EURO Fundamental Rights

Fundamental Rights and EU

Source: S. Douglas-Scott, “A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights acquis,” Common Market Law Review, 2006

Fundamental Rights and EU

Currently EU is not a party to the European Convention on Human Rights (ECHR)

Therefore no possibility of litigation attacking the EU as a legal personality before the ECtHR

Butmeasures put into effect by the EU are subject to applications before the ECtHR directed against the member states of the EU

To enable the EU;– Amendment in the ECHR– Amendment in EU law

Relations between ECJ and ECtHR

Despite the status of the EU before the ECHRthere exists an overlap of jurisdiction between the two courts

It became obvious with the Bosphorus Case (Bosphorus Hava Yolları v. Ireland, ECtHR, 2006)

ECJ Luxembourg ECtHR Strasbourg


Four different types of cases:– 1- Strasbourg decides cases involving violations

by member states in which there is no EU law– 2- ECJ (CFI) decides cases involving breaches of

human rights by EU institutions– 3- ECJ decides cases involving breaches by

member states when implementing EU law– 4- Strasbourg jurisdiction over actions involving

the EU

1- Strasbourg decides cases involving violations by member states in which there is no EU law

Classical Strasbourg case Exp: 1981 Dudgeon Case against the

UKNorthern Ireland’s legislation prohibiting homosexual acts was found violation of the ECHR

Most of the cases are of this kind they do not involve any element of or conflict with the EU law

2- ECJ (CFI) decides cases involving breaches of human rights by EU institutions

ECJ in 1970 in Internationale Handelgesellschaft Case began to develop its own human rights jurisdiction

In this caseECJ stated that the EEC was also bound by the fundamental rights

As the EU’s competences grewit may infringe human rights by its actions

Until 2000 Declaration of the Charter of Fundamental Rights

– EU possessed no human rights catalogue– Nor had it acceded to the ECHR


In Internationale Handelgesellschaft Case “respect for human rights forms an integral part of the general principles of Community law protected by the Court of Justice”

Main concern at that timeIf it did not do sonational constitutional courts would reject the supremacy of EU law

As EU did not have a Charter of Rightsthe Court imported those rights from national and international legal systemsThis formula later inserted into TEU Art. 6


Treaty on European Union (TEU) Art. 6:– “The Union shall respect the fundamental rights, as

guaranteed by the ECHR and as they result from the constitutional traditions common to the member states, as general principles of Community Law”

– “Shall respect fundamental rights as....”what does this mean

– In 1974ECJ first specfically cited the ECHR as supplying “guidelines which should be followed within the framework of Community law”

– The ECJ continued to cite the ECHR ever since...

3- ECJ decides cases involving breaches by member states when implementing EU law

As member states play a fundamental role in application and administration of EU lawECJ has held that they are bound to observe human rights when implementing EC law

Exp: A member state may rely on fundamental rights as a defence to deviate temporarily from EU law

– Exp: Austrian government justified its derogation from the free movement of goodson grounds of the need to protect “the freedom of assembly and expression

– Environmental demonstration on a big motorwaythey stopped the traffic and passage of goods between Austria and Italy

– The ECJ accepted the Austrian government’s reasonallowed that measure seeking to ensure respect for fundamental rights even if it causes restrictions of Community law

4- Strasbourg jurisdiction over actions involving the EU

EU is not a party to the ECHR and therefore cannot be a “defendant” in Strasbourg

In 1990 the European Commission of Human Rights decided in M&Co. v. Germany [execution of ECJ judgment and breach under art. 6 right to a fair trial]

– “member states [to the EU] are responsible for all acts and omissions of their domestic organs ...violating the Convention regardless of whether the act or omission in question is a consequence of domestic law or ...of necessity to comply with international obligations”


The Human Rights Commission held that a transfer of powers to an international organization by a member state would not be incompatible with that state’s obligations under the ECHR provided that: “within the international organization, fundamental rights would receive “EQUIVALENT PROTECTION”.

This judgment has been influenced by the similar doctrine developed in Solange II”so long as”.

