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.


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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A Quarrel in a Faraway Country?: Scotland, Independence and the EU

Aidan O’Neill QC

Arabella Thorp and Gavin Thompson, researchers in the International Affairs and Defence Section and the Economic Policy and Statistics Section of the House of Commons Library Research have jointly authored – for the benefit of UK Parliamentarians – a short paper entitled Scotland, Independence and the EU. The authors consider the possible legal consequences for the EU and the UK of Scottish independence and state:

“This is a major question in the independence debate, and one to which there is no clear answer. There is no precedent for a devolved part of an EU Member State becoming independent and having to determine its membership of the EU as a separate entity, and the question has given rise to widely different views.”

They note that there are at least three different possibilities under international law:

(i)              Scotland is to be regarded as a wholly new State, with the remaining Union of England Wales and Northern Ireland (EWNI) being treated in international law as a (territorially decreased) continuation of the UK. The authors cite the precedents of the 1947 partition of India and the creation of Pakistan, and of the 1962 translation of Algeria from a series of départements integrated into metropolitan France to an independent State.

(ii)            Scotland and EWNI are each to be regarded as successor States to the divided UK.   The authors refer in this context to the de-merger of the short-lived United Arab Republic (1958-1961) back into its original constituent States of Syria and Egypt

(iii)          neither Scotland or EWNI are to be regarded as successor States to the dissolved UK.   The authors here allude to the birth, in 1993, of two wholly new States, Slovakia and the Czech Republic, from the territory of the former Czechoslovakia.

On the first scenario (which Thorp and Thompson term “continuation and secession”) EWNI as the “continuing UK” would retain the UK’s pre-secession treaty obligations and its membership of international organisations, including the EU and NATO, the Council of Europe, the UN and the IMF.  Scotland would start with a blank slate in terms of treaty rights and obligations, and would have to apply to be admitted in its own right as a new member of all and any international organisations.

On the second scenario (which they call “separation”) Scotland and EWNI would each succeed to the UK’s existing international commitments, and would each automatically accede to the international organisations of which the UK was a member, but now as two States rather than as one.

On the third scenario (which the authors describe as “dissolution”) neither Scotland and EWNI would succeed to any of the UK’s international obligations or memberships. Both States, newly independent of each other, would have to sign anew any treaties they wished to be bound by, and enter into negotiations with any international organisations they wished to be members of.

Of course, as the precedents of the break-up of the former USSR and the break-down of the former Yugoslavia show, the reality is likely to be more complex and one which may change over time. In international politics, just as much as international law, context is everything. Thus, some States and international organisations may choose to recognise EWNI as the “continuing UK”, or as the sole successor State to the UK.  Others might prefer to hold both EWNI and Scotland to the UK’s prior obligations and memberships.  And yet others could seek to take advantage of what they would characterise as the “dissolution” of the UK to escape the international obligations formerly owed to it, and/or to declare the UK’s previous membership of international organisations to be void.  This is, in a sense, where international law runs out and international Realpolitik takes over.  Everything depends on the particular terms of constitutions of international organisations, the extent of international recognition and the degree to which an international consensus is reached as to the status to be accorded to an independent Scotland and/or to a continuing UK shorn of its northern territories.

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Publish and be Sued: But Where?

Aidan O’Neill QC

If defamatory material has been published on the Internet where can the defamed individual bring an action, and what law applies? These are the questions posed of the CJEU by the German Federal Court of Justice (the Bundesgerichtshof) and by the Tribunal de Grande Instance (Paris) in two cases – respectively eDate Advertising GmbH v. X, C-509/09 and Martinez v. Mirror Group Newspapers Limited, C-161/10  – which were heard and decided on together by the Grand Chamber of the Luxembourg Court on 25 October 2010.

The eDate Advertising case was brought in Germany against an Austrian domiciled company by a convicted murderer in respect of a cached website news report which named the murderer and his brother (who had been convicted along with him of the same crime), briefly described the crime of which they had been convicted, and noted that they had both lodged appeals against their convictions with the German Federal Constitutional Court (the Bundesverfassungsgericht). The matter at issue was whether or not the German courts had jurisdiction to hear and determine the brother’s application for an order restraining the Austrian company (in accord with German law) from giving his full name in its report.

The Martinez case was brought in France by a French actor and his father against a UK company, complaining that the web-publication by a British newspaper, the Sunday Mirror, of an article in English, with accompanying photographs, headlined “Kylie Minogue is back with Olivier Martinez” breached their privacy rights as guaranteed them under French law.

The issues of EU law for the CJEU to determine in each case involved the interpretation of provisions of the Brussels I Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and of Directive 2000/31/EC on the “free movement of information society services”.

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

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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The EU as a Marxian Project, or is it the economy, stupid ?

Aidan O’Neill QC

The Zollverein, or German customs union, was a scheme promoted by Prussia in the wake of the Napoleonic adventure, aimed at facilitating the greater economic integration of the patchwork or mosaic of sovereign kingdoms, States, principalities, duchies, independent City-States and archbishoprics which together had made up the Holy Roman Empire of the German nation. Begun in 1818 initially on the basis of territories directly controlled by the Hohenzollerns, Prussia’s ruling dynasty, it expanded over the next 50 years to encompass the vast bulk of the German-speaking territories of Mitteleuropa, with the exception of Austria-Hungary. By 1871 this German Economic and Monetary Union had become a full political union, with the territories within the Zollverein (other than the Grand Duchy of Luxembourg) merging to form the German Reich.

