The European union and human rights after the treaty of Lisbon

Human Rights Law Review

Volumn 11, Issue 4, 2011, Pages 645-682

  Douglas Scott, Sionaidh ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

Accession; Charter of fundamental rights of the European Union; European Convention on human rights; European Union; Human rights; Treaty of Lisbon

Indexed keywords

EID: 82955184482     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngr038     Document Type: Article

References (131)

1. For which now see the application lodged against Poland, Al Nashiri v Poland, under the European Convention of Human Rights on 6 May 2011, in which it is alleged that Poland hosted a secret CIA prison at a military intelligence training base in Stare Kiejkuty where the applicant was held incommunicado and tortured
2. See Dawson and Muir, 'Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma' (2011) 48 Common Market Law Review 751
3. Weak mechanisms operated in the past under the 3rd Pillar with diminished control by the CJEU, and the former Article 35(2) TEU exclusion of matters of 'national security' from the scope of those cases which could be heard by the CJEU
4. For example, see Press Release, European Parliament, Summary of Hearing of Viviane Reding-Justice, Fundamental Rights and Citizenship, 11 January 2010, available at: http://www.europarl.europa.eu/pdfs/news/expert/infopress/20100111IPR67125/20100111IPR67125_en.pdf [last accessed 17 October 2011].
5. See also European Commission, 'Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter of Fundamental Rights', COM (2009) 205 final
6. I write 'at least' because sometimes international law may offer further avenues
7. That is, in the instance of a claim commenced in the national courts, in which a reference is made to the CJEU in Luxembourg for a preliminary ruling, and then completed in the national courts
8. See van der Heyning, Fundamental Rights in the EU: Lost in Complexity? (PhD awarded by the University of Antwerp Law School 2011)
9. Smismans, 'The European Union's Fundamental Rights Myth' (2010) 48 Journal of Common Market Studies 45
10. 1950, 5 ETS
11. For which see now Title V TFEU
12. T-163/96 Connolly v Commission [1999] ECR II-463; Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143: and Joined Cases C-402/05P and C-415/05P Kadi and Al Barakaat v Council [2008] ECR I-6351
13. Article 6(3) of the TEU [2008] OJ C 115/15 states: 'The Union shall respect fundamental rights, as guaranteed by the European Convention on Human Rights and as they result from the constitutional traditions common to member states as general principles of Community law.'
14. Starting with the insertion of Article F(2) by the Treaty of Maastricht in 1992, which had near identical wording to Article 6(3)
15. A provision which has not been used to date, in spite of rights violating events such as the extraordinary rendition of terrorist suspects in certain EU Member States
16. The TFEU [2008] OJ C 115/47 was formerly known as the EC Treaty, the Treaty of Rome or the Treaty establishing the European Community. Its present name is a result of amendments by the Treaty of Lisbon. Article 19 TFEU reads: '[T]he Council...may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.'
17. See, for example, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, 2 December 2000, OJ L 303
18. Cf the discussion on the EU Charter of Fundamental Rights below
19. Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, in which the Court held that respect for human rights forms an integral part of the general principles of Community law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to Member States, must be ensured within the framework of the structure and objectives of the Community.
20. In some of its earliest case law, the Court of Justice stated that 'the vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted to... the Commission and Member States...': see Case 16/62 Van Gend en Loos [1963] ECR 1.
21. Mancini, 'The Making of a Constitution for Europe' (1989) 26 Common Market Law Review 595
22. See, for example, Coppell and O'Neill, 'The European Court of Justice: Taking Rights Seriously?' (1992) 29 Common Market Law Review 669 at 689
23. See below, for criticism of the Kadi case, with its emphasis on the EU as an autonomous legal order, necessitating an independent review by the CJEU of fundamental rights compliance of international law (in this case United Nations Security Council measures) in the context of the freezing of the assets of terrorist suspects
24. For the text of the Charter, see: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:EN:PDF [last accessed 17 October 2011].
25. The first case in which the CJEU made direct reference to the Charter was Case C-540/03 Parliament v Council [2006] I-5769, at para 38
26. Cf African Charter on Human and Peoples' Rights 1981, 1520 UNTS 217
27. The CJEU has been using the term 'fundamental' rights since at least Internationale Handelsgesellschaft in 1970. However, it should be highlighted that the word 'fundamental' is not limited to 'human' rights, which means, at the very least, that companies may claim them too.
