Stappenplan fundamental rights
Week 1: What are fundamental rights?
Human rights are limits to coercive power: social contract theory
Human rights are rights: put obligations on states, role of the courts is crucial
Human rights are high priority both morally and legally
Human rights constitute a language to address injustice
Development of human rights
Declaration of independence (US, 1776)
Declaration of rights of men (France, 1789)
Olympes de Gouges, women’s rights (France, 1791)
Developments of human rights: generations
First generation: civil & political (negative obligations protect & fulfil)
Second generation: economic, social & cultural rights (positive obligations respect)
Third generation: solidarity & collective rights
Fourth generation: human rights as they apply in digital lifewords
EU ECHR
EU is a supranational legal order which finds its ECHR is a Treaty (verdrag) signed by the States
origins in economic cooperation. who are Member of the Council of Europe
EU has 27 Member States Council of Europe has 46 Member States
Court of Justice of the EU in Luxembourg European Court of Human Rights in Strasbourg
(CJEU) (ECtHR)
Direct effect (Van Gend & Loos) Monism or dualism (NL: monism)
Supremacy (COSTA Enel) Legal effect depends on national constitutional
law
X Goals of the Council of Europe:
Protection & support human rights
and parliamentary democracy
European Social Charter
Sources of EU Law ECHR
Primary law
TEU Important articles this week: art. 1
TFEU (jurisdiction), art. 34 (you can have an
The Charter of Fundamental Rights of individual complaint)
the EU
Secondary Law
Regulations (verordeningen, geen
discretionaire bevoegdheid)
Directives (discretionaire
bevoegdheid)
Decisions
,Relationship EU-ECHR
EU is not a party to the ECHR
o Advantage if the EU was a party: strengthening human rights protection: the EU
would then be bound by the ECHR as a contracting party. The CJEU could work
together with the ECtHR.
o Disadvantage if the EU was a party: the autonomy (self-determination), primacy,
unity and effectiveness of the EU law may be in danger.
Member States are parties to the ECHR
Art. 6 TEU reflects:
The Union recognizes the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the EU
Fundamental Rights, as guaranteed by the ECHR, and as they result from the constitutional
traditions common to the Member States, shall constitute general principles of the Union’s
law
So, the EU recognizes the Charter and has the same value as the TFEU & the ECHR is built up from
the same principles of the Union’s law, that means that they can use the ECHR for interpretations.
We can look to the ECHR when EU law doesn’t give the answer.
Direct effect:
Van Gend & Loos:
A treaty of EU law has direct effect in national courts
This should protect the individuals: individuals should be able to invoke EU law directly in front of a
court
Van Duyn: Directives can also have direct affect against states
Only if sufficiently clear and unconditional
Only if deadline for implementation has passed
EU ECHR
Please note: first check whether this concerns Please note: first check whether this case
a Member State/EU-institution that acts within concerns a Contracting State and whether it
the scope of EU law before one can invoke does not concern an EU-institution. The EU is
(beroepen) the EU Charter (art. 51 EU Charter not a Contracting State.
& Akenberg Fransson)
The ECHR is international law. In order to
EU law has direct effect (Van Gend & Loos) invoke this before a national court, it is
EU law is binding on all States, the States have relevant whether a Contracting Party has a
surrendered a part of their sovereignty. With monistic or a dualistic system.
regard to EU law, all States are monistic.
This makes possible for individuals to invoke Monistic national & international law are
this EU law directly before a national court part of one legal order system. Individual can
without the need for conversion into national directly appeal to the ECHR
law
Dualistic national & international law are
This concerns the EU Charter. Because the EU two separate legal orders. Individuals cannot
, Charter had the same value as the Treaties directly appeal to the ECHR. International law
(art. 6 TEU), the EU Charter also has direct must first be converted into national law
effect and an individual can invoke it directly before an individual can appeal to it.
before a national court.
