Background and Evolution of Rights in Europe:
Evolution:
1957: Initial absence of fundamental rights (Treaty of Rome).
1969: Judicial recognition by ECJ. (STAUDER)
1992: Explicit constitutional recognition (Maastricht Treaty).
2000: EU Charter of Fundamental Rights (CFR) proclaimed, but not binding.
2007: CFR becomes legally binding (Lisbon Treaty). A Fundamental Rights Agency is established and human rights become EU foundational values. (TEU Art 2)
Fundamental Rights as a Driver of Integration and a Source of Tension:
Rights can be seen as a symbolic achievement of EU legal order as the EU transformed from a purely economic to political Union.
Rights can also be seen as a source of tension. Their introduction can cause judicial conflicts and discourse over the primacy of EU law, and political salience over the extent of unity and integration.
Sources of Fundamental Rights in EU Law:
Fundamental rights in EU law can be derived from unwritten (uncodified) general principles and written texts, such as CFR and ECHR. Much of EU fundamental rights law involves an exercise of balancing competing rights and values.
Art 2 TEU:
‘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 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.
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.’
General Principles:
Developed by the CJEU, the twin doctrines of direct effect and supremacy of EU law mean EU law takes precedent over domestic law. Pressure from national courts has resulted in these domestic courts applying national fundamental rights against EU acts due to a fear that the EU could be a vehicle to undermine rights. The CJEU, reacting to this, emphasised its commitment to fundamental rights by reading them into the treaties as general principles.
‘… the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of [EU] law and protected by the Court.’ [1]
‘respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice’ [2]
therefore
‘the validity of [an EU] measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure.’ [3]
What Constitutes General Principles:
Constitutional traditions common to the EU’s member states.
International treaties that EU member states have signed (most notably, ECHR).
The concept of general principles is quite intergovernmental in nature, thus legitimising importing fundamental rights into the EU despite the fact that member states did not explicitly draft fundamental rights into the treaties.
Examples:
Property Rights and Freedom to Conduct Business
Equality
Free Speech
Human Dignity
Rights of Children
Freedom of Information
Data Protection
Charter of Fundamental Rights (CFR):
Drafted in 1999 and ‘solemnly proclaimed’ in 2000, the CFR was initially non-binding but used as an interpretive aid by the CJEU. The 2007 Lisbon Treaty entrenches the CFR, giving it the ‘same legal value as Treaties’.
Art 1-50 – Six substantive chapters.
Dignity
Right to Life, Bodily Integrity, No Torture etc.
Freedoms
Privacy, Data, Expression, Property etc.
Equality
Non-discrimination, Gender, Child Rights etc.
Solidarity
Workers’ Rights, Health, Environmental Protection etc.
Citizens’ Rights
Right to Vote, Good Administration etc.
Justice
Fair Trial, Presumption of Innocence, Legality etc.
Art 51-54 – General Provisions
Art 51(1) – CFR applies to:
- All acts of EU institutions and bodies.
- Member states, only when ‘implementing Union law’ (not relating purely to national law).
‘Implementing Union law’:
EG: when a member state is implementing a directive, CFR will apply.
‘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.
Where, on the other hand, a legal situation does not come within the scope of European Union law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction. [4]
Art 52(3) – Rights in the Charter should be interpreted similarly as analogous rights in the ECHR but this ‘shall not prevent Union law providing more extensive protection’.
Art 53 – Member states can still apply their (higher) national fundamental rights standards, where applicable.
Art 53 CFR - ‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized… by Union law and international law and by international agreements to which the Union or all the Member States are party, including the ECHR and Fundamental Freedoms, and by the Member States’ constitutions.’
However, the CJEU seem to have disregard this provision.
In MELLONI, an Italian criminal fled to Spain. Under Italian law, it is possible to face criminal charges in court as long as you have legal representation; however, in Spain, it is not possible to be tried in absentia (not physically present) and then extradited. The man was tried and found guilty in Italy. Italy requested extradition. Spanish courts ruled this violated the Spanish constitution, so would not extradite the man.
