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Esame di European constitutional law docente Prof. M. Gennusa



accordance with the principles governing the succession of law in time must remain


Court of Justice

Answer contradicted completely the ICC’s decision and expressly stated the primacy


•CJ said that EEC Treaty is not a common international Treaty

•EEC provisions are integrated into the laws of each MS (monistic approach: one legal

order made up of two level the domestic and the EU that is upper)

•MSs cannot accord precedence to a unilateral (national) measure over the European

legal system. National law cannot change EU law, otherwise it is ineffective and cannot

achieve the treaties’ objectives.

•The executive force of European law cannot vary from one State to another in deference

to subsequent domestic law, without jeopardising the attainment of the objectives of the


•The law stemming from the Treaty, an independent source of law, could not, because of

its special and original nature, be overridden by domestic legal provisions, however

framed, without being deprived of its character of European law. EU law is the original

sources of law that prevails.

Position stated again, and stressed the absolute primacy of the EU law, in

another (German) decision: Internationale Handelsgesellschaft (1970):

“Recourse to the legal rules or concepts of national law in order to judge the validity of

measures adopted by the institutions of the Community would have an adverse effect on

the uniformity and efficacy of Community law. The validity of such measures can only be

judged in the light of Community law.[…]

The validity of a Community measure or its effect within a MS 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 ”

Eu law is also over constitutional law! In a national law, constitutional norms

are supreme, cannot be derogated but EU law prevails nonetheless.

CJ decisions are binding for states.


COSTA V. ENEL CASE 1964 part 2: ICC decision 3 years after

ICC changed opinion but not precisely in the direction of the CJ.

DEC. n. 183/1973. ICC recognize the primacy principle 49.

Problem: constitution requires that any financial obligations (taxes, levy) can be

introduced only by an act of the parliament. Here, an EEC regulation increased the rate

of an agricultural levy.

Mr Frontini, being claimed for an additional levy according to the EEC regulation,

appealed against it on the grounds that the regulation was not directly applicable, but it

was void because of its incompatibility with art.23 Italian Constituition (it requires

that any financial obligation must be provided by a law)

Can the domestic Court oblige all the same this individual to pay? And there for

can the Court apply directly the European regulation even if it doesn’t respect art.23? In

this case the ICC answer was YES.

ICC legal reasoning

•The EEC is conferred certain sovereign powers by MSs

•The EEC is a new inter-State organisation

•The EEC Treaty is not a common international Treaty

•EEC regulations must receive equal and uniform application everywhere (primacy


•EEC law and domestic law are autonomous and distinct legal orders (dualistic

approach: each order is sovereign in its field of competence, therefore in the field of

competence of the EU law it is sovereign and for this reason is applied. In other state’s

field is the state law that is applied. The primacy depend on the competence: where the

EU is competent the law is applied otherwise is applied the national state)

ICC’s Judgment

Art.11 legitimates limitations of the State powers in the exercise of the legislative,

executive and judicial functions as are made necessary by the setting up of a Community

among the European States, or rather of a new inter-State organisation, of a supra-

national type, permanent, with legal personality and capacity of international


On the Economic Community, open to all the other European States and conceived

as an instrument of integration of the participating States, for common ends of economic

and social developments and consequently also aiming at the defence of the peace and

of liberty, Italy and the other promoting States have conferred and recognized certain

sovereign powers, constituting it as an institution characterised by its own autonomous

and independent legal order. [The sovereignty is definitely confirmed since Italy is part of

the EU. If Italy wants all the sovereignty it has to withdraw from the EU]

The regulations issuing from the organs of the EEC belong to the Community’s own

order: its law and the internal law of the individual MSs can be described as autonomous


and distinct legal systems, albeit co – ordinated in accordance with the division of power

laid down and guaranteed by the Treaty.

Fundamental requirements of equality and legal certainty demand that the

Community norms, which cannot be characterised as a source of international law, nor

foreign law, nor of internal law of the individual States, ought to have full compulsory

efficacy and direct application in all the MSs, without the necessity of reception and

implementation statutes, as acts having the force and value of statute in every country

of the Community, to the extent of entering into force everywhere simultaneously and

receiving equal and uniform application to all the addressees .

The constitutional provisions govern solely the legislative activity of the organs of

the Italian State, and by their nature are not referable or applicable to the activity of the

Community organs, which are governed by the Rome Treaty. [So, this regulation cannot

consider invalid even if it imposes something that the national law doesn’t legislate,

because is an external regulation, in this field the EU community has the competence]

How to ensure primacy?

In 1975 the ICC confirmed the primacy principle, but it introduced a two–folded

judicial guarantee: primacy depends on the chronological relation between norms in


The ICC said that if we have an Italian norm older and a posterior EU norm,

the EU norm, must be applied by the national court.

If we have a EU norm older and a national one posterior, the common judge

cannot directly use the EU norm because in the Italian Constitution there is a norm

(art.101) that says that courts are bound by law.

Therefore, if the law is in force it cannot be set aside directly by the court. The only

judge which can repeal a law in force is the ICC through the judicial review of legislation.

The ICC can repeal any law of the Parliament but only if it is unconstitutional. In

this case the ICC says that since the art.11 of Italian Constitution provides the sovereign

powers of EU community recognized by the State, and the Italian norm is in contrast with

the EU, it is also unconstitutional. The ICC said if the it law, posterior, is in conflict, Italy is

infringing a EU legislation also in contrast with art. 11. ICC set aside the law for


This argument is summarized in

DEC. n. 232/1975:

1. Direct application by national judges of the more recent European norm

2.Declaration of unconstitutionality of the more recent national norm (indirect

infringement of art. 11 Const.)

DEC. n. 98/1965 – 183/1973 51.

The European law can NOT violate fundamental rights or other basic values protected by

the Italian Constitution: if it does so, the judge shall apply to the Constitutional Court for

judicial review of European law (rectius: for judicial review of the part of the Italian act of

ratification of the European treaties on which the contested European norm is based)


The common

Conflict judge considers

between the Italian EU norm is

old Italian norm applied

norm and new automatically


EU norm abrogated

Asking for

between Italian norm

Suspentio a ICC's Restart

old EU n of the judicial (if the

norm and legal review of unconstitutional) proceding

new procedure theItalian is annulled

Italian norm


This statement of ICC was strongly challenged by the CJ which delivered an important

judgement in 1978 during the case AMMINISTRAZIONE DELLE FINANZE DELLO STATO v.


Some veterinary and public health fees levied on imports of beef and veal under

Italian legislation were incompatible with the EEC Treaty and certain EEC regulations.

Therefore, the Italian Finance Administration was ordered to repay the fees unlawfully

charged, together with interest. The Administration however appealed against that

order: the Italian legislation introducing those fees was more recent than the EEC

regulation in question.

The ICC asked to the CJ for a clarification and the CJ said that is irrelevant the

chronological relationship between domestic and EU law: you must always apply the EU

law regardless of the time which was approved.

CJ rationale process

•The principle of precedence of EEC law entails that EEC directly applicable provisions

render automatically inapplicable any conflicting domestic provision and preclude the

valid adoption of new incompatible national measures (hierarchical/monistic approach).

• Every national court has the duty to apply directly EEC norms and to set aside the

conflicting national ones. 52.

• The solution of the conflict between EEC and domestic norms cannot be reserved

for a specific national authority such as the national Constitutional Court.

In CJ reasoning national judges cannot ask the national constitution court for declaration

of invalidity of domestic norm because the domestic norm is invalid by definition: the EU

norm takes precedence over the national one.

CJ reasoning

This statement of the CJ depends on 2 considerations:

1)Depending on its abstract understanding of the relationship between EU and domestic

norms, the CJ said: since we have a EU norm superior, it must prevail and every national

authority have the duty to make it prevail. Because of its peculiar origin, which is the EU


2) Concrete consideration about the Italian Constitutional Court (ICC) that was used to be

long in exercising its jurisdiction. It was engaged in the 70s in an important criminal trial

against ministers which produced a very concerning backload in its activity. In that time,

the decisions of the ICC were delivered usually 5-7 years later. Therefore, the judicial

proceeding where the application of a EU norm was at stake should remain pending as

long as the ICC settled the case and therefore the concern of the CJ was this: a directly

applicable EU norm is paralyzed for 5-7 years if we require the previous intervention of

the ICC.

COSTA V. ENEL CASE 1964 part 3

In 1984 the ICC accepted all the criteria required by the CJ. ICC confirmed the primacy

principle because the EU community (ECC) is a new legal order endowed with sovereign

powers: Eu law prevails, and ICC accepted that the prevalence must be ensured by every

common judge regardless of the chronological relationship, always apply EU norm and

not apply the Italian conflicting norm.

There was a problem in the agricultural field, but the ICC accepted all the statements of

CJ but again from a dualistic perspective


Italian legislation on agricultural levy conflicted, as to the critical date for the application

of the levy, with an EEC regulation as interpreted by the CJ.

