Bachelor of Laws Level 5

EU Law
Revision – 2016/2017
________________________________________________________________________________________________________

CFREU

Q. 3 B 2012
1) Address the Question
The statement in the question is agreed with. The impact of the Charter of Fundamental Rights (Charter) and the
protection of human rights in Europe are evidently more effective today than it used to be.

Q. 7 B 2013
The statement in the question is partially true. It is true that the Charter of Fundamental Rights (Charter) symbolizes
what the European Union (EU) and the Court of Justice established in its case laws – which s to affirm the principle of
equality and protection of individual rights. However, it is not true that the establishment of the Charter was an
“unnecessary complication”.

Q. 8 A 2014
I disagree with the statement in the question in asserting that the Charter of Fundamental Rights (Charter) is not
relevant because its incorporation through the implementing Treaty was more concerned with equalizing the standards
of protection than with the actual protection of rights. The statement questions the relevance of the Charter and it alleges
that the Treaty of Lisbon has lost sight of the true aims of the Charter, which is to protect the political, social and
economic rights of the European Union (EU) citizens and residents. It is submitted that the impact of the Charter
depends on how the EU Court upholds the Charter, and not on the reason in which the Lisbon Treaty had incorporated
the Charter.

2) Background
The original Treaties of the EU contained no provisions on the protection of human rights. In the early stages, the Court
of Justice of the European Union (CJEU) explicitly stated that human rights did not form part of the Union legal order –
Case 1/58 Stork v High Authority and Case 40/64 Sgarlatta. The European Economic Community (EEC) was
restricted to purely economic aims.

However, it was not long before the EU was established as a powerful entity, that the CJEU recognized that
the interests of the Union were spread so wide that it was impossible to disregard human rights in the EU law. For
example, Case 29/69 Stauder v City of Ulm (1969) and Case 11/70

Internationale Handelsgesellchaft (1970), the Court was faced with a possible infringement of
human rights case. This was the time the concept of protection of fundamental rights took a rising toll. In these cases,
although there was no violation of fundamental rights found, the Court recognized that fundamental rights are part
of the general principles of Union law.

3) 2 Primary Sources
There are 2 primary sources to the general principles of Union law as per Case C-4/73 Nold v
Commission (1974):
i. Common National Constitutional Traditions
ii. International Human Rights Agreements

However, the former is referred to less frequently than the latter. This is because; it is inherently difficult to find common
traditions across 28 MS. Also, there is a fear of compromising the supremacy of the EU law by deferring to national
law.
Generally, the Court would refer to both sources simultaneously as illustrated in Case 44/79 Hauer v Land Rheinland-
Pfalz (1979). Here, the court concluded that the right of an individual had to be weighed against the interest of the
Community.

Case 44/79 Hauer v Land Rheinland-Pfalz (1979)

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.

Held: 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.
1
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________

Reasoning: 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.

4) European Convention on Human Rights

The CJEU had consistently treated the European Convention on Human Rights (ECHR) as a special source of
inspiration, of course, among others – Case 4/73 Nold v Commission (1974).

Other references made as a second source:

European Social Charter – Case 149/77 Defrenne v Sabena (1978)
International Covenant on Civil and Political Rights – Case T-48/96 Acme Industries v
Council (1999)
International Convention on the Rights of the Child – Case CC-530/03 European Parliament v Council (2006)

Today, with the accession of the EU to the ECHR, the protection of human rights in Europe is much strengthened –
Article 6(2) of the Treaty in European Union (TEU), Article 59(2) of the ECHR, as amended by Protocol 14. With
this, the fundamental rights as per the ECHR is said to constitute the general principles of Union law. Thus, the rights
enshrined in the ECHR have become a part of the patchwork of the Union – Case 29/69 Stauder v City of Ulm (1969)
and Case 11/70 Internationale Handelgesellschaft (1970).

However, it is opined that this is not as great as an impact as it seems.

Case C-84/95 Bosphorus v Minister of Transport (1996)

European Court of Human Rights: the EU’s protection of fundamental rights can be considered at least
equivalent to that of the Convention.

4) The Charter of Fundamental Rights

Protection of rights within the EU was only significantly changed/enhanced with the emergence/incorporation of the
Charter of Fundamental Rights. A study group set up by the Union in 1999 had catalogued the various fundamental
rights spread out around the EU Treaties, the case laws of the CJEU, the ECHR and also the Declaration on
Fundamental Rights of the European Parliament 1989. They not only collect together existing rights, but also codified
new ones.

5) Legal Status & Effect of the Charter

The Charter was given legal status via the Treaty of Lisbon on the 1st of December 2009. Prior to this date, the
Charter did not bind the EU Member States (MS) to adhere to any general principles that protects the fundamental
rights of EU citizens. Upon incorporation by the Treaty of Lisbon, the Charter now has direct effect – R (Chester) v
Secretary of State. Thus, the Charter now essentially imparts on regular citizens the ability to seek redress for violations
of their fundamental rights. Clearly, the Lisbon Treaty has not hindered the Charter from reaching its full potential in
this regard.

Moreover, the Treaty of Lisbon have incorporated the Charter into primary EU law, and it is now binding on EU
institutions and MS – Article 6(1() of the TEU.

R (AB) v Secretary of State

Mostyn J noted: the Charter would remain a part of domestic law even if the Human Rights Act were repealed.

Thus, is it glaringly obvious that the fact that the Charter is now legally binding, has indeed solidified its place in the
Union legal order.

6) Provision(s) within the Charter

Article 51 of the Charter
This provision explicitly provides that the applicability of EU law entails the applicability of the fundamental rights
guaranteed by the Charter.

Thus, it could be argued that the Charter is now a benchmark/yardstick for the legality of both EU law and national law
when there is an issue that falls within the very wide scope of EU law – Test- Achats judgment.
2
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________

Test-Achats judgment
The case concerned the Directive 2004/113, which extended the principle of sex equality to the access to and supply
of goods and services. Article 5 of the Directive prohibits sex discrimination in the field of insurance, such that
insurance premiums and benefits must not be affected on grounds of the individual’s sex.

