Speculating Human Rights Jurisdiction of the ECJ

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Speculating Human Rights Jurisdiction of the ECJ

• Sinia Rodin

2
Hungarian Penal Code 1993

• 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.

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Case of Attila Vajnai

• 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.

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Case C-328/04

• Reference has been made to the ECJ by order of
  the Fovárosi 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.

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Question 1

• Is Article 269/B, first paragraph, of the Bünteto
  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?

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Question 2

• 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?

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Jurisdiction depends on ECJs reading of the
case...

• ...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

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The Problem

• 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)

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The TEU (Art. 6)

• 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.

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ECJ Jurisdiction re Art. 6(1) TEU

• 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 !!!

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The Directive (preamble)

• 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.

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ECJ Jurisdiction re Directive 2000/43/EC

• 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.

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Charter of Rights of the EU

• Article 10 - Freedom of thought, conscience and
  religionEveryone 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.
• Article 11 - Freedom of expression and
  informationEveryone 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.
• 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.

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ECJ Jurisdiction re Charter of Rights

• 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.

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Conclusion

• 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!

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Is Atila Admissible as a Free Movement Case?

• 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

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Free Movement Analysis

• 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)
• Assumption 2 National measure aims at protection
  of a mandatory requirement
• E.g. Public policy, fundamental rights, etc...

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Free Movement Analysis

• 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

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Example of FM analysisCase C-112/2000,
Schmidberger

• (...) 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 intra-Community trade are
  proportionate in the light of the legitimate
  objective pursued, namely, in the present case,
  the protection of fundamental rights.

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What can be justified? Prohibition of lotteries!
C-275/92, Schindler

• 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.

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How wide is margin of appreciationCase C-124/97,
Läärä

• 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.

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Is prohibition of the Red Star a justified
interference?

• 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.

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Is the Hungarian measure proportionate to the aim
pursued?

• 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.

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Can Atila still be admissible as a fundamental
rights case?

• 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

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ECJ FR general principle of law

• (...) 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.

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Omega Schmidberger

• 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...

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Effective legal protectionLeerlaufende Rechte?

• 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?

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Effective Judicial RemedyCase 222/84, Johnston

• 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.

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Respect for FR is requirement for accession

• Copenhagen Council 1993 criteria ...
  stability of institutions guaranteeing democracy,
  the rule of law, human rights and respectfor and
  protection of minorities
• Are these criteria applicable after membership?

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Constitutional opportunity of Atila

• To make FR a standard of judicial review
• To give Art. 6 TEU teeth
• To make further step in constitutionalisation of
  the Treaties

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FR as a standard of review

• 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!

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Van Gend en Loos Revisited(teeth
constitutionalisation)

• Choice between avenues of review vigilance of
  individuals direct effect
• Jurisdiction of the ECJ Was it undisputable
  then?
• Constitutionalisation THEN and NOWnew legal
  order Constitutional Treaty

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Van Gend issue of jurisdiction

• 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.

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The Newest Legal Order?

• 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

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How to Justify?

• 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)

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How to Justify?

• 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.

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Bottom Line

• 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.

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If this approach is taken...

• ECJ would control compliance with Art. 6
  subsidiary - as long as it is not complied by the
  Member States.
• Is it likely?
• No!