1. Introduction to the EU Charter of Fundamental Rights
Perspective of access to justice
Jana GAJDOSOVA
EJTN-FRA seminar
14 April 2019

2. Sources of fundamental rights in the EU: the bigger picture
European Union
Constitutional traditions of the EU Member States
General principles of EU law
Unwritten
Charter of Fundamental Rights of the European Union
Written
Council of Europe standards
United Nations standards
Informs
Accession
Accession
ECHR
CRPD

3. What is the Charter of Fundamental Rights of the EU?
Preamble
Peace – common values
Universal values
Diversity, etc
Rights more visible
Reaffirms const. and int’l rights
Rights, duties, responsibilities
Rights, freedoms and principles
I Dignity
(Articles 1–5)
1 Human dignity
2 Life
3 Integrity of the person
4 Torture and inhuman degrading treatment or punishment
5 Slavery and forced labour
II Freedoms
(Articles 6–19)
6 Liberty and security
7 Private and family life
8 Personal data
9 Marry and found family
10 Thought conscience and religion
11 Expression and information
12 Assembly and association
13 Arts and sciences
14 Education
15 Choose occupation and engage in work
16 Conduct a business
17 Property
18 Asylum
19 Removal, expulsion or extradition
III Equality
(Articles 20–26)
20 Equality before the law
21 Non-discrimination
22 Cultural, religious and linguistic diversity
23 Equality: men and women
24 The child
25 Elderly
26 Integration of persons with disabilities
IV Solidarity
(Articles 27–38)
27 Workers right to information and consultation
28 collective bargaining and action
29 Access to placement services
30 Unjustified dismissal
31 Fair and just working conditions
32 Prohibition of child labour and protection of young people at work
33 Family and professional life
34 Social security and assistance
35 Health care
36 Access to services of general economic interest
37 Environmental protection
38 Consumer protection
V Citizens’ rights (Articles 39–46)
39 Vote and stand as candidate to EP
40 Vote and stand as candidate at municipal elections
41 Good administration
42 Access to documents
43 European ombudsman
44 Petition (EP)
45 Movement and residence
46 Diplomatic and consular protection
VI Justice
(Articles 47–50)
47 Effective remedy and fair trial
48 Presumption of innocence and right of defence
49 Legality and proportionality of criminal offences and penalties
50 Ne bis in idem
VII General provisions (Articles 51–54)
51 Application
52 Scope and interpretation
53 Level of protection
54 Prohibition of abuse of rights

4. Charter is:
in force for over 100 months, soon 10 years
of increasing relevance at EU level
and yet – it is still underused at national level

5. The Charter’s potential is not yet fully untapped - why?
Unclear scope of the Charter (to be addressed in the course of the seminar)
Persisting doubts on added value …
Or: just a matter of awareness and time?

6. Why should Charter matter? Charter adds value by e.g.:
1. offering more in terms of procedural aspects/effects
2. offering additional remedial avenues for fundamental rights violations
3. covering more and wider reaching/stronger rights

7. 1. The Charter’s potential to ‘offer more’ in terms of procedural aspects/effects
Supremacy and direct effect can play a role when interpreting national law; interpreting EU law; checking national law against the Charter; checking EU legislation against the Charter
National courts and authorities are under a duty to apply EU law and set aside conflicting norms of national law (example of Benkharbouche case, 2017)

8. 2 . The Charter: additional access to justice avenues
EU Member States
Fundamental rights violation
Charter Article 51 check
No involvement of implementation of Charter
Charter does not apply
National courts
European Court of Human Rights
Involvement of implementation of Charter
Charter applies
National courts
Preliminary ruling
Court of Justice of the EU
European Commission
infringement
EU Institutions
Charter always applies
European Court of Human Rights
(upon EU accession to the ECHR)
National courts
Preliminary ruling
Court of Justice of the EU
European Commission
infringement

9. 3. The Charter covers more and wider reaching rights!
Charter and ECHR - Art. 52(3):
“In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR] 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.”