However, Article 5(2) proceeds to allow Member States to carve out an exception under national law where sex is a
“determining factor in the assessment of risk based on relevant and accurate actuarial data.”

States are required to report any such derogation to the Commission, along with the relevant data. However, aside
from an obligation to “review” the derogation within five years, it contained no “sunset clause” or other temporal
limitation.

Test Achats, a consumer association, instituted proceedings which wound their way up to the
Belgian Constitutional Court, which in turn referred a preliminary question to the CJEU.

Unlike the Advocate General, the Court did not centre its analysis on the question of “comparability”, that is, whether
men and women are in comparable situations for the purposes of insurance, although they affirmed – without any
independent investigation or analysis – that they were indeed suitable comparators.

The Advocate General’s opinion – regarding the use of sex as a risk factor in insurance contracts
The Advocate General Juliane Kokott, in an opinion regarding case C- 236/09, suggested that it is not compatible
with EU fundamental rights for insurance companies to taking into account the sex of a person when calculating
premiums and benefits for insurance contracts. The Advocate General concluded that the use of risk factors based on
sex in connection with insurance premiums and benefits is incompatible with the principle of equal treatment for men
and women under European Union law. She proposed that the Court of Justice should declare Article 5(2) in Directive
2004/113 to be invalid.

Instead, the Court took a narrower approach, focusing on the obligation of the EU legislature to act in a manner
consistent with its own stated objectives. It recognized that the EU legislature is free to implement the principle of
equality gradually, and which may include transitional periods and limited derogations.

However, once the legislature has decided to act in the field of equality, “it must contribute, in a coherent manner, to the
achievement of the intended objective”. Having decided to extend the Directive to the insurance industry and to affirm
the principle of unisex pricing, it would not be consistent with that objective to permit an indefinite derogation from equal
treatment. Therefore, a provision enabling States to derogate from the rule of unisex premiums without stipulating
any temporal limitation was contrary to the objective of equal treatment between men and women and Articles 21 and
23 of the Charter.

On March 1, 2011 – the Grand Chamber ruled that a provision which enabled States to maintain sex-specific insurance
premiums, notwithstanding the rule on unisex insurance and benefits laid down in Directive 2004/113, was incompatible
with the principle of sex equality, enshrined in Articles 1 and 23 of the Charter.

The Court took the unusual step of delaying the entry into force of the judgment until the expiry of an “appropriate
transitional period”, allowing insurance companies time to adjust to the ruling.

The ruling will affect 3 insurance products, where sex is considered a “determining risk-rating factor”:
i. Motor Insurance - Young female drivers are considered less risky than their male counterparts, and so pay less
for car insurance.

ii. Life Insurance

The effect here is reversed from Motor Insurance. Women tend to live longer. iii. Private Health Insurance

The effect here is reversed from Motor Insurance. Women tend to utilize more medical services than men,
resulting in higher premiums.

3
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
Case C-617/10 Fransson (2013)
This is a landmark decision on the scope of the Charter, EU constitutional law, and the relationship between national
and EU law in general.

Facts: The case concerned criminal proceedings initiated against Hans Akerberg Fransson for tax fraud. Mr. Akerberg
Fransson, a fisherman active on the Kalix river, allegedly provided false information concerning his income tax and value
added tax (harmonized by Directive
2006/112/EC), resulting in a loss of revenue for the Swedish exchequer.

He received tax fines for the years 2004 and 2005 in 2007. Subsequently, in 2009, criminal proceedings were initiated
against Mr. Akerberg Fransson for the same facts.
In that case, which lead to the preliminary reference, Mr. Akerberg Fransson submitted that these criminal charges
should be dismissed on the ground that he had already been punished for those acts and that these criminal
proceedings were therefore in violation of the ne bis in idem (prohibition of double jeopardy) principle laid down in
Article 50 of the Charter.

Contentious Issue: does the Charter apply in such a case?

Whether the case fell within the scope of EU law (the ‘jurisdictional question’)?
Does the principle ne bis in idem prevent the imposition of criminal sanctions for tax evasion if administrative sanctions
has been levied for the same act in the first place (the ‘substantive question’)?

The jurisdictional question

The jurisdictional question is perhaps the most interesting part of the case.

Sweden, and several intervening governments argued that the case did not fall within the scope of the principle of ne
bis in idem within the meaning of the Charter of Fundamental Rights of the EU (the Charter), because neither the
administrative nor the criminal sanctions were adopted in pursuit of national implementation of any EU legislation and
accordingly: the Charter was not applicable (para. 16). Thus, the outcome of the case would determine the applicability
of the Charter. The Court, relying on its case law, ruled that Article 51(1) of the Charter, which determines its applicability,
is to be interpreted in the following manner:

“The requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States
when they act in the scope of Union law" (para. 21).”

I.e., it was not strictly necessary for the national legislation to have been adopted for the implementation of EU law, it
was sufficient that the situation fell within the scope of EU law. This is a very broad interpretation of the Charter, which
I personally welcome, but which I also believe that several jurists will disagree with.

In either case, the Court went on to explain that since the case partially concerned administrative sanctions for providing
false information with relation to VAT, the case fell within the scope of EU, since VAT is regulated on a European level.

The substantive question

The substantive question was dealt with the rather swiftly by the Court.

It confirmed that the principle of ne bis in idem prevents the levying of two subsequent criminal sanctions for the same
act, whilst the same principle permits an administrative sanction followed by a criminal sanction (para. 34).

CJEU: applied the Charter in a straightforward manner – dismissing the arguments advances by 5 MS and the
Commission that the Court did not have jurisdiction since the Charter did not apply in this case.

Rather unusually, the Court went the extra mile in its reasoning, referring to the decision of Melloni.

