Eleni Frantziou, LLM
LLM, College of Europe; LLB, King’s College London
Stagiaire, Chambers of Judge Schiemann, Court of Justice of the European Union
The solemn proclamation of the Charter of Fundamental Rights a decade ago sparked an interesting debate on whether the European Union was or could be an organisation that respected and protected fundamental rights in its own right[i]. In that regard, von Bogdandy had influentially argued that
“the human rights jurisprudence is the least “autonomous” part of the supranational legal order. […] Major changes in Union law must occur if it is to change into a legal order that places human rights or the citizen at its center.”[ii].
The two years following the entry into force of the Lisbon Treaty witnessed a number of judicial developments in EU law. It will be argued that the seeds have now been sown for the Union to move away from its ‘market values’ construction towards a more complete constitutional system, where fundamental rights play an active role.
By drawing on three main themes, starting from equality in section II and moving to citizenship and the right to family life (section III) and immigration (section IV), this paper seeks to demonstrate how the Court’s case law in 2010-2011 has extended the scope of EU law to encompass the autonomous protection of fundamental rights. In other words, it will attempt to evaluate to what extent fundamental rights have become part of the Union’s own “constitutional charter”[iii] in the post-Lisbon era.
The principle of equality – the ‘holy grail’ of EU fundamental rights case law – was given an interesting twist in one of the first eye-catching cases of 2010, Kücükdeveci v Swedex[iv]. The case concerned discrimination on grounds of age. Ms. Kücükdeveci had been dismissed by Swedex, a private company, on a month’s notice after ten years of service. Although the German Civil Code (GCC) would normally have provided for four months’ notice before dismissal, periods of employment before the age of 25 were excluded from this calculation (622(2)GCC). Ms. Kücükdeveci claimed discrimination on grounds of age, contrary to Article 1 of the Framework Equality Directive[v]. It is elementary EU law that directives do not enjoy horizontal direct effect[vi]. Nevertheless, in sweeping constitutional terms, the CJEU proclaimed:
“it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such as that at issue in the main proceedings.”[vii]
As Advocate General Bot remarked, the Court was faced with the question of “whether the designation of rights guaranteed by directives as fundamental rights does or does not strengthen the right to rely on them in proceedings between private parties.”[viii] The case suggests that the Court is eager to assume a wider jurisdiction where the Union’s constitutional commitments as regards the protection of fundamental rights are concerned, even in situations which would have otherwise fallen outside the scope of EU law[ix]. Thus, Kücükdeveci extends the scope of application of EU law at least to secondary legislation which is rooted in the general principles jurisprudence and reaffirms the primacy of the ‘Union standard’ in the field of fundamental rights[x]. The implications are striking. As Peers persuasively puts it:
“it would be absurd to privilege one particular aspect of the right to non-discrimination over other aspects of that right, other social rights, or other human rights, and so the principle should logically apply whenever any general principle of EU law, as regards human rights protection, is sufficiently connected to the application of an EU Directive. The rationale for privileging human rights as a whole over other rules and principles as regards their legal effect is simply that […] human rights have primacy in the hierarchy of the primary law of the European Union.”[xi]
Indeed, the ‘Kücükdeveci effect’, as one commentator called it[xii], has not (yet) come to an end. The Court has reaffirmed its validity in a recent case decided by the Grand Chamber[xiii]. Finally, its Advocates General have made a strong case for the constitutionalisation of the ruling insofar as it calls for the effective use of new Treaty provisions and the Charter[xiv].
Citizenship and the right to family life
In March 2011, the Court rendered one of the most controversial judgments in its recent history, Zambrano[xv]. The Court was faced with the situation of a Colombian asylum seeker who had been refused refugee status as well as a permanent work permit in Belgium. Two of his children were Belgian nationals, therefore enjoying Union citizenship. Mr Zambrano argued that the refusal of his work permit would force him to emigrate, which, in turn, would deprive his children of effective use of their EU citizenship and violate their fundamental rights, contrary to Articles 18, 20 and 21 TFEU[xvi] and Articles 7, 21 and 24 of the Charter[xvii]. The Court agreed:
“article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42[xviii]). A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect”[xix].
