Fundamental rights in Europe: tutorial 2
Tutorial 2: Scope of application of fundamental rights
Subjects:
o The concept of jurisdiction in Article 1 ECHR and the extraterritorial
application of the ECHR;
o The application of Article 1 ECHR when Member States’ acts interfering
with the human rights of individuals are based upon EU law;
o When does the charter apply/when are Member States bound by the
Charter (Article 51 Charter)?
o Material scope of the Charter and the ECHR (overview of the rights, the
scope of substantive provisions must be assessed on case by case basis).
Learning aims:
o To be able to sketch an overview of the rights protected by the ECHR and
the Charter, and point out the most important differences between these
documents;
o To be able to determine whether a specific situation can be brought under
the scope of a fundamental rights provision;
o To be able to explain when States are bound by the ECHR, and apply the
concept of jurisdiction in Article 1 ECHR to a case-solving question
concerning extraterritorial actions of a state;
o To be able to apply Article 1 ECHR when EU Member States are acting on
the basis of EU law.
o To be able to identify the situations in which Member States are bound by
the Charter, and apply its material scope to a case solving question;
Literature
o X. Groussot and E. Gill-Pedro, “Old and new human rights in Europe: The
scope of EU rights versus that of ECHR rights”, in: Brems, E., & Gerards, J. H.
(eds.), Shaping rights in the ECHR : The role of the European Court of
Human Rights in determining the scope of human rights. New York:
Cambridge University Press, 2013, until page 242, first paragraph,
available here
> you should know the scope of application of the rights in the EU Charter
and compare that to the material scope of the ECHR.
o M. P. Pedersen, “Territorial Jurisdiction in Article 1 of the European
Convention on Human Rights”, Nordic Journal of International Law 2004,
73 pp. 279–305, available here
> you should know what is meant with the concept of jurisdiction in
Article 1 ECHR and how it can apply extraterritorially.
o Explanations relating to the Charter of Fundamental Rights (2007/C
303/02), OJ 14 December 2007, C 303/17, Explanation on Article 1 —
1
, Fundamental rights in Europe: tutorial 2
Human dignity and Explanation on Article 51 — Explanation on Article 51
— Field of application (see reader)
Case law (see reader):
o ECJ, Case 617/10 Aklagaren v Hans Akerberg-Fransson [2013] ECR I-0000
o ECtHR, Matthews v The United Kingdom, 18 February 1999, No. 24833/94
o ECtHR, Soering v The United Kingdom, 7 July 1989, No. 14038/88
o ECtHR, Al-Skeini and Others v. the United Kingdom, 7 July 2011, No.
55721/07
Question 1
Last week, in tutorial 1, we met Laura, the young women suspected of terrorist
activities who, upon her return to her Member State of nationality, found out that
her assets had been frozen as a result of an EU Regulation. Let us now suppose
that the freezing of her assets is not the result of a European Regulation, but
instead a consequence of the application of national law to her case: the Decree
on Financial Crime. One of the provisions of this decree stipulates that the funds
of persons suspected or convicted for terrorism or terrorism-related activities
are frozen. These people can only get access to the minimum amount of money
needed for subsistence, upon making a request to the authorities. This makes it
impossible for Laura to conduct her business, an internet-shop selling cosmetics.
She considers appealing to a national court, arguing that the national law is in
violation of her human rights.
While preparing her case, her lawyer finds out that there is also EU legislation
covering this area: a Directive which requires Member States to take appropriate
measures to ensure that persons suspected or convicted for serious crimes
cannot use their financial assets for the financing of criminal activities. It leaves
Member States significant discretion as to how they implement this obligation in
their national law. Member State Y has not adopted any implementing legislation,
as it already had relevant and sufficient legislation in place before the Directive
became applicable, the above-mentioned Decree on Financial Crime.
a. Can Laura appeal to the EU Charter of Fundamental Rights?
There is a national rule and a EU directive. Laura wants to appeal to the EU
Charter.
Step 1: Scope of application
You will need to look into the scope of application, this means you need to look
into art. 51 Charter. This article says you are only bound to EU law when you are
implementing EU law.