ICC rationale

• Dualistic approach

• Irrelevancy of the national norm to state the cases before national judges 53.

• Direct application by the national judges of every European norm, regardless of the

time of their enactment

ICC’s Legal Reasoning

•The system of the relationship between EEC law and national legislation has undergone

an evolution: the principle now is that EEC regulations prevail over conflicting provisions

in national legislation.

•There is a firm line in this Court’s decisions concerning the relationship between EEC

law and municipal law. Each is regarded as an independent and separate legal system,

although there is a coordination which flows from the division of competences

established by the Treaty

•Rules contained in a regulation are immediately applicable in Italy on the basis of their

own strength.

• Directly applicable EEC provisions enter and stay in force in Italy, without their direct

effect being impaired by any municipal statute.

• It is irrelevant for this purpose, whether a statute was previously or subsequently


•A Community regulation, when in force, does not abrogate, in the proper meaning of the

word, a provision of municipal law which is inconsistent with it, but prevents this

provision from becoming relevant in the settlement of a dispute before a national court.

•EEC regulations are therefore always to be applied, whether they follow or precede in

time statutes they are inconsistent with.

the ICC in 1984 accepted the primacy principle and direct applicability


with some limitations. In 1997 the CJ had stated an absolute primacy of the

primacy principle saying that a EU norm prevails over every kind of national norm

ever over constitutional norms.

EU norm is hierarchically superior. The IC disagree with this point even if it

accepted primacy: it is not an absolute principle but a relative one; in the sense

that ICC accepted that the EU norms prevail and that EU norms can prevail even

over some constitutional norms but not over all them .

The Italian constitution is untouchable in protection of fundamental rights

and in some fundamental constitutional principles, such as the equality principle

or democratic principles.

Counter limits doctrine: it is a reaction to the limits of national sovereignty

stemming from the participation at EU community. 54.

ICC completely against the EU application

Deny the primacy principle

1964 Recognition of the primacy principle

Separation of the fields of action

possible declaration of unconstitutionality of a

70s domestic norm before the application of the EU


Acception of the primacy principle

Conditions: counter limits doctrine

1984 55.


Direct effect is the principle according to the EU law may, if appropriately framed,

confer rights on individuals which the courts of MSSs are bound to recognise and enforce.

Direct effect is not explicitly stated in any of the EU Treaties, it was first established by

Van Gend en Loos (decision: art.12 has

the Court of Justice of the European Union in

direct effect).

If a EU norm has direct effect it may be directly invoked by individuals who can require

its application in domestic judicial procedures: the domestic Court must apply the EU

norm instead of the conflicting national one.

Obviously direct effect without primacy principle is impossible.

Direct applicability

Direct applicability refers to the fact that regulations require no implementing legislation

within individual MSs, they take effect as soon as they are published by the European

Commission. Both direct effect and direct applicability mean that domestic court applies

EU norm, the difference between the two is in the legal meaning.

Direct applicability is necessary in all EU regulations and is linked to them (EU

regulations are made up by norms by general applications and directly applicable);

Direct effect is a concrete effect: it depends on some peculiar characteristics of the

norms or some peculiar circumstances and it can be a feature of every type of EU norm

different from European regulations.

The establishment of direct effect (Van Gend En Loos)

In Van Gend en Loos (first time of establishment of direct effect), has direct effect in

national legal order a norm of the treaty:



•Containing a negative prohibition, not dependent upon further


•Only vertical direct effect (between a private party and State)

If these criteria were satisfied, then the right or rights in question could be enforced

before national courts.

In Van Gen den Loos the CJ had interpreted direct effect in a very narrow meaning.

Indeed, the article 12 said the MS cannot introduce new customs duty and cannot

increase customs duties already applicable. So, in that case it was a prohibition, a 56.

negative activity, art 12 said “if MS doesn’t do” because if the MS does (it introduces new

duties) it infringes the EU treaty. EU provisions very clear, containing a prohibition. Very

easy to comply. Moreover, the judicial procedure in VGEL was the so called “vertical

judicial procedure”: because the case was between VGEL (a private import company)

and the State, in this way there is a unequal relationship, inferiority condition of the

company compared with public authorities. The two parties are not at the same level.

State has a supreme power.

In this case vertical relationship gave an advantage to individual because

individual could claim that the State was guilty saying that the State infringed the law

and therefore it is responsible and to the state can be addressed all the responsibility of

violation of the EU law.

Liberalisation of direct effect (Defrenne v. Sabena 1976)

After Van Gen den Loss the direct criteria was extended to other cases. The first

enlargement was during the 70s during the Defrenne VS Saberna (1976): a hostess

employee of the Company VS private Company. This case is different fron VGDL because

the relationship between the parties is “ horizontal” : two private individuals.

The problem was a sexual discrimination regarding the violation of equal salary principle.

“equal pay for equal work, without any discrimination

Art.119 of Treaty is about ”:

Less clear than art. 12, it is much more generic

 It requires that States ensure this principle abolishing all the discrimination in

 force. (Requires an activity)

Relaxing of the previous criteria

A norm of the Treaty has direct effect in national legal order if is sufficiently precise and

unconditional. Negative prohibition is not needed, and the principle holds also when

parties are in the same position, for example are both privates parties (Horizontal direct

effect) Art.119 has direct effect decided the CJ.

CJ extended a lot the conditions for direct effect compared to VGDEL: a negative

obligation is not anymore required, moreover the direct effect is recognized also in

horizontal relationships: when both parties are at same positions.

Direct effect of directives: van Duyn v. Home office 1974

: “Where the Community authorities have, by Directive,

Van Duyn v. Home Office 1974

imposed on Member States the obligation to pursue a particular course of conduct, the

useful effect of such an act would be weakened if individuals were prevented from


relying on it before their national courts and if the latter were prevented from taking it

into consideration as an element of Community law” Establishment of vertical direct

effect of directives

In the 70’s, the CJ extended the direct effect also to Directives

Italy and Belgium were disappointed in implementing that idea of CJ. If EU community

approves a directive which fixes the goals and deadlines but need an internal domestic

act to specify the way and the methods, and the domestic legal orders don’t implement,

the directive cannot be applied, and it becomes useless, no concrete application.

From the 70s, EU institutions started approving more precise directives, specifying

not only the final achievement but also the way and the methods. The CJ also stated that

each national judge can directly use the directive within the domestic legal order.

The principle on which the CJ made this development of the direct effect was the

Useful effect of European law. The only way to ensure that European union law is

useful is to ensure its effect, within the domestic legal order.

When subsist the direct effect of directives?

If the directive doesn’t say anything about the way and method to achieve that goal,

without a domestic implementing act, the direct effect of the directive is impossible.

When a directive is sufficiently precise, if the MS implements the directive, it can

choose also way and methods. But if a MS fails to implement, the directive can be

directly use by domestic court.

To have a direct effect the directive must express a specific content that can be

pursued by States, but there are also temporal conditions: a directive may produce

direct effect:

•From the end of the transposition period (after the deadline)

•Only if the Member State has failed to implement (States are free to choose the time

to transpose, provided that it is before the deadline of the transposition)

•Only within the Member State which has failed to implement.

Another requirement for direct effect of directives: Estoppel

Clause (Ratti 1979)

“A MS which has not adopted the implementing measures required by the Directive in

the prescribed periods may not rely, as against individuals, on its own failure to perform

the obligations which the directive entails”

Meaning 58.

A MS which fails to implement its European obligations is stopped from invoking that

failure as a defense, and individuals are consequently entitled to rely on the Directive as

against the State.


•Directives not implemented cannot be invoked against private parties, because an

individual is not responsible for not implemented. Not guilty.

•No horizontal direct effect of directives

Since State is responsible, only the State must pay, not the individuals involved.

But it creates problems, because same directive within the same legal order, can

sometimes be direct invoked before, and sometimes not directly invoked, depending on

the time.

In UK in a past case, a public employee could invoke against the State, but not a

private one. The CJ tried to solve the situation, enlarging the idea of public authority.

CJ decided that every authority, every employee, which has a minimum link with the

State, can be considered as part of the State, and therefore the directive can be invoked


But this further enlargement of the ide of public authority is made to readdress,

more discrimination among the situation (discrimination on public or private nature of

the part). We said that only State is responsible for not implemented, and not ALL types

of public authorities can be considered responsible because the organs that implement

are a subset of public authorities, not everybody.

Very controversial jurisprudence.


When directives are partially implemented, direct effect can’t be used. In this case CJ

identifies the duty of consistent interpretation: the national legislation is to be

interpreted in the light of EU law (indirect effect).

National Courts, when working on issues covered by EU Treaties, must interpret

the national legislation coherently with EU law: EU law is applied through the national


This principle was introduced by the CJ in a case characterized by a lack of


Extent of the duty: Von Colson 1984 59.

“It is for the national court to interpret and apply the legislation adopted for the

implementation of the Directive in conformity with the requirements of Community

law, insofar as it is given discretion to do so under national law”.

