Foundations of Private Law - Appunti

Justice, Citizens' Rights, and Fundamental Rights

Right to an effective remedy and to a fair trial

Right to vote and to stand as a candidate at elections to the European Parliament

Presumption of innocence and right of defence

Principles of legality and proportionality of criminal offences and penalties

Right to vote and to stand as a candidate at municipal elections

Right not to be tried or punished twice in criminal proceedings for the same criminal offence

Right to good administration

Right of access to documents

European Ombudsman

Right to petition

Freedom of movement and of residence

Diplomatic and consular protection

Why are fundamental rights relevant to private law?

Fundamental rights may imply limitations for private autonomy. These limitations may have an impact on contractual freedom and may also limit the exercise of other fundamental rights.

Fundamental rights are not homogeneous. One may be prioritized over the other, which means that most of them are not absolute and may be limited and balanced against.

either other fundamental rights or general interests

so how do we identify fundamental rights? how do we prioritise/balance them? are they absolute or not?

The prohibition of inhuman or degrading treatment or punishment, laid down in Article 4 of the Charter, is of fundamental importance, to the extent that it is absolute in that it is closely linked to respect for human dignity, which is the subject of Article 1 of the Charter (CJEU, 16 February 2017, C-578/16 PPU, C. K., v Republika Slovenija).

The Court has previously accepted that the derived right of residence under Article 20 TFEU is not absolute, since Member States may refuse to grant it in certain specific circumstances.

Thus, the Court has previously ruled that Article 20 TFEU does not affect the possibility of Member States relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security. (CJEU, 27 February 2020, C-836/18, Subd. del Gobierno en Ciudad Real)

grounds for fundamental rights protection at national level at international level U2 - private law and fundamental rights of individuals 2 national constitutions (written or not) or Fundamental Universal Declaration of Human Rights (1948, UNLaws Assembly) European Convention of Human Rights (Rome, 1950, the different role of courts as guarantors of fundamental Council of Europe) rights: ECtHR, ECJ and national constitutional courts Charter of Fundamental Rights of the European Union (as regards both national and EU "constitutional" (2000, 2009) principles) and other national courts the Charter of Fundamental Rights of the European Union is particularly important as it is called upon to fulfil 3 basic functions: a source of inspiration for the discovery of general principles of EU law, an aid to interpretation, and grounds for judicial review pluralism and diversity in the EU: from the preamble to the CFREU The Union contributes to the preservation Fundamental rights, as guaranteed by

The aim of the European Convention for the Protection of Human Rights and Fundamental Freedoms is to promote common values while respecting the diversity of cultures and traditions of the peoples of Europe. These values result from the national constitutional traditions common to the Member States and the organization of their public authorities at national, regional, and local levels. They shall constitute general principles of the Union's law (art. 6(3), TEU).

The European Court of Justice (ECJ) accommodates two ways of looking at justice regarding fundamental rights: one as a symbol of universality and the other as a balancing act between Member States. The baseline is that the European Convention on Human Rights (ECHR) sets a minimum threshold of protection, allowing EU law to provide more extensive protection. However, this may result in conflicting fundamental rights being given a lower level of protection (Lenaerts).

Still, the ECHR does not constitute...

as long as the EU has not acceded to it, a legal instrument formally incorporated into EU law (it has influence because all MS are in it) it is a political choice (principle of democracy), so EU legislation may either: - provide for uniform level of protection throughout the Union - if the EU legislature has already struck a balance, the application of a higher standard can be ruled out (e.g. taxes) - allow for national diversity beyond the minimum level established in the Charter and with due respect for primacy, unity and effectiveness of EU law (e.g. criminal law) the observance of the engagements undertaken by the contracting states is ensured by the European Court of Human Rights (ECtHR), but only applications (also from individuals) concerning claims against a contracting state can be dealt with (also there is no preliminary ruling), legislative acts can constitute a violation in particular the contracting states are both obliged to refrain from infringing the fundamental rights of citizens and

are obliged to take legislative or other measures to safeguard those rights, the method itself is up to the states (the courts in particular) (Hartkamp)

the vertical dimension U2 - private law and fundamental rights of individuals 3 the questions of competences is what

