Transcript Speculating Human Rights Jurisdiction of the ECJ

Speculating Human Rights
Jurisdiction of the ECJ
Siniša Rodin
Hungarian Penal Code 1993
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Article 269/B, para (1), points a, b, c of
the penal code incriminates to “utilize or
exhibit in public swastika, a badge
descriptive SS, an arrow-cross, hammer
and sickle, a five-pointed red star.”
In no member-state of the European
Union are prohibited the red star or the
traditional symbol of the workers'
movement.
Case of Attila Vajnai
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On 10. March 2003, the Budapest district
police station of V and XIII district heard
Attila Vajnai, the vice-president of the
Workers' Party as a suspect. According to
the police Attila Vajnai utilized the red star
on a press conference on 21.
Attila Vajnai was sentenced on March to
12 months' probation for displaying a red
star in public, and was arrested again in
April for the same reason.
Case C-328/04
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Reference has been made to the ECJ
by order of the Fővárosi Bíróság,
Hungary, of 24 June 2004, received
at the Court Registry on 30 July
2004, for a preliminary ruling in the
criminal proceedings against Attila
Vajnai.
Question 1
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Is Article 269/B, first paragraph, of the
Büntető Törvénykönyv (Hungarian
Criminal Code), which provides that a
person who uses or displays, in public, the
symbol consisting of a fivepointed red star
commits — where the conduct does not
amount to a more serious criminal offence
— a minor offence, compatible with the
fundamental Community-law principle of
non-discrimination?
Question 2
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Do Article 6 TEU, according to which the
Union is founded on the principles of
liberty, democracy, respect for human
rights and fundamental freedoms,
Directive 2000/43/EC, which also refers to
fundamental freedoms, and Articles 10, 11
and 12 of the Charter of Fundamental
Rights, allow a person who wishes to
express his political convictions through a
symbol representing them to do so in any
Member State?
Jurisdiction depends on ECJ’s
reading of the case...
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...as a free movement case, or
as a fundamental rights case!
Costa v. ENEL: THE COURT HAS POWER
TO EXTRACT FROM A QUESTION
IMPERFECTLY FORMULATED BY THE
NATIONAL COURT THOSE QUESTIONS
WHICH ALONE PERTAIN TO THE
INTERPRETATION OF THE TREATY
The Problem
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Whether Communtiy law can restrict
States in exercise of their regulatory
powers, and where so, on what legal
basis and to what extent?
Two situations:
4 freedoms affecting MS regulatory
powers (Arts. 28-30 TEC)
Fundamental rights affecting MS
regulatory powers (Arts. 6-7 TEU)
The TEU (Art. 6)
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The Union is founded on the principles of liberty,
democracy, respect for human rights and
fundamental freedoms, and the rule of law,
principles which are common to the Member
States.
The Union shall respect fundamental rights, as
guaranteed by the European Convention for the
Protection of Human Rights and Fundamental
Freedoms signed in Rome on 4 November 1950
and as they result from the constitutional
traditions common to the Member States, as
general principles of Community law.
ECJ Jurisdiction re: Art. 6(1) TEU
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Art. 46 TEU: The provisions of the
Treaty (…) concerning the powers of
the ECJ and the exercise of those
powers shall apply only to the
following provisions of this Treaty:
(…)
Art. 6(1) not mentioned !!!
The Directive (preamble)
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In accordance with Article 6 of the Treaty
on EU, the EUis founded on the principles
of liberty, democracy, respect for human
rights and fundamental freedoms, and the
rule of law, principles which are common
to the Member States, and should respect
fundamental rights as guaranteed by the
European Convention for the protection of
Human Rights and Fundamental Freedoms
and as they result from the constitutional
traditions common to the Member States,
as general principles of Community Law.
ECJ Jurisdiction re: Directive
2000/43/EC
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Article 1 - Purpose
The purpose of this Directive is to lay
down a framework for combating
discrimination on the grounds of
racial or ethnic origin, with a view
to putting into effect in the Member
States the principle of equal
treatment.
Charter of Rights of the EU
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Article 10 - Freedom of thought, conscience and religion
Everyone has the right to freedom of thought, conscience and
religion. This right includes freedom to change religion or belief
and freedom, either alone or in community with others and in
public or in private, to manifest religion or belief, in worship,
teaching, practice and observance.
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Article 11 - Freedom of expression and information
Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers.