The duty of consistent implementations is applied

•Only from the end of the transposition period

•If the Member State has failed to accurately implement

•When we have horizontal indirect effect

Extent of the duty: Marleasing SA (1990)

“All national legislation is to be interpreted in the light of EC Law, irrespective of whether

it is implementing legislation or not and irrespective of whether it was enacted prior or

subsequent to the provision of EC law in question.”

CJ considered applicable the duty only in reference with the directive. From the 90’s

CJ said that all national legislation is to be interpreted in light of EC law (implemented or

not) quite large duty.


The duty of consistent interpretation cannot

•Violate the principles of legal certainty and non-retroactivity (non-retroactivity

= a law is valid only for the future)

•Aggravate the criminal liability of a private party

Principles: STATE LIABILITY 60.

Is an action of compensation against the State for breaching the EU law. Individuals must

be involved before the National Court.

“It is a principle of Community law that the Member States are obliged to make

good loss and damage caused to individuals by breaches of Community law for which

they can be held responsible”

Francovich and Bonifaci Case (1991), individuals bring action against the State


Criteria for state liability

•The result prescribed by the Directive should involve rights of individuals (If the

directive doesn’t provide rights, individuals cannot invoke rights which don’t exist),

•It should be possible to identify the content of those rights on the basis of the provisions

of the Directive.

•The breach of the EU obligation must be sufficiently serious

•A causal link between the breach of the State’s obligation and the loss and damage

suffered by the injured parties has to exist.

States was condemned because its legislative power didn’t implement the directive. This

State liability was extended to EVERY type of breach.

Expansion of state liability: Köbler v. Austria 2003

“In the light of the essential role played by the judiciary in the protection of the rights

derived by individuals from Community rules, the full effectiveness of those rules would

be called in question and the protection of those rights would be weakened if individuals

were precluded from being able, under certain conditions, to obtain reparation when

their rights are affected by an infringement of Community law attributable to a decision

of court of a Member State adjudicating at last instance ” .

The problem was the following: the Treaty provided that national courts, can refer to

the CoJ for a clarification, but must refer the question to the CoJ if it is their last

instance, because the judgment cannot be revised later. In this case, the Austrian

supreme court, decided without referring the question. The individual, whose claims had

been rejected by this decision of the supreme court, asked for the revision of this

decision, and the question was posed to the Coj, that said that the State had to be

considered responsible, also if the infringement of European Union law depends on a

judicial mistake: the court didn’t refer a preliminary question to the Coj.

The conditions are:

1. Right clearly identified by a European norm

2. Damage (serious) 61.

3. Causal link between the damage and the failure of the State

The individuals can use all means before the national courts to have the EU law applied.

In this jurisprudence national courts and individuals of MSs play an essential role in

ensuring the respect of EU rules application, much more than in other institutions.

Second part: The multilevel

Protection of Fundamental


Fundamental rights beyond the State

The protection of rights has always been a domain of the State, established with the first

democratic state. The first real declaration of rights was the Magna Carta, but the most

important was the French Declaration of Men and Citizens delivered during the

French revolution.

The atrocities made during the World War II triggered 2 important changes in the

constitutional history: the establishment, also in Europe, of the idea of constitutional

rigidity and the importance of protecting human rights.

Constitutional rigidity

The Constitution is the supreme source of law, and therefore can’t be violated by any

other source of law. This idea of rigidity was introduced in European states after the

World War II. Only UK nowadays hasn’t a written constitution, just a customary one.

The constitution cannot be derogated by any ordinary legislation, it is therefore a

limit for the legislator because the Constitution protects fundamental rights.

Protecting human rights

After the World War II born an international dimension of the protection of rights:

previously was a state domain but, since some EU states during the war have been

responsible of the violation of fundamental rights (Germany and Italy), the idea that

above states there must be an impartial international authority was established for the

first time. The first symbolic act one was the United Nations Charter (1945). In the

preamble, was said for the first time that one of the aims of the United Nations

organization was:

“…to reaffirm faith in fundamental rights, in the dignity and worth of the human

person, in the equal rights of men and women and of nations large and small … have

resolved to combine our efforts to accomplish these aims”

Indeed, also art 55 of UN charter says precisely that the UN shall promote 62.

«Universal respect for, and observance of, human rights and fundamental

freedoms for all without distinction as to race, sex, language or religion»

The United Nations charter abolished the idea that only states are empowered to protect

rights, and introduced the idea that every man was born with the same rights which

don’t depend on the state, but are his own by nature and cannot be denied. The state is

the most important actor in the protection of rights, but if the state fails, there are

additional remedies at international level in order to avoid the violation of rights if the

human being.

For the first time, individuals became part and subjects of international

law. As a consequence, a list of international law documents was produced, the most

important one was the Universal Declaration of Human Rights, which was approved

by the same UN organization. This is one of the 3 bills of rights at international level.

1948: Universal Declaration of Human Rights

Adopted by a non- binding resolution of the UN General Assembly:

“Now the General Assembly proclaims this UDHR as a common standard of achievement

for all people and all nations, to the end that every individual and every organ of society,

keeping this Declaration constantly in mind, shall strive by teaching and education to

promote respect for these rights and freedoms and by progressive measures, national

and international, to secure their universal and effective recognition and

observance, both among the people of Member States themselves and among the

people under their jurisdiction”

All the state which are part of the UN organization have ratified this declaration, and

therefore it is legally binding, but it cannot be enforced because there aren’t

international courts which have jurisdiction on this matter. Therefore, it cannot be

considered enforceable.

1949: Statute of the Council of Europe

On the contrary, the strongest international bill of rights is the European Convention

on Human Rights, which was the most important contribution offered by the Council of

Europe that was appositely established to improve democracy and protection of rights.

“Every member of the council of Europe must accept the principles of the rule of

law and of the enjoyment by all person within its jurisdiction of human rights and

fundamental freedoms, and collaborate sincerely and affectively in the realisation of the

aim of the Council”

Only these 2 are the goals: the guarantee of the principle of democracy and the

protection of rights. 63.

1950: The European Convention on Human Rights

“The governments…reaffirming their profound belief in those fundamental freedoms

which are the foundation of justice and peace I the world and are best maintained on the

one hand by an effective political democracy and on the other by a common

understanding and observance of the Human Rights upon which they depend…”

1966: International Covenants

In 1966 were approved 2 catalogues of rights: the international covenant on Civil and

Political Rights and the international Covenant on Economic, Social and Cultural Rights.

The problem is that these two categories show a lot of differences: civil and political

rights are considered as negative freedoms, in the sense that they are rights which can

be ensured as long as there is no interference. If the state doesn’t limit them, they are


On the contrary, the other group of rights are positive obligations: their effective

protection implies a positive activity of the state which must engage in order to ensure

their protection. i.e. the right on education, right to health (NEEDS A PUBIC welfare

system). They are very important, but they aren’t strictly judicially enforced because

both committees are non-judicial actors. The human rights committee concerning the

first covenant is quasi-judicial, the second committee is non-judicial, but they play an

important role.

European Convention of Human Rights (ECHR)

The most enforceable international bill of rights is the

ECHR that protects civil and political rights (like the right

to vote). The ECHR was ratified in 1950 in Rome,

therefore the rights that protects are quite old, but the ECHR can become a modern bill

of rights thanks to the activity of its court: the European Court of Human Rights


The European Court of Human Rights, declared that the ECHR is a constitutional

instrument of the EU public order and therefore it must be used as a living instrument,

and interpreted considering the constitutional evolution of Europe. Thanks to this

evolutionary interpretation, the EU Court can sometimes recognize also some rights

behind the civil freedoms expressly enshrined in the convention. 64.

Why the European Court of Human Rights has become so important?

Because the European Court offers two alternative methods to ensure the rights written

in the Convention.

Interstate cases It is a recourse of one state against another state for a suspected

violation of a right.

“Any High Contracting Party may refer to the Court any alleged breach of the provisions

of the Convention and the Protocols thereto by another High Contracting Party.”

The interstate case can be considered a kind of “Actio popularis” that is a remedy

to provide that groups of individuals can bring actions before judicial authorities in the

general interest of the society, even if they are not victims of the violation.

The interstate recourse is similar to an Actio Popularis, beacause each State party

can file an application against another State party even when the violation alleged does

not affect its nationals and without having to demonstrate that it has been prejudiced by

the alleged violation. The state application against another state can also be in the

general interest of a better protection of rights: if a state think that another state is

making a violation, it can bring action against the other. Inter-state cases anyway are

very rare.

Individual application Individuals play at an international level in the field on human

rights: they are actors of international law because before the court of HR they can

directly bring action against a State.

“The Court may receive applications from any person, nongovernmental

organisation or group of individuals claiming to be the victim of a violation by one of the

High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.

“ Of course, the quality of victim is needed to bring this action. There are a lot of

possibilities because they can bring a single individual, by a group, by a non-

governmental association, but provided that they are the direct victims of a violation of a

human right.