Case C-399/11 Melloni (2013)

The case concerned the problematic issue of differing levels of protection of fundamental rights at national and European
levels in relation to the execution of a European Arrest Warrant (“EAW”).
Case went up to CJEU, and the result is that the Spanish Constitutional Court agreed to lower the degree of protection
afforded by the Spanish Constitution in line with EU law.

4
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
Further, nothing in the Charter can be interpreted to undermine existing protection of rights under EU law, the MS’s
Constitutions, or international law, including the ECHR – Article 53 of the Charter. Case C-399/11 Melloni (2013)
further substantiated that while national courts are free to apply national standards of protection of fundamental rights,
the level of protection afforded by the Charter, and the primary, unity and effectiveness of the EU cannot be
compromised.

7) Evident Enhancements
Therefore, it is quite clear that the Charter has increased its contribution to the effective protection of human rights in
the EU since it became binding. In fact, since its incorporation via the Treaty of Lisbon, its reference has increased
from under 10 rulings in 2009 to almost 90 in 2012.

Some of those cases would include:

C-555/07 Kucukdeveci (2010)
This case concerns age discrimination, pursuant to Article 21 of the Charter.

Joined Cases C-411/10 and C-493/10 NS

Here, the court elaborated on the protection of asylum seekers under Article 18 of the Charter. It was ruled by the
court that a MS cannot send an asylum seeker to another MS with the awareness that there are systemic deficiencies
with the asylum procedures.

Doing so, is a breach of Article 4 of the Charter which prohibits inhuman and degrading treatment.

The CJEU has also rules on how the EU institutions must take into account fundamental rights in the
Charter when acting. For instance:

Case C-355/10 European Parliament v Council (2013)

The Court had annulled a Council decision on surveillance of the external EU sea borders, since the measure
was likely to affect personal freedoms and fundamental rights to such an extent that the involvement of the EU legislature
was required.

Case C-566/10 P Italian Republic v Commission (2013)

The Court annulled the notices of several open competitions to become a civil servant of the EU, on the basis that they
have only been published in 3 languages, thereby violating the non-discrimination prohibition in Article 21 of the
Charter.

8) Conclusion
These are evidence that the incorporation of the Charter is not an unnecessary complication, or even meaningless. The
submitted case laws have illustrated that the incorporation of the Charter by the Treaty of Lisbon is not so much about
harmonization, but it actually upholds the main aim of the Charter – which is to provide actual/better protection for EU
citizens.

Therefore, in conclusion, the true guardians of the Charter are the courts and their interpretation of the law. So long as
the courts are not swayed by fear or favour, EU citizens and residents can rest easy in the knowledge that their rights
will always be defended. As such, the relevance of the Charter is much improved today with the binding effect via the
Treaty of Lisbon. The concerns of the EU are not simply about equalizing the standards of protection, but it also
includes the better protection of actual rights of individuals.

5
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
Question 3 May 2010 [Zone B]
[1] There are different understandings of 'general principles’ but here it is interpreted as one of the main primary
sources of EU Law and as a set of rules of law, mostly unwritten, which have been developed by the Court of
Justice by reference to its duty to uphold the rule of law.
- It has also found support in Treaty:
- Article 19 (1) TEU: “The Court of Justice of the European Union shall include the Court of Justice, the
General Court and specialised courts. It shall ensure that in the interpretation and application of the
Treaties, the law is upheld”.
- Article 263(2) TFEU: Grounds for illegality of EU acts
- Article 340 TFEU: Non-contractual liability of the EU institutions
- However, it is mainly the CoJ who incorporated of general principles of law in the Union legal order and the
Court has recognised, amongst others, the following principles in its case law:

expectations;
-discrimination;

- Note: Some principles were first developed in the case law but then later was incorporated in the Treaty

[2] Current Treaty Protection of Fundamental Human Rights

- Developed nearly entire by Court; following the impetus given to the protection of fundamental human rights by
the Court:
- Article 6 TEU expressly recognised this principle at the time of the signature of the Maastricht Treaty in 1992,
amended at Lisbon.
- Article 2 TEU states that respect for fundamental human rights is one of the foundational values of the EU.
- Article 7 TEU: Sets out a procedure for sanctioning Member States that commit persistent and serious
infringements of rights contrary to the principles guaranteed in Article 6(1) TEU.
- Article 49 TEU: Any country that wants to join EU must show their commitment to HR.
- Article 21 TEU on the respect for fundamental human rights in external relations.
- Most important recent developments: Treaty of Lisbon has given the HR Charter legally binding effect.

[3] Evolution of principle of protection of fund HR through COJ case law

- Two main areas of the case law:
[a] cases concerning the use of the principle of protection of fundamental human rights when the Court has
reviewed the legality of EU legal acts (e.g. regulations, directives, decisions, etc);
[b] cases concerning the use of the principle when the Court has reviewed the legality of the action of Member
States when they act in the sphere of EU Law (e.g. national measures implementing EU measures or national
measures derogating from one of the fundamental freedoms set out in the EU Treaty)

[3] Historical evolution

[a] After some initial reluctance in Stork [1959], the Court recognised in Stauder [1969] for the first time that the
protection fundamental human rights was a general principle of law protected by the Court of Justice. The
principle binds the Institutions of the Union.
b] International Handelgesellschaft [1970]. The next step was taken in this seminal decision. Facts: Challenged
system of deposits that EU Regulation put in place. Argued it was against FHR especially proportionality
enshrined in national Constitution. In addition to reaffirming the role of the protection of FHRs as a general
principle of EU Law, the Court made it clear that:
- (1) “… recourse to legal rules or concepts of national law to judge the validity of measures adopted by
the [Union] institutions would have an adverse effect on the uniformity and efficacy of [EU] law”
(reassertion of the supremacy of EU law);
- (2) “… the protection of [fundamental human] rights, (sweetened the pill here) 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]” (national constitutions as a source of inspiration for the respect
of human rights in the EU legal order, but the protection of these rights by the Court must be secured
in the framework of the structure and objectives of the Union);
- It was held: on the facts that there had been no violation of FHRs.
- Solange I – The German Constitutional Court felt that the result in Internationale Handellsgesellschaft had not
been assured with sufficient certainty within the EU.
- Solange II where it reversed Solange I, it felt that the protection afforded by the Court of Justice of the EU had
reached the appropriate level guaranteed under German Law.

