How the CJEU uses the Charter of Fundamental Rights

Aidan O’Neill QC

In the first of two blog posts, Aidan O’Neill QC considers the growing body of case law regarding the CJEU’s use of the Charter of Fundamental Rights.

Introduction

Since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”)  with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments.  A recent search of the CURIA database reveals that the Charter of Fundamental Rights has been referred to in Judgments of the Court of Justice and of the General Court in over 250 cases.  This does not take into account the times when the Charter has been referred to and relied upon in Opinions of the Advocates General or in decisions of the EU’s Civil Service Employment Tribunal.

It is clear therefore that any understanding of the intent and effect of EU law has now to be done against a background of an understanding of the terms of the EU Charter of Fundamental Rights, as interpreted by the CJEU.

And of course, a proper understanding of the Charter’s provisions also necessarily requires a proper understanding of the relevant Strasbourg jurisprudence since Article 52(3) of the Charter requires that those Charter rights which correspond to rights already guaranteed by the ECHR be given the same meaning and scope as, and no lesser degree of protection than, provided under the ECHR. In Case C-400/10 PPU J McB v LE, 5 October, [2010] ECR I-nyr at para 53, the CJEU ruled that where Charter rights paralleled ECHR rights, the Court of Justice should follow any clear and constant jurisprudence of the European Court of Human Rights, noting that:

It is clear that the said Article 7 [of the EU Charter] contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights (see, by analogy, Case C‑450/06 Varec [2008] ECR I‑581, paragraph 48).

This, it is suggested, will inevitably have the result that EU law and ECHR law will increasingly come to be seen as “a single, converging legal system” (see for example the Handbook on European non-discrimination law) which has been produced by the EU’s Agency for Fundamental Rights together with the European Court of Human Rights with the express purpose of drawing together Strasbourg and Luxembourg equality law case law.)

A brief survey of the ever burgeoning Charter jurisprudence shows that the CJEU uses the Charter as a source of general principles of the EU against which provisions of Directive and EU regulations (and provisions of EU soft law) have to be interpreted and applied.  Indeed, the rights set out in the Charter appear to be being treated by the European Court as the paramount provisions of the EU against which even primary provisions of the EU law in the Treaties may be measured and assessed. And unsurprisingly, perhaps, given the Court’s continuing history of “discovering” fundamental rights as unwritten general principle of EU law (see for example Case C-114/04 Mangold [2005] ECR I-9981; and Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co KG, [2010] ECR I-nyr on age discrimination as an unwritten general principle), the express provisions of the Charter are not seen as confining the Court of Justice.   Instead the Luxembourg Court maintains its “dynamic” approach, with the express rights set out in the Charter being seen as the starting point of any consideration of EU law, rather than an end-point of discussions as to the nature, extent and effect of EU law.

To illustrate the impact of the Charter we may look at a selection of cases from Luxembourg over the past six months or so where the Charter has been referred to and relied upon by the Court.

Hearing the other side and giving reasons – Articles 41 CFR and 47 CFR

In Case C‑27/09 P French Republic v. People’s Mojahedin Organization of Iran [2011] ECR I-nyr the Court of Justice upheld that fundamental right, expressly affirmed in in Article 41(2)(a) CFR, to be given prior notification of incriminating evidence and of the right to make representations before the adoption of  restrictive measures (in this case an asset freezing order)  The purpose of the rule was both to ensure the authority concerned effectively took into account all relevant information and to allow the addressee to correct any errors or produce such information relating to his personal circumstances as would tell in favour of the decision’s not being adopted.

In Case C‑221/09 AJD Tuna Ltd v Direttur tal-Agrikoltura u s-Sajd [2011] ECR I-nyr in the context of a challenge to an emergency regulation limiting tuna catches under and in terms of the common Fisheries Policy the Court confirmed that the Article 41 CFR right to be heard (audi alteram partem) applied only in relation to individual administrative decisions and not to regulations of general application.

But the principle of stating reasons for the acts of public authorities – as laid down by the second paragraph of Article 296 TFEU and Article 41(2)(c) CFR – applied both in relation to individual administrative acts and acts of general legislation.  In relation to the latter the Court observed AJD Tuna Ltd v Direttur at paras 57-60 as follows:

“58. …. [T]he statement of reasons required by Article 296(2) TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296(2) TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, inter alia Case C‑5/01 Belgium v Commission [2002] ECR I‑11991, paragraph 68; Case C‑501/00 Spain v Commission [2004] ECR I‑6717, paragraph 73; and judgment of 5 March 2009 in Case C‑479/07 France v Council, paragraph 49).

59      It is also clear from settled case-law that the scope of the obligation to state reasons depends on the nature of the measure in question and that, in the case of measures of general application, the statement of reasons may be confined to indicating the general situation which led to its adoption and the general objectives which it is intended to achieve. In that context, the Court has ruled in particular that if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (see, inter alia, Case C‑168/98 Luxembourg v Parliament and Council [2000] ECR I-9131, paragraph 62; Case C‑361/01 P Kik v OHIM [2003] ECR I‑8283, paragraph 102; and Case C‑304/01 Spain v Commission [2004] ECR I‑7655, paragraph 51).