There are some admissibility criteria:

“The Court may only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international law, and within a

period of six months from the date on which the final decision was taken. “(admissibility


The deadline is of 6 months, but more important is the first admissibility criteria: the

previous exhaustion of all the internal remedies individuals, when suffers an suspected

violation, cannot immediately and directly apply before the European court of human


rights, they must try to receive a justice at domestic level. First of all individual must

bring action before the domestic court, using all the judicial remedies available. If all the

domestic remedies fail, there is the possibility of an application to the ECHR court within

the limit of 6 months.

This because the international protection of fundamental rights has a

subsidiary nature: it is not the first protection available, it is just a last protection

and doesn’t substitute the domestic protection.

On the contrary, the jurisdiction of the court of justice it is not subsidiary, because,

within the fields covered by the European treaties, the court of justice has the monopoly

of interpretation and validity of European law. Therefore the mechanism are completely


Protocols of ECHR

There were 16 diff protocols to the ECHR, the most important is Protocol No. 11

(restructuring the control machinery established in the Convention, 1998), entered into

force 1998, which corrected the mechanism on control of scrutiny. At the beginning we

have a council of Europe structured with a committee of ministers, a commission of

human rights and a eu court of human rights. The judicial control was split between the

eu commission and European court.

On the contrary, after the protocol 11, the commission was completely abolished,

so now a commission on human rights doesn’t exist. There is still a committee of

ministers, but it is deprived of quasi-judicial powers and now its main task is to monitor

and supervised MSs.

The ECHR was transformed into a permanent court with a general jurisdiction to

ensure a better protection of rights. There are also some problems because due to the

individual application mechanism, the eu court of human rights receives every year 10

thousand of individual applications. Often the judgement is delivered by the court 10

years later the individual application.

Composition of the ECHR (Protocols No. 14 and No. 15: procedurals ones)

The ECHR is made up of 47 judges (1 from each MSs of the council if Europe) but they

don’t always work together, only the most important cases are decided by the Grand

Chamber. Most of the judgments are composed by single chambers working

simultaneously. 66.

The European Protection of Fundamental Rights

Historical development

At the beginning the treaties of European economic agency didn’t mention human rights

at all, just the fundamental economic freedoms, protected because of the common

market. But they are not fundamental human rights.

Some cases raised in the 50s or 60’s before the court of justice, challenging a supposed

violation of fundamental rights protected by a European act, but the court of justice said

it wasn’t its task, it just had to assure the correct application of European laws.

«The High Authority is not empowered to examine a ground of

Stork, case 1/58

complaint which maintains that, when it adopted its decision, it infringed principle of

German constitutional law. The Court is only required to ensure that in the interpretation

and application of the treaty the law is observed. It is not normally required to rule on

provisions of national law. »

But in the meantime, the Court of Justice introduced in the ’60, through the Van

Gend en Loos decision, the direct effect principle, and the primacy principle. So that

there were very worried reactions by some constitutional courts, like the Italian and the

German one: they can’t recognize the primacy principle, because if a EU norm is

superior, it must be applied also when it violates fundamental rights. This is the reason

why, as soon as the Italian NC recognised the primacy principle, it introduced the

Counter-Limits Doctrine, admitting that European law was superior but taking into

account that it cannot violate domestic fundamental principles and fundamental rights,

otherwise the law of the Treaty is declared unconstitutional and no European norm can

be applicable within the Italian State. A quite a similar approach, was adopted also by

the German NC, it was called so lange (“as long as”) doctrine, because the German

“as long as the European Community doesn’t guarantee a protection of

NC said that:

rights comparable with the one offered by the German basic law, the German NC

controls the European acts, in order to understand whether they violate fundamental

rights enshrined in the domestic constitution”.

Since these 2 constitutional courts raised a similar concern for the primacy

principle, the Coj changed its approach due to the expansion of the EU community and

started being more concerned about fundamental rights.

The Court of Justice understood that only if it showed concern for the protection of rights

it could hope that the integration improved and the primacy principle was accepted at


national level. Therefore, the protection of rights at EU community level was established

not only to protect rights, but to improve integration. It is very clear in the 1st decision of

the court of justice: the German case Stauder.

Stauder, case 29/69

«Interpreted in this way the provisions at issue contains nothing capable of prejudicing

the fundamental human rights enshrined in the general principle of Community

law and protected by the Court»

Fundamental rights are enshrined in the general principle of community law. There is not

a EU catalogue of rights. They are protected as general principle of community law.

Who is the only authority that can interpret fundamental rights?

The Court of Justice, and only the Court of Justice can decide whether something is

a right protected by the community law or not. This first statement was developed in the

Internationale Handelsgesellschaft, delivered in 1970. This decision was also

important for primacy principle; the Court of Justice stated that primacy must be

conceived in absolute term EU law must prevail over national law.

Internationale Handelsgesellschaft case 11/70

“The validity of a Community measure or its effect within a MS 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.

However, an examination should be made as to whether or not any analogous guarantee

inherent in Community law has been disregarded. In fact, respect for fundamental

rights forms an integral part of the general principles of law protected by the

Court of justice.”

But in order to balance this absolute principle, Coj said that it prevails regardless of

constitutional law, but the Coj has to be sure that it can’t endanger fundamental rights. If

at EU level a similar norm exists, it cannot be ignored, and therefore the CJ ensure its


Which were the sources that the CoJ could use in order to understand whether or

not there are rights?

Missing a catalogue, the CJ had to look outside the EU community, and in 1970, it said

that the first source of inspiration was the national one. But introducing a very important


“The protection of such rights, whilst inspired by the constitutional traditions

common to the MSs, must be ensured within the framework of the structure and

objectives of the Community.”

First revolutionary idea: The Court of Justice looked at the national level, but didn’t

look at the national constitutions, because these are national acts, CJ look at


constitutional traditions common to the MSs. Only what is common becomes a general

principle of community law.

Who decides what is a constitutional tradition common to all MSs?

The CJ! Second important part of the statement:

“The protection of such rights, whilst inspired by the constitutional traditions

common to the MSs, must be ensured within the framework of the structure and

objectives of the Community.”

It makes clear that the CJ ensures the protection of rights if it doesn’t put in

danger the objectives of the treaty. The priority is to protect integration and common


Another step towards was made in the Nold (case 4/73) decision. Here it is very clear the

fact that in safeguarding the rights, the CJ is “bound to draw inspiration”; usually

binding value and inspiration are not the same thing. Inspiration is something free: CJ

must have sources, but the final decision is merely an inspiration sources are not

legally binding, they are merely sources of inspiration.

Nold, case 4/73

“In safeguarding these rights, the Court is bound to draw inspiration from

constitutional traditions common to the MSs, and it cannot therefore uphold measures

which are incompatible with fundamental rights recognised and protected by the

Constitutions of those States.

Similarly, international treaties for the protection of human rights on which the

MSs have collaborated or of which they are signatories, can supply guidelines

which should be followed within the framework of Community law.”

Reminder: While the Internationale Handelsgesellschaft court mentioned as source of

inspiration the constitutional traditions common to the MSs, the court looked also at the

international treaties for protecting human rights. Among these international treaties, a

peculiar rule was given to the EUCHR, starting from the Rutili decision:

Rutili, case 36/75: Special significance of the ECHR (§ 32)

CJ objective

CJ sources

Protection of rights as general

Constitutional traditions common to

principles of Community law


International human Rights Treaties

(ECHR) 69.

Starting from the 70s until 2009, in all the judgements where the protection of rights

were examined, the CJ used a standard formula to decide:

«FRs form an integral part of the general principles of law, the observance of which the

ECJ ensures. In safeguarding these rights, the Court is bound to draw inspiration from

constitutional traditions common to the MSs and from international treaties for the

protection of HR –in particular the ECHR –on which the MSs have collaborated»

Moreover, this formula was introduced in the Maastricht treaty. For the first

time, in 1991, (23 years later after the first decision of the CJ of human rights) the

treaties officially introduced the fundamental rights’ protection at eu level. Art “F” of

Maastricht treaty, which became without substantial changes art 6 of Amsterdam:

“The Union shall respect fundamental rights, as guaranteed by the ECHR signed in Rome

on 4 November 1950 and as they result from the constitutional traditions common to the

Member States, as general principles of Community law”

Another difference between the ECHR on protection of rights and the protection of

rights offered the CJ: the first one (ECHR) offers a general protection of the rights

provided by the fact that the supposed violation was committed by the state, in any

activity. On the contrary, the CJ protection of rights is applicable only ithin the


competencies of the EU. The CJ cannot decide outside the treaties.

MSs as “Economic - European Agents”

MSs implementing or enforcing EC/EU measures are bound to respect FRs acting and

legislating in a proper way. MSs are bound by the same general principles and

fundamental rights which bind the Community in its action (Wachauf case 5/88).

The CJ can review, with regard to the fundamental rights’ protection, the acts of the EU

institutions (the European Union’s law) or the acts of the States which are approved at

national level, within the fields covered by the Treaties.

