Samenvatting Fundamental
Rights in Europe
Week 1; What are fundamental rights?
ECHR
Council of Europe
European Court of Human Rights Strasbourg (ECtHR)
Charter
European Union
Court of Justice Luxemburg (CJEU)
Legel effects
ECHR
Depend on whether the counrty has a monism or dualism system
o Monist; provisions in treaties are immediately part of the national legal order
o Dualistic; provisions in treaties only become part of the national legal order,
after they have been converted into a national rule by the national legislator
Charter EU Law
Direct effect; a treaty is directly applicable in the national courts
Directives direct affect
- Vereiste:
o Van Gent en Loos
Sufficiently clear
Unconditional
Automatic (doesn’t require action from the state)
o Van Duyn
Time for implementation has passed
Vertical against country
Handelsgesellschaft
The law stemming from a treaty cannot because of its very nature be overridden by
rules of national law
o Because of the uniformity and efficacy, it is supposed to have
Melloni
Rules of national law, even of a constitutional order, cannot be allowed to undermine
the effectiveness of Eu Law on the territory of that state
o National authorities and courts remain free to apply national standards of
protection of fundamental rights, provided that the level of protection
provided for by the Charter and the primacy, unity and effectiveness of Eu
Law are not thereby compromised
, Week 2; Scope of fundamental rights
ECHR
Article 1
o Who; high contracting parties States
o When; when a state exercises jurisdiction
Jurisdiction in article 1
Primarily territorial AL Skeine, par 10
Sometimes also when a state acts outside its territory
o Effective control over an area (spatial)
o State agent authority and control over an individual (personal)
Bosphorus v. Ireland
Does a presumption arise?
Does the relevant EU Law leave discretion in implementation to the member state?
o Yes; no presumption determine whether there is a fair balance
o No; presumption arises only a violation if the presumption is rebutted
Will be rebutted when it is ‘manifestly deficient’
EU Charter
Article 51
o Who; institutions and bodies of the Union
o When; Only when they are implementing EU Law (Akerberg Fransson
Akerberg Fransson
The European union does not govern the relations between the ECHR and the legal
systems of the member states
National authorities and courts remain free to apply national standards of protection
of fundamental rights, provided that the level of protection provided for by the
Charter are not thereby compromised
Rights in Europe
Week 1; What are fundamental rights?
ECHR
Council of Europe
European Court of Human Rights Strasbourg (ECtHR)
Charter
European Union
Court of Justice Luxemburg (CJEU)
Legel effects
ECHR
Depend on whether the counrty has a monism or dualism system
o Monist; provisions in treaties are immediately part of the national legal order
o Dualistic; provisions in treaties only become part of the national legal order,
after they have been converted into a national rule by the national legislator
Charter EU Law
Direct effect; a treaty is directly applicable in the national courts
Directives direct affect
- Vereiste:
o Van Gent en Loos
Sufficiently clear
Unconditional
Automatic (doesn’t require action from the state)
o Van Duyn
Time for implementation has passed
Vertical against country
Handelsgesellschaft
The law stemming from a treaty cannot because of its very nature be overridden by
rules of national law
o Because of the uniformity and efficacy, it is supposed to have
Melloni
Rules of national law, even of a constitutional order, cannot be allowed to undermine
the effectiveness of Eu Law on the territory of that state
o National authorities and courts remain free to apply national standards of
protection of fundamental rights, provided that the level of protection
provided for by the Charter and the primacy, unity and effectiveness of Eu
Law are not thereby compromised
, Week 2; Scope of fundamental rights
ECHR
Article 1
o Who; high contracting parties States
o When; when a state exercises jurisdiction
Jurisdiction in article 1
Primarily territorial AL Skeine, par 10
Sometimes also when a state acts outside its territory
o Effective control over an area (spatial)
o State agent authority and control over an individual (personal)
Bosphorus v. Ireland
Does a presumption arise?
Does the relevant EU Law leave discretion in implementation to the member state?
o Yes; no presumption determine whether there is a fair balance
o No; presumption arises only a violation if the presumption is rebutted
Will be rebutted when it is ‘manifestly deficient’
EU Charter
Article 51
o Who; institutions and bodies of the Union
o When; Only when they are implementing EU Law (Akerberg Fransson
Akerberg Fransson
The European union does not govern the relations between the ECHR and the legal
systems of the member states
National authorities and courts remain free to apply national standards of protection
of fundamental rights, provided that the level of protection provided for by the
Charter are not thereby compromised