6
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
[c] Nold [1974], the Court introduced two additional important ideas:
- (1) International Treaties on human rights (e.g. ECHR) as a second source of inspiration to give content
to FHRs in EU law:
- (2) Economic rights may be subject to limitations in order to protect the EU interest

[d] For a summary of the ideas developed in the above cases, see Hauer [1979]:
- Facts: There was Surplus of wine so EU measure was to restrict planting of new wine for 3 years. Issue: contrary
to FHR? Property and freedom to pursue trade or profession? Held: 1. Must distinguish between deprivation of
right and just restricted of right. 2. Saw that regulations were commonplace in 3 member states looked at. 3.
Held restrictions were justifiable as temporary!

[4] Search of an appropriate standard of protection of fundamental human rights in EU law

- The Court recognises national constitutional traditions of the Member States as one of the sources of
inspiration to give content to fundamental human rights. However, Member States have different social and
cultural norms but: which rights ought to be protected (at Union level), and what level of protection that should
be afforded. Academics are divided:
[a] “maximalist”: recognition at Union level of any right that is protected in any single member state
- Besselink supports the adoption of a universal maximum standard and any right protected by any international
treaty for protection of Fundamental HR
[b] “minimalist”: recognition at Union level of only those rights protected by ALL Member States.
- Court never expressly endorsed either a maximalist or minimalist view and has adopted a case-by-case
approach.
- Some decision that indicate tendency towards one or other, but never any express recognition.
- Mannesmannröhren-Werke [2001] – A German applicant, claimed that this right was protected under German
competition law and therefore should be automatically protected at Union level. The Court disagreed and this
suggests support for Minimalist approach.
- It appears that the Court has afforded different degrees of protection for different rights P. v. S. and Cornwall
County Council, and Nold show that Court is comparatively less protective of economic rights as compared with
personal rights.

[5] Now the EU Charter of Fundamental Human Rights contains some guiding principles on the standard of
protection afforded to human rights:
- Article 53: of the Charter: no undermining of the protection offered to individuals either by international treaties
or national constitutions)
- Article 52 (3): interpretation of the Charter should be in line with the interpretation given to the same rights
under the ECHR, although the Union can provide more extensive protection

[6] Review of National Measures

[a] Member States implementing EU law: Fundamental human rights bind the Member States when these
implement EU measures:
- Wachauf [1989] at para. 19 of the judgment - a complex case that involved implementation of milk quarters,
imposed by EU institutions in order to regulate the production of Milk in the European Union. Question: in
implementing the system, did the German authorities act in breach of FHR? Court makes it very clear that
natural progression of idea that EU institutions are bound by fundamental human rights.
- Bosphorous [1996]: When national authorities implement EU law, they are acting as agents of the European
Union and therefore, must respect general principles of law and human rights.
[b] National measures derogating from the fundamental Treaty freedoms: A national measure may not take
advantage of an express derogation from the fundamental Treaty freedoms unless it respects fundamental
human rights
- ERT [1991] – the Court says for the first time that even if derogates from fundamental Treaty freedom, it must
respect human rights when it does.
- Carpenter [2002]: a case concerning a Philippine lady who was about to be deported, argued that the
deportation rules were detrimental to family life. The Court stated that, “A Member State may invoke reasons of
public interest to justify a national measure which is likely to obstruct the exercise of the freedom to provide
services only if that measure is compatible with fundamental rights whose observance the Court ensures”…

[c] If there was a direct clash between Treaty rights of free movement with non-economic rights guaranteed by the
constitutional traditions and the ECHR – the Court says that there was a need to protect fundamental rights
constitutes a legitimate aim justifying a restriction to Treaty rights.
- Schmidberger [2003]: A demonstration took place in an Austrian motorway. Schmidberger brought an action for
damages against the Austrian Authorities arguing that by authorising the demonstration, they had restricted
7
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
their lorries and one of the Treaty freedoms, free movement of goods. The Court held that in principle, the fact
that the Austrian authorities had authorized the demonstration constituted a restriction of a treaty freedom, but
it had to be considered whether it could be justified?

[7] The relationship between EU Law and the ECHR

- Express reference to the ECHR has been made in numerous cases:
- Articles 6 and 13: Orkem v. Commission [1989]
- Article 8: Rutili [1975]
[a] Home Sweet home in Strasbourg but not Luxembourg? Sometimes conflicting rulings were delivered by the
Court of Justice of the EU and the European Court of Human Rights on the interpretation of the ECHR: contrast
for example the interpretations of the right to privacy given in Hoescht v. Commission [1989] and in Niemietz v.
Germany:
- In Hoescht case, Court of Justice, the ECJ held that in context of competition investigation, the right to
inviolability to home applies only to private dwellings but does not extend to undertakings. By contrast, case
decided by Strasbourg in Niemietz, Art 8 of convention extends to the professional offices of a lawyer.
[b] Converging Tendencies? But Roquette Frères [2002] shows a tendency towards convergence which clearly
started in the late 1990s. Paras. 159-165 of Bosphorus 2005 where this Court found that “the protection of
fundamental rights by EU law can be considered to be “equivalent” to that of the Convention system.” Also,
deference of the Court of Justice towards the judgements of the ECtHRs is patent in some recent
judgements: Parliament v. Council.
[c] Accession to the ECHR? In 1993, the Commission published a working document where it considered the
question of the legal basis of accession of the (then) Community to the ECHR. The Council sought the Opinion
of the Court as to whether accession would be compatible with the Treaty.
- The Opinion of the Court considered two main issues:
1. whether accession would be compatible with the Treaty and
2. whether the (then) Union had competence to accede: Court said there was no clear legal basis for
accession, and procedural now Art 352 TFEU cannot be used as backdoor because accession too significant.
- KEY PARAGRAPH: Accession to ECHR would constitute a very significant change, and such a modification of
the system will be of constitutional significance and must go beyond scope of article 235. It could be brought
about only by way of Treaty amendment”
[d] De Facto Accession? More recent case law of the ECtHR indicated a de facto accession: Matthews v.
United Kingdom (1999) and Emesa Sugar v. Aruba [2000] ECR I-665.