The problem is when a national act is within the field of action of the treaty or

not. National acts, are the acts that Member States endorse to implement or

enforce a European Union act: such laws are within the scope of the Treaty. In

this case MSs are acting as European Union’s agents, executive actors of the

European Union and the CJ can exercise its judicial review. Here there are no

problems, because as the European Union is bound to respect fundamental rights

in legislation, the same fundamental rights must be respected also by MSs when

act as if they are European legislator, implementing or executing or enforcing an

European act. This was the first position of the CoJ.

MSs as “derogating” from Economic – European law 70.

“Where a MS count on a lawful derogation provided for by the Treaty in order to justify

domestic rules which are likely to obstruct the exercise of the freedom to provide

services, such justification must be interpreted in the light of the general principles of

law and in particular fundamental rights.

Thus, the national rules in question can fall under the exceptions provided for by

the treaty only if they are compatible with the fundamental rights, the

observance of which is ensured by the Court” (ERT, 1991 case 260/89)

At the beginning of the 90’s, from the ERT case (a Greek case concerning

freedom of expression, television frequencies and so on), the CJ said that the

protection of fundamental rights at European Union level acts both when States

are implementing European Union acts and when States are derogating them.

In the ERT case, the problem was the freedom of expression, treaties introduce

strong guarantees to ensure freedoms (not only expression, also movement) and

also allow some derogations.

In particular, the treaties provide that freedom of movement can be

limited when there are strong reason of public order, public security or public

health. In general, if a States limits a fundamental freedom is infringing the EU

law but if it is limiting the freedom of movement, has a justification when subsist

reasons of public order, security or health.

Starting from this case, the CJ changes its opinion regarding the

derogation: before, when the state was derogating the treaties, it was considered

outside the treaty and the CJ didn’t intervene; from ERT case, the CJ said that a

derogation could be admitted, according to the Treaty, not only for the previous

reasons, but also if it respect fundamental rights.

Therefore, when a State introduces obstacles to the freedom of

movement, the CJ first of all checks the reasons why obstacles are introduced, if

the reasons are among the ones admitted by the Treaty, it also checks whether

the derogation respects fundamental rights.

The judicial review for the fundamental rights’ protection since 1991 is exercised

by the CJ over

1. European Union acts

2. Member States act implementing European Union law

3. Member States act derogating European Union law 71.

Only over the so-called “purely internal situations”, situations which concern

only the State, and in which European Union law is not involved at all, the

scrutiny of the CJ cannot be exercised.

Differences between the ECHR and CJ

First difference: SCRUTINY

The European Court of Human Rights is a court of human rights, and

therefore it reviews the respect of human rights by themselves, and therefore it

evaluates whether or not subsist the violation of the rights fixed in the

Convention. If the limitation is justified by the Convention, the State is not

guilty, and therefore the application is rejected, vice-versa, if the limitation of the

State is arbitrary, and illegal ‘cause it doesn’t respect the reasons for limitation,

the State is responsible for infringing the Convention and is condemned by the

court. So, the European Court of Human Rights exercises scrutiny on the

fundamental rights.

On the contrary the CJ considers the protection of fundamental rights a

necessary limit to the common market, and it balances fundamental rights and

market’s concerns, protecting rights only within the framework of the community.

Second difference: FIELD OF ACTION

The CJ can act only within the fields covered by the Treaty, and within this fields,

only the CJ can exercise the scrutiny.

Remember that the protection offered by the European Court of Human

Rights is a supplementary protection. Before applying to the ECHR, individuals

must use all internal remedies; if all they fail is possible the application to the

European Court of Human Rights, that settles the cases only after the

national judges. On the contrary the CJ is not supplementary: is the only one court

that can evaluate whether the European Union institutions or the States are

violating fundamental rights within the scope of the Treaty.

Ireland legislation and abortion

A clear example of the differences between the scrutiny and the field of action of

the ECHR and CJ was an Irish case during the 90’s concerning a very hot issue:

the Irish legislation on abortion.

In Ireland, Art.40.3.3 Irish Constitution (=protection of the right to life of the

expressly protects the

unborn with due regard to the equal right to life of the mother) 72.

right to life of the unborn criminalising the abortion, except for some few cases

when the life of the mother is in danger too.

This is still a very hot topic because there is quite an important

jurisprudence of the ECHR on this problem, and now it seems that this article of

the Irish constitution, as modified at the end of the 90’s, will be subject of a

popular referendum, but is still uncertain whether the referendum will concern a

complete abrogation of the article, opening the way to a liberalization of abortion,

or a modification, an amendment of the article which will maintain the abortion

as a crime, but only in specific cases, so enlarging the opportunities to have an

abortion in Ireland. It is still unclear.

However, in 90s women couldn’t have a legal abortion in Ireland, and

nobody could disseminate information about abortion legally performed for

example in the UK, and precisely in that period there was quite rich

dissemination of information about clinics, placed in the UK, which legally

performed abortion, so that Irish women could move to the UK to have a legal


The article of the Irish Constitution raised some problems, because abortion is a

very sensitive issue and a very sensitive problem of balance between the right of

the mother and the life of the foetus and so on, but in this case, when some non-

governmental associations or some students were disseminating information

about abortion in the UK, it was also a problem of freedom of expression and

information, because these organisations, were sanctioned for having

disseminated information, while the Article 10 if the ECHR expressly guarantee

freedom of expression, which includes also the right to receive and impart


Article 10, justifies some limits to the freedom of expression, and in

particular it admits the restrictions when they’re prescribed by law, so by a

legislative instrument, and they’re necessary in a democratic society.

So, according to Article 10 of the ECHR, in general freedom of expression,

including also freedom to receive and impart information, can be ensured, but

sometimes it can be limited, in the mentioned cases. Necessary to a

democratic society means they’re proportional to the aim (to ensure public

safety, health and so on). 73.

Art. 10 ECHR: “1) Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart information

and ideas without interference by public authority and regardless of frontiers.

This article shall not prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

2) The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions, restrictions or

penalties as are prescribed by law and are necessary in a democratic society,

in the interest of national security, territorial integrity or public safety,

for the prevention of disorder or crime, for the protection of health or

morals, for the protection of the reputation or rights or others, for

preventing the disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary.”

Open Door and Dublin Well Woman v. Ireland (ECHR)

The Open Door and Dublin Well Woman brought an action against Ireland.

This association had been condemned by Irish courts because its members had

disseminated information on abortion in the UK.

They firstly brought actions against Irish courts, that confirmed the

condemnation, because this was required by the constitution and by Irish law,

and therefore they raised a recourse application before the ECHR, claiming that

their freedom of information had been violated by Ireland (violation art.10 ECHR)

Court’s assessment. What did the ECHR say?

It said it was an interference with the freedom of expression, so it was necessary

to evaluate whether limitation by Ireland was justified by Article 10.

Is the interference prescribed by law? Yes, the constitution prescribes the

limitation, but there are two other requirements to be met in order to consider the

interference as justified by the ECHR.

The first one is the aim: does this restriction have a legitimate aim? The

ECHR said yes, it was the protection of moral, on which each State has

different ideas. The aim of this limitation is legitimate, to pursue, to ensure the

public protection of the moral.

“It is evident that the protection afforded under Irish law to the right to life of the

unborn is based on profound moral values concerning the nature of life which


were reflected in the stance of the majority of the Irish people against abortion as

expressed in 1983 referendum”

Second, is the restriction necessary in a democratic society? The

ECHR said no, because it is disproportioned. Of course, the court doesn’t

challenge the prohibition of abortion, by itself. Actually, the ECHR never said that

the Convention ensured the right to abortion. More than legislation on abortion,

is the legislation concerning the prohibition of spread information on legal

abortion to violated.

Indeed, it was not a violation of Article 2 of the Convention concerning

the right to life or Article 8 concerning the right to private and family life

(privacy, and therefore to perform abortion justified by the self-determination of

the mother), but Article 10, concerning the freedom of expression. The

limitation of every information concerning abortion abroad is not necessary in a

democratic society. And therefore the ECHR condemned Ireland.

The society for the protection of the unborn children v.


In this case there are some students which disseminated information about

British clinics performing legal abortion, and the Society for The Protection of

Unborn Children made at Irish level an action against Grogan and other

students to have a condemnation. So, the problem is the same even if the parts

are different. In this case there is not a recourse against the State but a society

protecting the rights of the foetus against students giving information about

abortion. But during the domestic proceeding, the national court asked whether

the prohibition was legal according to The European Union Treaty, because it was

an obstacle. (Preliminary reference procedure)

1) Is the prohibition of information a limit to the freedom of


The Irish court makes a preliminary reference before the CJ, asking if by

introducing this ban, the Irish court was infringing European Union’s fundamental

right: freedom of movement.

The problem was first of all to frame abortion within the Treaty.

2) Is abortion a service?

If it cannot be considered as a service, according to the Treaty, no relevant

problem exists for European Union law.

