Inter-Locking Legal Orders: The Protection of Fundamental Human Rights

The EU & Domestic Law: Human Rights Protection

When the EU was formed in 1957, there was no mention of human rights. This EU legal
order, despite the absence of any spoken commitment to human rights very quickly declared
itself as a supreme legal order – supremacy for its foundational treaties & also for the
legislative instruments used by its institutions. What was the EEC evolved into something not
quite an intl order...something in between.
C 6/64 Costa v. ENEL
*quoted on handout*

 The principle of the supremacy of Community law. Made clear, as time went on, that
the principle was absolute. Supreme over earlier incompatible member state
legislation, and later incompatible MS legislation.
 All Community law is supreme over all national law. Lowliest piece of Community
law will prevail over the highest piece of national law, even bits of national
constitutions which, accordingly to the constitutions are mandatory and cannot be
derogated from.

Not all MSs and MS courts were completely happy with this. UK has been pretty
good with complying with EU law.
Some constitutional courts of other states were much more upset with the robustness
of the principle than the UK:
Eg, the German constitutional court: Internationale Handelsgesellschaft [1974] 2 CMLR
540 *quoted pg 1*.

 Court essentially being asked to set aside part of their constitution which was
incompatible with Community law.
 Response: the Community had no democratically elected Pmt, no catalogue of rights,
therefore, in the hypothetical case of a conflict, the guaranteed rights on the German
constitution prevail.
 No real way of mediating between the two separate systems...possibly of stale mate,
or the very real possibility of conflict...German court refusing to apply EU law.
Next: activist corps of the EU tries to find a way of calming the fears of the GCC whilst still
not compromising the authority of the supremacy of EU law.
How? In essence, by inventing what they called a “General Principle of European Law
relating to the protection of fundamental rights”. These words don’t appear in the treaty,
hence ‘invent’.

Case 11/70 Internationale Handelsgesellschaft

 First sentence...coincidence...not mentioned in the treaty. Has it been all this time &
nobody’s realised?
 EU inspired by the constitutional traditions of the member states, but within the
framework of the structures and objectives of the Community (last sentence).
 EU guarantees protection for fundamental rights...EU retains its supremacy.
The best effort of the EU court to calm the German worries. Did it do enough to silence the
serious concerns of the German Constitutional Court?
Wünsche Handelgesellschaft [1987] 3 CMLRev. 225 (BverfG) “The Solange Case”
Suggests the European court has done enough. Known as the solange case (“so long as” – use
this name in the exam!!)

 “in general”...“substantially similar”...the German constitutional court said that

contingently, for as long as this situation holds true, they will refrain from reviewing
the legality of EU law from the point of the view of the standards laid down in the
German constitutional.
 Satisfied at a systemic level that what the EU does from the point of protecting HR is,
in essence, equivalent (may not be the same) to what the German constitutional court
do when giving effect to the fundamental rights protection enshrined in the
constitution. Will no longer threaten to challenge conflicting EU law.
 But, will make it clear that they’re watching the EU (got my eye on you) and if they
determine that the level of HR protection that the EU has in general put in place falls
short of German standards, then will go back to their earlier position.

What we’ve seen is that the threat of potential review of constitutionality, and of EU law – a
threat to the supremacy of EU law – created an incentive for the ECJ to take its
responsibilities in relation to HR seriously. So seriously that it invents a general principle of
EU law. The existence of contested hierarchies of law actually turned out to create quite
fruitful tensions.
Competing claims to supremacy certainly led to the possibility of conflict, but that possibility
in the end, on this occasion, resulted in a productive transformation of both of the legal orders
– neither emerged looking exactly the same. Ger deference to EU legal system. Subject to
continuous monitoring. Legal pluralism and unsettled hierarchy can operate as a catalyst
for the emergence of new norms.

General principles
 One source of inspiration is constitutional traditions of member states.
 Another are international human rights agreements to which the member states are
party, or on which they have collaborated (at the time, France has participated in the
drafting of, but had not ratified, the European Convention on Human Rights). Inter-
locking legal orders (ding dong). ECJ has referred to several other international
agreement like the UN Charter on Civil & Political Rights, and other European HR
instruments like the Social Charter (part of the Council of Europe landscape) and also
the EU Zone Charter of fundamental rights.
 General principle of EU law relating to HR is binding on the European institutions,
and also binding (sometimes – when ‘acting within the scope of Community law eg,
when implementing a directive, or trying to derogate from Community law) on the
member states – a new principle of European law in domestic settings.
Application of the general principle
Case C-404/02 X v Commission *pg 3 of handout*
Mr X worked for the EU Commission on a freelance basis, and wanted to become
employed on a full time basis. In order to do so, he was required to undergo a medical
examination, which he agreed to, but said he did not want to be screened for HIV/AIDS.
Afterwards, the Commission’s doctor contacted X’s doctor, to say X was suffering from
AIDS. X argued he had been subjected to a disguised AIDS test – other biological tests
which allowed the Commission doctor to identify AIDS symptoms. Carrying out of this test
was a breach of his right to respect of a family life as in Article 8 of the European Convention
on Human Right.

 ECJ found the above right was indeed on the rights protected by the EU legal order.
Includes a right to keep one’s state of health secret.
 However, the ECJ predictably enough went on the say that the right is not absolute,
but that restrictions may be imposed so long as the restrictions seek to protect an
objective of general public interest, and so long as the restriction are not a
disproportionate interference with the right, relative to the objective which is being
pursued. Proportionality often arises as a key issue in justifying member states’
activities..?
 Commission’s pre-medical procedures were a legitimate interest. But, this did not
justify carrying out a medical test which was against the will of the individual
concerned. *quote on handout*.
 But, on the basis of your refusal, the institution can refuse to give you a job. Complex
balancing of personal rights and objectives...

