Tutorial 1: development fundamental rights in the legal orders of Europe, effect of
EU law and ECHR in domestic legal order, significance of the ECHR in EU law
Subjects:
o Introduction to and development of fundamental rights
o Introduction Council of Europe (CoE) and European Union (EU) legal orders
o Sources of EU law and relevant CoE conventions
o Institutions EU law and CoE
o Effect of international law and EU law in domestic legal order (monism,
dualism, direct effect)
o Origin and development of fundamental rights in EU law (General principles
of EU law, national constitutional traditions, Charter)
o Interaction EU law and ECHR (art. 6 TEU, art. 52(3) Charter, accession EU to
the ECHR)
Learning aims:
o To understand and be able to explain the origin and development of
fundamental human rights protection in Europe
o To be able to identify the main sources of EU law and the main sources of
fundamental rights in CoE and EU instruments
o To be able to explain the legal effect of CoE treaties and EU law in domestic
legal orders
o To be able to apply the EU doctrine of direct effect to a case-solving question
o To be able to explain how human rights law developed within the EU legal
order;
o To be able to identify the three formal sources of human rights protection in
EU law;
o To be able to point out the relationship between human rights protection in
EU law on the one hand, and human rights protection provided by the ECHR
on the other hand;
o To be able to distinguish between, and draw upon these two legal orders
when solving a case-solving question involving domestic law and/or
international legal obligations of the Member States.
Literature:
o EFRF chapter 1, nos. 1-16, nos. 24-33, 19-22 (1,5 p.), chapter 2, nos. 1-7 (6 p.),
chapter 14, nos. 4-9, 14-15.
, o Chapter 16 ‘Domestic courts and their relationship with international law’ in
J. Klabbers, International Law Cambridge University Press 2013
o N. Fennelly, ‘The European Court of Justice and the Doctrine of Supremacy:
Van Gend en Loos; Costa v ENEL; Simmenthal’, in L. Azoulai and M.P. Maduro,
The Past and Future of EU Law : The Classics of EU Law Revisited on the 50th
Anniversary of the Rome Treaty, Oxford: Hart Publishing 2010, pp. 35-38
o David Anderson and Cian C Murphy, “The Charter of Fundamental Rights”, in:
Andrea Biondi and Piet Eeckhout (eds.) EU Law after Lisbon, Oxford
University Press, 2012, pp. 155-179, not section IV (application of the Charter
Rights, on pp 164-172)
o Explanations relating to the Charter of Fundamental Rights (2007/C 303/02),
OJ 14 December 2007, C 303/17, Explanation on Article 52 — Scope and
interpretation of rights and principles.
Case law:
o ECJ, Case 26/62 Van Gend en Loos v Nederlandse Administratie der
Belastingen [1963] ECR 1.
o ECJ, Case 6/64 Costa v Enel [1964] ECR 585.
o ECJ, Case 41/74 Van Duyn v Home Office [1974] ECR 1337.
o ECJ, Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und
Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.
o ECJ Case 44/79 Hauer v Land Rheinland-Pfaltz [1979] ECR 3727.
o EJC Case C-402 and 415/05 Kadi I, [2008] ECRI-6351.
Question 1
In the early years of European integration, cooperation between the Member States
of the EU focused mainly on economic issues. However, over the years, European
integration has widened and it now covers many other policy areas, including even
criminal law. With specific regard to judicial cooperation in criminal matters and
police cooperation, numerous measures are currently in place, addressing matters
ranging from countering terrorism to sharing evidence and enforcing penalties. The
most high profile instrument of them all is perhaps the European Arrest Warrant
(=arrestatiebevel), an arrest warrant valid throughout all Member States of the
European Union. Once issued, it requires another member state to arrest and
transfer a criminal suspect or sentenced person to the issuing state, so that the
person can be put on trial or complete his or her prison sentence. Cooperation
between Member States in criminal law and policy requires common standards, also
regarding the rights and procedural safeguards for accused persons. The EU has
, adopted three Directives in this area, covering respectively the right to an
interpreter and to translation in criminal proceedings, the right to information, and
the right to legal assistance in such proceedings (Directives 2010/64/EU, 2012/13/EU
and 2013/48).
a. Which fundamental right of the individual do these Directives aim to protect?
Can you point at the provision in the ECHR that corresponds to that right?
Directive 2010/64: is focused on the right to interpretation and translation in
criminal proceedings
o This correspondences with article 5(2) and article 6(3)a of the ECHR
Directive 2012/13: is focused on the right to information in criminal
proceedings
o This correspondences with article 5(2) ECHR.
Directive 2013/48: is focused on the right of access to a lawyer in criminal
proceedings
o This correspondences with article 6(3)c ECHR.
These directives have the aim to protect individuals that they have the right to a fair
trial within a criminal procedure, this provision corresponds to the right to have a fair
trial laid down in art. 6 ECHR.
Extra:
It was invoked in Kadi-Case. Kadi his assets were frozen, he could not invoked his
right in the sentence of art. 6
For information
Directive= richtlijn
Regulation= verordening
ECHR=EVRM
Charter= handvest
Legal order of Europe : Charter of the fundamental rights by European Union.
European
o EU is established by treaty
European Union is the first legal order
CoE and ECHR (European Social Charter)are the second legal order
o ECHR is a convention
Important is the relation between national law and European law in this
course.
