Category Archives: Human Rights

The Hungarian Dilemma from a Pluralist Perspective

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untitledMatej Avbelj

[This piece was originally posted on the Verfassungsblog and is re-posted here with permission.  Readers may be interested in reading earlier posts on developments in Hungary, such as those by Kim Lane Scheppele here and here.]
 
The constitutional and political developments in Hungary in the last few years have stirred a lot of controversies and also raised significant academic attention. This blog has provided not only a wonderful forum for an exchange of different views, but it has also produced original and thought-provoking proposals for tackling the Hungarian problem.
 
However, the “reverse Solange” idea, the call for the establishment of a special Copenhagen Commission, for a straightforward supremacy of the Charter and other insightful proposals, all appear to be addressing the Hungarian dilemma from within the constitutional register. This is, of course, a legitimate choice, but it is neither exclusive nor neutral.
 
As the Lindseth-Halberstam exchange in particular demonstrated, the answers sketched for the resolution of the Hungarian dilemma are heavily dependent on the assumed or the desired character of the European Union.  Without engaging with the merits of the constitutional account of the European Union and without necessarily taking sides, I would like to use this post to explore – out of intellectual curiosity – the Hungarian dilemma from a pluralist perspective.

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Original Sin: the EU tampering with the right to property in Cyprus is an unprecedented departure from EU norms and shared constitutional rights

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Anastasios A. Antoniou

The facts are well-settled by now and the majority of us know that on the evening of 15/3/13, Eurozone finance ministers agreed on an extraordinary course of action in response to Cyprus’ request for a bail-out of the State and its banking sector, both on the brink of apparent collapse. The political agreement reached at the ministers’ Eurogroup configuration, seeks to impose a levy on deposits with Cypriot banks, catching both Cypriot and foreign depositors (hereinafter referred to as ‘the Decision’).

Developments are of course constantly unfolding. Following fierce reactions to the Decision, the Eurogroup held an urgent teleconference on 18/3/13, resulting in a statement by its president, Jeroen Dijsselbloem. The statement sought to assure that deposits under EUR100.000 would be fully guaranteed in what is presented as an upholding of the Eurogroup’s ‘view’ that ‘small depositors should be treated differently from large depositors’. The issue is that the Eurogroup never expressed such a view in the first place. Nor did it bother itself with revisiting the various legal anomalies emanating from what it wants to present as a political decision enjoying the consensus of all Eurozone member states, but has in fact been a catastrophic step, irrespective of whether it is eventually passed into law by the Cypriot Parliament. Continue reading →

The singular case of Mr Nada

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Michael Armitage*

The failure of the UN Security Council (“UNSC”) to agree resolutions on Syria, thanks largely to Russian and Chinese intransigence, is still big news.  But both the European Court of Human Rights (“ECtHR”) and the Court of Justice of the European Union (“CJEU”) have recently had occasion to consider instances in which UNSC resolutions have successfully been passed, in respect of individuals suspected of involvement in terrorism, with sometimes alarming consequences for human rights.

In Nada v Switzerland, the Grand Chamber of the ECtHR made a contribution to the growing jurisprudence, at European level, on States’ obligations when implementing UNSC Resolutions. The case is interesting in that it demonstrates a somewhat surprising reluctance on the part of the Strasbourg court to directly challenge the primacy of the UN legal order. This contrasts with the more robust approach of the CJEU in the Kadi case (judgment is currently pending in the follow-up case, Kadi II, which has been considered by this blog here).

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Charter compatibility as interpretative aid and/or a condition of legal validity?

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Aidan O’Neill QC

As I have noted in previous posts, 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. There have already been over 300 references to the Charter in the decisions of the CJEU (including those of General Court and the Civil Service Tribunal).

One developing issue in the court’s more recent Charter jurisprudence is the manner in which the Charter is being used as an interpretative aid to other provisions of EU law.

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The EU Charter of Fundamental Rights Scope and Competence

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Jodie Blackstock

This paper was presented by Jodie Blackstock, Director of Criminal and EU Justice Policy at JUSTICE, at the conference The EU Charter of Fundamental Rights: An essential tool for UK practitioners, held on the 29th March. We will be posting it in two parts over the next couple of days.

Introduction

Recognition of human rights is not new for the EU. It has increasingly prioritised human rights in its Treaty provisions. This is now enshrined in the first substantive article of EU primary law, article 2 of the Treaty on the European Union:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The EU Charter of Fundamental Rights was concluded in 2000 following a decision that the EU law concerning fundamental rights was set out in a fragmented fashion across numerous primary and secondary law provisions. The intention was to consolidate. The Charter would however not only cover the social and economic rights recognised as general principles of EU law, but the fundamental rights adopted by the EU from the European Convention on Human Rights (ECHR) and the constitutional traditions common to the member states. Contrary to the debate as to the legitimacy of the European Convention on Human Rights (despite this in fact being the brain child of Winston Churchill and drafted largely by David Maxwell Fyfe), and the expansion of EU law generally, the Charter was specifically devised by the members states acting in the European Council at Tampere in 1999. Therefore the heads of state gave express approval to the idea and instigated its creation. The content was discerned by a Convention appointed to the task from the member states, Commission and European Parliament and national parliaments. This was approved by the European Council at Nice in 2000. Its legal status remained unclear until the Lisbon Treaty was finally adopted in December 2009.

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How the CJEU uses the Charter of Fundamental Rights

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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.

