EU, constitutional rights and human rights Fundamental Rights in the EU/Specialization Seminar in Human Rights, Winter/Spring 2007 Turku Law School / Åbo Akademi 03/05/2019 Tuomas Ojanen

Starting points (under EU law) C-11/70 Internationale Handelsgesellschaft: The validity of EC law can only be reviewed in light of EC law. The protection of fundamental rights is ensured within the framework of the structure and objectives of the EC Case 4/73 Nold [1974] ECR 491: in safeguarding fundamental rights, the ECJ "is bound to draw inspiration from constitutional traditions common to the Member States, 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 Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law" The ECJ is competent to examine the compatibility with fundamental rights of national rules which "fall within the scope of Community law" (Case C-260/89 ERT [1991] ECR I-2925), but it has no jurisdiction to examine the compatibility with fundamental rights of national measures ”falling outside the scope of application of EC law” (C-12/86 Demirel) C-100/88 Oyowe: EC measures must be interpreted in harmony with fundamental rights C-314/85 Foto-Frost: The ECJ has exclusive power to review the validity of EU acts 03/05/2019 Tuomas Ojanen

The Special Status of the ECHR within the EU Legal Order First explicit reference to the ECHR in Case 36/75 Rutili [1975] ECR 1219 Characterization of the ECHR as an instrument having "special relevance" for the determination and interpretation of fundamental rights as general principles of Community law (Joined Cases 46/87 and 222/88 Hoechst [1989] ECR 2859) The ECHR is also the only international human rights instrument mentioned in Article 6.2TEU References to individual judgements of the Strasbourg Court since the mid-1990s (e.g. Case C-13/94 P v S [1996] ECR I-2143). The ECJ: its earlier case-law may have to be adjusted in the light of the case-law of the Strasbourg Court subsequent to that earlier case-law (Case C-94/00 Roquette Frères [2002] ECR I-9011) The status of the ECHR as a minimum standard of protection ”3. Insofar 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” (Art. II-112,3) 03/05/2019 Tuomas Ojanen

Tension between the ECJ and the Eur Ct.HR C-46&227/88 Hoechst C-159/90 Grogan C-374/87 Orkem C-260/89 ERT The Eur Ct. HR: Niemietz Open Door 1992 Funke v. France 1993 Lentia v. Austria 03/05/2019 Tuomas Ojanen

Accession of the EC/EU to the ECHR Discussion and debate over the accession of the EC/EU to the ECHR since the late 1970s In 1996, the ECJ held that, as the law now stands, the EC has no competence to accede to the Convention (Opinion 2/94) In 2000, Finland proposed to intergovernmental conference that the EC should be given competence to accede to the ECHR The Treaty establishing a Constitution for Europe provides, in Part I, Article 7, paragraph 2, a legal basis for the Union to accede to the ECHR. Previously, only States could sign up to the ECHR, but the ECHR has now been amended to allow the EU to accede to the convention (Protocol 14) Ultimately, the accession of the EU is a matter of political determination requiring wide European consensus Accession to the ECHR and the incorporation of the EU Charter of Fundamental Rights in the European Constitution are complementary! If the EU did sign up to the convention, the Strasbourg Court would monitor whether the EU institutions respect human rights. The accession would also allow better monitoring of the Member States for their compatibility with the ECHR. 03/05/2019 Tuomas Ojanen

Other human rights treaties The ECHR does not exhaust the spectrum of human rights! Some odd references by the ECJ to other human rights treaties; the status of human rights treaties is still ambiguous (beyond the ECHR) The EU Charter of Fundamental Rights needs to be read in accordance with the rights guaranteed in other human rights instruments adopted within the framework of the United Nations, the International Labour Organisation and the Council of Europe 03/05/2019 Tuomas Ojanen