Thus, the Court reaffirmed that “citizenship of the Union is intended to be the fundamental status of nationals of the Member States”[xx]. In addition, the citizenship rights of Mr. Zambrano’s children were found to be potent enough to keep their parents in the Union even though the citizens themselves had never exercised their free movement rights. Thus, the Court essentially decided that citizenship of the Union is capable, in and of itself, under certain circumstances, of founding (and winning) a claim before the Court.
Zambrano can be seen as representing ‘a permanent move beyond the confines of “market citizenship”’[xxi] and towards the concept of ‘EU citizenship as such’ as a trigger for the application of EU law[xxii]. As AG Sharpston put it:
“from the moment that the Member States decided to add, to existing concepts of nationality, a new and complementary status of ‘citizen of the Union’, it became impossible to regard such individuals as mere economic factors of production. Citizens are not ‘resources’ employed to produce goods and services, but individuals bound to a political community and protected by fundamental rights” [xxiii].
Nonetheless, the Court, perhaps alarmed by the degree of disapproval following its ruling, was sceptical about applying it in the follow-up cases of McCarthy[xxiv] and Dereci[xxv], holding that the mere fact that a citizen may prefer that his family members should stay in the Union cannot constitute sufficient proof, if their stay is refused, of an effective deprivation of citizenship or of a violation of fundamental rights[xxvi]. It therefore seems that, for the time being, Zambrano has been restricted from a factual perspective. However, the decision that lack of an inter-state element can no longer ipso facto disqualify citizenship cases from falling within the scope of the Treaty, remains good law.
Asylum and immigration – N.S.: the Court’s swan song for 2011
In December 2011, the Court of Justice rendered its ruling in the long-awaited case of N.S.[xxvii] The case concerned a number of illegal immigrants who had applied for asylum in the UK. When the authorities attempted to send them back to the country of first entry, Greece, in order for their applications to be processed in accordance with the Dublin II Regulation[xxviii], the applicants claimed that, if returned, they would likely be subjected to inhuman and degrading treatment as well as a series of other human rights violations. The CJEU was asked, inter alia, to determine whether the general principles of European law and the rights enshrined in Articles 1, 4, 18 and 47 of the Charter of Fundamental Rights[xxix] offer a protection wider than that afforded by Article 3 ECHR[xxx]. The case differs from Kücükdeveci and Zambrano in that the applicability of EU law was not challenged. However, it is important as regards the lens through which the Court looks at human rights claims and their place in the Union’s constitutional hierarchy.
The Court decided that the interpretation of the rights in question under the Charter would not be different than that of the ECHR in the case at issue[xxxi]. However, and quite strikingly, it employed its own standard of protection[xxxii]. The Advocate General, who was followed by the Court, argued in clear terms that the Court is free, under the Charter, to provide more extensive protection than the ECHR[xxxiii]. Although she stressed the importance of the Convention in the interpretation of Union rights under the Charter, she went on to argue that this cannot undermine the intellectual autonomy of the CJEU regarding the reach of Union rights, particularly in view of the fact that ECtHR judgments:
“essentially constitute case-specific judicial decisions and not the rules of the ECHR themselves, and it would therefore be wrong to regard the case-law of the European Court of Human Rights as a source of interpretation with full validity in connection with the Charter[xxxiv].”
As to the substance, the Court held that an individual assessment of potential human rights violations is required by primary Union law, even if that would essentially contravene the mutual recognition rules agreed by the Member States under Dublin II[xxxv]. Thus, the N.S. case is a clear indication to the effect that a) the standard of protection of fundamental rights under the Union’s Charter is changing into a non-negotiable obligation for the Member States, even in the most sensitive areas of EU law, and b) the CJEU will only accept unchanged the standards set by the ECtHR as long as it considers them acceptable for the Union legal order, rather than the other way around. Although the judgment still awaits further development through the case law, it is in harmony with the trend of placing increasing protection on fundamental rights and is heavily reminiscent of the Kadi saga[xxxvi], where the Court emphasised that:
“the Community judicature must […] ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law”[xxxvii].