Question 3 May 2012 [Zone B]

[1] History
Following Opinion of Court the European Council agreed at Cologne in 1999 to draw up a Charter of
Fundamental Human Rights; At the Nice summit in December 2000, the Council, the Commission and the
European Parliament “solemnly” proclaimed the EU Charter of Fundamental Rights. It was proclaimed as a
political, non-binding declaration, whose express purpose was “to consolidate fundamental human rights and
make their overriding importance and relevance more visible to the Union’s citizens”, but there were calls
already to make it legally binding.
- Despite the value of the Charter as a “solemn political declaration”, it was soon cited by the Advocates General
to the Court : AG Alber in TNT Traco [2001]; AG Léger in Hautala 2001; AG Jacobs in UPA; By the ECtHR
in Godwin v. UK [2002]

[2] The TFEU On 1 December 2009 gave legal force to the Charter of Fundamental Human Rights (although unlike
the Constitutional Treaty, the ToL did not incorporate the Charter in its text but gave it “the same legal value as
the Treaties”). The Charter is not itself a source of rights but provides a record of rights that receive protection
within the Union, from one source or another. Article 6 (1)(2) TEU declares: “The provisions of the Charter shall
not extend in any way the competences of the Union as defined in the Treaties”. The second key change was
provision for the accession of the European Union to the ECHR (see Article 6(2) TEU).

[a] The ‘Opt-Out’ for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric
over Reality? Barnard 2008
- The special protocol for UK and Poland was really a “belt and braces” exercise given that the Charter is
not designed to create new rights but to record the fundamental rights that apply within the constitutional order
of the EU either by virtue of EU or national Law

8
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
[3] Structure
- Preamble
- Title I – Dignity ( right to life, to the integrity of the person, prohibition of torture, prohibition of slavery and forced
labour)
- Title II – Freedoms ( right to liberty and security, respect for private and family life, protection of personal data,
right to marry, freedoms of thought, conscience and religion, freedom of expression and information, freedom
of assembly, freedom of the arts and sciences, right to education, right to work, freedom to conduct a business,
right to property, right to asylum, protection in the event of removal or expulsion);
- Title III- Equality ( equality before the law, non-discrimination, cultural, religious and linguistic diversity, rights of
the child and of the elderly, integration of disabled persons);
- Title IV- Solidarity (workers’ right to information and consultation, right of collective bargaining, right to access
to placement services, protection in case of unjustified dismissal, fair and just working conditions, prohibition of
child labour and protection of young workers, family and professional life, social security and social assistance,
health care, access to services of general economic interest, environmental protection, consumer protection);
- Title V- Citizens’ rights ( right to vote and stand as a candidate in elections to the EP and in municipal elections,
right to good administration, right of access to documents, right to access to the European Ombudsman, right
to petition the EP, freedom of movement and of residence, right to diplomatic and consular protection);
- Title VI – Justice (right to an effective remedy and to a fair trial, presumption of innocence and right of defence,
principles of legality and proportionality of criminal offences and penalties, right not to be punished twice for the
same criminal offence);
- Title VII- General provisions governing the interpretation and application of the Charter.

[4] Scope and Limitations

[a] Some of these rights (particularly in Title I) are absolute rights but others are subject to limitations.
Article 52(1) of the Charter explains how these limits should be applied.
[b] The Charter gives more extensive protection to various rights of a social nature than the ECHR (i.e.
rights of the elderly, the right to access to healthcare, etc).
[c] Article 52(5) of the Charter appears to create a distinction between “rights” and “principles” but this distinction
seems to be surrounded by ambiguity because not explained what this distinction is.

[5] The Interaction between the Fundamental Rights Protection and the Union’s International Obligations.
- Problems have arisen in cases where the legality of Union acts implementing Chapter VII Resolutions of the
UN Security Council has been challenged, on the grounds that fundamental rights have been infringed. The
General Court (then CFI) drew a distinction between the elements of an EU act that relate to matters within the
margin of discretion left by such a Resolution (reviewable by EU Court), and the elements that give effect to the
core obligation imposed by the Resolution (not reviewable by EU Court).
- Yusuf [2005] Kadi [2005]: held that the General Court is not competent to review compatibility with FHR of EU
regulation that simply implemented the resolutions of the UN security council.
- Reasoning: if they were to declare such regulation illegal, this would implicitly amount to declaration that the UN
secretary council resolutions were themselves incompatible with FHR. Thus it can only review in terms of HR
that they could carry out was of compatibility of EU regulation with peremptory norms of law – ius cogens. So
only an arbitrary deprivation would be contrary to ius cogens, and this hadn't happened on the facts.

- However, the Court of Justice has recently set aside these two judgements of the General Court in Kadi and Al
Barakaat. In this very important judgment, the Court held that the Union judicature must ensure the full review
of the lawfulness of all Union acts in the light of fundamental rights, which form an integral part of the general
principles of EU law, including the review of Union measures which, like the regulation in question, are
designed to give effect to resolutions adopted by the Security Council.
- In these important cases, the Court found that there had been a breach of the right to property and the right to
a fair hearing. Despite the dramatic outcome of these cases, the act in question resembled more an
administrative act (imposition of sanctions) than a legislative act.

9
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
‘Some commentators perceive the Charter of Fundamental rights as an unnecessary complication. Instead
it symbolises what the EU and the Court of Justice case law stand for: the affirmation of the principle of
equality and protection of individual rights.’ Discuss.

