European Constitutional Law
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)
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)
(SUPREMACY UNDER CONDITION)
Conflict judge considers
between the Italian EU norm is
old Italian norm applied
norm and new automatically
EU norm abrogated
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
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.
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
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 CONSTITUTIONAL COURT DEC. n. 170/1984
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.
• 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
• 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
Principles: DIRECT EFFECT
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
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 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
•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”
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
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.
Principles: DUTY OF CONSISTENT INTERPRETATION
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
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.
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
“…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
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
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
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
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
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
The European Protection of Fundamental Rights
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)
Protection of rights as general
Constitutional traditions common to
principles of Community law
International human Rights Treaties
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
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.
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
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 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
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.
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
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
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 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,
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.
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
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
“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
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
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.
1) Six titles: DIGNITY / FREEDOMS / EQUALITY / SOLIDARITY / CITIZENS’ RIGHTS/
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.
It underlines the fact that cannot contain anything new.
«Insofar as this Charter contains rights which correspond to rights
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
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
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
“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.
5 mesi fa
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
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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