The ECHR MATRIX All 25 Member States of the EU are signatories of the ECHR, but the EC/EU is not the CDTF case of 1978: complaints against the EC institutions are inadmissible because the EC is not a Contracting Party to the ECHR (ratione personae) Member States can be held responsible for EU-related acts The trend has gradually been towards a closer scrutiny of Member State actions (from the 1990 M&Co. v. Germany case - ”the equivalent protection test” - to the 1990 Matthews case) the Matthews doctrine: the Eur Ct. HR may find a violation where no effective means of judicial recourse has been provided under EU law to remedy a violation of human rights (déni de justice) the issue of the collective responsibility of the EU Member States remains a contested one 03/05/2019 Tuomas Ojanen

NATIONAL CONSTITUTIONAL CHALLENGE Since the early 1970s, the German and Italian Constitutional Courts have refused to accept the views by the ECJ over the primacy of EC law Solange I, BVergG, 1971: As long as an adequate standard of protection was not offered under EC law itself, the BVerfG reviews EC measures for their conformity with the German constitution. In particular, the BVerfG noted a lack of a catalogue of fundamental rights – the debate over the adoption of the EC catalogue of fundamental right started The BVerfG revised its position in 1986 (Solange II, only so long as adequate level of protection is maintained) Brunner v. TEU, 1993: the BVerfG declared that it reviews whether EU measures remain within the competence of the EU Several other national constitutional actors have expressed similar reservations Recently, there has been a serious constitutional challenge to the European Arrest warrant 03/05/2019 Tuomas Ojanen

Finnish Constitutional Challenge The comprehensive reform of the domestic system of constitutional rights in 1995 – the domestic standard of protection of constitutional and human is generally higher than the respective standard under EU law. Some constitutional rights can even be understood as aiming to protect certain domestically important solutions against opposite tendencies that EU membership might entail in the field of e.g. social rights, access to documents and right to good administration. Constitutional and human rights may come into play in domestic decision-making pertaining to EU affairs at three stages: Constitutional preview of proposals for EU measures by the Constitutional Law Committee of Parliament Constitutional preview of domestic implementing enactments of EU measures by the Constitutional Law Committee Judicial review of domestic implementation law for its compatibility with constitutional and human rights (no case law until now) 03/05/2019 Tuomas Ojanen

Finnish Constitutional Challenge (continued) The implementation of EU measures is not allowed to weaken the domestic standard of protection of constitutional and human rights Occasionally, this premise has compromised the most “maximal” implementation of EU measures (e.g. the implementation of the European Arrest Warrant and Council Framework Decision on Combating Terrorism) In a clear majority of cases, it has been possible to implement EU measures without having to compromise the reasonable observance of constitutional rights and human rights – and vice versa! “The Committee is pleased to observe the State party's concern to integrate human rights into action to combat terrorism, in part by maintaining an outright ban on extradition, refoulement or expulsion to a country where the individual concerned might be exposed to the death penalty and violations of articles 6 and 7 of the Covenant.” (Concluding observations of the Human Rights Committee: Finland. 02/12/2004) 03/05/2019 Tuomas Ojanen

Finnish Constitutional Challenge (continued) The Finnish challenge has been more discreet than in such Member States as e.g. Germany or Poland in which the implementing legislation of e.g. European Arrest Warrant has been declared unconstitutional, thereby leaving these Member States without an implementing legislation and cutting it off from the newly established surrender system between European judicial authorities. No case law by Finnish courts on the validity of EU measures 03/05/2019 Tuomas Ojanen

Beyond confrontation with EU law and constitutional and human rights Pro individuo/pro rights approach Harmonious interpretation approach – “4. Insofar as this Charter recognizes fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions” (Art. I-112,4) Methods for securing the compliance of EU legislative proposals with the requirements of fundamental and human rights should be improved at the EU level, since the emergence of such methods could diminish those kinds of problems which have now led to the rejection of legislation implementing EU acts First steps in the right direction: Communication from the Commission, Compliance with the Charter of Fundamental Rights in Commission legislative proposals. Methodology for systematic and rigorous monitoring, COM (2005) 172 final of 27.4.2005. 03/05/2019 Tuomas Ojanen