When the Lisbon Treaty came into enforced, the issues of human rights had called the attention of people. The Charter
of Fundamental Rights of the European Union (hereafter referred as “the charter”) has at last acquired binding force.
However, it is noted that most of the rights listed under the Charter had already existed or recognized in the EU, and
thus, lead to some argument that the Charter was an unnecessary piece of Articles in EU. Hence, in this essay, I will
discuss
the significant effect of EU adopted a Charter of Fundamental Rights, and further attempted to answer how the
European Court of Justice used the Charter to enhance the human rights within its member states.

Historically, EU was not founded on the value of human rights although Art 2 of the TEU majestic claimed that it is.
Hence, the issue of human rights plays less important in EU since the EEC
Treaty started out as an economic treaty with the aim of creating a Common Market. However, when EU has gone
beyond being a common market, involve much greater range of activities, particularly in the Area of Freedom, Security
and Justice, which includes visas, asylum and criminal law matters, human rights became important and this is the fact
where the court cannot ignored.

Moreover, when the court endorsed the doctrine of supremacy in Costa v ENEL, and held that EU law would prevail
national law when they are in conflict, there emerge a necessary need of EU to recognized the principle of the
fundamental right, especially in situation when most of the member states treated the issues of human rights as the
utmost principle in their own country (such as German).

Due to the various reasons, in 1969, the Court in the Stauder v City of Ulm announces a change in attitude. The ECJ
affirmed the recognition of general principles of EU law, including the protection for fundamental human rights. This
approach was elaborated further in the famous Internationale Handesgesellschaft case where it held that “respect for
fundamental rights forms an integral part of the general principles of Community law protected by the ECJ”.

The significant change of the attitude of the ECJ had been reflected in a series of important judgment, where most of
the case they incorporated “general principle” such as the fundamental human rights, the principle of procedural
fairness as well as the principle of proportionality and equality. In Nold case, the ECJ ruled that these principles was
derived from ECHR which have been recognized a being part of the fundamental rights protected by EU law and the
fact that the member states are signatories to the Convention which all the member states approved.

Hence, from the discussion above, it could see that EU had already provided a substantive protection of fundamental
rights prior the Charter was made binding to the institution. In fact, Craig de Burca identified there are three main
protection of human rights within the EU. The first is the EU Charter of Fundamental Rights which was proclaimed in
2000 and upgrade to which same binding legal status as the Treaties by the Lisbon Treaty 2009. The second is the
ECHR, which has long been treated by ECJ as a “special source of inspiration” for EU human rights principles, and
which will become formally binding on the EU when he Eu accedes to the ECHR, as Art 6(2) TEU mandates it to do.
The third is the “general principle” of EU law, a body of legal principles, including human rights, which has been
articulated and developed by the ECJ over the years.

When EU had provided a various way to protect the fundamental rights, the Charter of Fundamental Rights which
subsequently obtains its binding effect seems no more than a mere affirmation of the principle of equality and protection
of individual rights, as asserted in the question. To some extent, this can be considered correct. However, despite an
affirmation, the Charter play an important role as its provide a direct means for the member states as well as the citizen
to challenge measures which had violate their fundamental rights.

Unlike under the ECHR, where the applicant must exhaust all domestic remedies in order to get a hearing in
Strasbourg, applicants may get a ruling from Luxembourg by way of a preliminary reference from a domestic court.
The adoption of the Charter in other words, had provides a more solid protection of fundamental rights compared to
the older times. In fact, there are an increasing number of cases which are now centered on the application of the
Charter. For instance, in case C‐236/09 Test Achat, the court held that different insurance premiums for women and
men constitute sex discrimination and are not compatible with EU’s Charter of Fundamental Rights, and thus, member
states are not allowed to derogate from this important principle in their national legislation.

10
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
Similarly, in case C‐399/11 Melloni, in interpreting Art 53 of the Charter, while he court of justice recognize that national
authorities and courts remain free to apply national standard of protection of fundamental rights, the court further
emphasized that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law
cannot be compromised.

However, it should be noted that the Charter can only applied in areas which are within the scope governed by the EU
law, but not outside the scope, as asserted under Art 51 of the Charter. However, the court in Franson further asserted
that when the matter was fall under the scope of EU law, it must be compatible with the fundamental rights listed under
the Charter. From the point, it can observe that the Charter is now a benchmark for the legality of both EU law as well as
the national law. Importantly, in the recent case C‐206/13 Siragus, the ECJ in the very first time listed a number of criteria
that should be examine when determine whether the matter fall under the scope of EU law.

The case required the court to consider “whether that legislation is intended to implement a provision of EU law;
secondly, the nature of that legislation and whether it pursues objectives other than those covered by EU law and lastly
whether there are specific rules of EU law on the matter or capable of affecting it. The list of the factors can consider
a broad criteria in which it allow the application of the Charter to national in an easier way.

Despite it provide the ECJ a firm based to protect the fundamental rights, the new Charter also protect a wider scope
of human rights than the ECHR. Back in 2000, President of the European Commission, Romano Prodi, introducing the
Charter, stated that the objective of the Charter is, 'to make more visible and explicit to EU citizens the fundamental
rights they already enjoy at European level'. As such, the Charter comprises different sources of rights (i.e ECHR, UN
etc) and it now has 50 rights. These rights are divided in six major areas, namely Human Dignity, Freedoms, Equality,
Solidarity, Citizens Rights, Justice. The Charter not only cover traditional human rights which can be found under
ECHR i.e the right to life, the right to a fair trial, prohibition of torture, it also comprises economic and social rights and
principle, such as the right to fair and just working condition, as well as rights that were not envisaged at the time of
the ECHR in 1950, such as rights concerning cloning and data protection. Moreover, a “third generation” rights of global
concern such as the right to a clean environment also contain inside the Charter. From this point, it can observe that
the Charter present in sharpest relief the indivisibility of human rights. Therefore, it was appropriate for us to conclude
that the Charter does indeed provide a better protection of human rights to the EU citizen than the ECHR.