10. Charter and ECHR: scope
Equivalent protection to ECHR
No ECHR equivalent
More extensive than ECHR
EU context-specific
Preamble
Peace – common values
Universal values
Diversity, etc
Rights more visible
Reaffirms const. and int’l rights
Rights, duties, responsibilities
Rights, freedoms and principles
I Dignity
(Articles 1–5)
1 Human dignity
2 Life
3 Integrity of the person
4 Torture and inhuman degrading treatment or punishment
5 Slavery and forced labour
II Freedoms
(Articles 6–19)
6 Liberty and security
7 Private and family life
8 Personal data
9 Marry and found family
10 Thought conscience and religion
11 Expression and information
12 Assembly and association
13 Arts and sciences
14 Education
15 Choose occupation and engage in work
16 Conduct a business
17 Property
18 Asylum
19 Removal, expulsion or extradition
III Equality
(Articles 20–26)
20 Equality before the law
21 Non-discrimination
22 Cultural, religious and linguistic diversity
23 Equality: men and women
24 The child
25 Elderly
26 Integration of persons with disabilities
IV Solidarity
(Articles 27–38)
27 Workers right to information and consultation
28 collective bargaining and action
29 Access to placement services
30 Unjustified dismissal
31 Fair and just working conditions
32 Prohibition of child labour and protection of young people at work
33 Family and professional life
34 Social security and assistance
35 Health care
36 Access to services of general economic interest
37 Environmental protection
38 Consumer protection
V Citizens’ rights (Articles 39–46)
39 Vote and stand as candidate to EP
40 Vote and stand as candidate at municipal elections
41 Good administration
42 Access to documents
43 European ombudsman
44 Petition (EP)
45 Movement and residence
46 Diplomatic and consular protection
VI Justice
(Articles 47–50)
47 Effective remedy and fair trial
48 Presumption of innocence and right of defence
49 Legality and proportionality of criminal offences and penalties
50 Ne bis in idem
VII General provisions (Articles 51–54)
51 Application
52 Scope and interpretation
53 Level of protection
54 Prohibition of abuse of rights

11. Charter and ECHR: field of application
Coverage of rights, spectrum from civil and political to economic and social
ECHR
Charter
Applicable state actions and omissions
ECHR
Charter

12. Article 51: The Charter’s “field of application”
“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States 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. 2.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, or modify powers and tasks as defined in the Treaties. “

13. Access to justice: Charter vs. ECHR

14. The Charter’s use in practice: a case example
Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) and Secretary of State for Foreign and Commonwealth Affairs and Libya (Appellants) v Janah (Respondent) [2017] UKSC 62
The case concerned two employees of the embassies of Sudan and Libya in the UK. They made several employment claims, which the Employment tribunal turned down because the employees were considered ‘members of the mission’ under the State Immunity Act This raised the question of whether this procedural limitation imposed by the State Immunity Act was compatible with the right to an effective remedy and a fair trial under Article 47 of the Charter and Article 6 of the ECHR.
Section 16(1)(a) and Section 4(2)(b) of the State Immunity Act 1978 (“SIA”) barred the claimants’ employment law claims from being pursued before the Employment Tribunals on grounds of State Immunity. Some of the claims were derived from EU law, namely discrimination, harassment and breach of the Working Time Regulations.

15. The Charter’s use in practice: a case example
UK courts needed to resolve, firstly, whether Article 47 could be given direct horizontal effect, meaning that the appellants could rely on it even though Libya is not a Member State or one of the EU institutions referred to in Article 51 of the Charter (Libya, not bound by EU law, is here equated to a private party). Secondly, the courts had to decide if it could simply disapply the relevant sections of the State Immunity Act.
Granting direct horizontal effect to the procedural provision of Article 47 of the Charter allowed the UK courts to disapply the provisions of the State Immunity Act that conflict with the Charter, enabling the two claimants to further pursue their substantive claims under the relevant provisions of the Working Time Regulations and the Racial Equality Directive.

16. Thank you for your kind attention!