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Published online by Cambridge University Press: 06 March 2019
The purpose of this paper is to illustrate the changing character of the European Union (“EU”) public order under the impact of security concerns. The EU public order has long been characterized by a tension between a more market-oriented, neo-liberal Union and a more socio-political Union. The former would be driven by the EU's four fundamental freedoms, whereas the latter would be achieved and safeguarded through the language and practice of fundamental rights. As other scholarly contributions to the issue have demonstrated, the relationship between fundamental freedoms and fundamental rights is anything but settled. It continues to be subject to many, sometimes potent, legal and political controversies. However, while the EU public order is still in pursuit of the right balance between economic freedoms and socio-political rights, it also has to reckon with another fundamental value: The value of security.
1 Kadi & Al Barakaar Int'l Found. v. Council & Comm'n, CJEU Cases C-402/05 P & C-415-05 P, 2008 E.C.R. I-6351. Please note that this paper has been finalized before the final decision of the CJEU in the Kadi affair has been handed down. See Comm'n v. Kadi, CJEU Cases C-584/10, C-593/10 P & C-595/10 P (July 18, 2013).Google Scholar
2 A negative conception of a public order stands for minimal mandatory rules that set a limitation both on the private and public conduct within a particular polity. As such, it determines the scope of what is still legally permissible in a given polity. This conception is most common in the conflict of laws field. Its aim there is to protect the essence of a polity's legal and political order against the adverse legal institutes or policies of another polity claiming the effects in the former one. The negative conception is also used within the meaning of a public policy when the latter is relied upon as a justification for curtailment of individuals’ human rights. See, e.g., Roel de Lange, The European Public Order, Constitutional Principles and Fundamental Rights, 1 Erasmus L. Rev. 3, 8, 11 (2007).Google Scholar
3 John Rawls, Political Liberalism 35 (1993).Google Scholar
4 In this sense, a public order corresponds to what Weiler has labeled as a fundamental boundary. See J.H.H. Weiler, Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights, in The European Union and Human Rights 51, 52–53 (Nanette Nuewahl & Allan Rosas eds., 1995) (“Fundamental boundaries are about the autonomy and self-determination of the communities.”).Google Scholar
5 See Avbelj, Matej, Theory of European Union, 36 Eur. L. Rev. 818, 818–36 (2011).Google Scholar
6 See id. at 833.Google Scholar
7 It has been, perhaps, best described by J.H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403, 2407 (1991).Google Scholar
8 Of course, the economy has never been a goal in itself. Rather it was, at least on an ideological level, in service of a lasting peace. For a critique of the economy as an EU myth, see Erik Jones, The Economic Mythology of European Integration,48 J. Common Mkt. Stud., 89, 89–109 (2010).Google Scholar
9 This division of labor is also often quoted as a reason for the non-inclusion of human rights provisions in the Community founding treaties. However, for an insightful critique of this traditional narrative, see, for example, Grainne de Burca, The Road Not Taken: The European Union as a Global Human Rights Actor, 105 Am. J. Int'l L. 649, 649–93 (2011).Google Scholar
10 For a recent account of this process with a specific focus on fundamental rights protection in the EU, see Stephen Weatherill, From Economic Rights to Fundamental Rights, in The Protection of Fundamental Rights in the EU After Lisbon 11, 11–36 (Sybe de Vries, Ulf Bernitz & Stephen Weatherill eds., 2013).Google Scholar
11 See Weiler, supra note 7, at 2451.Google Scholar
12 For a more detailed discussion, see J.H.H. Weiler, The Constitution of the Common Market Place: Text and Context in the Evolution of the Free Movement of Goods, in The Evolution of EU Law 353 (Paul Craig & Grainne de Burca eds., 1999).Google Scholar
13 See Procureur du Roi v. Dassonville, CJEU Case 8/74, 1974 E.C.R. 837.Google Scholar
14 See Weiler, supra note 12, at 362. Weiler called this a constitutional consequence of the Dassonville formula:Google Scholar
[W]hen a state measure on its face violates the Dassonville formula, the Member State is required to justify it by reference to European law criteria—ex Article 36 (30) or as a mandatory requirement ex Cassis de Dijon often before the European Court of Justice. If the measure cannot be justified it is inapplicable or must be modified appropriately. Critically, when it is justified and can, thus, be upheld, Article 100 (94) or 100a (95) comes into play.… Put it differently, the Community legislative competence ex Articles 100 (94) or 100a (95) is triggered each time there is a finding of prima facie transgression by a state measure of the Dassonville formula, even when, necessarily, the state measure in question is justified.