What if a country with a dualist system doesn’t
Directives can also have direct effect against implement international laws?
states, but under conditions (Van Duyn): In the end states are sovereign to say which
Only if sufficiently clear and laws are applicable. If the state does not
unconditional implement the law you can go to the ECtHR.
Only if deadline for implementation
has passed
Appeal
EU ECHR
If a member state acts on the basis of their Member states should respect/protect/fulfil
national law (often criminal or family law), the rights in the ECHR in regard to everyone
they you cannot appeal to the EU Charter who falls in the jurisdiction on the basis of art.
because the member state has not acted 1 ECHR.
within the scope of the EU Charter (art. 51 lid To determine whether a Contracting State has
1 EU Charter) jurisdiction over a person, assess in the light of
Al Skeini.
Internationale Handelsgesellschaft
The validity of EU law cannot be tested against national law.
This will undermine the principle of uniformity and the effectiveness of EU law.
If Member States are allowed to put their national laws above EU law, the State could block the
human rights that flow from the EU law. That should not be the intention. And this also
undermines the uniformity of EU law.
Even if EU law violates human rights that are well protected in national law, EU law still takes
precedence.
How can national law be relevant even if EU law cannot be tested against national law?
See art. 52 paragraph 4 of the EU Charter: insofar as this Charter recognizes fundamental rights
that also result from traditions common to member states, the rights in the EU Charter must be
interpreted in accordance with those traditions.
Melloni
EU law prevails over national law (supremacy)
Even if EU law conflicts with national law, EU law prevails.
Otherwise, Member States can undermine the effectiveness of EU law and block the human rights
, of individuals
Melloni vlucht naar Spanje. Italië vaardigt een Europees aanhoudingsbevel uit. Moet Spanje hem
overleveren aan Italië, waar hij geen nieuw proces zal krijgen om zich te verdedigen? Dat gaat in
tegen de Spaanse grondwet. Echter, het aanhoudingsbevel op grond van de Europese verordening
gaat voor de Spaanse Grondwet.
Echter, Europese verordeningen mogen wel getoetst worden aan de grondrechten uit het EU-
Handvest. Als Melloni dus een beroep doet op het feit dat zijn grondrechten uit het Handvest
worden geschonden als de verordening van het aanhoudingsbevel ten uitvoer wordt gelegd.
Week 2: Scope of fundamental rights in Europe
Scope of application = who is bound by the EU Charter or the ECHR and when does it apply?/Who
is bound to respect the rights provided by the ECHR and the Charter and in which situations?
Art. 1 ECHR
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.”
Who? The High Contracting Parties = States
When? When the States exercises jurisdiction (§9 Al Skeini)
Everyone within their jurisdiction = primarily territorial
Extra-territorial jurisdiction is an exception Al Skeini §10
Effective control over an area (spatial, more about space)
o The contracting State has effective military control over that State
o For example, Russia had control over Ukraine when MH17 was shot down
Russia therefore had jurisdiction and is therefore held liable for this.
It is not necessary for the army to also have control over the government
of that country. The controlling State still has the responsibility to comply
with the obligations over the ECHR if they have effective control over
another State
It also does not have to be their own army, but they also have jurisdiction
if they have control over the army in that country
State agent authority and control over an individual (personal)
o State agents exercise executive and judicial powers in another state by means of
the consent, invitation or acquiescence (berusting) of that government
o For example, Russian state agents have poisoned someone in GB, so outside their
territory. As a result, the state agents have control over someone else within
another State. Russia can therefore be held responsible for this.
§20 Al Skeini: please note: art. 1 ECHR does not require Contracting States to impose ECHR
standards on other non-contracting States.
For example, if the Netherlands has to extradite someone to the US who risks death penalty, the
ECHR does not require the Netherlands to impose ECHR standards on the US.
Violations in climate cases can violate human rights, which are protected by the ECHR, in that one
State but also in other States. This concerns in particular art. 2 ECHR (right to life) & art. 8 ECHR
(right to respect for private and family life).
Contracting States have the responsibility to respect, protect and fulfil the human rights under the
ECHR of everyone within their jurisdiction.