60     The Court has also held that the obligation to state reasons laid down in Article 296(2) TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see, to that effect, Case C‑113/00 Spain v Commission [2002] ECR I‑7601, paragraph 47, and France v Council, paragraph 50).”

Similarly in the Joined Cases T‑439/10 and T‑440/10 Fulmen and Fereydoun Mahmoudian v. Council [2012] ECI-nyr at para 87 the CJUE observed

“87      The principle of effective judicial protection is a general principle of European Union law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and in Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2007 C 303, p. 1).

The effectiveness of judicial review means that the European Union authority in question is bound to communicate the grounds for a restrictive measure to the entity concerned, so far as possible, either when that measure is adopted or, at the very least, as swiftly as possible after that decision, in order to enable the entity concerned to exercise, within the periods prescribed, their right to bring an action.

Observance of that obligation to communicate the grounds is necessary both to enable the persons to whom restrictive measures are addressed to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the courts of the European Union, and also to put the latter fully in a position to carry out the review of the lawfulness of the measure in question which is the duty of those courts.” 

 “Driving licence tourism” and road rage

In Case C‑467/10 Baris Akyüz v. Germany 1 March [2012] ECR I-nyr the Court rejected arguments by the German Government that Charter considerations – in particular the right to life, the right to integrity of the person and the right to property, reaffirmed in Articles 2, 3 and 17 CFR – were sufficient to give Member State the authority to refuse to recognize the validity of an individual’s driving licence (obtained from Czech Republic) on the grounds that the German authorities considered that the driver, a German national, as a significant danger to other road users as  he had apparently been involved in a road rage incidents in Germany.

Right of exit from Member States

In See Case C‑434/10 Petar Aladzhov v Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti 17 November [2011] ECR I-nyr the Court considered the lawfulness of a prohibition under Bulgarian law on a Bulgarian national leaving Bulgarian territory because of non‑payment of a tax liability of a company of which he was a director.   Reference was made by the referring court to the right to freedom of movement under Articles 20 TFEU and 21 TFEU and Article 45(1) of the Charter of Fundamental Rights of the European Union.   Under the terms of the Citizenship (Free Movement) Directive 2004/38/EC ([2004] OJ L158/77) (which consolidates, in a single text, the EU legislation governing the right of EU citizens and their family members to move and reside freely within the territory of the Member States) an EU citizen has the right to leave the territory of a Member State to travel to another member State, Article 4 of the Directive stating:

Article 4 – Right of exit

  1. “Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.”

This “right of exit” was found by the Court in Aladzhov  (at paras 24-7) to be a directly effective EU law right which may be claimed by an EU citizen against the Member State of his or her own nationality (at paras 24-27).   Thus the Member State  can only exercise its powers to impede this right of its own national and that of other EU citizens to exit from their territory in a manner which confirms to the requirements and general principles of EU law, as the CJEU noted in in Case C‑430/10 Hristo Gaydarov v Direktor na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti 17 November [2011] ECR-nyr at paras 32-4

“32. …[I]t is clear from settled case‑law that, while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact still remains that, in the European Union context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (see, inter alia, Case C‑33/07 Jipa [2008] ECR I‑5157 paragraph 23).

33      The Court has thus stated that the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (see, inter alia, Jipa, paragraph 23 and case‑law cited).

34      In that context, the derogations from the free movement of persons that are capable of being invoked by a Member State imply in particular, as stated in Article 27(2) of Directive 2004/38, that if measures taken on grounds of public policy or public security are to be justified they must be based exclusively on the personal conduct of the individual concerned and that justifications that are isolated from the particulars of the case in question or that rely on considerations of general prevention cannot be accepted (Jipa, paragraph 24)….”

Data protection and private databases

In the Joined cases C‑468/10  Asociación Nacional de Establecimientos Financieros de Crédito (ASNEF) and another v. Spain 24 November [2011] ECR I-nyr at para 45. the Court relied upon the Article 7 right to respect for private life and Article 8(1) CFR which states that “[e]veryone has the right to the protection of personal data concerning him or her”, to find that the implementation in Spain of the Data Protection Directive was defective in that it applied only to information kept in specified public data bank rather than more generally to public and private databases, on the basis that “the processing of data appearing in non-public sources necessarily implies that information relating to the data subject’s private life will thereafter be known by the data controller and, as the case may be, by the third party or parties to whom the data are disclosed. This more serious infringement of the data subject’s rights enshrined in Articles 7 and 8 of the Charter must be properly taken into account” (See also Case C‑543/09 Deutsche Telekom AG v. Germany 5 May [2011] ECR I-nyr).

The second post on this topic will appear tomorrow.

One thought on “How the CJEU uses the Charter of Fundamental Rights

  1. This post misinterprets C-468/10. The relevant provision of national law was not failing to regulate information in private sources; rather, it was trying to lay down a blanket prohibition on data processing private data without subjects’ consent. The Court rejected this, stating that the relevant directive set out exhaustive criteria and this additional requirement could not be added. (29, 30, 32, 38, 39) Paragraph 45, which this post refers to, accepted that a strong presumption against private data being processed can be allowed, but rejected the Spanish law as pushing that presumption too far in creating a blanket ban. (45-49)

    In other words, the Court’s use of fundamental rights here did not strengthen data protection, as this post seems to imply.

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