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Matrix seminar – EU law and immigration

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Ten days ago Aidan and Raza Husain QC spoke at the last of Matrix’s series of evening seminars on EU law as it applies to domestic practice areas.  The session was devoted to immigration law.  For those who are interested, here is Aidan’s paper on Free movement of EU citizens within the EU.  As we all know, the concept of citizenship has been explored in numerous judgments of the CJEU since the concept was introduced into EU law by the Treaty of Maastricht.  Aidan discusses the rights held by EU citizens with particular reference to the Charter of Fundamental Rights, touching on various topical issues including prisoner voting rights (which, as he makes clear, is not just an ECHR issue) and access to legal aid.

Watch out for the second paper, on EU asylum and refugee status law, next week.

EU Law, Human Dignity and the Human Embryo: The Decision of the CJEU Grand Chamber in Brüstle v Greenpeace eV (C‑34/10)

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Aidan O’Neill QC

The decision

In Oliver Brüstle v Greenpeace e.V (Case C‑34/10) the Grand Chamber was faced with the question as to whether EU law permitted the patenting of a process allowing for the production, from stem cells extracted from human embryos, of an almost unlimited quantity of isolated and purified precursor cells having neural or glial properties. The claim was made in the patent application that these neural precursor cells had a direct clinical application for individuals suffering from a variety of neurological diseases, such as Parkinson’s disease. These immature precursor cells were, by definition, still capable of developing and so might be transplanted into the nervous system of sufferers with the hope of there regenerating and repairing neurological damage sustained by the patient.

The problem from the perspective of EU law is that Article 6 of Directive 98/44/EC on the legal protection of biotechnological inventions which, so far as relevant states as follows:

“Article 6

1. Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation.

2. On the basis of paragraph 1, the following, in particular, shall be considered unpatentable:… (c)  uses of human embryos for industrial or commercial purposes.”

A legal challenge to Dr. Brüstle’s patent was brought in Germany by Greenpeace who argued that the patent involved the use of human embryos for industrial or commercial purposes.  Deciding that the issue required the guidance of the CJEU, the German Federal Court of Justice (the) referred the following knotty questions to Luxembourg:

“1. What is meant by the term “human embryos” in Article 6(2)(c) [of Directive 98/44/EC]?

(a) Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied?

(b)  Are the following organisms also included:

–  unfertilised human ova into which a cell nucleus from a mature human cell has been transplanted;

– unfertilised human ova whose division and further development have been stimulated by parthenogenesis?

(c) Are stem cells obtained from human embryos at the blastocyst stage also included?

2. What is meant by the expression “uses of human embryos for industrial or commercial purposes”? Does it include any commercial exploitation within the meaning of Article 6(1) of [of Directive 98/44/EC], especially use for the purposes of scientific research?

3. Is technical teaching to be considered unpatentable pursuant to Article 6(2)(c) of the Directive even if the use of human embryos does not form part of the technical teaching claimed with the patent, but is a necessary precondition for the application of that teaching:

- because the patent concerns a product whose production necessitates the prior destruction of human embryos,

- or because the patent concerns a process for which such a product is needed as base material?”

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Accession of the EU to the Council of Europe – Will it happen? Part 2.

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Aidan O’Neill QC

In a previous post we noted the difficulties arising from having two “European Supreme Courts” each authoritatively (and apparently finally) adjudicating on the proper interpretation of the ECHR. The solution to the dilemma of which court to follow in the event of divergence between the CJEU and the ECtHR on fundamental rights issues has been for the EU itself to accede to the Council of Europe and for the CJEU to be placed under the jurisdiction of the ECtHR. In a series of posts EUtopia law looks at some of the hurdles to be overcome if this goal is ultimately to be realised.

Treaty basis for accession

Article 218(6)(a)(ii) of the TFEU provides that the Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement on Union accession to the ECHR after obtaining the consent of the European Parliament. Further, Article 218(8) TFEU requires the Council to act unanimously for the agreement on accession of the EU to the ECHR, and that

“the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.”

These Treaty provisions are supplemented by Protocol No 8 TEU, Article 1 of which provides that the agreement relating to the accession of the Union to the ECHR shall make provision for preserving the ‘specific characteristics’ of the EU and EU law. Mention is made, in this regard, of ‘specific arrangements’ which might be made for the EU’s possible participation in the ‘control bodies’ of the ECHR, and of ‘mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the EU as appropriate’. Article 2 of Protocol No 8 TEU also requires that the EU accession to the ECHR ‘shall not affect the competences of the Union or the powers of its institutions’ and that the position of individual Member States, notably in relation to individual States’ Article 15 or Article 37 reservations  to the ECHR, should not be prejudiced by such EU accession. Article 3 of Protocol No 8 TEU further provides that the agreement for the accession of the EU to the ECHR shall not shall affect the Member States’ existing EU obligation under Article 344 TFEU not to submit a dispute concerning the interpretation or application of the European Treaties to any method of settlement other than those provided for within the EU legal order itself.

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Application of EU Rights Charter – AG’s Opinion, by Rosalind English

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This post first appeared on the UK Human Rights Blog and is reproduced here with permission and thanks. 

Rosalind English

NS v Secretary of State for the Home Department (Principles of Community law) [2011] EUECJ C-493/10 (22 September 2011) - read opinion

The Common European Asylum System was designed to establish a fair and effective distribution of the burden on the asylum systems of the EU Member States. Regulation No 343/2003 was passed in order to introduce a clear and workable method for determining which single Member State is responsible for determining any given asylum application lodged within the European Union. The measure was also intended to prevent forum shopping by asylum seekers.

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