MS of Council of Europe

• applies only if states operate in an • applies to all actions or omissions by a

area governed by EU law. state within its jurisdiction.

• enshrines rights which are not

guaranteed by the ECHR. For
example, the right to asylum or the
right to data protection
2. EU Charter
• On 2 December 2020 the Commission presented a new Strategy to
strengthen the application of the Charter of Fundamental Rights in the EU.
• In order to ensure that the Charter becomes a reality for all, the strategy
sets out the direction of the Charter implementation for the next 10 years.
• The strategy focuses on four pillars:
• 1. Effective application by the Member States
• 2. Empowering civil society organisations, rights defenders and justice
practitioners
• 3. The Charter as a compass for EU institutions
• 4. Strengthening people’s awareness
2. EU Charter
• The EU Agency for Fundamental Rights was established in 2007 to
provide assistance and expertise relating to fundamental rights to EU
institutions, bodies, offices and agencies, and to EU countries when
they implement EU law.

• The main task of the agency is to collect and publish relevant, objective,
reliable and comparable information and data on the situation of
fundamental rights in all EU countries within the scope of EU law. The
agency also promotes dialogue with civil society in order to raise public
awareness of fundamental rights and disseminate its work.
3. Fundamental rights beyond the Charter
• The protection of fundamental rights is also ensured through specific EU laws
such as the General Data Protection Regulation, legislation that aims to
prevent discrimination on the grounds of sex, race, ethnicity, religion,
disability, age or sexual orientation, and laws protecting whistle-
blowers and victims of crime.

• The EU also ensures the protection of fundamental rights through dedicated

policy measures and close cooperation with EU countries and civil society, for
instance, on hate crime and hate speech, gender equality and non-
discrimination, civil and criminal justice, the digitalisation of justice, data
protection, upholding the rule of law, rights of the child and consumer rights.
4. Illustration: Fair trial
• CJUE C-205_21 and collection of personal data. Which protection?

• Art. 47 EU Charter:
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an
effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial
tribunal previously established by law. Everyone shall have the possibility of being advised, defended and
represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to
ensure effective access to justice. »

• Art. 48 EU Charter:
“1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.
2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.”
Revision Exercises
• What happens when a national court is unsure of the application of the
EU law?
• If a provision of EU law, for instance a Treaty article or a provision of a
directive, has ______ _________ , it can be enforced by individuals in
the national court.
• If a MS fails to fulfil its obligations under the Treaties, can another MS or
an EU institution bring an action before the ECJ?
• What is the difference between primary and secondary EU law?
• What is the ‘indirect effect’ of EU law?
• Both regulations and directives are directly applicable. True or false?
Exercise - Match the principles with their
definition
• Primacy/Supremacy a) The EU acts only within the limits of
the competences that EU countries
have conferred upon it in the Treaties.
• Conferral b) Individuals can immediately invoke a
European provision before a national
• Subsidiarity court.
c) The EU should not take action unless it
is more effective than action taken at
• Direct effect national level.
d) EU law takes precedence over national
law
Exercise: Match the institution with its role
• Parliament a. proposes and implements (with Member
States)

• European Council b. co-legislator

• Commission c. interprets and applies EU law

• Court of Justice d. gives impulses and breaks deadlocks. No

legislative function

• Council e. co-legislator
Revision Exercises

• Which institution has the right of initiative for legislative acts?

• Which institution represents the general interest of the EU?

• What does ‘intergovernmentalism’ mean?

• Which informal negotiation has in practice influenced the legislative process and the
adoption of texts after the first reading?

• What does ‘qualified majority voting’ mean?

True or False?
• The Charter is binding on the MS but not the EU institutions.

• The EU Charter is a source of primary law.

• A citizen can invoke a provision of the Charter against a MS whether

the situation falls within the scope of EU law implementation or not.

• The EU is now a member of the Council of Europe and has acceded to

the ECHR.