European Union and Human Rights Laws – Global Law Essay
‘Does European Union Law(EU law) sufficiently protect human right of an individual when infringed by domestic law?’, ‘When EU Law infringes human rights, are they
sufficiently protected?’ I think ‘Sufficient’ protection is only given , if it is more than the protection given by member states and since the Community/Union has assumed supranational power, the standard should be of at least compatible with the ECHR .
There is no provision in the EEC Treaty until the Treaty of European Union(TEU) which referred to respect for human rights and amendments of Treaty of Amsterdam (TA) declaring that the foundation of the Union is based on the respect for human rights and imposing threat of suspension on Member States rights if in breach . But since 1969, the European Court of Justice do assume to recognize the humans rights in the ECHR , international treaties and national legislation and declare that it draws its ‘inspiration ’ from them and measures incompatible cannot be upheld. Recently a draft ‘Charter on Fundamental Rights has been adopted and is supposed to have full legal effect, although it has not found a legal status, at least till the IGC this year. For clarification, I would like to separate the past into pre-TEU and post-TEU and the present as the status after the adoption of the draft ‘Charter’.
In the past, the court has given more priority to community law than human rights even if they were protected by national legislation, international treaties and the ECHR. In Storks’ the claimant ‘rights of undertaking; were protected by German Constitutional law, but the Higher Authority refused to acknowledge it . In Stauders , the Court did recognize ‘rights to dignity’, and allowed ‘variation in the method of checking beneficiaries particulars.’ In International Fruit, the Court refused to accept the fundamental rights conferred under international treaties. The court had continued to accept fundamental rights sometimes and reject it sometime . Sometimes it had respected the fundamental rights in the constitution of the member states and the ECHR and sometime not .Even after TEU, there is no change in the Court’s attitude. In some cases the Court has respected human rights while in others not. Therefore, it is not the treaties or the ‘inspirations’ which the Court relies on to respect fundamental rights and in fact reference to it are only made for mere lip service, to justify their judgment or to sugar coat judgments which are absurd in light of fundamental rights. I think it would be more illuminating, to consider the circumstances and underlying reason for the court rejection and acceptance to see if fundamental rights are sufficiently protected.
In the past, the European Courts has only upheld individuals claim of human rights in domestic courts, if the claim is within the ambit of EU law. In Defrenne , the Court declared that it has no jurisdiction . Similarly in Grogan and ERT . In Demirel , the ECJ said that the Treaty’ does not empower the community to guarantee commitments towards non-member country’. In the contrary, in similar claims by nationals of other member states, the Court has been more receptive . When the Court extends protection to an individuals claim of domestic infringement, it is only to protect rights conferred by EU legislation . The rights conferred under the directive may be in line with the European Convention on Human Right, but if one can remember the history of the treaties, the treaties was for their objective of ‘a common market’ and the ‘integration of Europe’ and not for the ‘protection of fundamental right’. I think it is a grave misjudgment, to conclude that by protecting rights in line with their aim, EU law ‘sufficiently protects’ fundamental human rights. EU law do not go the extra mile to really protect human rights which are infringed outside community law, but rather protect the rights conferred by EU Law and to ensure that the member states implements EU Law .
The Courts have respected fundamental rights in staff cases . Staff cases involve internal management, where there is no issue of conflicting national legislation, EU law or Community’s objectives. By rendering protection it does not reduce their supremacy. How far ‘human rights’ are protected can only be seen in cases where the rights clearly conflicts EU Law and it objectives and threatens the existence of EU legislation and its supremacy?
Human Rights v Community Aims and objectives
In Germany v Council, although imposing a higher tax duty on imports of bananas from Third Countries is a clear breach of one’s right to property and freedom to pursue a trade or a profession, the court held that ‘ it may be restricted particularly in the context of a common organization market’.
In Haver, although by preventing the owner of a land to cultivate vines on it, EU law restricted one’s right to use his property, the Court justified it .
HR vs legality of EU law
EU law has never respected :the right to a fair trial” by refusing locus standi for direct actions which have been criticized by the Courts themselves.
HR vs institutions action and decisions.
In cases like Dow Benelux, Dow Chemical, the actions of the Commission , clearly infringed the applicants rights of defence, but the Court jusitified it as ‘ action as within its power’.
In Orkem , the commission’s decision to obtain further documents, after having conducted a search to substantiate the allegations was held to be within the scope of their power, although they clearly contravene the claimants rights to remain silent and self incrimination. These rights are fundamental in criminal proceedings and to deny this rights is too grave a breach. If the allegations by the commissions are proved, the claimant would be fined and therefore it cannot be differentiated from criminal proceedings. If criminals can have the rights, I cannot see the justification as to why the right cannot be given in cases involving infringement of community law, a law merely for economical reason.