The CJEU ruled that the Spanish court’s ruling was wrong because it would violate mutual trust and the extradition system. Where fundamental rights standards had been harmonized at EU level, national courts could not depart from them (even if national law would provide a higher level of protection). Thus, EU fundamental rights are the ‘ceiling’ of rights standards, not the ‘floor’.
The judgement has faced criticism because it undermines the Art 53 CFR commitment to not undermine the level of protection provided under national constitutions. [5]
The ruling is mostly based on functional logic of maintaining primacy of EU law and harmonisation of rights, not the rights at stake.
‘Melloni makes clear that primacy of EU law is not about citizens’ rights’ [6]
European Convention on Human Rights:
All member states are signatories of ECHR; the EU is not, despite lobbying efforts to change.
Reasons for External Fundamental Rights Standards:
External Scrutiny.
Closes gaps in protection (EG: EU measures cannot be challenged at ECtHR).
Coherence.
Procedural benefits (EG: EU cannot intervene in ECtHR cases).
Symbolic value.
CJEU has stated that the EU has no human rights competence, so is unable to accede to ECHR. [7] This judgement made constitutional change. The Lisbon Treaty states that the ‘Union shall accede’ to the ECHR, making it a constitutional mandate. (Art 6(2) TEU)
The ECHR was amended to allow non-states to be signatories, thus allowing the EU to accede to it. A draft agreement is made in 2013. The CJEU then rule that the agreement is incompatible with the EU’s constitutional structure, causing standstill. [8]
CJEU’s Justification:
Adverse effects on autonomy and supremacy of EU law.
Erosion of the principle of mutual trust.
Effect on advisory opinions and PRP.
Exclusive componence of ECJ over disputes between member states or member states and the EU on questions of EU law would be undermined / lost / shared.
ECtHR would be assessing the division of competences between member states and the EU.
There has been a renewed effort for EU to join ECHR (since 2021).
The Rule of Law Crisis:
The rule of law crisis has become epicentre of discourse over EU fundamental rights in recent years. Rise of populist and anti-democratic political movements across EU member states makes the question of whether collective values are simply nice to have or of fundamental importance.
Recent Challenges (in Poland):
Constitutional Tribunal
Court-packing – promoting judges favourable to the government into higher courts.
Non-publication of rulings.
Supreme Court
Lowering mandatory retirement age.
Disciplinary procedures against certain judges, particularly for engagement with PRP.
Reforms to National Council of the Judiciary, which appoints judges.
Disciplinary sanctions on lower / ordinary courts.
These recent challenges have given rise to questions of the EU’s competence in this field and whether, if it does, to what effect should it endeavour to protect the rule of law.
Arguments Against the EU’s Intervention:
The EU does not have explicit competence to intervene in the organisation of national judiciaries – this is an exclusive national competence.
In attempting to prevent the rule of law backsliding, the EU may, either voluntarily or by expulsion, make member states leave the Union. This will only make the crisis worse in these states.
Arguments in Favour of the EU’s Intervention:
EU accession was seen as a safeguard for democracy and the rule of law in post-Communist member states, so the EU should protect the rule of law in these states.
3 Potential Responses:
Political action.
Legal action.
Financial action.
Political Responses:
The Commission and European Parliament have been applying soft pressure on the Hungarian and Polish governments, mostly by giving opinions and resolutions.
Art 7 TEU:
1. If there is a clear risk of serious breach of Art 2 TEU (1/3 of member states, the EP, Commission or Council and the Consent of the EP), the procedure can be initiated. [9]
2. If there is a serious and persistent breach of Art 2 TEU, with Council unanimity, the member state in question loses its voting rights.
Threshold:
Problematically high threshold means that it is easy to block Art 7.
Legal Responses (Infringement Proceedings):
The traditional approach in infringement proceedings was to indirectly challenge rule of law violations by challenging other violations of EU law.
Examples:
Using Equality Framework Directive to challenge a change to the retirement age of judges. (C v HUNGARY 1)
Using Data Protection Directive. (C v HUNGARY 2)
The new approach is to directly challenge violations, most notably of Art 19 TEU (remedies sufficient for effective legal protection) and Art 47 CFR (right to fair trial).
