Question 3. EU law scheme of protecting HR.


Question 3 ‘The attraction of an EU law scheme of protection of human rights risks sacrificing the national, legal, historical, and cultural traditions that characterise the pluralistic nature of Europe. The Court of Justice of the European Union (CJEU) should reflect very seriously on how to use the Charter of Fundamental Rights.’ Discuss.


The EU sometimes uses unitas in diversitas as its motto. The EU is a unique political, economic and judicial experiment. It takes advanced democracies and unites them in many ways yet still allows them some autonomy in their national territory. This is why gay marriage is allowed in some states such as France but not others like Romania. Elective Abortion is permitted in some states and prohibited in others such as Ireland and Poland.

Some people believe the EU will harmonise too much. The European Court of Justice will impose the same laws in each state. The European Convention on Human Rights has a European dimension as in rights are the same in each country. This would lead to laws being identical since all states must abide by the rulings of the European Court of Human Rights. The same could be said of the European Charter of Fundamental Freedoms.

The EU often seeks to harmonise things. The preamble of the treaty of Rome spoke of ”ever closer union of the peoples of Europe.” SOme emphasise this is of the peoples and not the states. But perhaps that is hair splitting. The acquis communitaire entails countries sharing sovereignty. A competence once ceded to the EU can never be repatriated.

In the case of Viking Line Abp v International Transport Workers the court held that the right to strike could infringe freedom of establishment. This 2007 case was seen as anti trades union. This is how some regard it as undermining human rights.

In Test Achats this insurance company was not allowed to use gender statistical information to set variable premiums. This was an anti discrimination measure so some say it advanced human rights. On the other hand it restricted freedom to run a business.

In Google Spain the ECJ ruled that there was a right to be forgotten. This came from the right to privacy on the ECHR. Yet this intruded on freedom of information. It also was bad for commerce and intellectual property.

Human rights are often about clashes of claims. It is very hard to say whether a decision advances human rights or retards the concept. The ECJ and ECHR by making the same law for the whole EU restrict diversity in terms of culture and philosophical tradition. Some people especially the liberal left think the courts have not been assertive enough in imposing liberal left standards on all states.

National constitutional courts can ask for references from the ECJ if an issue has not been settled. The ECJ sometimes refuses if the issue is too trivial or has already been dealt with. National courts are obliged to interpret national law in consonance with community law.

The furtherance of Human Rights in the EU with regard to the Charter of Fudamental Rights is laudable. However, too much homogenisation will mean that the cultural and philosophical variety within the EU will be degraded. We will all become a uniform and sterile mass. There must be room for different laws in different states. The EU allows this in directives so it should in other areas of life. In fact there EU permits very little diversity.






General remarks This question tests your knowledge of some very important recent developments: the Charter and the fast-developing case law of the Court. Law cases, reports and other references the examiners would expect you to use Case C-438/05 Viking Line Abp [2007] ECR I-10779; Case C-236/09 Association belge des Consommateurs Test-Achats ASBL v Conseil des ministres; Case C- 617/10 Fransson; Case C-544/10 Deutsches Weintor; Case C-131/12 Google Spain; Case C-399/11 Melloni; Charter of Fundamental Rights. Common errors Limiting discussion to human rights protection as a general principle with no mention of the Charter. Giving a merely political answer on the role of human rights in the world. A good answer to this question would… analyse recent judgments such as Google Spain (right of privacy) or others such as Test Achats (no discrimination) where the Court used the Charter as a legality benchmark for EU law. Specific attention would be devoted to Article 51 of the Charter dealing with the binding effect of the Charter and its impact on national law (Fransson). The impact on the national clauses of human rights protection should then be discussed (see Melloni). Some considerations on the role of the ECJ relating to national constitutional courts or the ECHR could be included.


About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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