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Balancing Fundamental Rights in EU Law

Published online by Cambridge University Press:  27 October 2017

Allan Rosas
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Abstract

It appears more and more often that cases brought before the European Court of Justice raise issues relating to two or more fundamental rights and the relation between them. In such situations, it is often necessary to establish a ‘balance’ between the fundamental rights concerned. In some cases, one of the rights involved is not a fundamental right in the strict sense but, for instance, an economic freedom (such as the free movement of goods) recognised under the basic EU Treaties. Another configuration may be a situation where, for instance, two of the fundamental rights which are at issue are to be found in the EU Charter of Fundamental Rights but only one of them appears in the European Convention on Human Rights. In such situations, one wonders what would be the relevance of Article 52(3) of the Charter of Fundamental Rights, which establishes a direct link between the Charter and the European Convention. The present contribution will look at the question of balancing of EU fundamental rights in general and also at more specific problems arising in this context, such as the two problems identified above.

Type
Symposium
Information
Cambridge Yearbook of European Legal Studies , Volume 16 , 2014 , pp. 347 - 360
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2014

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References

1 Case C-112/00 Schmidberger [2003] ECR I-5659, para 77.

2 Ibid, para 81.

3 See, eg Rosas, A and Armati, L, EU Constitutional Law: An Introduction, 2nd edn (Oxford, Hart Publishing, 2012) 55–59 Google Scholar.

4 Rosas, A, ‘Fundamental Rights in the Luxembourg and Strasbourg Courts’ in Baudenbacher, C, Tresselt, P and Örlygsson, T (eds), The EFTA Court: Ten Years On (Oxford, Hart Publishing, 2005) 163, at 167–68Google Scholar.

5 Case C-36/02 Omega [2004] ECR I-9609.

6 See Arts 27 and 28 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, [2004] OJ L158/77, and corrigenda [2004] OJ L229/35 and [2005] OJ L197/34. For an example from case law see Case C-145/09 Tsakouridis [2010] ECR I-11979.

7 Case C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union [2007] ECR I-10779.

8 The Charter was proclaimed by the European Parliament, the Council and the Commission in December 2000, [2000] OJ C364/1. Art 6(1) of the Treaty on European Union (TEU), as amended by the Treaty of Lisbon, has made a slightly modified version of the Charter a binding part of primary law.

9 Case C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union, n 7 above, paras 44-46.

10 Ibid, para 77.

11 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351.

12 Rosas and Armati, n 3 above, 54–55.

13 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission, n 11 above, para 304.

14 Rosas and Armati, n 3 above, 55, with references to divergent opinions put forward in the literature.

15 On the relation between property rights and other human rights see, eg Rosas, A, ‘Property Rights’ in Rosas, A and Helgesen, J (eds), The Strength of Diversity: Human Rights and Pluralist Democracy (Dordrecht, Martinus Nijhoff Publishers, 1992) 133 Google Scholar.

16 Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [2010] ECR I-11063.

17 See, eg Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECR I-4723, paras 34 and 46; Case C-28/08 P Commission v Bavarian Lager [2010] ECR I-6055, para 54; Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert, n 16 above, para 68.

18 Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert, n 16 above, para 48.

19 Ibid, para 77. See also paras 83 and 85–86.

20 Ibid, paras 86 and 88.

21 Case C-92/12 PPU Health Service Executive v [2012] ECR I-255.

22 Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L338/1.

23 Case C-92/12 PPU Health Service Executive, n 21 above, para 113.

24 See, generally Rosas, A, ‘Counter-Terrorism and the Rule of Law: Issues of Judicial Control’ in de Frías, AM Salinas, Samuel, KLH and White, ND (eds), Counter-Terrorism: International Law and Practice (Oxford, Oxford University Press, 2012) 83 Google Scholar.

25 See, eg Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission, n 11 above, para 342; Case C-27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I-853, para 67.