In the PORTUGUESE JUDGES CASE, after a reduction in judicial wages due to economic crisis, judges challenged that lowering their wage would undermine their impartiality due to an increased risk of corruption.
‘to the extent that the Court of Auditors may rule… on questions concerning the application or interpretation of EU law…, the Member State concerned must ensure that that court meets the requirements essential to effective judicial protection, in accordance with the second subparagraph of Art 19(1) TEU.
In order for that protection to be ensured, maintaining such a court or tribunal’s independence is essential, as confirmed by the second subparagraph of Art 47 of the Charter, which refers to the access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy’
In COMMISSION v POLAND, among other constitutional reforms, Poland established the Disciplinary Chamber of the Polish Supreme Court (DCSC), which was used review the content of judicial decisions, including the use references to the CJEU (PRP). They also lowered the retirement age of judges.
The CJEU ruled that this was in violation of Art 19 TEU (read in conjunction with Art 47 and 2 TEU) and Art 267 TFEU. Poland do nothing to fix this, and the Commission take them back to the ECJ. The CJEU impose a €1m/day fine due to the potential ‘irreparable harm’. Poland has still not paid this.
‘It should be recalled at the outset that the European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU...’
Disciplinary sanctions are, in principle, acceptable but the system ‘must provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions’ and cannot be used to punish judges who engage with PRP.
Internal Dimension:
‘linked to impartiality… equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.’
External Dimension:
‘court concerned [must] exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.’
Financial Responses (Conditionality Clauses):
Rule of law conditionality clauses in the EU budget limits disbursement of funds where member states have undermined the rule of law . This is a threat to withhold EU funding.
Regulation 2020/2092: affects ‘breaches of the principles of the rule of law in a Member State which affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way’.
The regulation requires there to be a risk to the Union budget’s sound financial management for funds to be withheld.
‘no doubt that the compromises reached during the legislative process weakened the instrument as opposed to the original Commission’s proposal, and this is disappointing considering the urgency to find effective responses to the constitutional backsliding processes in Hungary and Poland.’ [10]
Lower voting threshold than other means, so more likely to succeed.
‘this new instrument marks another important step in the strengthening of the Union’s toolbox to fight cases of rule of law or constitutional backsliding’ [11]
The CJEU have stated that this is legal and enforceable, allowing the Commission to go ahead with their plan. (HUNGARY v EP and C)
‘the Union budget is one of the principle instruments for giving practical effect, in the Union’s policies and activities, to the principle of solidarity … the rule of law – a value common to the EU and the Member States which forms part of the very foundation of the European Union and its legal order’
‘The values contained in Article 2 TEU have been identified and are shared by the Member States. They define the very identity of the EU as a common legal order. Thus, the EU must be able to defend those values, within the limits of its powers as laid down by the Treaties.’
‘... it is permissible for the EU legislature, where it has a legal basis for doing so, to establish, in an act of secondary legislation, other procedures relating to the values contained in Article 2 TEU, which include the rule of law, provided that those procedures are different, in terms of both their aim and their subject matter, from the procedure laid down in Article 7 TEU.’
Rule of law conditionality has already been used against Hungary, blocking €7.5b until 14 identified changes are made. This significantly tips the negotiating power in favour of the EU and Hungary is pursuing steps to address the issues identified.
Also see NextGen EU – EMU Week.
Evaluating the EU’s Human Rights Record:
CJEU as a Human Rights Court:
The CJEU has typically been highly reluctant to strike down EU measures on fundamental rights grounds, preferring to rely on more diplomatic means of rectifying the violations themselves. However, this is not to say that the CJEU will not interpret EU and national law in light of Charter rights.
Critics have remarked that EU has not been ‘taking rights seriously’ enough due to the low standard of scrutiny and market bias. It is important to remember the fact that the CJEU maintains a functional vision of fundamental rights.