It remains to be seen whether the Court will eventually proclaim the independence of the Union’s fundamental rights system, thus answering the “federal question” in the affirmative[xxxviii]. To that end, it is worth noting that the CJEU recently ruled against the direct application of ECHR provisions in the EU[xxxix], suggesting that the only human rights list enjoying Treaty status and, consequently, direct effect in the Member States is the Charter of Fundamental Rights[xl].
Concluding remarks: Two years of reform?
The three cases cited in this paper have illustrated the willingness with which the CJEU has assumed a wider scope for adjudicating in the vast spectrum of human rights claims. Fundamental rights have gradually become part and parcel of European Union law, initially respected, then protected and nowadays even asserted, qua general principles and through the Charter, against market values. As some commentators have argued, in a time of crisis for the Union’s ‘old ideals’, strong liberal democratic principles and an express commitment to the protection of human rights now form an integral part of the EU’s normative foundations[xli].
The care that the Court has taken in the last two years to ensure the uniform and autonomous application of fundamental rights throughout the Union, irrespective of the existence of a traditional EU law setting, signals a ‘constitutionalisation’ of rights which is single-handedly carrying through the polity-building process initiated by the Lisbon Treaty[xlii]. The Union has come a long way from the debate this paper started with. Time will show whether the edifice will ever be completed.
[i] See for example J. Enninger, “Menschenrechte und Staatsaufgaben – ein europäisches Thema” (1996) JZ, 585; I. Pernice, “Eine Grundrechts-Charta für die Europäische Union” (2000) DVBl. 847; P. Eeckhout, “The EU Charter of Fundamental Rights and the Federal Question” (2002) 39 CMLRev.,945.
[ii]A. von Bogdandy, “The European Union as a human rights organization? Human rights and the core of the European Union” (2000) 37 CML Rev., 1307, 1333.
[iii] Case 294/83 Les Verts v Parliament  ECR 1339, paragraph 23
[iv] Case C-555/07 Kücükdeveci v Swedex GmbH  ECR I-00365.
[v] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation  OJ L 303/16.
[vi] Case C-91/92 Faccini Dori  ECR I-3325, paragraph 20.
[vii] Kücükdeveci, supra n. 4, paragraph 27 (emphasis added).
[viii] Opinion of Advocate General Bot, delivered on 7 July 2009, in Kücükdeveci, supra n. 4paragraph 90.
[ix] Editorial Comment, “The Scope of Application of EU law. An Even Expanding Union?” (2010) 47 CMLRev.,1589, 1593.
[x] M. Dougan, “When Worlds Collide! Competing visions of the Relationship between direct effect and supremacy” (2007) 44 CMLRev 931.
[xi] S. Peers “Supremacy, Equality and Human Rights: Comment on Kücükdeveci (C-555/07)” (2010) E.L.Rev., 849, pp.855-6 (emphasis added).
[xii] E.Muir, “Of Ages In – And Edges Of- EU law” (2011) 48 CMLRev 39, 60.
[xiii] Case C-447/09 Prigge and Others v Deutsche Lufthansa, judgment of 13 September 2011, nyr, paragraph 38; Joined cases C-297/10 and C-298/10 Hennigs v Eisenbahn-Bundesamt, Land Berlin v Mai, judgment of 8 September 2011, nyr, paragraph 47.
[xiv] Opinion of AG Cruz Villalòn in Prigge, ibid., delivered on 19 May 2011, paragraph 26; See also: Opinion of Advocate General Cruz Villalòn, delivered on 5 may 2010 in Case C-515/08 Santos Palhota, judgment of 10 October 2010, nyr, paragraph 53; Opinion of Advocate General Kokott, delivered on 30 September 2010, in Case 236/09 Association Belge des Consommateurs Test-Achats and Others, paragraphs 26-28.
[xv] Case C-34/09 Zambrano v Office national de l’emploi, judgment of 8 March 2011, nyr.
[xvi] No discrimination on grounds of nationality, Union citizenship and citizens’ right to move and reside freely in the Union, respectively.