28. Explanations relating to the Charter of Fundamental Rights [2007] OJ C 303/17. Charter is 'only binding on Member States when they act in the scope of Union law'28 which goes beyond 'implementing' to include derogations from EU law by Member States and is a potentially very broad sphere of application. 29 What the Charter does not do, nor was intended to do, however, is to provide any new freestanding rights. A. The UK and Polish Protocol to the Charter Aside from conferring binding status on the Charter, one of the most controversial developments concerning the CFR introduced by the Treaty of Lisbon was the Polish Protocol,30 which reads as follows. Article 1 (1) The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
29. See also Court of Justice case law, which uses the same expression in C-260/89 ERT [1991] ECR I-2927 5
30. Notably, 51(1) of the Charter's German version uses the term 'Durchführung', that is, 'execution' of European Union law by the Member States. In R (Zagorski) v Secretary of State for Business, Innovation & Skills [2010] EWHC 3110 (Admin), at paras 66-71, the English High Court held that a Member State derogating from EU law was acting within the scope of EU law for the purposes of the Charter. In Case C-411/10 N.S. [2011] ECR 000 (for further commentary on which see below) Advocate General Trstenck held that, in deciding an asylum application on whether an applicant should be returned to Greece under EU Regulation 343/2003, the EU was implementing EU law and fell within the scope of the Charter.
31. Protocol No 30 to the Lisbon Treaty on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom [2010] OJ C 83/313. Indeed, Poland's participation in this Protocol seems somewhat ironic, given Poland's reference to solidarity, elsewhere, in Declaration No 62 by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom [2010] OJ C 83/358: Poland declares that, having regard to the tradition of social movement of 'Solidarity' and its significant contribution to the struggle for social and labour rights, it fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter of Fundamental Rights of the European Union. See also Declaration 53 to the Lisbon Treaty of the Czech Republic on the Charter of Fundamental Rights of the European Union, which contains similar terms to the UK and Polish Protocol. Also Protocol (No 35): On Article 40.3.3 of the Constitution of Ireland is also of relevance to the Charter, in attempting to ensure that Ireland's protection of the right to life of the unborn child is not disturbed by the Charter: 'Nothing in the Treaties, or in the Treaty establishing the European Atomic Energy Community, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.' The EU and Human Rights after the Treaty of Lisbon 653.
32. The Times, 14 October 2000
33. Poland had its own suspicions of the Charter, fearing it would threaten Poland's prohibition on abortion
34. For a discussion of fundamental rights as general principles of law, see below, Section 3
35. R (Saeedi) v Secretary of State for the Home Department [2010] EWHC 705
36. The applicant's claim was that detention conditions for refugees in Greece would infringe his fundamental rights. However, the EU asylum regime required determination of applications at first point of entry into the EU, thus apparently raising a conflict between fundamental rights and EU asylum law.
37. See further Clayton, 'Asylum Seekers in Europe: M.S.S. v Belgium and Greece' (2001) 4 Human Rights Law Review 758.
38. The formal name of the Saeedi case in the CJEU. AG Trstenjak also held that the obligation to interpret the Asylum Regulation 343/2003 in a manner consistent with fundamental rights precluded the operation of a conclusive presumption by the UK of fundamental rights compliance by Greece-Joined Cases C-411/10 N.S. v Secretary of State for the Home Department and C-493/10 M.E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] ECR 000.
39. Article 52(3) states: 'In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.'
40. Case C-400/10 PPU JMcB v LE [2010] ECR 000
41. Also, notably, Declaration on Article 6(2) of the Treaty on European Union [2010] OJ C 83/337 provides: '[T]he Conference notes the existence of a regular dialogue between the Court of Justice of the European Union and the European Court of Human Rights; such dialogue could be reinforced when the Union accedes to that Convention.'
42. Weiss, 'Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights After Lisbon' (2011) 7 European Constitutional Law Review 64 and 71
43. However, the claim for direct effect of CFR provisions is questionable, at least in the case of some of its provisions, given the lack of drafting of some of its articles in terms of principles rather than rights
44. Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17
45. Delegations from the ECtHR and the CJEU met on 17 January 2011-see 'Joint Communication from Presidents Costa and Skouris', Press Release No 75 issued by the Registrar of the ECtHR on 27 January 2011, available at: http://www.echr.coe.int [last accessed 17 October 2011].
46. Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert [2010] ECR 000
47. And in which, notably, the CJEU did not discuss the temporal applicability of the Charter, despite the fact that the disputes at issue had occurred before the entry into force of the Treaty of Lisbon
48. The Charter of Fundamental Rights does not apply universally but only in relation to EU law. Article 51(1) of the Charter reads: 'The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.'
49. Further, EU law can also prove more effective than national human rights litigation, where, in the UK, for example, section 4 of the Human Rights Act provides the English courts with no power to set aside primary domestic law incompatible with human rights but only to issue a 'declaration of incompatibility' which must then be addressed by Parliament. The ECtHR has stated that declarations of incompatibility in section 4 of the HRA do not satisfy the requirement of an effective remedy in Article 13 of the ECHR in Burden & Burden v United Kingdom 47 EHRR 38.
50. See, on this, Decision of the German Federal Constitutional Court 2 BvR 1481/04 of14 October 2004; and Görgülü v Germany Application No 74969/01, Merits, 26 February 2004
51. For example, Scoppolla v Italy (No 2) Application No 10249/03, Merits, 17 September 2009, in which the ECtHR cited Cases C-391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, as authority for the retroactive application of the more lenient penalty under Article 7 of the ECHR
52. See, for example, A-G Sharpston's call for a 'seamless protection of fundamental rights under EU law in all areas of exclusive or shared EU competence'-apparently even in cases in which EU competence has not even been exercised-in Case C-34/09 Ruiz Zambrano [2011] ECR I-nyr, discussed below
53. Case C-144/04 Mangold v Helm [2005] ECR I-09981; and Case C-555/07 Seda Kücükdeveci [2010] ECR nyr, discussed below
54. For the suggestion that EU states should withdraw from the ECHR, see Toth, 'The European Union and Human Rights: The Way Forward' (1997) 34 Common Market Law Review 491
55. See also Williams, 'Burying, not praising the European Convention on Human Rights: A Provocation', in Shaw, Tierney and Walker (eds), Europe's Constitutional Mosaic (Oxford: Hart, 2011)
56. For example, the European Commission issued a Memorandum in April 1979 on 'The Communities becoming a signatory of the European Convention on Human Rights'as an initial step towards consolidating human rights protection in the Community: see Bulletin of the European Communities, supplement 2/79
57. In Case 46/87 Hoechst [1989] ECR 2859, which concerned a Commission investigation into a company's anti-competitive behaviour, the ECJ was asked to applyArticle 8 to the company's business premises. It refused to do so, holding that Article 8 applies only to private dwellings, stating that 'the protective scope of that article is concerned with the development of man's personal freedom and not however be extended to business premises.' But in Niemietz v Germany 16 EHRR 97, the ECHR held that to interpret 'private'and 'home'as including certain business premises would be in keeping with the object and purpose of Article 8, which is to protect individuals' against arbitrary interference by public authorities. Similar conflicts also arose in the context of Article 6 in the Orkem and Funke cases. See also Chappell v United Kingdom 12 EHRR 1; Case 374/87 Orkem v Commission [1989] ECR 3283; and Funke v France A 256-A (1993); 16 EHRR 297. Indeed in Orkem, AG Darmon stressed that the ECJ was not bound by the ECHR.
58. And therefore there is jurisdiction under Article 1 of the ECHR against the Member State. Any complaint directed against the EU in the ECtHR is inadmissible, as established, for example, by the CFTD case: CFTD v European Communities (1978) 13 DR 213. Also M. & Co v Germany (1990) 64 DR 138. Nor will applicants be successful in Strasbourg if they attempt to proceed against all of the EU Member States as jointly liable for EU action. An illustration is provided by the Connolly case, in which the applicant's complaint in Strasbourg was that, in an earlier action in the Luxembourg court, his request to submit written observations to the Advocate General had been denied. He therefore proceeded against all the (then) Member States to Strasbourg claiming a violation of Article 6 of the ECHR. However, the Strasbourg court rejected his complaint as inadmissible, holding that, EU Member States could only be held responsible where there was an act of some sort on their territory: see Connolly v 15 Member States of the European Union Application No 73274/01, Admissibility, 9 December 2008. Other than this, EU action would not be attributed to the Member States and did thus not fall into their jurisdiction under Article 1 of the ECHR.