‘The CJEU is increasingly determined to enforce EU fundamental values, but is reluctant to do so when this means overriding central constitutional principles it sees as safeguarding the EU legal system as such.’ [12]
Recent changes seem to suggest a move towards greater acceptance of rights in the wider EU context. There has also been a ten-fold increase in the number of CJEU litigation using or mentioning the CFR. [13]
CJEU is, or is becoming, catalyst for change. CJEU should be saying ‘we were not a human rights court, but we are one now’. [14]
‘progress towards an understanding of fundamental rights as constitutional obligations stemming from a unitary source, compared to the Court’s earlier case law … no longer an “afterthought”’ [15]
EU as a Human Rights Organisation:
There has been a significant rise in human rights instruments and language, among constitutional changes (Art 2 TEU and CFR). Despite this, there seems to still be deficiencies at both EU and member state levels.
‘the Charter of Fundamental Rights has been successful in respect of its symbolic, procedural, and individual-rights-affirming aspects; but that it has been less radical in delivering on its promise of protection of the different types of rights enshrined therein.’ [16]
Arguably, the EU has authority to protect democracy in member states, both normatively and in a narrower legal sense. [17] This is disputed though.
The consensus required for legislative process carries advantages for rights protection.
‘the EU has an unusually complicated legislative process, with three institutions all having to agree for legislation to be established. While this creates many inefficiencies, it may carry advantages from point of view of the protection of fundamental values.’ [18]
Resources:
References:
[1] Case C-29/69, Stauder v City of Ulm [2] Case C-11/70, Internationale Handelsgesellschaft mbH v Einfuhrund Vorratsstelle für Getreide und Futtermittel [3] Case C-11/70, Internationale Handelsgesellschaft mbH v Einfuhrund Vorratsstelle für Getreide und Futtermittel [4] Case C-617/10, Åkerberg Fransson at [21]-[22] [5] Dawson, The Governance of EU Fundamental Rights (Oxford University Press 2017) 67-70 [6] Besselink, ‘The Parameters of Constitutional Conflict after Melloni’ (2014) 39 European Law Review 531 [7] Opinion 2/94, Opinion pursuant to Article 228 of the EC Treaty; Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1996) [8] Case Opinion 2/13, Opinion pursuant to Article 218(11) TFEU — Draft international agreement — Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms — Compatibility of the draft agreement with the EU and FEU Treaties (2014) [9] Initiated against Poland (by the Commission) in Dec 2017 and against Hungary (by the EP) in Sept 2018. [10] Baraggia and Bonelli, ‘Linking Money to Values: The New Rule of Law Conditionality Regulation and Its Constitutional Challenges’ (2022) 23 German Law Journal 131 [11] Baraggia and Bonelli, ‘Linking Money to Values: The New Rule of Law Conditionality Regulation and Its Constitutional Challenges’ (2022) 23 German Law Journal 131 [12] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 186 [13] European Commission, 2018 report on the application on the EU Charter of Fundamental Rights (2019) 14 < https://data.europa.eu/doi/10.2838/44400> accessed 22 Apr 2023 [14] Sarmiento, ‘A Court that Dare Not Speak its Name’ (2018) European Journal of International Law 29(1) 1-7 [15] Frantziou, ‘The Binding Charter Ten Years on: More than a “Mere Entreaty”?’ (2019) 38 Yearbook of European Law 73 [16] Frantziou, ‘The Binding Charter Ten Years on: More than a “Mere Entreaty”?’ (2019) 38 Yearbook of European Law 73 [17] Müller, ‘Should the EU Protect Democracy and the Rule of Law inside Member States?’ (2015) 21 European Law Journal 141 [18] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 187
Cases Mentioned:
Case C-29/69, Stauder v City of Ulm
Case C‑399/11, Stefano Melloni v Ministerio Fiscal
Case C-286/12, Commission v Hungary (1)
Case C-288/12, Commission v Hungary (2)
Case C‑64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas (‘Portuguese Judges Case’)
Case C-791/19 Commission v Poland; Case C-204/21Commission v Poland
Case C-156/21 Hungary v European Parliament and Council
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