15 See Weatherill, supra note 10, at 12 (calling this “[T]he anxiety: [T]oo much EU law, too little local autonomy”).Google Scholar
16 On constitutional conflicts, see Mattias Kumm, The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the Constitutional Treaty, 11 Eur. L.J. 262, 262–307 (2005).Google Scholar
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18 See Avbelj, Matej, European Court of Justice and the Question of Value Choices: Fundamental Human Rights as an Exception to the Freedom of Movement of Goods 25–30 (N.Y.U. Jean Monnet Working Paper 06/04, 2004).Google Scholar
19 See id. at 68–69.Google Scholar
20 See Opinion of Advocate General Stix-Hackl at para. 50, Omega Spielhallen & Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, CJEU Case C-36/02, 2004 E.C.R. I-9609 (arguing that, “fundamental freedoms themselves can … perfectly well be materially categorized as fundamental rights—at least in certain respects: [I]n so far as they lay down prohibitions on discrimination … they are to be considered a specific means of expression of the general principle of equality before the law”).Google Scholar
21 See Bogdandy, Armin von, The European Union as a Human Rights Organization? Human Rights and the Core of the European Union, 37 Common Mkt. L. Rev. 1307, 1322–23 (2000).Google Scholar
22 For some additional analytic treatment of the relationship between fundamental freedoms and fundamental rights, see Lubos Tichy, Fundamental Rights and Fundamental Freedoms: Short Remarks, in 5 European Constitutional Law Network Series, A Constitution for Europe: The IGC, the Ratification Process and Beyond 51 (Ingolf Pernice & Jiri Zemanek eds., 2005).Google Scholar
23 Skouris, Vassilios, Fundamental Rights and Fundamental Freedoms: The Challenge of Striking a Delicate Balance, 17 Eur. Bus. L. Rev. 225, 226 (2006).Google Scholar
24 See id. at 229.Google Scholar
25 See id. at 233.Google Scholar
26 See id. at 229.Google Scholar
27 See Avbelj, supra note 18, at 68–71. See also Skouris, supra note 23, at 235 (claiming that “[i]t was only in the course of time that their [fundamental freedoms'] primary role became to protect individuals which made them resemble more to civil rights than anything else”). Finally, the essentially instrumentalist conception of an individual as an economic agent on the common market becomes apparent when contrasted with a later-developed EU citizenship. For the most famous pronunciation in this regard, see Opinion of Advocate Gen. Jacobs at para. 46, Konstantinidis v. Altensteig, CJEU Case 168/91, 1993 E.C.R. I-1191.Google Scholar
28 Stork & Co. v. High Auth. of the Eur. Coal & Steel Cmty., CJEU Case C-1/58, 1959 E.C.R. I-17. In this case, the ECJ refused to engage in judicial review based on fundamental human rights by claiming that it was required only to ensure that the law is observed in the interpretation and application of the Treaty and of rules laid down for implementation thereof, and that it was normally not required to rule on provisions of national law.Google Scholar
29 Weiler, supra note 4, at 56. As Weiler observed, soon the protection of human rights became a joint legal and political imperative.Google Scholar
30 The landmark decisions include J. Nold, Kohlen-und Baustoffgrosshandlung v. Comm'n, CJEU Case C-4/73, 1974 E.C.R. I-491, 507 and Hauer v. Land Rheinland-Pfalz, CJEU Case C-44/79, 1979 E.C.R. I-3727.Google Scholar
31 See the landmark decision, Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR 197/83, 73 BVerfGE 339 (Oct. 22, 1986) (Ger.) [hereinafter Solange II]. The other national constitutional courts have followed suit. For an overview of the judicial responses in the old, but especially in the new Member States, see Wojciech Sadurski, Solange Chapter 3: Constitutional Courts in Central Europe - Democracy - European Union, 14 Eur. L.J. 1, 1–35 (2008).Google Scholar
32 See the Wachauf and ERT line of cases: Elliniki Radiofonia Tileorasi – Anonimi Etairia (ERT-AE) v. Dimotiki Etairia Pliroforissis, CJEU Case C-260/89, 1991–6 E.C.R. I-2925 and Wachauf v. Germany, CJEU Case C-5/88, 1989 E.C.R. I-2609.Google Scholar
33 According to the Charter, the Member States are bound to the EU fundamental rights standards when they implement EU law and therefore act as part of the EU executive branch. The Court's jurisprudence is, however, broader and subjects the Member States to the EU fundamental rights standards of protection even when they derogate from the EU law's four fundamental freedoms. See Avbelj, supra note 18, at 28–30.Google Scholar
34 This sparked a well-known, but to date still unresolved controversy about the minimum or maximum standard of human rights protection in the Union. See the exchange between Weiler, supra note 4, at 9 and Leonard F.M. Besselink, Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union, 35 Common Mkt. L. Rev. 629 (1998). Also, for a similar line of arguments opposing the maximalist approach advocated by Besselink, see Von Bogdandy, supra note 21, at 1322–23 and Bruno de Witte, The Role of the ECJ in the Protection of Human Rights, in The EU and Human Rights 881 (Philip Alston ed.).Google Scholar
35 Eugen Schmidberger Internationale Transporte Planzüge v. Republik Österreich, CJEU Case C-112/00, 2003 E.C.R. I-5695 [hereinafter Schmidberger].Google Scholar
36 Omega Spiellhallen und Automatenaufstellungs GmbH v. Bonn, CJEU Case C-36/02, 2004 E.C.R. I-9609 [hereinafter Omega].Google Scholar
37 Vereinigte Familiapress Zeitungsverlags-Und Vertriebs GmbH v. Heinrich Bauer Verlag, CJEU Case C-368/95, 1997 E.C.R. I-3689.Google Scholar
38 See Schmidberger, supra note 35.Google Scholar
39 See Omega, supra note 36.Google Scholar
40 Kingreen, Thorsten, Fundamental Freedoms in Bogdany, in Principles of European Constitutional Law 530 (Armin von Bogdandy & Jürgen Bast eds., 2009).Google Scholar
41 For a brief overview of the arguments and their critique, see Hans Micklitz, Three Questions to the Opponents of the Viking and Laval Judgments, in OSC Paper Series (2012).Google Scholar
42 Int'l Transp. Workers’ Fed'n & Finnish Seamen's Union, CJEU Case C-438/05, 2007 E.C.R. I-10779.Google Scholar
43 Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, CJEU Case C-341/05, 2007 E.C.R. I-11767.Google Scholar
44 For an overview and critique, see Micklitz, supra note 41.Google Scholar
45 Weatherill, supra note 10, at 13. Weatherill has thus argued that even with the adoption of the Treaty of Lisbon—which shows greater respect for social and cultural concerns—these have remained more rhetorical than real.Google Scholar
46 See, e.g., