Post-Socialism, Human Rights and the European Union

10-09-2012Post-Socialism, Human Rights & EU 1

Post-Socialism, Human Rights and the

European Union

October 2012

Post-Socialism, Human Rights & EU European Union as a system of Post-War

justice Human rights Legal effects Procedural rights

Post-Socialism and the EU Accession Revision Human rights Federalism and constitutionalism


Human Rights

1949 European Convention on Human Rights (ECHR) Council of Europe Focus on substantive human rights Legal effect left to traditional

implementation of international public law Denmark 1992 United Kingdom 1998

Procedure for individual access to justice at an international court


Market Rights

1957 European Economic Community (EEC) Extension of 1951 European Coal and

Steel Community (ECSC) Focus on state rights and obligations in

cross border trade Limited direct effect

Regulations Remaining instruments subject to traditional

implementation as in international public law

Limited procedure for individual access to international court


European Court of Justice (ECJ)

Human rights Autonomous fundamental rights

Case 11/70 International Handelsgesellschaft

Principles of ECHR Generic in case 4/73 Nold Specific in case 44/79 Hauer Codified by Maastricht Treaty on European

Union 1992 Only one example of ECJ principle denied in

treaty revision: Protocol concerning article 119, attached to Maastricht Treaty



Legal effect Expands direct effect

Case 26/62 Van Gend en Loos on vertical effect of treaty provisions

Case 43/75 Defrenne on horizontal effect of some treaty provisions

Case 8/81 Becker on vertical effect of legislative provisions

Case 5/88 Wachauf on direct effect of human right principles when national law implements or administers EU law



Procedural rights Accepts division of jurisdiction

Case 314/85 Foto-Frost

Extends direct effect of rulings Case 106/77 Simmenthal

Refers any extension of individual access to be decided by Member States in the treaties Case C-50/00 Union de Pequeños

Limited extension introduced Lisbon treaty 2007


Post-Socialist Access to EU

Acquis communautaire on date of access 1 May 2004 for Baltic states as part of 10

new member states 1 January 2007 for Bulgaria and Romania Only time limited transitory exemptions

Permanent exemptions for Denmark, Ireland and United Kingdom in Maastricht Treaty 1992, confirmed in Amsterdam Treaty 1997

Permanent exemptions refused for Austrian, Finland and Sweden in Accession Treaty 1994

No exemptions for human rights


Post-Socialist Revision

Preparation of EU for Post-Socialism Maastricht Treaty 1992 coincides in time

with Post-Socialism Nice Treaty 2001 prepares Post-Socialist

accession Polish issue of overrepresentation Introduction of the Charter on Fundamental

Rights as soft law instrument

Constitutional Treaty 2004 coincides in time with Post-Socialist accession Refused by electorate in old member states



Charter on Fundamental Rights Shift from soft law to hard law with

Lisbon Treaty 2007 New permanent exemption for Poland and

United Kingdom in Protocol 30 Political undertaking for permanent

exemption for the Czech Republic Limited scope



Interpretation by ECJ Pre-emption of incremental adaption of

EU law in case C-236/09 Association Belge

No formal integration of ECHR in case C-571/10 Kamberaj

Limited implication of the Protocol 30 exemption in joint cases C-411/10 and C-493/10 M.E.


C-236/09 Association belge

25 Article 5(2) of that directive grants certain Member States – those in which national law did not yet apply that rule at the time when Directive 2004/113 was adopted – the option of deciding before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risks based on relevant and accurate actuarial and statistical data.


C-236/09 Association belge

32 Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.


C-571/10 Kamberaj

59 By its second question, the referring court asks in essence whether, in case of conflict between the provision of domestic law and the ECHR, the reference to the latter in Article 6 TEU obliges the national court to apply the provisions of the ECHR – in the present case Article 14 ECHR and Article 1 of Protocol No 12 – directly, disapplying the incompatible source of domestic law, without having first to raise the issue of constitutionality before the Corte costituzionale (Constitutional Court).

60 According to Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, are to constitute general principles of the Union’s law.

14Post-Socialism, Human Rights & EU 10-10-2012

C-571/10 Kamberaj

61 That provision [Article 6] of the Treaty on European Union reflects the settled case-law of the Court according to which fundamental rights form an integral part of the general principles of law the observance of which the Court ensures.

62 However, Article 6(3) TEU does not govern the relationship between the ECHR and the legal systems of the Member States and nor does it lay down the consequences to be drawn by a national court in case of conflict between the rights guaranteed by that convention and a provision of national law.

Post-Socialism, Human Rights & EU 10-10-2012 15

C-571/10 Kamberaj

63 The reference made by Article 6(3) TEU to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, does not require the national court, in case of conflict between a provision of national law and that convention, to apply the provisions of that convention directly, disapplying the provision of domestic law incompatible with the convention.