[xvii] Respect for private and family life, non-discrimination and the protection of children, respectively.
[xviii] Case C-135/08 Janko Rottmann v. Freistaat Bayern, judgment of 2 March 2010, nyr.
[xix] Zambrano, supra n. 15, paragraphs 42-43 (emphasis added).
[xx] Zambrano, supra n. 15, paragraph 41; Case C-184/99 Grzelczyk  ECR I‑6193, paragraph 31; Case C-413/99 Baumbast and R  ECR I-7091, paragraph 82; Garcia Avello, ibid., paragraph 22; Cf. Case C-200/02 Zhu and Chen  ECR I‑9925.
[xxi] K. Hailbronner and D. Thym, “Annotation of Case C-34/09” (2011) 48 CMLRev 1253., 1269
[xxiii] Opinion of AG Sharpston, delivered on 30 September 2010, in Zambrano, supra n. 18, paragraph 128.
[xxiv] Case C-434/09 McCarthy v Secretary of State for the Home Department, judgment of 5 May 2011, nyr.
[xxv] Case C-256/11 Dereci and others v Bundesministerium für Inneres, judgment of 15 November 2011, nyr.
[xxvi] Ibid., paragraphs 66-68.
[xxvii] Joined Cases C-411/10 and C-493/10 N.S. and others, judgment of 21 December 2011, nyr. (The case is also commonly referred to as “Saeedi” in the UK).
[xxviii] Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.
[xxix] Right to dignity, right not to be subjected to torture and inhuman or degrading treatment or punishment, right to asylum and right to a fair hearing, respectively.
[xxx] Right not to be subjected to torture and inhuman or degrading treatment or punishment.
[xxxi] N.S., supra n. 29, paragraph 115.
[xxxii] Ibid., paragraphs 111- 113. The ECtHR had reached a very similar decision earlier in 2011 in M.S.S v Belgium and Greece (Application no. 30696/09), where, under similar circumstances, Belgium had returned an asylum seeker to Greece. Contrary to previous rulings in that regard, the ECtHR held that Article 3 ECHR had been violated.
[xxxiii] Opinion of AG Trstenjak, delivered on 22 September 2011, in N.S., supra n. 29, paragraphs 142-148.
[xxxiv] Ibid., paragraph 146. See also: Opinion of Advocate General Maduro, delivered on 9 September 2008 in Case C-465/07 Elgafaji  ECR I-921, paragraph 23.
[xxxv] N.S., supra n. 29, paragraph 94. It is worth noting that the Court also emphasised the constitutional nature of human rights in the EU and affirmed that the Charter is applicable in the UK.
[xxxvi] Joined Cases C-402/05 P & C-415/05 P Kadi and Al
Barakaat International Foundation v Council and Commission  ECR I-6351.
[xxxix] Case C-571/10 Kamberaj, judgment of 24 April 2012, nyr, paragraph 63.
[xl] L. Ankersmit, “Case C-571/10 Kamberaj: the Charter and not the ECHR has effect in Member States’ legal orders”, European Law Blog, 26 Aprill 2012, available at: http://europeanlawblog.eu/?tag=c-57110-kamberaj (accessed on 26 April 2012). Of course, the Convention will be applied to the extent that the Charter adopts and extends the rights enshrined therein (Article 52(3) Charter).
[xli] T. Chopin and C. Lequesne, « 20 ans après la chute du mur de Berlin, la liberté, nouveau récit commun de l’Europe?», in M. Foucher and T. Chopin (eds), Rapport Schuman sur l’Europe: L’Etat de l’Union européenne 2010, Paris: Lignes de Repères, 2010, 43, pp.47-50; Opinion of Advocate General Sharpston delivered on 30 September 2010 in Zambrano, supra n. 15, paragraph 165.
[xlii] P.Maduro, ‘The Double Constitutional Life of the Charter of Fundamental Rights of the European Union’, in T.K. Hervey and J. Kenner (eds.), Economic and Social Rights under the EU Charter of Fundamental Rights, Hart Publishing: Oxford, 2003, 269.