Recent Developments in European Union Constitutional Law and

Recent Developments in European Union Constitutional Law and their Impact on the Individual selected theses for lecture and discussion The John Marshall Law School November 18, 2008 Vaclav Stehlik, Ph. D. , LL. M. Palacky University in Olomouc Law School Czech Republic stehlikvac@seznam. cz

Historical background - 9 May 1950 — Schuman declaration – a plan for deeper cooperation esp. between France and Germany - in the 50 s suggestions to found European Economic Community, European Political Community, European Defense Community

European Communities - European Coal and Steel Community [1951/1952, founded for 50 years, expired in 2002] - European Economic Community [1957/1958] - European Community for Atomic Energy - Euratom [1957/1958] Founding states - Germany, France, Italy, Belgium, the Netherlands, Luxembourg [Benelux] Purpose of founding the European Communities - economic - political

Founding Treaties revisions Main ratified Treaties revisions: - Single European Act [1986, in force 1987] - Treaty on the European Union [1992, in force 1993] - Amsterdam Treaty [1997, in force 1999] - Treaty of Nice [2001, in force 2003] Proposed Treaties Revisions - Treaty establishing a constitution for Europe [2004, did not enter in force] - Lisbon Treaty [2007, not yet in force]

Enlargements 1973 Great Britain, Ireland, Denmark 1981 Greece 1995 Austria, Finland, Sweden 2004 Central European countries Poland, Hungary, Slovak Republic, Czech Republic Baltic States Latvia, Lithuania, Estonia Mediterranean Cyprus, Malta Balkan Slovenia 2007 Bulgaria, Romania

Council of Europe - 47 Members States - political organization distinct form the EU - European Convention on Human Rights [1950], European Court of Human Rights - since 1998 by Protocol no. 11 direct access to the Court for 800 million Europeans

Individuals and EU Law EC law – character Doctrine of supremacy [primacy] of EC law over national law - case 6/64 Costa v. E. N. E. L. - EC law distinct from the international public law - EC law binding not only to Member States but also to nationals of Member States - individuals can have rights and obligations stemming from the EC law

Direct effect of EC law - case 26/62 Van Gend en Loos - EC law is source of rights and obligations of individuals - ECJ defines direct effect in relation to individual sources of EC law: - EC treaties - regulations - directives - decisions

Recent constitutional developments Treaty establishing a constitution for Europe [EU Constitution] - Article I-6 “The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States. ” - Declaration annexed to the Constitution “The Conference notes that Article I-6 reflects existing case-law of the Court of Justice of the European Communities and of the Court of First Instance. ” Lisbon Treaty - no specific provision on supremacy in the Treaty itself - Declaration (No. 17) of the Conference concerning the principle of primacy of EC law over national law

EU law and human rights - originally nothing in the Treaties - European Communities founded as international economic organizations - project of the European Political Community - in Europe international protection of human rights especially within the Council of Europe [European Court of Human Rights]

European Court of Justice and human rights Initial approach - resistance to protect human rights at the EC level - rights claimed were of domestic origin - case - 1/58 Stork - 36 -40/59 Geitling - 40/64 Sgarlatta

Change of approach of the ECJ - 26/69 Stauder v. City of Ulm: “The provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court. ”

Fundamental rights as grounds for annulment of Community law Can national constitutional law provisions override the EC law? Case 11/70 Internationale Handelsgesellschaft ECJ: “The validity of such [e. g. adopted by the Community institutions] measures can only be judged in the light of Community law. In fact the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community law itself being called in question. ” - conflict between national [human rights] law and EC law - supremacy of EC law over national [constitutional] law confirmed

Fundamental rights and national courts – a challenge to EC law supremacy German Federal Constitutional Court - case Internationale Handelsgesellschaft [Solange I] Latest development: Czech Constitutional Court - Sugar Quotas Case 2006