Week 1: What are fundamental rights?
Human rights are limits to coercive power: social contract theory
Human rights are rights: put obligations on states, role of the courts is crucial
Human rights are high priority both morally and legally
Human rights constitute a language to address injustice
Development of human rights
Declaration of independence (US, 1776)
Declaration of rights of men (France, 1789)
Olympes de Gouges, women’s rights (France, 1791)
Developments of human rights: generations
First generation: civil & political (negative obligations protect & fulfil)
Second generation: economic, social & cultural rights (positive obligations respect)
Third generation: solidarity & collective rights
Fourth generation: human rights as they apply in digital lifewords
EU ECHR
EU is a supranational legal order which finds its ECHR is a Treaty (verdrag) signed by the States
origins in economic cooperation. who are Member of the Council of Europe
EU has 27 Member States Council of Europe has 46 Member States
Court of Justice of the EU in Luxembourg European Court of Human Rights in Strasbourg
(CJEU) (ECtHR)
Direct effect (Van Gend & Loos) Monism or dualism (NL: monism)
Supremacy (COSTA Enel) Legal effect depends on national constitutional
law
X Goals of the Council of Europe:
Protection & support human rights
and parliamentary democracy
European Social Charter
Sources of EU Law ECHR
Primary law
TEU Important articles this week: art. 1
TFEU (jurisdiction), art. 34 (you can have an
The Charter of Fundamental Rights of individual complaint)
the EU
Secondary Law
Regulations (verordeningen, geen
discretionaire bevoegdheid)
Directives (discretionaire
bevoegdheid)
Decisions
,Relationship EU-ECHR
EU is not a party to the ECHR
o Advantage if the EU was a party: strengthening human rights protection: the EU
would then be bound by the ECHR as a contracting party. The CJEU could work
together with the ECtHR.
o Disadvantage if the EU was a party: the autonomy (self-determination), primacy,
unity and effectiveness of the EU law may be in danger.
Member States are parties to the ECHR
Art. 6 TEU reflects:
The Union recognizes the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the EU
Fundamental Rights, as guaranteed by the ECHR, and as they result from the constitutional
traditions common to the Member States, shall constitute general principles of the Union’s
law
So, the EU recognizes the Charter and has the same value as the TFEU & the ECHR is built up from
the same principles of the Union’s law, that means that they can use the ECHR for interpretations.
We can look to the ECHR when EU law doesn’t give the answer.
Direct effect:
Van Gend & Loos:
A treaty of EU law has direct effect in national courts
This should protect the individuals: individuals should be able to invoke EU law directly in front of a
court
Van Duyn: Directives can also have direct affect against states
Only if sufficiently clear and unconditional
Only if deadline for implementation has passed
EU ECHR
Please note: first check whether this concerns Please note: first check whether this case
a Member State/EU-institution that acts within concerns a Contracting State and whether it
the scope of EU law before one can invoke does not concern an EU-institution. The EU is
(beroepen) the EU Charter (art. 51 EU Charter not a Contracting State.
& Akenberg Fransson)
The ECHR is international law. In order to
EU law has direct effect (Van Gend & Loos) invoke this before a national court, it is
EU law is binding on all States, the States have relevant whether a Contracting Party has a
surrendered a part of their sovereignty. With monistic or a dualistic system.
regard to EU law, all States are monistic.
This makes possible for individuals to invoke Monistic national & international law are
this EU law directly before a national court part of one legal order system. Individual can
without the need for conversion into national directly appeal to the ECHR
law
Dualistic national & international law are
This concerns the EU Charter. Because the EU two separate legal orders. Individuals cannot
, Charter had the same value as the Treaties directly appeal to the ECHR. International law
(art. 6 TEU), the EU Charter also has direct must first be converted into national law
effect and an individual can invoke it directly before an individual can appeal to it.
before a national court.
What if a country with a dualist system doesn’t
Directives can also have direct effect against implement international laws?
states, but under conditions (Van Duyn): In the end states are sovereign to say which
Only if sufficiently clear and laws are applicable. If the state does not
unconditional implement the law you can go to the ECtHR.