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Article 12 - Freedom of assembly and of association
Political parties at Union level contribute to expressing the political
will of the citizens of the Union.
ECJ Jurisdiction re: Charter of
Rights
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Still not a binding document
Even under the Constitutional Treaty,
it will be binding only on EU
institutions and Member States when
implementing EU law.
Conclusion:
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Prima faciae the ECJ does not have
jurisdiction to hear the case on
human rights grounds
Consequence: Member State can
imprison people for displaying a red
star unless the case can be heard as
a free movement case!
Is Atila Admissible as a Free
Movement Case?
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The Court has power to extract from a
question imperfectly formulated by the
national court those questions which alone
pertain to the interpretation of the Treaty
(Costa v. ENEL)
Q: Does Hungarian Criminal Code restrict
one of the 4 freedoms, e.g. Free
movement of persons
In such a case, Atila would fit into
Schmidberger, Omega line of cases
Free Movement Analysis
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Assumption 1: National measure infringes
one of the 4 freedoms
• Less persons can travel to Hungary (FMP)
• Less Heineken beer can be sold in Hungary
(FMG)
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Assumption 2: National measure aims at
protection of a mandatory requirement
• E.g. Public policy, fundamental rights, etc...
Free Movement Analysis
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Caught by Art. 28
Justified by Art. 30
• Must not be “arbitrary discrimination” or
“disguised restriction” of trade
• States have a margin of appreciation
• Objective must be legitimate
• Proportionality test
Example of FM analysis
Case C-112/2000, Schmidberger
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(...) whilst the free movement of goods constitutes one of
the fundamental principles in the scheme of the Treaty, it
may, in certain circumstances, be subject to restrictions for
the reasons laid down in Article 36 of that Treaty or for
overriding requirements relating to the public interest, in
accordance with the Court's consistent case-law since the
judgment in Case 120/78 Rewe-Zentral (`Cassis de Dijon')
[1979] ECR 649.
(...) interests involved must be weighed having regard to
all the circumstances of the case in order to determine
whether a fair balance was struck between those interests.
The competent authorities enjoy a wide margin of
discretion in that regard. Nevertheless, it is necessary to
determine whether the restrictions placed upon intraCommunity trade are proportionate in the light of the
legitimate objective pursued, namely, in the present case,
the protection of fundamental rights.
What can be justified? Prohibition
of lotteries! C-275/92, Schindler
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When a Member State prohibits in its territory
the operation of large-scale lotteries and in
particular the advertising and distribution of
tickets for that type of lottery, the prohibition on
the importation of materials intended to enable
nationals of that Member State to participate in
such lotteries organized in another Member State
cannot be regarded as a measure involving an
unjustified interference with the freedom to
provide services. Such a prohibition on import is
a necessary part of the protection which that
Member State seeks to secure in its territory in
relation to lotteries.
How wide is margin of appreciation
Case C-124/97, Läärä
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It is for [Member State] authorities to assess whether it is
necessary, in the context of the aim pursued, totally or
partially to prohibit activities of that kind or merely to
restrict them and, to that end, to establish control
mechanisms, which may be more or less strict.
the mere fact that a Member State has opted for a system
of protection which differs from that adopted by another
Member State cannot affect the assessment of the need for,
and proportionality of, the provisions enacted to that end.
Those provisions must be assessed solely by reference to
the objectives pursued by the national authorities of the
Member State concerned and the level of protection which
they are intended to provide.
Is prohibition of the Red Star a
justified interference?
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Case C-36/02, Omega: (...) the
prohibition on the commercial
exploitation of games involving the
simulation of acts of violence against
persons, in particular the
representation of acts of homicide,
corresponds to the level of protection
of human dignity which the national
constitution seeks to guarantee in
the territory of the FRG.
Is the Hungarian measure
proportionate to the aim pursued?
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Omega: (...) by prohibiting only the
variant of the laser game the object
of which is to fire on human targets
and thus play at killing' people, the
contested order did not go beyond
what is necessary in order to attain
the objective pursued by the
competent national authorities.
Can Atila still be admissible as a
fundamental rights case?
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Fundamental rights are a general
principle of law
Fundamental rights bind both the EU
and its Member States
There has to be an effective legal
protection
Respect for FR is a requirement for
EU membership
ECJ: FR = general principle of law
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(...) fundamental rights form an integral
part of the general principles of law the
observance of which the Court ensures,
and that, for that purpose, the Court
draws inspiration from the constitutional
traditions common to the MS and from the
guidelines supplied by international
treaties for the protection of HR on which
the MS have collaborated or to which they
are signatories. The ECHR has special
significance in that respect.