I think the EC rules on Competition are infringements of an individual’s freedom to conduct his business activity. I cannot see what is wrong if a seller should give discounts to increase his sales , which is common in every market and it is fundamentally wrong to impose restriction. The commissions’ actions to control competition are aggravating the breach of those rights and the Courts by justifying the Commissions thrashes out such rights.
In Case T 18/96 , 45 months of delay by the commission to act was upheld to be reasonable, while in ECHR it had been held that 17 months exceeds a reasonable time .
Human rights vs Administrative convenience
Any reasonable man would know that the deposit system, in Handelsgesllschaft , is unfair as no producers can predict his production, but the ECJ held that the deposit system is necessary for administrative convenience .
Human rights vs the supremacy of European Union
In the International Fruit case , the Court, to protect the supremacy of EU law and to prevent the striking off of the EC regulation, restricting the right to import apples from third country, concluded that GATT was ‘not capable of conferring on citizens of the Community rights which they can invoke before the courts’, while Directives can confers rights directly to the citizens of Member States . .
In Nold, the Court claimed that the applicants condition was because of the economic change and not the commissions decision, but the claimant in Nold was in the same situation as the claimant in Stork. In Stork it rejected the claim on grounds of supremacy of Community Law, and by referring to respect for fundamental rights and putting the blame on economic changes in Nold, it is obviously an underhand method to maintain its supremacy.
Of course there are cases where the court has given priority to fundamental rights , but those cases are clearly where the commission is at fault or has exercised their discretion in excess of their power . The limited cases where human rights are protected should not be construed as sufficient, because if not for EU law, the human rights would not have been infringed, therefore the Court should protect the rights above the community interest of ‘a common market’.
After the adoption of the ‘Charter’, the Court and institution has shown some changes in its attitude. By an international decision , the commission has decided to form a compatibility review of it legislative proposal with the Charter. The Court had made reference to the Charter . It had rejected the inadmissibility argument by the commission and gave locus standi to an applicant to bring nullity proceeding against directives , rejected council’s and commissions refusal to grant access to documents . In domestic cases like, Carpenter , the ECJ gave opinion that ‘the decision to deport’ infringes the right of an overstayed philipine wife of a British National, to respect for her family life, although it recognizes that ‘the situation is rather to be classified as an international situtation, depends exclusively on UK’. Similarly in Baumbast . In Case 117/01 , the Court finds that there is inequality treatment which, although it does not directly undermine enjoyment of a right protected by Community Law’. But in some cases it has rejected claims of human rights. Therefore I cannot conclude that the Court has finally put human rights above community interest.
Will the Charter and a constitution of Europe give sufficient protection to fundamental human rights? I don’t think codification of the treaties and the Charter into a written constitution, provides any kind of extra protection for human rights. It just gives a legal basis for the communities actions so that their validity cannot be challenged. It just eliminates the concept that Community Law is intended for a ‘common market’ and not to preserve human rights and the Courts need not have to draw their inspiration from ECHR because they have their own Charter. It is an attempt to preserve its supremacy . A look at the Charter shows that some rights specified there are rights rarely in conflict in the context of Community law , and some are rights which are already protected by the EC treaties , while some are re-enforcement of the objectives of the Union . Those rights which were often in conflict with the EU Law , have been subject to limitations and all other rights which are not specifically limited are subject to limitations on the “principle of proportionality” . The Charter is subjecting human rights to EU law and the discretion is on the European Court as to whether human right should prevail over EU law. European Union which cannot be literally called democratic, especially the commission, are not answerable for their decisions to the electorates of member states . When EU law infringes human rights in the future, the European Court should not be placed in a position to decide which one to give priority to, because one can never expect an impartial decision if the person who is making the decision has an interest in it. Sadly, any infringement of fundamental Human Rights by EU law cannot be brought against the Union in ECtHR as European Union is not a signatory. Therefore I don’t think the position would be any better than what it was in the past and I fear that the exercise and abuse of power by the Union is not being capable of being challenged after having entrenched the EU law in a constitutional document to which all member states are signatories. Article 51 states that the Charter is only applicable in the application of Union law. Therefore it is doubtfully that it provides a remedy for individuals whose rights are infringed by domestic law.
As discussed, despite the Court’s claim of ‘inspiration’ derived from national legislation and ECHR, it has been more concern on the objective, functioning and supremacy of the EU rather than giving ‘sufficient’ protection for Human Rights, even if protected by other legislations. The ‘Charter’ cannot be triumphed as a solution as it is not an incorporation of ECHR in EU law. The only way fundamental rights can be sufficiently protected I EU law is to have an independent Court, not subjected to EU law, if possible ECtHR to have jurisdiction over European Court and EU related human right issues.
1 The General Provisions of the Charter of Fundamental Rights of the European Union, R Alonso Garcia
2 Mapping Hunam Rihts, Reading the European Union, Andrew Williams
3 The duty to protect fundamental rights in the European Community, Liv Jaeckel
4 The Foundations of European Community Law, Hartley.
5 EU Law, Text, Cases and Materials, Craig and De Burca