From the discussion, it can observe that the Charter of Fundamental Rights is a necessary complication. Despite it turns
the abstract right for example the general principle of equality, in which the EU already possess into a more concrete
base, it also provide an effective methods for the court to enhance those rights. The charter of fundamental rights was
not just affirmed the right which already existed in EU, but instead it develops and extend the scope of it, where it cover
areas such an environment issues and others. To make the Charter of Fundamental Right binding upon the EU thus
had create a new history in EU, as it shows that EU had move from an initial economic entity to an institution which
enhance the principle of equality as well as the protection of individual rights.

11
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________

GENERAL PRINCIPLES

Question 8 May 2013 [Zone B]; Question 7 May 2014 [Zone B]

[1] The concept of the proportionality principle
- The original legal root of the proportionality is Article 5 EC law which indicates that action by the Community
should not go beyond what is necessary to achieve the objectives of the treaty.
- This principle further requires the legality of Member State’s action. However, from the case law of the Court of
Justice, there is no precise definition of proportionality principle.
- Submit: proportionality is about the interests competing against each other and as such it is necessary to focus
precisely on the question of the reasonable relationship between an obvious objective and the other reasonable
objectives.
- Definition: ‘the disputed measures be appropriate and necessary in order to attain the objective legitimately
pursued by the legislation in question; that where there exists a choice between different means of achieving
that objective recourses is to be had to the least ‘dirigiste’ or interventionist of those measures; and, finally, it
requires, more broadly, that the disadvantages caused must not be disproportionate to the aim pursued.’

[2] In short, the principle of proportionality means that the measures must be proportionate to its original objective.
It is worth noting that the principle of proportionality is in use in nearly whole of the Community legal system.
- It applies in two contexts: review of Community measures and review of national measures. The former context
deals with challenges to Community measures i.e. it examines the legality of provisions in regulations or
directives.
- On the other hand, the later context means assessing the compatibility of a national measure with Community
law.
- In detailed expression, especially in the context of the Article 34 TFEU, the Court of Justice uses this principle
to make a line between the lawful and unlawful impediments to free movement.
- On the one hand, it is a positive obligation for all the Member States to ensure the free movement of goods
within the EU scope. They must not only treat imported goods, person, and services on an equal level but also
ensure no obstacle to free access to the common market.
- However, national laws may concern public interests including public policy, safety, and public health. So the
restriction on trade may be permissible, if it is objectively justified and proportionate.
- So, the proportionality principle is the instrument to determine the legality of the national restrictions.
- Although the proportionality principle is not the same as the concept of reasonableness, protecting recognized
interests is the real purpose of proportionality.

[3] The importance of the proportionality principle

- The importance of the proportionality is that it protects different interests and keeps the balance between them.
This includes the balance between public interests and private interests and as well as between Community
and national interests.
- On the one hand, the proportionality principle effects the free movement of goods. To some extent, this principle
is liable to affect the marketing possibilities for imported products and protect unfettered access to the whole of
the common market.
- The Court of Justice applies the proportionality principle to examine whether a national obstacle to trade is
justified and proportionate.
- So, the Member States must choose the least restrictive alternative available among the trade prohibitions. As
it is stated in the famous case Stoke-on-Trent, ‘Appraising the proportionality of national rules which pursue a
legitimate aim under Community law involves weighing the national interests in attaining that aim against the
Community interest in ensuring the free movement of goods.
- In that regard, in order to verify that the restrictive effects on intra-Community trade of the rules at issue do not
exceed what is necessary to achieve the aim in view, it must be considered whether those effects are direct,
indirect or purely speculative and whether those effects do not impede the marketing of imported products more
than the marketing of national products.’

[4] The use of the proportionality principle in Article 34 is more important. Some authors consider that Article 34
entails the elimination of protectionism.
- ‘The function of Article 34 is a tool for policing the borderline resulting from the desired for integration and for
(national) regulation.’

12
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
- Although there is no doubt that Article 34 is the preliminary ruling mechanism concerning the integration of the
market in EU, should we ignore the national and public interests? We can see that, on the one hand, in order
to achieve the free movement of goods in EU, ‘the Community’s efforts to integrate national markets are
basically attempts to limit the influence of national governments on production and consumption activities
throughout the Community.
- The desire to limit the influence of national government stems from economic as well as political concerns.’ But
what about the public interest?
- Thus Article 34 should be a borderline between legitimate and illegitimate national regulation. ‘The very
justification for limiting the autonomy of the Member States beyond a discrimination standard lies with the
function of the Article 34.’
- However, in the past there was no proper test to keep the balance between these. Before the proportionality
principle appeared, the court just considered the simple rule of Article 34.
- Consequently, they would rule against any discrimination towards imported products. After the Cassis De Dijon,
this principle seems wider. ‘All trading rules enacted by Member States which are capable of hindering, directly
or indirectly, actually or potentially, intra-Community trade are to be considered as measures having effect
equivalent to quantitative restrictions’

[5] On this point, national restrictions and public interests may more or less impede the intra-Community trade. All
the national restrictions, to some extent, fall within the scope of Article 34.
- Although one cannot deny that some of the national restrictions contain protectionist bias, most of them concern
national welfare and public interests.
- ‘National governments are allowed, and supposed, to influence people’s activities, but only to a certain extent.
There is thus a continuous need to identify and police the border between legitimate and illegitimate national
regulation.’
- How does the Community law respect the national legal system? How does the Community pay more attention
to the public interests? The powerful Court of Justice begins to invite the Member States to a dialogue when
using the proportionality principle. At the same time, it faces a challenging examination concerning all the
relative objectives.
- So ‘the proportionality principle does say something about the degree of Community interference; where
possible Member States’ legal systems should be respected.’