26 Cf the case law relating to Art 9 of the International Covenant on Civil and Political Rights, Nowak, M, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd revised edn (Kehl, NP Engel Publisher, 2005) 213–15Google Scholar. In Delgado Paéz v Colombia, No 195/1985, Decision of 12 July 1990, the UN Human Rights Committee held that, in order to ensure the right to security of person, states have a duty to take reasonable and appropriate measures to protect all persons under their jurisdiction.

27 Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and others, judgment of 8 April 2014, para 42.

28 In the European Convention on Human Rights, the right to the protection of personal data is ensured in the context of the right to respect for ‘private life’: see, eg van Dijk, P et al (eds), Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp, Intersentia, 2006) 666 et seq.Google Scholar

29 Case C-28/08 P Commission v Bavarian Lager, n 17 above.

30 Ibid, para 78.

31 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, [2001] OJ L8/1; Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, [2001] L145/43.

32 See, eg Case C-400/10 PPU McB, judgment of 5 October 2010, [2010] ECR I-8965, para 53. See also Rosas, A and Kaila, H, ‘L’application de la Charte des droits fondamentaux de l’Union européenne par la Cour de justice: Un premier bilan’ (2011) XVI Il Diritto dell’Unione Europea 1, at 22–23Google Scholar; Peers, S et al (eds), The EU Chapter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 1490–1503 CrossRefGoogle Scholar.

33 See van Dijk et al, n 27 above, 333 et seq.

34 See, eg Yourow, HC, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (The Hague, Martinus Nijhoff Publishers, 1996)Google Scholar.

35 See at n 1 above.

36 For an example see Art 28 of the Charter of Fundamental Rights relating to the right of collective bargaining and action and Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union, n 7 above, para 44.

37 See notably Case C-28/08 P Commission v Bavarian Lager, n 17 above.

38 See at n 14 above.

39 Rosas, n 4 above.

40 See Rosas and Armati, n 3 above, 97–110.

41 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, [2002] OJ L190/1 and Case C-399/11 Melloui, judgment of 26 February 2013.

42 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, [2003] OJ L50/1.

43 Joined Cases C-411/10 and C-493/10 NS and ME and Others, [2011] ECR I-865.

44 Ibid, para 94.

45 Ibid, para 88. See MSS v Belgium and Greece, ECtHR, Application No 30696/09, judgment of 21 January 2011.

46 Šneersone and Kampanella v Italy, ECtHR, Application No 14737/09, judgment of 12 July 2011.

47 Regulation 2201/2003, n 22 above.

48 Šneersone and Kampanella, n 45 above, para 85(vi).

49 See Art 60 of the Regulation, n 22 above.

50 See, eg Case C-195/08 PPU Rinau [2008] ECR I-5271; Case C-403/09 PPU Deticek [2009] ECR I-12193; Case C-211/10 PPU Povse [2010] ECR I-6673; Case C-296/10 Purrucker II [2010] ECR I-11163.

51 Povse v Austria; ECtHR, Application No 3890/11, Judgment of 18 June 2013.

52 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland, ECtHR, Application No 45036/98, judgment of 30 June 2005. See also Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA v The Netherlands, ECtHR, Application No 13645/05, Decision of 20 January 2009.

53 See Arts 40, 42–45 of the Regulation, n 22 above.

54 See Arts 6(2) TEU, Art 218(8) TFEU and Protocol No 8 annexed to the TEU and the TFEU and relating to Art 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms. In 2013, the negotiations between the European Commission and the Member States of the Council of Europe (including the EU Member States) produced a draft accession agreement but the compatibility of this draft with Union law is presently being considered by the European Court of Justice, in the context of the Commission’s request 4 July 2013 for an Opinion.

55 See, eg Cremona, M, ‘Disconnection clauses in EU Law and Practice’ in Hillion, C and Koutrakos, P (eds), Mixed Agreements Revisited: The EU and Its Member States in the World (Oxford, Hart Publishing, 2010) 160 Google Scholar.