59. Opinion 2/94 [1996] ECR I-1759 taken under the then Article 308(6) of the EC Treaty
60. Although it is conceivable that the CJEU might give another Opinion on a new Accession Agreement, finding it incompatible with EU law: see Jacobs, 'The Internal Legal Effects of the EU's International Agreements and the Protection of Individual Rights', in Arnull et al. (eds), A Constitutional Order of States (Oxford: Hart, 2011) at 153.
61. The new Article 59(2) ECHR reads: 'The European Union may accede to this Convention'
62. Some of which, including the UK following the coming into force of the EU Act 2011 in September 2011, may require a referendum under their constitutional law provisions
63. Council of the European Union, The Stockholm Programme - An open and secure Europe serving and protecting the citizens (Brussels, 2 December 2009) at 3
64. CM/Del/Dec (2010) 1085, 26 May 2010
65. The decision is based on Article 6(2) of the TEU, Article 218(8) of the TFEU, Protocol No 8 and Declaration 2 to the Lisbon Treaty
66. CDDH-UE (2011)16 fin. However, the UK Lord Chancellor, and Minister for Justice, Kenneth Clark, in his oral evidence on 7 September 2011 to the House of Commons European Scrutiny Committee on the topic of EU Accession to the ECHR (HC 1492-i) emphasised that this document had no binding legal status whatsoever, and was simply the first step in starting the complex negotiations.
67. See UK Parliamentary Briefing Paper, EU Accession to the European Convention on Human Rights, SN/IA/5914, 22 March 2011, at 11; and oral evidence of Kenneth Clark to European Scrutiny Committee (HC 1492-i) September 2011
68. Amnesty International, Recommendations to the European Union Hungarian Presidency. During the January-July 2011.
69. See also Lock, 'EU Accession to the ECHR: Implications for Judicial Review in Strasbourg', (2010) 35 European Law Review 777
70. 'Walking on a Tightrope: The Draft Accession Agreement and the Autonomy of the EU Legal Order' (2011) 48 Common Market Law Review 1025, for a thorough treatment of accession issues
71. Also Jacqué, 'Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms' (2011) 48 Common Market Law Review 995
72. Opinion 1/91 [1991] ECR 1-6079; and Opinion 1/00 [2002] ECR 1-3493; see also Opinion 1/09 of the CJEU finding the Draft agreement on Community Patent Court incompatible with EU law [2011] ECR nyr
73. See further below
74. This also means that, while non-EU Council of Europe Contracting States of the ECHR may bring an action against the EU post-accession, EU states will not be able to bring an inter-party case against the EU in the ECtHR, since Article 344 TFEU law bars them from using such other international means of dispute
75. Case 314/85 Foto Frost [1987] ECR 1129; Article 19(1) states: 'The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialized courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.'
76. The decision whether or not to make a preliminary reference to the CJEU lies in the hands of the national courts under Article 267 TFEU, and they may decide not to so, or find the matter to be acte clair; or refer only on some aspects of a particular case. Indeed, as the ECJ itself ruled in the IATA case, the very fact that the validity of an EU measure was challenged in a national court was not sufficient to require a preliminary reference: see Case C-344/04 IATA and ELFAA [2006] ECR I-403, at para 28.
77. The relevant provision is set out in the Draft Final Agreement is as follows: Art 3(6) In proceedings to which the European Union is co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the Convention rights at issue of the provision of European Union law as under paragraph 2 of this Article, then sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court.
78. One such example is Case 84/95 Bosphorus [1996] ECR I 3953, discussed below
79. See, for example, Informal Working Group on the Accession of the European Union to the European Convention on Human Rights (CDDH-UE), Submission by the AIRE Centre and Amnesty International, AI Index: IOR 61/003/2011
80. Nor can issues of primary law be solved by a Member State acting alone. See also Matthews v United Kingdom 1999-I; 28 EHRR 361, in which the UK experienced great difficulties in remedying a violation ultimately attributable to UK primary law.
81. Furthermore, it is to be noted that in Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v Netherlands Application No 13645/05, Admissibility, 20 January 2009, the ECtHR held that the Bosphorus presumption applied not only to the measures taken by a Member State when implementing legal obligations flowing from its membership of the EU, but also to the procedures followed within EU, including the procedure before the CJEU and the question whether those proceedings afforded equivalent guarantees of fairness.