The sources of fundamental rights derived by the ECJ defined the sources of inspiration for human rights at the EU level: - constitutional traditions common to the Member States - international treaties for the protection of human rights on which the Member States have collaborated or of which they are parties [4/73 Nold, 44/79 Hauer, 149/77 Defrenne v. Sabena – Convention no. 111 of the ILO, other examples: International Covenant on Civil and Political Rights, European Social Charter] - different degrees of protection for different rights [case Grogan]

Are the Member States bound by the EU law human rights standards? Several model situations: - Member States applying provisions of Community law [36/75 Rutili] - Member States acting as agents of Community law [5/88 Wachauf] - Member States derogating from Community law requirements [C-260/89 ERT] German Federal Constitutional Court - case Solange II

Fundamental rights and the role of the institutions 1970 s-80 s - reactions of political institutions to the ECJ’s decisions - various declarations, resolutions - f. e. Declaration of Fundamental Rights and Freedoms by the European Parliament [1989] - Community Charter of Fundamental Social Rights signed by the MSs [1989]

Development in 1990 s Changes in primary law New articles by Treaty on the European Union, modified by Amsterdam Treaty Art. 6 TEU 1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. Art. 7 - EU actions in case of a clear risk of a serious breach by a Member State of principles mentioned in Article 6(1) European Court of Justice ECJ’ s Opinion 1/94 on Accession by the Community to the ECHR - no legal basis in the Treaties enabling the accession

Development since 2000 EU Charter of Fundamental Rights - adopted in Nice, France, in December 2000 - not legally binding - common declaration of the EU Commission, EU Parliament and the EU Council - gives a list of fundamental rights which should be respected in the EU action - covers both political, social and economic rights for EU citizens

Problem questions about Charter - what are its effects to EU institutions and individuals? - what are its effects to the Member States? - what is its relation to the European Convention for the Protection of Human Rights? - what is the importance of the case-law of the CFI, ECJ in relation to the legal status of the Charter?

Treaty establishing a constitution for Europe and human rights - EU Charter of Fundamental Rights - part II of the EU Constitution - EU Charter would become primary law - Charter would become binding to EU institutions and Members States when applying the EU law Questions: - how would the human rights protection change? - how would the relationship between national and EU law change?

Lisbon Treaty and Human Rights Article 6 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.

Under the Lisbon Treaty: - EU Charter is not directly part of the Treaties, only a reference to it in the text - article 6 of the Treaty on European Union elevates the Charter to the same legal value as the primary law - in an attached protocol, Poland the United Kingdom have opt-outs from these provisions of the Treaty - EU will accede to the European Convention

What future for the EU law protection of Human rights? Optimistic prospect: - the EU Charter becomes legally binding - the EU accedes to the European Convention on Human Rights Status quo prospect: - the status quo will be preserved [Lisbon Treaty not ratified] Pessimistic prospect: - possible conflicts with the Member States legal orders? [Constitutional and Supreme Courts` decisions]

EU judicial system and the individuals At the national level: - preliminary ruling procedure – art. 234 TEC - direct effect of the Charter (? ) At the EU level: - actions against Member States for the breach of EC law (art. 226 TEC) - actions claiming illegality of acts of EU institutions (art. 230 TEC) - actions for failure to act of EU institutions (art. 232 TEC) - actions against Member States in case of a risk of a serious breach of human rights - Art. 7 TEU

Summary - though founded as economic organizations, by the scope of their activities the European Communities broadly interfere with the domain of individuals - through the principle of supremacy and direct effect the EC law directly effects rights and obligations of individuals - human rights protection through the dialogue between national courts and ECJ and the activities of political institutions became a priority issue in the recent EU agenda - individual claims are articulated both through national and EU level courts

Selected bibliography Craig, P. , de Burca, G. : EU Law: text, case and materials, 3 rd ed. , Oxford UP, 2003 Siskova, N. , Stehlik, V: Ustavni zaklady EU, Linde, Praha, 2007 Dashwood, A. , et all. : European Union Law, Thompson, Sweet and Maxwell, 5 th ed. , Lonodn 2006 www. wikipeadia. cz www. europa. eu