C-411/10 and C-493/10 M.E.

118 It must be noted that Protocol (No 30) provides, in Article 1(1), that the Charter is not to extend the ability of the Court of Justice or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it affirms.


C-411/10 and C-493/10 M.E.

120 In those circumstances, Article 1(1) of Protocol (No 30) explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions.


Human Rights in the EU

Limited to the field of application of EU law Case C-159/90 Spuc and C-302/06 Kovalsky

Reaction to limited procedural access for EU law Cases on human rights aspects of other

substantive rights before ECtHR Requirement of impact on human right Fadeyeya v. Russia 2005, 55723/00

Access to justice Concurrent interpretation of ECHR and

Charter in case 279/09 DEB


Case C-159/90 SPUC

31 Where national legislation falls within the field of application of Community law the Court, when requested to give a preliminary ruling, must provide the national court with all the elements of interpretation which are necessary in order to enable it to assess the compatibility of that legislation with the fundamental rights - as laid down in particular in the European Convention on Human Rights - the observance of which the Court ensures. However, the Court has no such jurisdiction with regard to national legislation lying outside the scope of Community law.

In view of the facts of the case and of the conclusions which the Court has reached above with regard to the scope of Articles 59 and 62 of the Treaty, that would appear to be true of the prohibition at issue before the national court.


C-302/06 Kovalsky

Interpretation of Article 6 EU and Article 1 of the Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms.

Property law – National legislation under which electrical installations may be placed on private land without the owners being entitled to compensation.

The Court of Justice of the European Communities clearly has no jurisdiction to answer the questions referred. ECJ summary


C-279/09 DEB

45 Review of the case-law of the European Court of Human Rights shows that, on several occasions, that court has stated that the right of access to a court constitutes an element which is inherent in the right to a fair trial under Article 6(1) of the ECHR (see, inter alia, Eur. Court H.R., judgment in McVicar v. the United Kingdom of 7 May 2002, ECHR 2002-III, § 46). It is important in this regard for a litigant not to be denied the opportunity to present his case effectively before the court (Eur. Court H.R., judgment in Steel and Morris v. the United Kingdom of 15 February 2005, ECHR 2005-II, § 59). The right of access to a court is not, however, absolute.


C-279/09 DEB

59 In the light of all of the foregoing, the answer to the question referred must be that the principle of effective judicial protection, as enshrined in Article 47 of the Charter, must be interpreted as meaning that it is not impossible for legal persons to rely on that principle and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer.


C-279/09 DEB

60 In that connection, it is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right; whether they pursue a legitimate aim; and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.


Post-Recession EU

President of the European Commission Speech to the European Parliament on 12

September 2012 “Let's not be afraid of the words: We will need

to move towards a federation of nation states. This is our political horizon. This is what must guide our work in the years to come.”

“A democratic federation of nation states that can tackle our common problems, through the sharing of sovereignty in a way that each country and its citizens are better equipped to control their own destiny.”


Post-Recession EU

German Constitutional Court 12 September 2012 Cases 2 BvR 1390/12 etc.

1. The provision under Article 8 paragraph 5 sentence 1 of the Treaty establishing the European Stability Mechanism limits the amount of all payment obligations arising to the Federal Republic of Germany from this Treaty to the amount stipulated in Annex II to the Treaty in the sense that no provision of this Treaty may be interpreted in a way that establishes higher payment obligations for the Federal Republic of Germany without the agreement of the German representative.


Federalism and Constitutionalism Czech Constitutional Court 15 February 2012

Case Pl. US 5/12 By the contested judgements and decisions, the

pension of the petitioner had been calculated regardless of the previous case-law of the Constitutional Court concerning the so-called Slovak pensions.

In this respect, the Constitutional Court believes that a European regulation which governs co-ordination of pension system among the member states may not be applied to an entirely specific situation of a dissolution of the Czechoslovak federation and to consequences stemming thereof.


Federalism and Constitutionalism

In the view of the Constitutional Court, the Court of Justice of the EU [Case C-399/09 Landtová] accidentally overlooked these facts which otherwise must lead to the conclusion of inapplicability of European law in the instant situation. As a result of this, an excess of the European body and a conduct ultra vires occurred. The Constitutional Court expressed the conviction that the false conclusions of the Court of Justice of the EU had resulted also from the insufficient, wrong and in this respect unprecedented statement of the government of the Czech Republic which itself had stated in the proceedings before the Court of Justice of the EU that the case-law of the Constitutional Court violates European law.


Federalism and Constitutionalism German Constitutional Court 2009

Cases 2 BvE 2/08 ect. As long as, consequently, no uniform

European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.


Federalism and Constitutionalism

In Germany, accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law.

There is no such act here. The European Union continues to constitute

a union of rule founded on international law, a union which is permanently supported by the intention of the sovereign Member States.


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