82. Namely, Bosphorus was unable to run its airline, and lost three years out of a four-year aircraft lease. As it stated in argument, this was the only aircraft which had been impounded under the sanctions regulations.
83. Judge Ress, in a separate concurrence, warned that the concept of Convention compliance by international organisations should not be seen as a step towards the creation of a double standard. Nor did he believe that the presumption of compliance should prevent a case by case review.
84. M& Co. v Federal Republic of Germany (1990) 64 DR 138, decided in 1990 (in which the applicant was claiming breach of the right to a fair trial under Article 6 of the ECHR in the course of the execution of an ECJ judgement in a competition case). The European Commission found that the EC legal system did provide equivalent protection and deemed the action inadmissible; see also Heinz v Parties to European Patent Convention (1994) 76A DR 125, where a similar approach was taken.
85. Case No 2 BvR 197/83 (BVerfG) BVerfGE 73, 339 (NJW1987, 577) 22 October 1986
86. See, for example, Douglas-Scott, 'A Tale of Two Courts' (2006) 43 Common Market Law Review 629, for further elaboration of this
87. See speech by Commissioner Reding, 'The EU's accession to the European Convention on Human Rights: Towards a stronger and more coherent protection of human rights in Europe', Brussels, 18 March 2010
88. For this, see Article 6, 'Election of Judges', Draft Accession Agreement
89. See Article 7(1) and (2) draft Accession Agreement. EU law sometimes requires the EU and its Member States to coordinate their actions and votes similarly in international organizations, so the Accession Agreement sets out special voting procedures in order to avoid the 27 EU Member States automatically out voting other COE Members in the execution of judgments and friendly settlements in cases involving the EU.
90. Case 29/69 Stauder v City of Ulm [1969] ECR 419; and Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125
91. Omega Spielhallen-und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609
92. Another example may be found in the right to life of the unborn child, protected most strongly in only a few States, for example, Ireland and Poland. Cf Protocol No 35 to the Lisbon Treaty on Article 40.3.3 of the Constitution of Ireland [2010] OJ C 83/321.
93. Case C-555/07 Seda Kücükdeveci [2010] ECR 000
94. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2 December 2000, at 16-22
95. On the lack of direct effect of directives, see Craig,'The Legal Effect of Directives: Policy, Rules and Exceptions' (2009) 34 European Law Review 349
96. Case C-144/04 Mangold [2005] I-9981, at para 74
97. General principles of equal treatment on grounds of sex and nationality which had previously been accorded horizontal status were in the EU treaties, rather than unwritten rights established by the jurisprudence of the Court
98. It is to be found in Article 6 of the Finnish Constitution and (with reference to professional life) Article 59(1) of the Portuguese Constitution. However, the EU treaties contain a specific legal basis for measures to combat discrimination based on age (Article 19 TFEU, ex-Article 13 TEC), which had been used as the basis for Directive 2000/78.
99. Case C-101/08 Audiolux SA ea v Groupe Bruxelles Lambert SA (GBL) and Others and Bertelsmann AG and Others [2009] ECR I-9823
100. Case C-34/09 Ruiz Zambrano [2011] ECR 000
101. Protocol No 12 to the ECHR on non-discrimination. See also Case C-73/08 Bressol, Chaverot Opinion of A.G. Sharpston of 25 June 2009 and Judgment of 13 April 2010 [2010] ECR I nyr (Grand Chamber).
102. Case C-380/05 Centro Europa 7 [2008] ECR I-349 at para 19. See also AG Jacobs in Case C-168/91 Konstantinidis [1993] ECR I-1191.
103. For a critique of the EU's activities in this area, see Douglas-Scott, 'Fundamental Rights in the EU: The Ambiguity of Judicial Review', in Campbell, Ewing and Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays, (Oxford: Oxford University Press, 2011)
104. Douglas-Scott, 'The Freedom, Security and Justice in the European Court of Justice' (2008-09) 11 CambridgeYearbook of European Law Studies
105. Joined Cases C-402 and 415/05 P Kadi & Al Barakaat International Foundation v Council & Commission [2008] ECR I-6351
106. At first instance the EU's CFI held that the primacy of the UN and international law, prevented review of the measure on the basis of EU standards. According to the CFI, all the EU was doing was implementing a UN measure. It had no discretion and the only possible review would be on the basis of jus cogens not autonomous free standing EU fundamental rights standards. The CFI found none of his alleged rights to be violated: see Case T-315/01 Kadi v Council & Commission [2005] ECR II-3649.