1. The provisions of this Charter are addressed distinguishes the Charter from national systems to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only because the Charter is governed by the principle of conferral 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 the

Charter respecting the limits of the powers of the Unionthere can be no situation that is governed by EU as conferred on it in the Treaties.law in which the Charter does not apply as this

2. The Charter does not extend the field ofwould be contrary to the rule of law application of Union law beyond the powers ofalso the ECJ has pointed out that the mereproximity to a provision of EU law does not the Union or establish any new power or tasksuffice to consider the national measure in for the Union, or modify powers and tasks asquestion to be implementing EU law, it is more defined in the Treaties. (art. 51, CFREU)important whether or not it is fulfilling aspecific obligation imposed by EU law(Lenaerts)when one talks about article 51 TFEU, they should also consider article 19 TFEU they both serve to define the wayin which the EU system of fundamental rights operates (even if they do not have the same ratione materiae), the firstreassures the MS that not all fundamental rights are EU questions,

The second to protect judicial architecture (Lenaerts) article 19 gives concrete expression to the founding value of article 19(1) is only triggered when the body at the rule of law by entrusting the responsibility for ensuring issue in the main proceedings is a court or judicial review in the EU legal order to both the ECJ and tribunal within the meaning of EU law and national courts and tribunals, on the other hand the MS have to whether it may rule on questions concerning establish a system of legal remedies and procedures which interpretation and application of that law ensure sufficient judicial protection the horizontal dimension “although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals” [eg,

private employers] “may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility”. (CJEU, case C-569/16 and 570/16 (Bauer))

the ECJ has recognised that some provisions of the EU Charter of the fundamental freedoms which have Fundamental Rights might produce direct effect (e.g. art.27) if the been accorded horizontal direct effect are right in question is unconditional and mandatory in nature (human also now recognised as fundamental rights form part of the general principles of the EU) rights in the sense of the Charter

the ECHR on the other hand cannot have direct effect by virtue of its nature as the ECtHR only adjudicates on disputes regarding and individual and a contracting state, so any type of influence that it has on private legal U2 - private law and fundamental rights of individuals 4 relationships is indirect, we can distinguish five

casespositive obligations: the possibility to submit the question to the ECtHR on whether a judgement in private law will survive reviewagainst the ECHRa citizen can invoke a provision of the ECHR in civil proceedings to argue that a national provision goes againstit (in which case the Court will try to interpret the provision in conformity with the ECHR to avoid conflict)a treaty provision can be interpreted in the light of a fundamental or human right 8particularly important (e.g.article 49 EC on freedom to provide services with article 8 ECHR on respect for family life)out of the courts' desire to interpretso a fundamental right has vertical effect principle of equalityby its nature, but a citizen might want to a right to specific conduct on behalf of the authorities, namelyrely on it because of it significance and equal treatment, which covers all branches of law this can only berole in society, but there is no clarity on derogated on grounds of objective considerations whicharethe matter, the ECHR itself has decided proportionate to the legitimate aim pursuedto leave the matter to the courts (after all obviously some commentators have opposed this type of applicationfundamental rights do not lend saying that the positive obligations were enough to trigger horizontalthemselves to private law as they could application, but their views were not well founded (horizontaleasily lead to a deadlock all of this is application is already well founded in the ECJ, the ECtHR and ECJwhy in cases involving fundamental work differently as the first operates an external check on obligationsrights on both sides their interests a and the second is an internal component) (Hartkamp)balanced in order to find a resolution thatfits in private law, this is called indirecthorizontal effect)the rights of the two charters should not be interpreted differently as it would cause discrepanciesthe distinction between rights and principlesall Charter provisions may The provisions of

this Charter which contain