1. Human Dignity in European Constitutional Culture
Lesson III
Human Dignity in EU Law

2. Protection of Fundamental Rights in the EU (I)
Brief remarks
The Nold case (1974), and the leading role of ECJ case law
“Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law” (Nold formula)
The cultural basis of protection of FR in the EU: common market and fundamental rights
Art. 6, TUE (1997)
Charter of Fundamental Rights of the EU (2000)

3. Protection of Fundamental Rights in the EU (II)
Art. 6 TUE (2009)
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, 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.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

4. Human Dignity in the EU (I)
Human Dignity in EU Treaties
Art. 2 TUE
“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 Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”.
Art. 21 TUE
“The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law”

5. Human dignity in the EU (II)
Human Dignity in the Charter of Fundamental Rights of the EU
Title I (Dignity)
Artt. 1 to 5
Human dignity is inviolable.
It must be respected and protected (Art. 1).

6. Human dignity in the EU (III)
Direct references
Right to life and prohibition of death penalty (Art. 2)
Right to the integrity of person, both physical and mental (Art. 3)
Prohibition of torture and inhuman or degrading treatment (Art. 4)
Prohibition of slavery (Art. 5)
Further references
Rights of the elderly to lead a life of dignity (art. 25)
Fair and just working conditions (Art. 31)
“Every worker has the right to working conditions which respect his or her health, safety and dignity”
Non direct references
Right to liberty and security (art. 6)
Respect for private and family life (art. 7)
Art. 21 – Non discrimination on grounds of “sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation”

7. Human Dignity in the EU (IV)
Human Dignity in the ECJ Case Law (I)
The Omega case ( , c. C-36/02)
The facts: “playing at killing” in a laserdrome
The preliminary ruling: free movement of goods and services vs. Human dignity
Decision of the Court
1) Human Dignity in EU Law: “the objective of protecting human dignity is compatible with Community law”, as it is inherent to protection of FR in EU Law.
2) HD can be seen as a legitimate aim to restrictions of the obligations by EU law (such as those consequent to free movements of goods and services)
3) HD in balancing test?

8. Human Dignity in the EU (V)
Human Dignity in the ECJ Case Law (II)
B) The Brustle case ( , c. C-34/10)
Patenting embryonic stem and precursor cells?
“the European Union legislature intended to exclude any possibility of patentability where respect for human dignity could thereby be affected” (par. 34) – Art. 3.2.c) of CFREU.
Defining “embryo” in the light of Directive 98/44/EC, on legal protection of biotechnological inventions
“any human ovum must, as soon as fertilised, be regarded as a ‘human embryo’ within the meaning and for the purposes of the application of Article 6(2)(c) of the Directive, since that fertilisation is such as to commence the process of development of a human being” (par. 35)
“As regards stem cells obtained from a human embryo at the blastocyst stage, it is for the referring court to ascertain, in the light of scientific developments, whether they are capable of commencing the process of development of a human being and, therefore, are included within the concept of ‘human embryo’ within the meaning and for the purposes of the application of Article 6(2)(c) of the Directive“ (par. 37)

9. Human Dignity in the EU (VI)
Human Dignity in the ECJ Case Law (II)
C) Homosexual Asylum Seekers
ECJ, , c. C-199/12
“a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it”
BUT
“the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of Article 9(1) of the Directive”
“where an applicant for asylum relies, as in each of the cases in the main proceedings, on the existence in his country of origin on legislation criminalising homosexual acts, it is for the national authorities to undertake, in the course of their assessments of the facts and circumstances under Article 4 of the Directive, an examination of all the relevant facts concerning that country of origin, including its laws and regulations and the manner in which they are applied” (i.e. wheter imprisonment is effectively applied)
the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation

10. Human Dignity in the EU (VII)
Human Dignity in the ECJ Case Law (III)
D) Homosexual Asylum Seekers (II)
ECJ, , c. C-148 to 150/13
“although it is for the applicant for asylum to identify his sexual orientation, which is an aspect of his personal identity, applications for the grant of refugee status on the basis of a fear of persecution on grounds of that sexual orientation may, in the same way as applications based on other grounds for persecution, be subject to an assessment process”
BUT
“the methods used by the competent authorities to assess the statements and documentary or other evidence submitted in support of those applications must be consistent […], with the fundamental rights guaranteed by the Charter, such as the right to respect for human dignity, enshrined in Article 1 of the Charter, and the right to respect for private and family life guaranteed by Article 7 thereof.”
I.E.
“as regards the methods of assessing the statements and documentary or other evidence at issue” the Court considers “the verifications carried out by the competent authorities based on, in particular, stereotypes as regards homosexuals -> instead: necessity of an accurate screening of the “individual situation and personal circumstances”
“or detailed questioning as to the sexual practices of an applicant for asylum” -> violates Art. 7
“and the option, for those authorities, to allow the applicant to submit to ‘tests’ with a view to establishing his homosexuality and/or of allowing him to produce, of his own free will, films of his intimate acts and, second, the option for the competent authorities of finding a lack of credibility on the basis of the sole fact that the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the grounds for persecution” - > “such evidence would of its nature infringe human dignity”.