EU law and ECHR in domestic legal order, significance of the ECHR in EU law
Subjects:
o Introduction to and development of fundamental rights
o Introduction Council of Europe (CoE) and European Union (EU) legal orders
o Sources of EU law and relevant CoE conventions
o Institutions EU law and CoE
o Effect of international law and EU law in domestic legal order (monism,
dualism, direct effect)
o Origin and development of fundamental rights in EU law (General principles
of EU law, national constitutional traditions, Charter)
o Interaction EU law and ECHR (art. 6 TEU, art. 52(3) Charter, accession EU to
the ECHR)
Learning aims:
o To understand and be able to explain the origin and development of
fundamental human rights protection in Europe
o To be able to identify the main sources of EU law and the main sources of
fundamental rights in CoE and EU instruments
o To be able to explain the legal effect of CoE treaties and EU law in domestic
legal orders
o To be able to apply the EU doctrine of direct effect to a case-solving question
o To be able to explain how human rights law developed within the EU legal
order;
o To be able to identify the three formal sources of human rights protection in
EU law;
o To be able to point out the relationship between human rights protection in
EU law on the one hand, and human rights protection provided by the ECHR
on the other hand;
o To be able to distinguish between, and draw upon these two legal orders
when solving a case-solving question involving domestic law and/or
international legal obligations of the Member States.
Literature:
o EFRF chapter 1, nos. 1-16, nos. 24-33, 19-22 (1,5 p.), chapter 2, nos. 1-7 (6 p.),
chapter 14, nos. 4-9, 14-15.
, o Chapter 16 ‘Domestic courts and their relationship with international law’ in
J. Klabbers, International Law Cambridge University Press 2013
o N. Fennelly, ‘The European Court of Justice and the Doctrine of Supremacy:
Van Gend en Loos; Costa v ENEL; Simmenthal’, in L. Azoulai and M.P. Maduro,
The Past and Future of EU Law : The Classics of EU Law Revisited on the 50th
Anniversary of the Rome Treaty, Oxford: Hart Publishing 2010, pp. 35-38
o David Anderson and Cian C Murphy, “The Charter of Fundamental Rights”, in:
Andrea Biondi and Piet Eeckhout (eds.) EU Law after Lisbon, Oxford
University Press, 2012, pp. 155-179, not section IV (application of the Charter
Rights, on pp 164-172)
o Explanations relating to the Charter of Fundamental Rights (2007/C 303/02),
OJ 14 December 2007, C 303/17, Explanation on Article 52 — Scope and
interpretation of rights and principles.
Case law:
o ECJ, Case 26/62 Van Gend en Loos v Nederlandse Administratie der
Belastingen [1963] ECR 1.
o ECJ, Case 6/64 Costa v Enel [1964] ECR 585.
o ECJ, Case 41/74 Van Duyn v Home Office [1974] ECR 1337.
o ECJ, Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und
Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.
o ECJ Case 44/79 Hauer v Land Rheinland-Pfaltz [1979] ECR 3727.
o EJC Case C-402 and 415/05 Kadi I, [2008] ECRI-6351.
Question 1
In the early years of European integration, cooperation between the Member States
of the EU focused mainly on economic issues. However, over the years, European
integration has widened and it now covers many other policy areas, including even
criminal law. With specific regard to judicial cooperation in criminal matters and
police cooperation, numerous measures are currently in place, addressing matters
ranging from countering terrorism to sharing evidence and enforcing penalties. The
most high profile instrument of them all is perhaps the European Arrest Warrant
(=arrestatiebevel), an arrest warrant valid throughout all Member States of the
European Union. Once issued, it requires another member state to arrest and
transfer a criminal suspect or sentenced person to the issuing state, so that the
person can be put on trial or complete his or her prison sentence. Cooperation
between Member States in criminal law and policy requires common standards, also
regarding the rights and procedural safeguards for accused persons. The EU has
, adopted three Directives in this area, covering respectively the right to an
interpreter and to translation in criminal proceedings, the right to information, and
the right to legal assistance in such proceedings (Directives 2010/64/EU, 2012/13/EU
and 2013/48).
a. Which fundamental right of the individual do these Directives aim to protect?
Can you point at the provision in the ECHR that corresponds to that right?
Directive 2010/64: is focused on the right to interpretation and translation in
criminal proceedings
o This correspondences with article 5(2) and article 6(3)a of the ECHR
Directive 2012/13: is focused on the right to information in criminal
proceedings
o This correspondences with article 5(2) ECHR.
Directive 2013/48: is focused on the right of access to a lawyer in criminal
proceedings
o This correspondences with article 6(3)c ECHR.
These directives have the aim to protect individuals that they have the right to a fair
trial within a criminal procedure, this provision corresponds to the right to have a fair
trial laid down in art. 6 ECHR.
Extra:
It was invoked in Kadi-Case. Kadi his assets were frozen, he could not invoked his
right in the sentence of art. 6
For information
Directive= richtlijn
Regulation= verordening
ECHR=EVRM
Charter= handvest
Legal order of Europe : Charter of the fundamental rights by European Union.
European
o EU is established by treaty
European Union is the first legal order
CoE and ECHR (European Social Charter)are the second legal order
o ECHR is a convention
Important is the relation between national law and European law in this
course.
