EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #9

Ch. 6. FUNDAMENTAL RIGHTS, HUMAN RIGHTS AND TRANSPARENCY

A. The European Court of Justice: Origins of the Human Rights Discussion

• STAUDER V. CITY OF ULM, SOZIALAMT, p. 205 (1969).
• Problem of treaty interpretation: differences between official-language texts
• What role does the concept of fundamental rights play in the decision?
• Are "fundamental rights" different from "general principles of law"?
• Nold, n. 3 p. 206 (1974)
• is economic freedom included in the "fundamental rights"?
• Where does the Court find authority for such a right? Does it hold that the Community is bound to respect MS fundamental rights law?
• Prais, n. 4 p. 207 (1976)
• What is the basic right recognized?
• How is it qualified?

B. The European Convention for the Protection of Human Rights and Fundamental Freedoms

• Is adherence to the principles of the convention enforceable by the ECJ?
• Hauer, p. 209 (1979)
• Hydro Seafood, Supp. p. 85 (2003) on takings claims arising out of prophylactic fish kill directives
• CONNOLLY V. COMMISSION, p. 212 (2001)
• note the ECJ's direct reliance on ECtHR interpretations of the Convention
• note the qualified character of free speech protection under art. 10 EConvHR
• suppose Connolly and his lawyers are firmly convinced that the ECJ has misinterpreted the Convention, and that the ECtHR would have decided the case differently. Can he now go to the ECtHR to complain of being fired?
• Would your answer to (iii) be different, if Connolly had been an employee of the German Central Bank, in an office responsible for assuring German compliance with EU Monetary Union law, and had been fired by the GCB for writing the same book? cf. Matthews, p. 215 (ECtHR1999). How should DSR-Senator Lines GmbH, p. 216, be decided by the ECtHR?
• Can the EU itself adhere to the Convention? Opinion 2/94, p. 211; cf. note in Supp. p. 85, Constitution Art. I-7 para. 2
• Can it incorporate the text (with modifications) into EU law by legislation?
• To what extent are EU human rights principles applicable to the Member States?
• general principle: only when MS action has a sufficient "nexus" with EU law
• Heinrich Bauer Verlag, p. 217 (ECJ 1997): freedom of the press and prohibitions against offering premium with the sale of newspapers
• Kremzow v. Austria, p. 219 (ECJ 1997): unlawful detention of a citizen under the criminal law, as violation of EU freedom of migration?
• Carpenter, Supp. p. 220 (ECJ 2002)

C. Fundamental Rights and the Amsterdam Treaty

• TEU art. 6, para. 2: human rights and fundamental freedoms as foundational principles
• Original TEU art. L did not list art. F as applicable in the Court
• New Art. 46 now (post-Amsterdam) specifically lists art. 6(2) of TEU as applicable, in so far as the Court has jurisdiction under TEC and, to a limited extent, the Third Pillar (Justice and Home Affairs)
• TEC art. 13: anti-discrimination measures authorized
• within the limits of powers conferred on it
• unanimity with consultation
• Nice: added requirement of co-decision procedure to adopt incentive measures to support MS action
• TEC art. 286: personal privacy recognized as a fundamental right
• data privacy is specifically protected
• making Directive 95/46/EC applicable to Community institutions
• Lundquist, Supp. p. 88
• TEU art. 49: respect for art. 6(1) principles a condition of accession of new MS
• TEU art. 7 para. 2: sanctions against MS for "serious and persistent breach" of art. 6(1)
• unanimity of Heads-of-State/Gov. Council with EP assent
• suspension of MS rights
• Nice added provision in para. 1 dealing with a "clear risk of serious breach" by recommendations to MS 

D. The Charter of Fundamental Rights: A New Human Rights Regime?

• What kind of document is the Charter (2002 Doc.Supp. p. )? Does it have legal effect?
• Is it preferable, as a statement of rights, to the European Convention?
• What are the rights of European Citizenship?