FREE MOVEMENT OF GOODS
crucial to EU law – we did it
EEC was about trade in the beginning.
treaty of Rome provided for free movement of workers
EEC was not an HR organisation. gradually HR Grew in importance
it is also key to EU
HR protected by E Convention HR, national constitutions,
characteristics of the convention system. specific court – E Court of HR. get there by using all domestic remedies
ECJ – value is the national courts must interpret law in keeping with its rulings
Strasbourg says you cannot prevent all prisoners from voting
in 1970s. ECJ said HR was not mentioned in the treaty but when we interpret European law we will try to ensure that EU law complies with E Convention HR
draw inspiration from common constitutional traditions of member states
second source – the convention
the point was that fundamental rights were used to interpret EU law
ECJ willing to expand its jurisdiction
EU law must comply with HR
Greek law said every programme had to be in Greek.
that hinders market access
provision of services was obstructed.
Greek government argued they needed to protect their language. public policy. national identity.
Greece can use a less onerous measure towards accomplishing the same objective.
breach of proportionality – internal market
HR was an issue. took away free expression and enjoyment.
if measure falls within the scope of the treaty then states must respect HR protection
there were other avenues that could have been taken that Greece had violated HR
defensive use of HR is sometimes the case. this is an offensive use of HR.
why apply protection of HR to domestic law? You have national courts and E Court Hr not for ECJ
for many years in reality the court never applied ELT. in reality in Greek case there was a sentence where they tried to respect HR
The court did not say Greece was breaching HR
ECJ did not adjudicate on HR issue
court mentions HR protection it does so softly sometimes
free tickets to spouses of workers
a woman was in a relationship with another woman
company does not give woman tickets for her girlfriend
Miss Grant says this is contrary to EU law.
equal pay for equal work between men and women
she argued said that equality applied to same sex relationships
Did ECJ agree?
interpreting non discrimination is interpreted on the basis of E Convention HR including sexual orientation.
marriage equality was not in national constitutions
in EU law there was no law about same sex marriages at the time
it could not stretch the law that much
the E Court of HR. ECJ said this was a political issue. question inadmissible.
before Charter of F R E U – the ECJ could not impose gay rights
during treaty of Nice negotiations. This charter was adopted
for 9 years before Lisbon the C F R E U was adopted but NOT legally adopted
ECJ referred to C F R E U as obiter dicta
Lisbon – article 6. says C F R E U has the same legal value as the treaty
charter has 50 articles
classic HR are there
right to life – habeas corpus – no torture – no death penalty – free speech
no discrimination on basis of race or sexual orientation
social rights – right to strike, collective bargaining, right of the elderly
principles. vague. clean environment
transparency – right to see documents
article 51. para 1. EU institutions must respect the charter and so do EU states
selling second hand cars. he was an employee of EU Parliament.. This was illegal. He was sacked on the spot. But there was no legal process.
the court did not dispute that he could be sacked but said he had to have an opportunity to defend himself
access to info – used by journalists
are all articles of charter relevant?
if you want to join the EU you must subscribe to many laws and the charter
protection of linguistic minorities
should Commission do something about the feebleness of the Polish constitutional court
charter applies when member states implement EU law
no massive impact on national law – only when implementing EU law
people get into litigation. has ECJ changed its attitude towards HR in the EU
look at a few examples.
sex equality. law and insurance . Test Achats – Belgian case.
banned by EU. any rule for charter. different premiums. the court could interpret those directives and say there was no discrimination.
first sign where the court says there were directive an C F R EU c- article 21 no discrimination.
Spaniard. His problem – bankruptcy
right to be forgotten. article saying he was bankrupt 20 years ago.’
Data Protection Directive. Spanish court asked for a preliminary ruling on this.
the preamble says it likes HR
Charter is now binding.
the national court must uphold these rights.
the directive is wrong because it does not protect privacy. the court says the directive is not compatible with Charter so you insert right to privacy into the directive.
directive is only compatible insofar as it protects fundamental rights.
if EU law is against the charter then it is invalid
ECJ is entitled to decide if a directive is consonant with the C F R E U
the right to allow people to have their references deleted
member states can adopt these. there can be limitations
there can be a judicial procedure to allow people to have their names removed
the court can redraft the directive. right to be forgotten. it is not in the directive
can a directive be interpreted if it has been altered by the ECJ. the court has always re drafted laws.
data protection must be in conformity with article 6 of C F R E U. EU agreements with US must be HR compliant
commission decision to agree with USA. Can ECJ strike it down?
commission has the power to sign agreements with other countries. It can only sign such agreements that are HR compatible. The bit that breaches right to privacy is severed.
Irish Authority must gives its citizen privacy
commission decision is annulled on grounds that it violates an article of the charter.
regulations must comply with C F R E U and so does national law
article 51 of c f r e u is binding on member states implementing EU law
Fransson 2013 – Swedish businessman did not pay tax. Penalties. He did not pay social contributions for employees and direct taxes. VAT evasion
found guilty. He challenged it. sentenced to
punishment too harsh. Two sentences.
VAT is an EU tax. every time member state acts within the scope of the treaty
what is outside scope of EU law? family law sometimes
Brussels Convention on child custody is an EU law
money laundering is an EU issue
if a national procedure collides with EU law then EU law prevail
German wine. advertised as easy to digest.
competitor says this is false. it is not scientific or true
one of the points raised that somehow the fact that the company was probably prevented to use ”easy to digest” could have had an impact on free movement of goods
linked to free movement of goods
do we need to discuss charter? free speech. right to property. All in C F R E U
I am entitled to rely on charter. rights have been violated
there is an argument based on charter. health is a right. so people advertising the wine claimed C F R E U is on their side.