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Tutorial 2: Scope of application of fundamental rights
Subjects:
o The concept of jurisdiction in Article 1 ECHR and the extraterritorial
application of the ECHR;
o The application of Article 1 ECHR when Member States’ acts interfering
with the human rights of individuals are based upon EU law;
o When does the charter apply/when are Member States bound by the
Charter (Article 51 Charter)?
o Material scope of the Charter and the ECHR (overview of the rights, the
scope of substantive provisions must be assessed on case by case basis).
Learning aims:
o To be able to sketch an overview of the rights protected by the ECHR and
the Charter, and point out the most important differences between these
documents;
o To be able to determine whether a specific situation can be brought under
the scope of a fundamental rights provision;
o To be able to explain when States are bound by the ECHR, and apply the
concept of jurisdiction in Article 1 ECHR to a case-solving question
concerning extraterritorial actions of a state;
o To be able to apply Article 1 ECHR when EU Member States are acting on
the basis of EU law.
o To be able to identify the situations in which Member States are bound by
the Charter, and apply its material scope to a case solving question;
Literature
o X. Groussot and E. Gill-Pedro, “Old and new human rights in Europe: The
scope of EU rights versus that of ECHR rights”, in: Brems, E., & Gerards, J. H.
(eds.), Shaping rights in the ECHR : The role of the European Court of
Human Rights in determining the scope of human rights. New York:
Cambridge University Press, 2013, until page 242, first paragraph,
available here
> you should know the scope of application of the rights in the EU Charter
and compare that to the material scope of the ECHR.
o M. P. Pedersen, “Territorial Jurisdiction in Article 1 of the European
Convention on Human Rights”, Nordic Journal of International Law 2004,
73 pp. 279–305, available here
> you should know what is meant with the concept of jurisdiction in
Article 1 ECHR and how it can apply extraterritorially.
o Explanations relating to the Charter of Fundamental Rights (2007/C
303/02), OJ 14 December 2007, C 303/17, Explanation on Article 1 —
1
, Fundamental rights in Europe: tutorial 2
Human dignity and Explanation on Article 51 — Explanation on Article 51
— Field of application (see reader)
Case law (see reader):
o ECJ, Case 617/10 Aklagaren v Hans Akerberg-Fransson [2013] ECR I-0000
o ECtHR, Matthews v The United Kingdom, 18 February 1999, No. 24833/94
o ECtHR, Soering v The United Kingdom, 7 July 1989, No. 14038/88
o ECtHR, Al-Skeini and Others v. the United Kingdom, 7 July 2011, No.
55721/07
Question 1
Last week, in tutorial 1, we met Laura, the young women suspected of terrorist
activities who, upon her return to her Member State of nationality, found out that
her assets had been frozen as a result of an EU Regulation. Let us now suppose
that the freezing of her assets is not the result of a European Regulation, but
instead a consequence of the application of national law to her case: the Decree
on Financial Crime. One of the provisions of this decree stipulates that the funds
of persons suspected or convicted for terrorism or terrorism-related activities
are frozen. These people can only get access to the minimum amount of money
needed for subsistence, upon making a request to the authorities. This makes it
impossible for Laura to conduct her business, an internet-shop selling cosmetics.
She considers appealing to a national court, arguing that the national law is in
violation of her human rights.
While preparing her case, her lawyer finds out that there is also EU legislation
covering this area: a Directive which requires Member States to take appropriate
measures to ensure that persons suspected or convicted for serious crimes
cannot use their financial assets for the financing of criminal activities. It leaves
Member States significant discretion as to how they implement this obligation in
their national law. Member State Y has not adopted any implementing legislation,
as it already had relevant and sufficient legislation in place before the Directive
became applicable, the above-mentioned Decree on Financial Crime.
a. Can Laura appeal to the EU Charter of Fundamental Rights?
There is a national rule and a EU directive. Laura wants to appeal to the EU
Charter.
Step 1: Scope of application
You will need to look into the scope of application, this means you need to look
into art. 51 Charter. This article says you are only bound to EU law when you are
implementing EU law.
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