Only if deadline for implementation
has passed
Appeal
EU ECHR
If a member state acts on the basis of their Member states should respect/protect/fulfil
national law (often criminal or family law), the rights in the ECHR in regard to everyone
they you cannot appeal to the EU Charter who falls in the jurisdiction on the basis of art.
because the member state has not acted 1 ECHR.
within the scope of the EU Charter (art. 51 lid To determine whether a Contracting State has
1 EU Charter) jurisdiction over a person, assess in the light of
Al Skeini.
Internationale Handelsgesellschaft
The validity of EU law cannot be tested against national law.
This will undermine the principle of uniformity and the effectiveness of EU law.
If Member States are allowed to put their national laws above EU law, the State could block the
human rights that flow from the EU law. That should not be the intention. And this also
undermines the uniformity of EU law.
Even if EU law violates human rights that are well protected in national law, EU law still takes
precedence.
How can national law be relevant even if EU law cannot be tested against national law?
See art. 52 paragraph 4 of the EU Charter: insofar as this Charter recognizes fundamental rights
that also result from traditions common to member states, the rights in the EU Charter must be
interpreted in accordance with those traditions.
Melloni
EU law prevails over national law (supremacy)
Even if EU law conflicts with national law, EU law prevails.
Otherwise, Member States can undermine the effectiveness of EU law and block the human rights
, of individuals
Melloni vlucht naar Spanje. Italië vaardigt een Europees aanhoudingsbevel uit. Moet Spanje hem
overleveren aan Italië, waar hij geen nieuw proces zal krijgen om zich te verdedigen? Dat gaat in
tegen de Spaanse grondwet. Echter, het aanhoudingsbevel op grond van de Europese verordening
gaat voor de Spaanse Grondwet.
Echter, Europese verordeningen mogen wel getoetst worden aan de grondrechten uit het EU-
Handvest. Als Melloni dus een beroep doet op het feit dat zijn grondrechten uit het Handvest
worden geschonden als de verordening van het aanhoudingsbevel ten uitvoer wordt gelegd.
Week 2: Scope of fundamental rights in Europe
Scope of application = who is bound by the EU Charter or the ECHR and when does it apply?/Who
is bound to respect the rights provided by the ECHR and the Charter and in which situations?
Art. 1 ECHR
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.”
Who? The High Contracting Parties = States
When? When the States exercises jurisdiction (§9 Al Skeini)
Everyone within their jurisdiction = primarily territorial
Extra-territorial jurisdiction is an exception Al Skeini §10
Effective control over an area (spatial, more about space)
o The contracting State has effective military control over that State
o For example, Russia had control over Ukraine when MH17 was shot down
Russia therefore had jurisdiction and is therefore held liable for this.
It is not necessary for the army to also have control over the government
of that country. The controlling State still has the responsibility to comply
with the obligations over the ECHR if they have effective control over
another State
It also does not have to be their own army, but they also have jurisdiction
if they have control over the army in that country
State agent authority and control over an individual (personal)
o State agents exercise executive and judicial powers in another state by means of
the consent, invitation or acquiescence (berusting) of that government
o For example, Russian state agents have poisoned someone in GB, so outside their
territory. As a result, the state agents have control over someone else within
another State. Russia can therefore be held responsible for this.
§20 Al Skeini: please note: art. 1 ECHR does not require Contracting States to impose ECHR
standards on other non-contracting States.
For example, if the Netherlands has to extradite someone to the US who risks death penalty, the
ECHR does not require the Netherlands to impose ECHR standards on the US.
Violations in climate cases can violate human rights, which are protected by the ECHR, in that one
State but also in other States. This concerns in particular art. 2 ECHR (right to life) & art. 8 ECHR
(right to respect for private and family life).
Contracting States have the responsibility to respect, protect and fulfil the human rights under the
ECHR of everyone within their jurisdiction.
