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Constitutional and institutional law of the European Union.

Section D: General principles of European Union law.

Chapter 2: Human rights.

Notes by Kaihsu Tai, 2011-07-08.

The early case law
“The fundamental human rights [are] enshrined in the general principles of [EU] law and protected by the Court”: Case 29/69 Stauder v City of Ulm. “Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of the structure and objectives of the [EU]”: Case 11/70 Internationale Handelsgesellschaft.

The current principles
“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”: Article 2 TEU.

"1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law."

Article 7 TEU provides for sanctions in case “that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2”.

The common standard of protection
The “question of a possible infringement of fundamental rights by a measure of the [EU] institutions can only be judged in the light of [EU] law itself”; “the freedom to pursue trade or professional activities” must “be viewed in light of the social function of the activities”: Case C-159/90 SPUC v Grogan.

In Case C-112/00 Schmidberger, the right of free speech limited – but did not unjustifiably violate – the free movement of goods. The right to strike and to collective action can constitutes a restriction of freedom of establishment, but it may “be justified by an overriding reason of public interest”: Case C-438/05 Viking Line and Case C-341/05 Laval. Similarly see Case C-36/02 Omega.

In Joined Cases C-402/05 P and C-415/05 P Kadi, Council regulations based on United Nations Security Council decisions were reviewed under EC human rights standards and consequently annulled; confirmed in sequel T‑85/09 Kadi v Commission (Kadi II) whose judgment is being appealed by the Commission (C-584/10 P), the Council (C-593/10 P), and the UK (C-595/10 P).

EU law does not extend to combating discrimination on grounds of health: Case C-13/05 Sonia Chacon Navas.

The scope of human rights in the EU
In principle, the scope of EU human rights protection follows the field of EU law. However, even when a state is derogating from a Union obligation, it must respect human rights standards: Case C-260/89 ERT. Even when the link between the issue at hand and EU law is tenuous, EU law may still apply and human right standards thus invoked: Case C-60/00 Mary Carpenter.

The Charter of Fundamental Rights of the European Union
“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

“2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties”: Article 51 CFR (Field of application).

“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” Article 52(3) CFR (Scope and interpretation of rights and principles).

“Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions”: Article 53 CFR (Level of protection).