[6] The proportionality principle is indeed the safeguard of the national and public interests. The principle of
proportionality greatly increases the opportunity for judicial intervention in Member States’ decision-making.
- It makes the Court of Justice keep a balance between free movement of goods and high protection of public
interests.
- The proportionality principle brings fresh air. It is a reasonable and legitimate national tool for protecting the
public interests. ‘A common market requires free trade, but does not require regulatory uniformity. National rules
that do not partition the market should remain unaffected.’
- So, the proportionality principle may be the optimal test to reflect the balance between the national and public
interests and the internal market. It constitutes a perfect standard for judging the degree of protection.

[7] The standards of the proportionality principle

- In order to gain a correct understanding of how the principle of proportionality might actually operate in the EU
law, it is necessary to identify and consider the criteria of measuring the proportionality principle.
- The judicial process of weighing up different interests is actually kind of flexible balancing process that the
Community rule on the one hand and that of the Member State in derogating, on the other hand.
- ‘Appraising the proportionality of national rules which pursue a legitimate aim under Community law involves
weighing the national interest in attaining that aim against the Community interest in ensuring the free movement
of goods.’
- Although it is very difficult to consider all the necessary circumstances, ‘the factors which will affect the ‘nature
of review’ or the ‘degree of control’, or ‘level of scrutiny’ a court will apply will depend on the respective nature
of these interests in the particular circumstances.’
- So what are the generally accepted elements of the proportionality principle? The Court of Justice sometimes
distinguishes two important elements of the proportionality principle: suitability and necessary.
- A good illustration can be found in the case Fedesa: The principle of proportionality…requires that the
propitiatory measures are appropriate and necessary in order to attain the objectives legitimately pursued by
the legislation in question…
- Although it is not the only standards the Court of Justice used even though the Court of Justice does not always
apply them, these two elements are an ideal method for judging the proportionality principle.

13
ITC School of Laws
Bachelor of Laws Level 5
EU Law
Revision – 2016/2017
________________________________________________________________________________________________________
[8] Suitability
- Firstly, it refers to whether the national measures can achieve the intended objective in the way that is suitable.
- There must, as it were, be a causal relationship between the means and end. ‘‘Suitable’ seems to imply a less
strict causal relationship than indispensable, while at the same time being less flexible than merely ‘useful’’
- So as discussed in the Gourmet case, the national measures are prohibition on advertising and the intended
objective is the protection of human health: in view of the health risks involved in alcohol consumption, alcoholic
beverages should be marketed with particular moderation… the objective of the Alkoholreklamlagen is to restrict
the possibilities of marketing alcoholic beverages to consumers.
- So one can see a clear causal relationship between the measure and its objective. The Court of Justice also
tries to use a suitability standard in their judgements: ‘There is no evidence before the Court to suggest that the
public health grounds on which the Swedish authorities rely have been diverted from their purpose…’

[9] Again, in the case Franzen, the Court of Justice applied the standard of suitability. This case is about the legality
of a Swedish obstacle to the importation of alcoholic beverages from the other Member States.
- Obviously, the aim of Swedish government is to limit the consumption of alcoholic beverages, in particular those
of high alcoholic strength. So, its objective is public health. However, do its measures meet the standard of
suitability?
- ‘Although the protection of human health against the harmful effects of alcohol, on which the Swedish
Government relies, is indisputably one of the grounds which may justify derogation from Article 30 of the
Treaty…the Swedish Government has not established that the licensing system set up by the Law on Alcohol,
in particular as regards the conditions relating to storage capacity and the high fees and charges which licence-
holders are required to pay, was proportionate to the public health aim pursued…’
- Obviously, the Court of Justice did not think the standard of suitability was met in this case. Usually, it is not
very hard for the Court of Justice to find the causal relationship between measures and their objectives. So, this
standard needs the national courts to provide enough information, otherwise, the Court of Justice will be unable
to apply the suitability criterion in the proportionality principle.

[10] Necessary
- A second standard of the proportionality principle is necessary. This is called the ‘no measure less restrictive’
criterion. This instrument can ensure the least negative effects for market integration when weighting the actual
competing interests. ‘It must be established whether the measures are necessary to achieve that aim, namely,
whether there are other less restrictive means capable of producing the same result (the least restrictive test).’
- Again in the Gourmet case, although the Court of Justice did not answer this question of ‘necessity’, it did not
fail to consider this basic element. ‘Article 30 and 36 of the Treaty do not preclude a prohibition on the advertising
of alcoholic beverages such as that laid down in Article 2 of the Alkoholreklamlagen, unless it is apparent that,
in the circumstances of law and of fact which characterise the situation in the Member State concerned, the
protection of public health against the harmful effects of alcoholic can be ensured by measures having less
effect on intra-Community trade.’
- In the case Familiapress, it concerns the question of whether the national prohibition on the sale of periodicals
containing prize competitions is liable to Article 34 of the Union law. The Court of Justice applied the ‘necessary’
in the proportionality principle. Although the Court of Justice left the final answer to the national court, as in the
case of Gourmet, the Court of Justice pointed out: ‘the provisions of national law in question must be
proportionate to the objective pursued and that objective must not be capable of being achieved by measures
which are less restrictive of intra-community trade.’
- In order to examine whether the Austrian legislature could have adopted less restrictive measures on the free
movement of goods rather than an outright prohibition, the Court of Justice listed many situations that should
be considered by the national court.

[11] This means it is necessary to find out the least restrictive alternative in the proportionality principle. ‘Where a
Member State has a choice between various measures to attain the same objective it is under an obligation to
choose the means which least restrict the free movement of goods.’
- It is worth noting that the standard of the least restrictive alternative does not mean the lowest level restriction.
- In other words, the degree of restriction is not the standard; we cannot say any restriction is over restrictive just
because we can find the less restrictive measures in the other Member States
- It is obviously not a race to the bottom. The point is whether we can find less restrictive measures but can
achieve the same aim in this country.
- All in all, although there are two standards of the proportionality principle, it is not a formalistic and mechanical
test. The principle is by its nature flexible and depends on many factors. Not only legal issues but also social,
administrative and economic issues are involved in this principle. So the degree of scrutiny remains is far from
simple and easy.

14
ITC School of Laws