3) If it is a service, is the limitation justified by the Treaty? 75.

On this second question the CJ could exercise its judicial review for fundamental

rights, because if abortion is a service, and if this Irish law limits it, this limitation

can be justified, according to the Treaty, only if it respects fundamental rights.

CJ’s assessment

The CJ said abortion is a service, and such a legislation can be considered as a

“the termination of pregnancy

limitation of the service. The CoJ further said that

is a medical activity which is normally provided for remuneration and may be

carried out as part of a professional activity.”

“whatever the merits of these arguments on the moral

But the CJ said also

plane, they cannot influence the answer of the Court. It is not for the Court to

substitute its assessment for that of the legislature in the MSs. Consequently, the

answer must be that medical termination of pregnancy constitute a service within

the meaning of the treaty”. So moral considerations exist at State level, but are

irrelevant for the CJ. For the CJ is irrelevant if abortion can be qualified as a

service, and since it is an economic activity, it is a service, it must circulate freely.

However, the CJ refused to have jurisdiction in this case because people

who had spread information were not linked to the clinics performing abortion.

The CJ said that students costless disseminated information is irrelevant for

European Union law. If clinics had disseminated information about their own

practices, and they were prevented from disseminating, in this case it would have

been an European Community problem because they would have suffered an

economic damage, and therefore the Irish provision would have been considered

illegal. But in this case students are not economic actors.

The court said that it had no jurisdiction because the question was outside the

scope of the Treaty.

So, here is particularly clear the difference between the two courts and the two

jurisdictions. 76.

Solemn Proclamation of the Charter of

Fundamental Rights of the EU

In 2000, the Charter of Fundamental Rights of European Union was

solemnly proclaimed. In 2000 this Charter was merely a political document, it

was not legally binding; it became legally binding just when the Lisbon Treaty

entered into force. However, the same fact that it was proclaimed by the

European Union’s institution during the intergovernmental conference in

Nice, when the Treaty of Nice was signed, changed also the CJ’ s approach from

now more careful in dealing with fundamental rights.

Schmidberger v. Austria

In 2004 there was an extremely significant case, which was the Schmidberger

case, which involved a problem of limitation of freedom of movement due to

the need to protect fundamental rights. In 2003 Austria decided to permit an

environmental association to organize a demonstration on the Brenner

motorway, which was completely closed for more than 30 hours, but since this

closure was close to holidays, the circulation of automobiles was paralyzed, so

that transporters couldn’t access to Austrian, through the Brenner motorway

for about five days. Actually, Austria had been extremely careful in advice very

in advance about this demonstration and in suggesting alternative roads to be

used, of course much slower than the motorway. So Schmidberger, which was a

German international transporter, brought an action against Austria, accusing it

to have paralyzed its freedom of movement and therefore causing economic

damages. Here it is the first time when the conflict between an economic freedom

and a right is expressly and evidently seen, because, since Austria wanted to

protect constitutional rights and decided to limit the freedom of movement. So,

the protection of constitutional fundamental rights is the only reason why the

freedom of movement was violated. There is a direct conflict between market and

constitutional rights. Moreover, Austria didn’t deny that a limitation of the

freedom of movement happened: it was clear, obvious. 77.

The problem

The problem was to understand whether or not the limitation on grounds of

fundamental constitutional rights’ protection was justified according to the Treaty.

1) Does the closure of Brenner motorway amount to a restriction of

the free movement of goods?

2) If it is so, can the protection of fundamental rights enshrined in the

Austrian Constitution (freedom of expression and assembly) justify

that restriction?

Court’s assessment. The decision of the CJ

The CJ said the closure of the Brenner motorway leads to a restriction of the

“The case raises the question of the need to reconcile the

freedom of movement.

requirements of the protection of fundamental rights and of the free movement

of goods, where the former are relied upon justification for a restriction of the

latter” But the CJ said that the fundamental rights at issue are freedom of

expression and association, and thus rights that not only are expressly

protected by the ECHR, but are common to all the Member States, and so that

part of the constitutional tradition common to the Member States, and they are


protected as general principles of community law, and therefore

protection can justify a restriction of the free movement of goods, provided that it

does not constitute disproportionate and unacceptable interference of the

freedom of movement”. But in this case, it was not declared as disproportional

because Austria had been extremely careful in organize in advance both the

demonstration and the possible alternative paths, and this was effective in

ensuring the protection of rights while non-excessively limiting fundamental

freedom. For the CJ Austria was rights, and in this case the protection of rights

wins over the market concerns, and this is the first case where the CJ justified

fundamental rights’ protection over market freedoms.

Case 36/02: Omega Spielhallen

Also in this case there is a general limitation of the freedom of movement, due to

the need to protect human dignity, which is ensured, by the Article 1 of the

German Federal Constitution, the German Basic Law. 78.

Indeed, the case was very peculiar. In Bonn a Laserdrome had been

opened. It was a place where the so-called “playing at killing” could be done and

the Polizei decided to close it. Reasons: endangers public order and safety,

trivialization of fundamental rights (human dignity).

This game used a practical instrument supplied by the Omega

Spielhallen, which had the legal site in the UK, and accused the closure of the

Laserdrome to be responsible of the restriction of its freedom of movement, of

goods and services, and of causing damages.

And therefore it went before the national court, and national judges asked

to the CJ whether Germany could close that place for the need to protect human

dignity, as enshrined in national constitution.

The CJ said yes in this case. This case is more important than the previous

one because in the first one the freedom of expression and association were

at stake, but they were obviously rights expressly protected everywhere in

Europe by every national constitution, more or less in the same way, and also

expressly protected in the ECHR. Human dignity, on the contrary, is an

extremely vague concept, which is not expressly protected by the ECHR.

Therefore, although the human dignity is everywhere recognized, it is not

everywhere expressly protected by a written document, and moreover it can

assume also different meanings: dignity can be self-determination, and this is a

subjective meaning, each one can decide what its dignity is. But another

meaning of dignity can be an objective or a communitarian: society decides

what is dignifying. And all these different meanings of dignity coexist, that it why

is difficult to state that dignity is part of the constitutional tradition of the Member

States and give a judgment.

Court’s reasons

Despite his fact the CJ said that the protection of dignity, is a general principle,

and each Member State is justified to give to the world dignity its own meaning

according to its constitutional identity, German was allowed to close the

Laserdrome. The reason of the CJ was also that the Article 1 of the Charter of

Fundamental Rights expressly recognizes human dignity, without specifying

the meaning. It is simply protected, and it was enough to consider the German

behavior as legitimated according to the Treaty. 79.

European Union after the Lisbon treaty: beyond

the Charter

Many things changed with the entry into force of the Lisbon Treaty. First of all,

three articles directly involve fundamental rights’ protection issues, and they’re

all in the Treaty of The European Union.

The most important is Article 6 of the TEU, which is the development of

the previous Article 6 of the Amsterdam Treaty, which merely said that

fundamental rights from the constitutional tradition common to the Member

States are protected by international Treaties as the ECHR are protected at

European level as general principles of community law. Article 6 of the TEU is the

evolution, largely amended, of the previous Article 6.

Article 7 of the TEU introduces a kind of political control of compliance

with fundamental rights by the Member States.

Article 4 that is not directly on fundamental rights’ protection, but which

is the so-called European version of the counter-limits doctrine, because for the

first time introduces a duty for European Union law to respect constitutional

identity of the Member States.

Article 6 TEU

There are three parts in Article 6. The first two completely new, while the last

paragraph of the Article is the fulfilling of the previous Article 6.

First of all the first paragraph concerns the Charter of Fundamental Rights of

the European Union, which had existed for nine years when the Lisbon Treaty

entered into force, but was merely a political document. Article 6 states that the

Charter becomes a legally binding document.

The union recognizes the rights, freedoms and principles set out

Art.6 TEU: “1)

in the Charter of FR of the EU of 7 December 2000, as adopted at Strasbourg, on

12 December 2007, which shall have the same legal value as the treaties.  So

the Charter, which was included in the Constitutional Treaty, was not included

in the Lisbon Treaty but it got the same legal value. 80.

The provisions of the Charter shall not extend in any way the competences of the

union as defined in the Treaties.  So that the Charter can be applied only within

the scope of the Treaty, and cannot extend its competences.

The rights, freedoms and principles in the Charter shall be interpreted in

accordance with the general provisions in the title VII of the Charter governing its

interpretation and application and with due regard to the explanations referred to

in the Charter, that ser out the sources of these provisions.

2) The union shall accede to the ECHR, such accession shall not affect the

Union’s competences as defined in the treaties

3) Fundamental rights, as guaranteed by the ECHR and as they result from the

constitutional traditions common to the MSs, shall constitute general

principles of the Union’s law”

The second paragraph, introduces a specific obligation, for the European Union,

to adhere to the ECHR. Again, a need to respect the competences, as specified in

the Treaties, and not to extend such competences, is reiterated: neither the

Charter, nor the accession to the ECHR can extend the competences of the

European Union.