Omega; Schmidberger
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Since both the Community and its
Member States are required to
respect fundamental rights, the
protection of those rights is a
legitimate interest which, in
principle, justifies a restriction of the
obligations imposed by Community
law, even under a fundamental
freedom guaranteed by the Treaty...
Effective legal protection
Leerlaufende Rechte?
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Since both, the Community and
Member States, are required to
respect fundamental rights, does the
ECJ have an obligation to effectively
protect rights guaranteed by the
Treaty?
Effective Judicial Remedy
Case 222/84, Johnston
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The requirement of judicial control stipulated by that article
reflects a general principle of law which underlies the
constitutional traditions common to the member states. That
principle is also laid down in articles 6 and 13 of the EHRC of 4
Nov. 1950. As the European Parliament, Council and Commission
recognized in their joint declaration of 5 April 1977, and as the
Court has recognized in its decisions, the principles on which that
Convention is based must be taken into consideration in
Community law.
By virtue of article 6 of directive no 76/207, interpreted in the
light of the general principle stated above , all persons have the
right to obtain an effective remedy in a competent court against
measures which they consider to be contrary to the principle of
equal treatment for men and women laid down in the directive.
It is for the member states to ensure effective judicial control
as regards compliance with the applicable provisions of
Community law and of national legislation intended to give effect
to the rights for which the directive provides.
Respect for FR is requirement for
accession
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Copenhagen Council 1993 criteria:
“... stability of institutions
guaranteeing democracy, the rule of
law, human rights and respect
for and protection of minorities”
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Are these criteria applicable after
membership?
Constitutional opportunity of Atila
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To make FR a standard of judicial
review
To give Art. 6 TEU teeth
To make further step in
constitutionalisation of the Treaties
FR as a standard of review
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For the time being FR are standard of
review only accessory, e.g. as a
mandatory requirement.
Question: Can ECJ anticipate the
Charter of Rights becoming legally
binding? Probabbly not!
Van Gend en Loos Revisited
(teeth & constitutionalisation)
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Choice between avenues of review:
vigilance of individuals + direct effect
Jurisdiction of the ECJ:
Was it undisputable then?
Constitutionalisation THEN and NOW:
new legal order & Constitutional
Treaty
Van Gend – issue of jurisdiction
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The government of the Netherlands and the Belgian
government challenge the jurisdiction of the Court on the
ground that the reference relates not to the interpretation
but to the application of the Treaty in the context of the
constitutional law of the Netherlands, and that in particular
the Court has no jurisdiction to decide.
The solution of such a problem, it is claimed, falls within the
exclusive jurisdiction of the national courts, subject to an
application in accordance with the provisions laid down by
articles 169 and 170 of the Treaty.
The Belgian government further argues that the Court has
no jurisdiction on the ground that no answer which the
Court could give to the first question of the Tariefcommissie
would have any bearing on the result of the proceedings
brought in that court.
The Newest Legal Order?
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In Atila, the ECJ is facing a dilemma
similar to one in Van Gend:
• Van Gend – GATT or New Legal Order
• Atila – NLO or the Constitution
How to Justify?
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Incorporation?
• TEU and TEC are functionally inextricable.
• Art. 220 TEC: The Court of Justice and the
Court of First Instance, each within its
jurisdiction, shall ensure that in the
interpretation and application of this Treaty the
law is observed.
• Law can not be observed if Art. 6 TEU is not
effectively protected!
• However, this would require decision against
Art. 46 TEU (word “only”)
How to Justify?
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Extension of free trade provisions to
other regulatory purposes?
• Example US: Katzenbach v. McClung –
racial discrimination in a highway
restaurant is prohibited by the
Constitution since it affects trade
between States.
Bottom Line
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Jurisdiction of ECJ is not impossible to
justify
Member States will always have a margin
of discretion how to exercise police powers
Both the Union and MS have to respect
fundamental rights (...)
(...) subject to prinicple of proportionality
Margin of discretion and compliance with
proportionality are controlled by the ECJ.
If this approach is taken...
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ECJ would control compliance with
Art. 6 subsidiary - as long as it is not
complied by the Member States.
Is it likely?
No!