Lumsa University, a.y. 2017-2018 Prof. Chiara Cellerino Week 4 EU law Lumsa University, a.y. 2017-2018 Prof. Chiara Cellerino Week 4 Chiara Cellerino© 2017

General principles fill loopholes of the system interpreting tools parameter of legality of secondary law Their sources are: treaty provisions common traditions of MS Chiara Cellerino© 2017

Include: legal certainty (transparency of administrative action, legitimate reliance and expectations) effet utile (Brasserie) loyal cooperation (art. 4.3 TEU) proportionality non-discrimination (art. 18 TFEU, art.157 TEFU) human rights and fundamental principles Chiara Cellerino© 2017

Human rights protection Originally: no reference in the treaties and no jurisdiction of the CJEU Problem of possible conflict between EU law and constitutional principles of MS In the 70' human rights are encorporated as general principles of EU legal order by CJEU Chiara Cellerino© 2017

Internationale Handelsgesellschaft (case 11/70) “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.... THEREFORE THE VALIDITY OF A COMMUNITY MEASURE OR ITS EFFECT WITHIN A MEMBER STATE 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 . 4 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 . THE PROTECTION OF SUCH RIGHTS, WHILST INSPIRED BY THE CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER STATES, MUST BE ENSURED WITHIN THE FRAMEWORK OF THE STRUCTURE AND OBJECTIVES OF THE COMMUNITY . IT MUST THEREFORE BE ASCERTAINED, IN THE LIGHT OF THE DOUBTS EXPRESSED BY THE VERWALTUNGSGERICHT, WHETHER THE SYSTEM OF DEPOSITS HAS INFRINGED RIGHTS OF A FUNDAMENTAL NATURE, RESPECT FOR WHICH MUST BE ENSURED IN THE COMMUNITY LEGAL SYSTEM”. Chiara Cellerino© 2017

Nold (case 4/73) HR are extrapolated from: 1) Common constitutional traditions of MS 2) International Conventions for the protection of human rights: i.e. European Convention on human rights and fundamental freedoms (1950, Council of Europe + EctHR Strasburg) (i) Need to avoid inconsistent application of EU law (ii) Need to avoid subordination to the ECtHR Chiara Cellerino© 2017

Institutions are bound to respect human rights Declaration of EP, Council and Commission on respect of human rights (1975) Single European Act, Preamble (1986) Maastricht Treaty, art. 6 TEU: transposes CJEU case-law Charter of Human rights of the EU (Nice, 2000) - not binding Chiara Cellerino© 2017

Art. 6 TEU today “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights … which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties”. (Art 6(1)) “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR]” (Art 6(2)). “Fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States shall constitute general principles of the Union's law” (6(3)). Chiara Cellerino© 2017

art. 2 TEU + art. 7 TEU Council can determine, with the consent of the EP: - existence of a clear risk of a serious breach by a Member State of the values referred to in Article 2 (majority of 4/5) - existence of a serious and persistent breach by a Member State of the values referred to in Article 2 (unanimity) - observation by the MS - suspension of certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council (qualfied majority) + European Agency of Human Rights (monitoring, reports) Chiara Cellerino© 2017

Content of the CFREU Human dignity Freedoms (civil liberties) Equality Social and economci rights (solidarity) European citizenship Justice Horizontal provisions (art. 51-54) Chiara Cellerino© 2017

Scope of application Art. 51: The provisions of the Charter are addressed to: - the institutions, bodies, offices and agencies of the Union - the Member States only when they are implementing Union law + “The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union” Chiara Cellerino© 2017

Protocol no. 30 “The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. ...except in so far as Poland or the United Kingdom has provided for such rights in its national law” Chiara Cellerino© 2017

Limitiations to rights (art. 52) “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others” Chiara Cellerino© 2017

Interpretation + minimum standard clause art. 52: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions”. + reference to explanation Chiara Cellerino© 2017

Justiciability - They shall be judicially cognisable only in the interpretation of acts and in the ruling on their legality. - The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States Chiara Cellerino© 2017

According to the CJEU human rights are: - parameter of legality and interpretation of EU law - parameter of legality of MS legislation implementing EU law - parameter of legality of restrictions of Member States to fundamental freedoms Chiara Cellerino© 2017

Omega case Omega, German Company, operates a “Laserdrome” in Bonn, with all relevant certificates Equiment supplied by Pulsar, British company, legally marketed in other member states Bonn police authorty forbids Omega to facilitate or allow games with the object of firing human targets (“playing at killing people”) Danger to public order, as contrary to human dignity: fundamental values prevailing in public opinion and protected by German Constitution Chiara Cellerino© 2017

Legal issue Is there a restrictions to market freedoms protected under EU law, namely free provision of services and free movement of goods? Can such freedoms be limited by reasons of protection of fundamental rights laid down in national constitutions? Answer of the Court: yes, provided that the restriction is proportionate to attain the objective Chiara Cellerino© 2017

Case study (MA, C-648/11) MA (+ others) is an Eritrean child arriving in UK, where she lodged an application for asylum having verified that MA had already lodged an application in Italy, UK requested Italy to take her back and Italy agreed However, the tranfer was not carried out and MA brought action before High Court of England and Wales to challenge legality of transfer order Chiara Cellerino© 2017

EU legal framework State responsile to examine the request of asylum Article 6 of that regulation provides: ‘1. Where the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interest of the minor. 2. In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum.’ Article 13 of Regulation No 343/2003 states: ‘Where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for asylum was lodged shall be responsible for examining it’. Chiara Cellerino© 2017

How to interpret art. 6.2 of Regulation 343/2003? In absensce of family members, two possible responsible states: - State where the minor has first lodged his applciation - State where minor is present after having lodged his more recent asylum application Chiara Cellerino© 2017

art. 24 CFREU “In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration” Chiara Cellerino© 2017

CJEU judgement 6 June 2013 “55 Since unaccompanied minors form a category of particularly vulnerable persons, it is important not to prolong more than is strictly necessary the procedure for determining the Member State responsible, which means that, as a rule, unaccompanied minors should not be transferred to another Member State. 56 The above considerations are supported by the requirements arising from recital 15 in the preamble to Regulation No 343/2003, according to which the regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter. [...] 58 Thus, the second paragraph of Article 6 of Regulation No 343/2003 cannot be interpreted in such a way that it disregards that fundamental right”. Chiara Cellerino© 2017