How to ensure the protection of fundamental rights

There are three different instruments to ensure the EU protection of fundamental

rights. The first one is the Charter of Fundamental Rights (legally binding),

which is the domestic bill of rights if European Union, and it’s a catalogue of

rights concerning the EU.

The second one is the accession to the ECHR, that is not working yet because the

EU has not acceded yet to the Convention. As soon as it will adhere, the ECHR

will become legally binding for the EU as it is for all the States belonging to the


The third source of protection is the traditional one, the source of the general

principles of European Union law; so fundamental rights, as guaranteed by

the ECHR and resulting from the constitutional tradition common to the Member

States are general principles of the European Union law, and therefore they’re

protected. So, we have two written sources: the first one already in force, the

second one not yet, and a non-written one, which are the general principles of

European Union law.

Article 7 81.

Article 7 is the political procedure. It’s important to take into account two

fundamental aspects: the first one is that this political procedure doesn’t involve

the courts, but it is triggered and scrutinized by political institutions.

In particular, there is a first phase, which provides a proposal, either by

1/3 of the Member States or by the European parliament, or by the

Commission, and the Council must determine if there is a clear risk of a serious

breach. This preliminary phase is in the hands of the Council, that merely makes

an admissibility control, in order to check whether there is a risk.

If the Council thinks that there is a clear risk the word moves to the

European Council, which has the final word in deciding whether the breach

exists Then there is the second phase, which is in the hands of the European

Council, that determines whether this serious breach exists or not.

The Council preliminarily evaluates the risk, and the European Council

evaluates the existence of the violation. And it must be a particularly serious

breach: if the State once violates fundamental rights, no problems of political

procedure can rise. All Member States, in any time, violate rights, otherwise the

international protection of rights would be useless. The court will condemn States.

So, occasionally States violate fundamental rights, the problem is having a

recurrent and serious breach of fundamental rights. This mechanism was

proposed two times: the first one at the end of the 90’s, in 1999 against

Austria, when Heider, who was a politician of the right, and with strong

nationalist and xenophobes ideas, previously governor of Carinzia, became a

member of the national government and this was considered a possible risk for

the protection of national minorities.

The second time it was against Hungary, after a very controversial

constitutional reform, which seriously prejudiced the independence of judiciary, of

CC’s and it was therefore very problematic. But also in this case it was proposed

but not carried out yet.

Now there is a third possibility, but no concrete and official initiative was

taken, against Spain, for the problem of the Catalonia’s referendum. For the

previous cases, instead, there were official initiatives.

Article 2

Article 2 of the Treaty enshrines basic fundamental rights and the basic European

Union’s values, and is the parameter of this political scrutiny. The possible

consequences of this political control, if for the European Council a serious breach


exists, can be the suspension of several rights deriving from the Treaties to the

Member State which is responsible of such a serious breach.

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

Art.2 TEU:

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 MSs in a society in which pluralism, non discrimination, tolerance, justice,

solidarity and equality between women and men prevail”

Consequences of political control

If the Member State is seriously infringing fundamental rights or fundamental values, the

suspension of certain rights, deriving from the application of

consequence can be the

the Treaty against to the Member State including the voting rights of the representatives

of the government of that MS in the Council . However, this control was very ineffective:

only three times was initially triggered, against Austria, and more recently against

Hungary and Poland, but so far no serious evaluation, as for the real breach of

fundamental rights, was carried out against all the three States.

Proposal for improvement

There are proposals aimed at improving the control of the CJ.

If the propose will be approved, the procedure become similar to an infringement

procedure, but for other breaches of European Union Treaties, brought by the European

Commission or of another Member State, there is a new procedure to enforce art.2.

Moreover, also an empowerment of the Fundamental Rights Agency could be


Is a non-judicial actor, whose aim should be to improve the protection of the

Charter of Fundamental Rights. It is an administrative agency, without judicial

power, similar to the so-called national human rights institutions.

So far, however, none of these proposals has been seriously taken into

consideration: no Treaty reform of Article 7 was seriously discussed, and powers of FRA

were not extended.

Article 4

This Article, introduces the so-called European counter-limits doctrine, similar to the

one of the Italian CC, whose general meaning, is that fundamental values making up the

constitutional identity of a Member States, cannot be endangered by the European

Union. So that, if there is a European Union act which puts in danger such fundamental

values of the national constitutional order, it will prevented from entering the national

legal order. This norm was also codified by the Treaty as a limit for the European


Union powers. The EU must respect such fundamental values enshrining the

constitutional identity of the Member States.

“The Union shall respect the quality of the MSs before the

Art.4 par.2 TEU:

treaties as well as their national identities, inherent in their fundamental

structures, political and constitutional, inclusive of regional and local self-

government. It shall respect their essential state functions, including ensuring the

territorial integrity of the State, maintaimning law and order and safeguarding national

security. In particular, national security remains the sole responsibility of each MS. ”

The limits introduced by the domestic constitutional courts against European

Union’s action, are also recognised as EU limits. It is quite important because the

national concerns as for the protection of rights could be overtaken by this norm. At least

from a normative perspective, a lot of steps forward had been taken by the EU’s Treaties,

but the EU is more in crisis now, with a better constitutional framework, more respectful

of national identities of the Member States and the reason is maybe that more serious

are the challenges of the current times that EU is still unable to properly tackle.


Article 4: Sayn-Wittenstein case, 2010

The case

In 2010 there was the first case, settled by the CJ, that recognised the legal value of

Article 4 of TEU.

The case was of an Austrian citizen, a woman, who was adopted when she was an

adult, not a child, by a German citizen, that was a noble, a prince, and Fürst was his

name. Becoming the woman his daughter, she took the full name Fürstin Von Syne-

Wittgenstein, princess Fürstin Von Syne-Wittgenstein. This name was legally

registered in Germany.

She was an Austrian citizen with the name legally given in Germany following

her adoption. She was an adult, and she had the right to freely move across the EU, so

that she came back to Austria.

The problem was that, all the Member States, in their constitutions, recognise the

fundamental principle of equality, but in Austria it is particularly strong and has as a

corollary for forbidding the nobility.

Austria declared in 1919 the abolition of nobility as implementing equality

principle: the abolition of nobility is a fundamental constitutional value which is part

of the Austrian constitutional identity.

Her surname was changed: it was maintained the part Fürstin Von Syne-

Wittgenstein , but was abolished the part “princess ”. But this woman proposed an

action before the Austrian Administrative Court because the name is related to a


general principle of individual identity, and this change could also cause economic


The nice thing of this case was indeed the fact that this princess worked in the

field of buying and selling castles. So a princess that sells castles is the perfect situation,

not the same for a normal citizen, that loses a fundamental component of this


The Austrian Court

The Austrian court thought that from an Austrian perspective that was a needed

solution, because is not plausible to admit nobility, the appellative “princess” must


But is this constitutional provision of the Austrian constitution in contrast with the

freedom of movement protected at European Union level? Because if the woman

wouldn’t have moved toward Austria, but had remained in Germany, her name

wouldn’t have been changed.

The Austrian court thought it could be an obstacle to the freedom of circulation,

of movement, because it discourages to move, and therefore it raised a preliminary

question to the CJ.

Question: does the article 21 TFEU (freedom of movement) preclude legislation

pursuant to which the competent authorities of a MS refuse to recognise the surname of

an adult adoptee, determined in another MS, in so far as it contains a title of nobility

which is not permissible under the constitutional law of the former MS?

The Court of Justice

The CJ, said that Austria could remove “princess” because this was a fundamental

value of its constitutional identity, and therefore Austria was allowed to protect that

value, also against the freedom of movement. Moreover, the principle of equality is

also recognised at EU level and the CJ said that not only the principle of equality is a

general principle of community law protected at European level, but it is also a

principle of the specific national constitutional identity, and therefore the country is

allowed to protect it also if it implies the change of the surname trough the abolition of

the title of nobility previously included.

“Obliging a person who has exercised this right to move and reside freely in the

territory of another MS to use a surname which is different from that already conferred

and registered in that MS is a liable to hamper the exercise of the right to move and

reside freely within the territory of the MSs. 85.

However, it must be attempted that in the context of Austrian constitutional history,

the law on the abolition of nobility, as an element of national identity, may be taken into

consideration when a balance is struck between legitimate interests and the right of free

movement of persons recognised under EU law.”

The CJ was in this case extremely respectful of the national identity of Austria,

saying that in this case this so strong principle of equality can prevail over freedom

of movement.

“In accordance with Art. 4, par 2 TEU, the EU is to respect the national identities of

its MSs, which include the status of the State as a Republic. It does not appear

disproportionate for a MS to seek to attain the objective of protecting the principle of

equal treatment by prohibiting any acquisition, possession or use, by its nationals, of title

of nobility. By refusing to recognise the noble elements of a name, the Austrian

authorities responsible for civil status matters do not appear to have gone further than is

necessary in order to ensure the attainment of the fundamental constitutional objective

pursued by them. Restriction of freedom of movement is justified on the grounds of

public policy.”