107. See on this, De Búrca,'The ECJ and the International Legal Order after Kadi' (2009) 51 Harvard Journal of International Law 1
108. Joined Cases C-120-21/06 P FIAMM & FEDON v Council [2008] ECR I-6513,63; Case C-308/06 The Queen, on the application of Intertanko v Sectary of State for Transport [2008] ECR I-4057
109. Ziegler, 'Strengthening the Rule of Law, but Fragmenting International Law: The Kadi Decision of the ECJ from the Perspective of Human Rights' (2009) 9 Human Rights Law Review 288
110. On this see Douglas-Scott, 'Freedom, Security, and Justice in the European Court of Justice: The Ambiguous Nature of Judicial Review', in Campbell, Ewing and Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays, (Oxford: Oxford University Press, 2011)
111. See on this, for example, Cappelletti, Seccombe and Weiler (eds), Integration Through Law (Berlin/New York: Walter de Gruyter, 1986)
112. Case C-438/05 Viking [2007] ECR I-10779; and Case C-341/05 Laval [2007] ECR-I 11767. See also Case C-346/06 Rüffert v Niedersachsen [2008] ECR 1989.
113. See Article 28 of the Charter on the 'right of collective bargaining and action'
114. C-271/08 Commission v Germany [2010] ECR 000
115. Demir and Baykara v Turkey Application No 34503/97, Merits, 12 November 2008, at paras 153-4; also EnerjiYapi-Yol Sen v Turkey Application No 68959/01, Merits, 21 April 2009
116. See on this Ewing and Hendy, 'The Dramatic Implications of Demir and Baykara' (2010) 39 Industrial Law Journal 2
117. See, for example, on this Von Hannover v Germany [2004] ECHR 294
118. NewYork Times Co. v Sullivan 376 U.S. 254 (1964) is the leading US case on the primacy of freedom of the press and political speech over other types of claims.
119. Von Hannover v Germany 2004-VI; 43 EHRR 139
120. Williams, The Ethos of Europe (Cambridge, UK: Cambridge University Press, 2010)
121. Douglas-Scott, 'The Problem of Justice in the EU', in Dickson and Eleftheriadis (eds), The Philosophical Foundations of the EU (Oxford: Oxford University Press, forthcoming 2012)
122. Judt, A Grand Illusion? An Essay on Europe (NewYork/London: NYU Press, 2011) at 119
123. AG Maduro in Case C-380/05 Centro Europa 7 [2008] ECR I-349, at para 19
124. See, for example, von Bogdandy 'The EU as a Human Rights Organization?' (2000) 37 Common Market Law Review 1307
125. Kadi is a rare example. See also C-236/09 Association belge des Consommateurs Test-Achats et al v Council [2011] ECR 000; and Case C-340/00 Commission v Cwik [2001] ECR.
126. For the German Constitutional Court decision, see BVerfGE, Neue Juristische Wochenschrift (NJW), 58 (2005), 2289
127. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 30 June 2009, Entscheidungen des Bundesverfassungsgerichts, 210 (F.R.G.) 67.
128. In Brunner v European Union Treaty [1994] I CMLR 57, on the compatibility of the Maastricht Treaty with the German Basic Law, the German Constitutional Court held that it retained the competence to review EU measures which violate fundamental rights
129. The German Court's judgement also appears to have inspired the Czech Constitutional Court in its decision of 3 November 2009: see Press Release, 'Constitutional Court: The Treaty of Lisbon is in conformity with the Constitutional Order of the Czech Republic and there is nothing to prevent its ratification'
130. See Hirst v United Kingdom (No 2) [2005] ECHR 68, for an example of a much criticized Strasbourg judgement in the UK; see also speech of Lady Justice Arden DBE, 'Is The Convention Ours?' (January 2010) available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/lj-arden-european-court-human-rights-29012010.pdf [last accessed 17 October 2011].
131. Also relevant in this regard is the setting up of a Commission in the UK to consider the possibility of a 'British Bill of Rights'