In the aftermath of the devastation wreaked within Europe by World War II (or the ‘Second European Civil War’ as the enthusiastically communautaire would have it) it was proposed that there be established – at least, among the democratic-capitalist successor States of post-War Europe – a new 20th-century customs union or Zollverein. And it is this European customs union or Zollverein that remains the nucleus of what is now the European Union project. Moreover, it was within the context of creating and sustaining this European customs union that EU law was developed to ensure the protection of the four freedoms – of workers, goods, services and capital – throughout the new customs-free area serving also as a Cold War bulwark against the spread of communism in post-War Europe.

From one (perhaps paradoxical) perspective on what some might consider to be the ultimate capitalist venture, it might be said that the European Union project is based on a classic Marxian (Karl’s, not Groucho’s) analysis of human relations and society, in that it presupposes that economics will ultimately determine politics. Thus if one successfully creates a fully economically integrated cross-border customs union in Europe, national politics will eventually wither away, to be replaced by a new supra-national European polity. Where the single internal market leads, the people(s) will follow.

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The EU and the Four Freedoms

Aidan O’Neill QC

When being interviewed on BBC Radio 4’s Broadcasting House on Sunday, Brenda Maddox, the editor of Prospect Magazine made the point that, despite the current crises with the Euro, the European Union has been remarkably successful in its original post WWII strategic aim of creating an area of peace (if not always prosperity) in Europe.  If war might be seen as the continuation of economics by other means, then the economic union and integration which the EU has created over the past sixty year has achieved its primary goal of beating the swords of Franco-German rivalry into the ploughshares of the Common Agricultural Policy.

It is perhaps worth reminding ourselves of this achievement of this Pax Europaea and the importance its maintenance, even as fears mount that the Euro-zone project looks set to crash and burn under the weight of Greek insolvency and a loss of confidence in Italian fiscal management. It is important to recall this idealistic foundation when faced with the now vast and sprawling – and ever-expanding – web of Treaties, legislation, principles, rights and duties that is now EU law.

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Benefits Tourism and EU Law

Aidan O’Neill QC

Article 34(2) of the EU Charter of Fundamental Rights states that:

“everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices.”

The relevant EU law which this Charter provision implicitly refers to is now contained in European Parliament and Council Regulation (EC) 883/2004 ([2004] OJ L166/1) on the coordination of social security systems. This regulation came into effect on 1 May 2010. Unlike directives, there is no need for any intermediate national implementing measures:  an EU Regulation is “directly applicable” – see Article 288 of the TFEU.  It may be relied upon – if necessary in preference to any contrary requirements of national law – before national courts, tribunals and administrative bodies applying the Member State’s social security system.

EU law in the area of social security provides for the coordination of national legislation, rather than its harmonisation. Thus EU law does not provide for uniform rates and conditions for social security benefits across the EU, but does require that all Member States grant social benefits to EU nationals who “habitually reside” in that Member State. And Article 4 of Regulation 883/2004 prohibits Member States from imposing any additional requirements which might result in any indirect discrimination against EU nationals. In Borawitz v Landesversichterunganstalt Westfalen (Case C-124/99)  the CJEU observed that:

conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers or where the great majority of those affected are migrant workers, as well as conditions which are applicable without distinction but can more easily be satisfied by national workers than by migrant workers or where there is a risk that they may operate to the particular detriment of migrant workers … It is otherwise only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, and if they are proportionate to the legitimate aim pursued by the national law.”

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

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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Accession of the EU to the Council of Europe – Will it happen? Part 1.

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.

The accession negotiations begin

On 7 September 2011 the Lord Chancellor and Secretary of State for Justice, Kenneth Clarke MP, gave evidence to the House of Commons European Scrutiny Committee (which is chaired by Bill Cash MP) on the topic of EU Accession to the European Convention on Human Rights and the EU Charter of Fundamental Rights. He advised the Scrutiny Committee that an informal working group 14 individuals (7 coming from member States of the EU and 7 coming from non-member States of the EU), chosen on the basis of their expertise had produced a draft agreement dated 19 July 2011 setting out possible terms for the accession of the EU to the ECHR. The Lord Chancellor was at pains to emphasise to the Scrutiny committee that this document had no binding legal status whatsoever, and was simply the first step in starting the complex negotiations involving the European Commission, the Council of Europe Secretariat, the 27 Member States of the European Union, and the further 20 non-EU European states who make up the 47 contracting States of the Council of Europe.

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Is the UK’s ‘opt-out’ from the EU Charter of Fundamental Rights worth the paper it is written on? Part 2.

Aidan O’Neill QC

The UK Government has long sought to play down the significance of the EU Charter of Fundamental Rights. In its negotiations around, and public presentation of, the substance of the Charter (as originally solemnly proclaimed in 2000) the position of the UK Government was that the Charter simply consolidated existing EU fundamental rights jurisprudence, contained no new rights and did not allow the courts any new powers. And when it was proposed that the Charter be incorporated into TEU by Treaty amendment, the UK sought an “opt-out” from certain of the Charter provisions, which is now contained in Protocol 30 to the Lisbon Treaty. In this series of posts EUtopia law considers the effectiveness of this self-proclaimed opt-out. Part 1 looked at the wording of Protocol 30 and suggested that it would have little limiting effect on the interpretation and application of the Charter’s provisions. Part 2 explores this further.

Certainly the House of Commons Scrutiny Committee thought that Protocol 30 would have little effect. In its follow up report to the 2007 European Union inter-governmental conference, it concluded that Protocol No 30 TEU did not provide any guarantee that the Charter should have no effect on UK law. The Committee noted that nothing in Protocol No 30 TEU will excuse the United Kingdom authorities (including the courts) from the obligation to comply with interpretations handed down by the CJEU, even where these rulings are based on the terms of the Charter.

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