The EU and International Law: Human Rights Protection

Case T-315/01 Kadi – difficult case, don’t get massively stressed over it...even Joanne
thinks it hard hey.
Background is essentially the ‘War on Terror’. 11/09 Security Council passed a
resolution to combat terrorism by any means. *look up who* Able to identifying individuals
whose finances were to be frozen as a result of suspected terrorist activities – they were to be
put on The Consolidated List. Decisions as to who was put on list and decisions to instruct to
give effect to freezing were taken by way of UN SC resolutions. SC resolutions claim
primacy as a matter of intl law – Article 25 *quoted* and Article 103 *also quoted*.
Mr Kadi was a Saudi Arabian national with substantial assets within the EU – listed as a
person whose assets were to be frozen. This was the EU giving effect to the SC resolution.
Kadi went to the Court of First Instance (now called the General Court, under Lisbon), then
on appeal to the ECJ. Focus on the ECJ for reading. Mr Kadi sought judicial review of the
EU regulation freezing his assets for a number of reasons:
o Breach of the right to property
o Breach of right to fair hearing
o Breach of right to judicial remedy.
o He had been given no opportunity to make his views known, or to be heard before or
after the decision to freeze his assets had been taken. Was not provided with any
reasons, nor presented with any of the evidence which was said to underpin the
decision to include him on the Consolidated List.
 Court of First Instance decided it was bound to give effect to SC resolutions, and
respect the claim to supremacy which the SC puts forward on its own part. Its
resolutions are supreme. Given that this is the case, the CFI said that they were
precluded from reviewing the legality of the EC regulation which gives effect to that
SC resolution. If they were to review the legality of that, they would be, for all
practical purposes, also be reviewing the legality of the SC resolution. Formally, they
would only be reviewing the EC action, but given that the EC did not exercise any
discretion in giving effect to the SC resolution, they would effectively be reviewing
the SC resolution, for which they did not have jurisdiction.
 Set aside the body of EU law concerned with the protection of fundamental rights,
and would not apply it in the circumstances of the case. Not subjected to the legality
benchmark...
 CFI also said that they were going to judicially review the EC regulation (and by
inference, the legality of the SC regulation), but only on the basis of the standard of
HR protection laid down by jus cogens norms.
 CFI upholds the legality of the EC regulation, and concludes that there is no breach of
HR on the basis of jus cogens norms.
 ECJ – *paras 281, 282, 284, 285 on handout*. Said that the UN Charter is a mere
international agreement...general principles of EU law are binding on the institutions
of the EU, taking precedence over other conflicting orders... EU not authorised to
derogate from the principles of democracy, liberty & respect for human rights.
International agreements cannot take supremacy over what the court calls ‘primary’
Community law – the EC treaties. General principle relating to HR is treated by the
ECJ is treated as part of the primary law of the EC. UN may think that its Charter is
supreme, but the ECJ says that the treaties establishing the European Community
stand supreme, even over public international law which is binding on the
Community.
 ECJ found that the EU general principle for the protection of fundamental
rights had been breached. Annulled the regulation, but not immediately. It sttood for
3 months, to give the EC time to adopt another regulation in a better way – Mr Kadi
given info and evidence etc. Mr Kadi’s name (surprise surprise) remained on the list.
Who got it right? Vast majority of commentators say that the ECJ got it right. In this
case, the UN was not, one can argue, acting well. Hadn’t got in place provisions for
reasons to be given etc.
There are a few who stand against it, however:

*De Burca – quoted on handout*.

 CFI adopts a strong constitutionalist approach. In doing this, it gives too little
respect to EU law – bows down too quickly.
 The ECJ, by contrast, adopts a robustly pluralist approach, Emphasises the
autonomy of the EU legal law – privileges EU law at the expense of intl law.
Based on a line of reasoning which reflects only the values and internal
dynamics of the EU legal system.
 Parochial. Chauvinistic. Insular. Disregarding of & blind to, the international
legal context in which its decision takes shape. No mutual influence and
engagement.

Goldsmith & Posner - *don’t often see EU judgments being discussed in the Wall St
Journal...*
Medellin v Texas 552 US * look at link*
Medellin was a Mexican national who gang raped and murdered a girl in Texas – “not a
nice man”. Goes to domestic courts, and he asked to rely on domestic conventions? Think
this sentence is wrong...more likely, I think, that he asked to rely on intl norms in a domestic
court (ties in with direct effect???) but I didn’t hear/wasn’t listening.

 Texas court says no way, and Supreme Court agrees. Do not confer individual rights
to protection.
What does De Burca want?

 For the ECJ in Kadi to have done something similar to the Solange case – adopted the
stance that the German constitutional court adopted. That is to say, to express a
willingness to strike down in principle the international law (SC resolution and EC
regulations giving effect) on the basis of HR deficiencies, but only where the system
does not incorporate mechanisms which are, in general, broadly similar or equivalent
to the level of protection provided in EU law.
 Continuous monitoring of whether the level of protection is adequate.
 An approach which isn’t based on clear hierarchy – not EU vs. International – both
have a legitimate claim. But would favour a system of mutual monitoring, mutual
dialogue and mutual engagement. A spirit intended to create mutual understanding
between the parties. About politics in part – you ‘shop’ for the jurisdiction which
gives the best result? Not quite sure what that one means...