It is surely a limit to the freedom of movement, and also in this case it is evident

how constitutional rights, principles, values are a limit to the freedom of movement,

but also in this case, as in the Omega case, and in the Schmidberger case, the CJ

justifies that these values prevail over the freedom of movement, as part of the

constitutional identity of the States, that must be respected according to Article 4 of

the Treaty.

European Union after Lisbon Treaty: origin of the


The Charter was proclaimed in 2000, during the intergovernmental conference

which took place in December of 2000 in Nice, which produced also the Treaty. At that

time the Charter was merely proclaimed by the EU institutions jointly (the parliament,

the Commission, and the Council, not the European Council because it didn’t exist

officially at that time) and was a successful work of the Convention.

It was drafted, not with the aim to create new rights, but to make existing rights

more visible. Is necessary to write a catalogue to make people know that a certain right

is protected because is written in the Charter. 86.

The work carried out by the Convention was to try to understand which rights

emerged from the Constitutional traditions common to the Member States and from the

ECHR, which could be considered as a general principle of European law. S,o it was

required that the convention made all at once the work that the CoJ made case by case.

It was said that the Charter was the first source of law, and it codified rights

coming from the Constitutional tradition and from the European Convention. But the

codification crystallized the framework, so that doors were maintained open to the

interpretative and creative activity of the CJ, giving it at any time the power to use, the

two sources as sources of new rights even if not yet codified in the Charter, to maintain

an element of flexibility.




2) General provisions: the relation between the Charter and other sources,


3) Indivisibility of rights principle: they are all on the same level, but it is difficult

to balance when the rights are in conflict, it always occurs.

(Are structured depending on their content, specific general issues. It means that

the Charter adheres to a principle of indivisibility, so rights are not considered in a

hierarchical order, all the rights are potentially the same value. How to balance

where there is conflicts with different rights)


- Reaffirmation of rights resulting from the constitutional traditions common to the

MSs and from the ECHR

- Codification of rights already existing, not creation of new one

Article 51: the scope of the Charter

Art. 51: “The provisions of the Charter are addressed to the institutions, bodies, offices

and agencies of the Union with due regard for the principle of subsidiarity and to the MSs

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.”

Confirms CJ jurisprudence. While the control of the ECHR is a general control, potentially

concerning all the states of the acts which signed the convention. The CJ control is within

the field of the treaties therefore the CJ it said at the beginning FR are delimited to be

respected by all the actors of the European Union Institutions, later it said also the act of

states which are executing EU law. Finally, it said also the act of the states which are a

legitimated derogation of the treaty starting from the 90s. 87.

Because Art. 6 of the treaty said expressly that the fact that the Charter becomes

 legally binding act cannot extend the competences of the union as stated by the


2013 decision of the CJ clarified the content of this article in the case Akerberg-

Fransson: it interpreted Art. 51 in a quite wide way saying that whenever an issue is

touched upon by EU law it means that the Charter is legally binding even if the internal

act is neither in institution nor in derogation of the Eu law. In that case it was a problem

of the correct position of that and the following criminal proceedings. the act said was at

domestic act not adopted to implement EU law and not in derogation of the EU law but

report said since in general this field is covered by EU directive it means that it is under

the scope of the application of the Charter so the CJ according to recover constantly

jurisprudence that always tried to enlarge its judicial review and the scope of the

application EU H law as seeing when looking at jurisprudence concerning source of law.

Article 52

It underlines the fact that cannot contain anything new.

«Insofar as this Charter contains rights which correspond to rights

 Par. 3:

guarantees by the ECHR, the meaning and the 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»

So, when the right corresponds to a right ensure by the Convention the meaning of the

right under the Charter is the same as the meaning of the right ensured by the

Convention. «Insofar as this Charter recognises fundamental rights as they result from

 Par. 4:

the constitutional traditions common to the MSs, those rights shall be interpreted

in harmony with those traditions»

References to the Charter: Explanations relating to the Charter

(the source of each rights and the meanings)

Violation of the Charter

The CJ to show its most serious attention for FR has declared some EU acts for Violation

of the Charter.

So, while at the beginning the CJ did not recognized any violation by the EU

institutions, as soon as the Charter enter into force the Charter was concretely used by

the CJ to declare the invalidity of EU acts. 88.

Volker und Markus Schecke GbR, 2010: violation of article 7 and 8. The

 obligation of publishing information regarding beneficiaries of agricultural funds is

invalid. Is disproportionate measure with regard to transparency.

Association Belge des Consummateurs Test-Achats, 2011: violation of art.

 21 and 23 Unlimited derogation from the principle of equal treatment between

men and women in the field of insurance is unlawful.

Data retention directive, 2014: the EU directive allowed providers of

 electronical communication services to retain traffic and location data in order to

identify the users for combating crime and terrorism. Preliminary reference was

asked from the Irish High Court and the Austrian Constitutional Court about

violation art.7 and 8 of the Charter. CJ declared invalidity of the Directive because

unproportionable measure.

Direct effect

The first one the direct effect of the Charter provision. There is not yet a judgement of

the court of justice which clearly excludes the direct effect of the charter provision, but

no decision clarify that they have a direct effect. It is a particularly complex issue

because rights have a horizontal application so that the problem of the horizontality of

the direct effect in the CJ juridical but there is no decision which definitive settled this

problem. Also, there is not a clear distinction between rights and principles because

looking at Art 51 we see this distinction, MS, institutions, agency shall respect the rights

and observes the principles, so the Charter says that rights are respected, and principles

are observed firstly the difference between respect and observe is not clear what does it

mean. Secondly and even more importantly what are the rights and what are the

principle in the Charter? For example, equality is usually defined as a principle, but it

ensures a right directly enforce so what are principles and what are rights and therefore

in what consist the different protection if the right it intakes what is the consequence and

if the principle is intake what are the consequence but it is not clear, there no answer but

still questions.

Art. 52

“The provisions of this Charter which contain principles may be implemented by

legislative and executive acts taken by institutions and bodies of the Union, and by of

MSs when they are implementing Union Law, in the exercise of their respective powers.

They shall be judicially cognisable only in the interpretation of such acts and in the ruling

on their legality.”

The EU accession to the ECHR

Art. 6, para. 2 TEU 89.

“The Union shall accede to the ECHR. Such accession shall not affect the Union’s

competences as defined in the Treaties”

Reasons? Conflicting interpretation of the ECHR?

The problem of the accession started in the 70s, but the treaties did not say

anything about. Firstly, we have a symbolic aspect and reason: all the MS are bounded

by EU Convention because all the MS are contracting parts of the Convention.

Additionally, the session took the ECHR it is expressly required by the EU as criteria for

applying to become a new member of the EU. So that the symbolic reason is, why does

the EU mandatory require accession to the Convention from the MSs but it does not

adhere? Usually can impose an obligation if this obligation is respected by it, it is very

easy to oblige other person to do something. So it is a symbolic reason, a reason of

equality of EU and its MS and an opportunity to make the fundamental values enshrining

in art. 2 of the treaty to more completely effective but this is symbolic but not so

important but not so important from the practical point of view.

A practical reason even if it was much stronger in the past. The problem of

possible conflicting interpretation of the same provision of the ECHR and they were cases

in the 70s and the 80s, where really the two courts gave to the same European

Convention provision a different meaning how could this happen? Because the EU Court

of HR is the Court of the Convention and therefore interprets in its own power the

Convention, the Court of Justice is the Court of Community law but the European

Convention without an Accession is not binding as it is but it is binding as principle of

community law and therefore the CJ interpreted freely the Convention as it is a principle

of the Community law or now as European law because a particularly at the beginning

the CJ said ok I ensure protection of FR but within the scope of the treaty and in the

functional way to the achievement of the objective of the Treaty and therefore there was

a different interpretation of the same Conventional norm by the two of them.

ECJ: Hoechst v. Commission, 1989

The EU Commission ordered investigations on people of companies suspected of unlawful

agreements about fixing prices and delivering quotas for their products. The EU

Commission’s official conducted researches in the business offices.

The applicant (Companies) claimed a violation of art.8 ECHR (inviolability of the

house) recognized in the Community legal order as principle common to the laws of MSs.

Art.8 doesn’t apply to business premises. 90.




1.96 MB


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appunti completi delle lezioni.
Coprono l'intero programma, dall'idea di unione europea all'accesso alla convenzione dei diritti umani.
-storia e trattati UE
-organizzazione UE (istituzioni ed organi)
- protezione dei diritti umai
-court of Justice e european court of human rights
-differenze tra le corti e casi svolti
-convenction of human rights
-accesso alla convenzione e critiche

Corso di laurea: Corso di laurea magistrale in international business an economics
Università: Pavia - Unipv
A.A.: 2018-2019

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher doc.ale.b di informazioni apprese con la frequenza delle lezioni di European constitutional law e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Pavia - Unipv o del prof Gennusa Maria Elena.

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