If EU provides Equivalent Protection on that area action is found inadmissible


Another important case where the ECtHR found admissible:– Matthews Case 1999 Matthews v. UK– Matthews challenged EC law which regulated elections to the

European Parliament from member state territories– Community ActGibraltar was not represented in the European

Parliament– Matthews brought her action against UK and Strasbourg accepted

jurisdiction.– Becasue the ECtHR did not find the EU to have provided

“equivalent protection” in this case– It found that UK had breached the applicant’s “right to vote” under

the Convention


Implied explanation given by the ECtHR in Matthews:

– Secondary law (regulations and directives) can be challenged before the ECJ

– Primary law may not be challenged leaving a gap in remedies

– The relevant EC Act on Gibraltar was part of primary law– UK complied with the judgmentby giving residents of

Gibraltar the right to vote in the European Parliament– BUTAnother action was brought by Spain against

UK in the ECJ arguing that UK has violated the EC law


September 2006ECJ judgment in Spain v. UK: Spain submited that the extension of the right to vote

in elections to the European Parliament to persons who are not citizens of the Union infringes EU law.

However, according to the ECJ relevant articles do not expressly and precisely state who are to be entitled to the right to vote and to stand as a candidate for the European Parliament.


ECJ: “It follows from all of those considerations that, in the current

state of Community law, the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each Member State in compliance with Community law, and that [relevant articles] do not preclude the Member States from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory.”

Therefore resident in Gibraltar who are not Community nationals have the right to vote and to stand as a candidate in elections to the European Parliament


Approach of the ECJ regarding Matthews v. UK (ECtHR): “In the light of that case‑law of the European Court of

Human Rights and the fact that that Court has declared the failure to hold elections to the European Parliament in Gibraltar to be contrary to Article 3 of Protocol No 1 to the Convention in that it denied ‘the applicant, as a resident of Gibraltar’ any opportunity to express her opinion on the choice of the members of the European Parliament, the United Kingdom cannot be criticised for adopting the legislation necessary for the holding of such elections under conditions equivalent, with the necessary changes, to those laid down by the legislation applicable in the United Kingdom”


The leading case in this field is Bosphorus Hava Yollari v. Ireland (ECtHR, 2006)

– Irish Government confiscated (seized) an aircraft leased by a Turkish company from Yugoslav airlines in the implementation of an EU measure which was implementing a UN measure imposing sanctions on Yugoslavia

– The ECtHR did not decline jurisdiction to try the case = even though the measure had been previously challenged and upheld in an earlier action in the ECJ (Bosphorus Havayollari v. Ireland –1996 ECJ)


In Bosphorus Hava Yollari v. Ireland (ECtHR, 2006):– Ireland was responsible under Article 1 ECHR for all acts or

omissions within its territory– But according to the ECtHR confiscating the aircraft

can be justified under Article 1, Protocol 1 as striking a fair and proportionate balance between the general interest and the individual right to property.

– “existence of equitable protection is a rebuttable (refutable) presumption if protection of ECHR rights were to be found “manifestly deficient” then this presumption will be rebutted.

– However the ECtHR did not find it manifestly deficient.


Thereforeone can argue that the ECtHR does not want to get involved unless outrageous breaches of human rights are at issue.

So farno ECJ judgment has yet been overturned by the ECtHR.

This shows that the ECJ’s fundamental rights case law is generally in line with the jurisprudence of the ECtHR.

Note that in cases where an EU member state become defendant before the ECtHR when it implements an EU actEU has intervener status before ECtHR in Strasbourg.


Recently the ECJ referred very frequently to the case-law of the ECtHR

But these cases were only cited “by analogy” If ECJ mentions Strasbourg case-law it gives little indication as to its opinion of their normative force.it certainly does not decribe it as binding.

Thereforerelevant case-law may be used as a “persuasive authority” to enhance the legitimacy of the ruling given by the ECJ.

Fundamental rights with Lisbon Treaty

There has been no specific clause in any of the EU Treaties on the status of ECHR for the EU although Article 6(2) TEU [The Union shall respect the fundamental rights, as guaranteed by the

ECHR...]but not the ECHR itself as a source of law.

A new Charter on Fundamental Rights entered into force with the Lisbon Treaty


Charter will be binding only on European legislation. It consists mainly of rights and freedoms that EU countries have

signed up to in various other documents, such as the ECHR. It adds some new ‘principles’ as wellsuch as the right to job

training and to health care But it is mentioned that these will only have meaning insofar as

they are already applied and practiced in the individual member-states.

For example the ‘right to strike’ will not create new worker entitlements beyond existing national labour laws.

No ECJ jurisprudence noweffects will be seen. Probably individuals will more and more attempt to challenge EU law on grounds of violation of the Charter which is now part of the EU primary law.


Article 6 TEU Consolidated after Lisbon (ex 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.

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.”

EURO Fundamental Rights

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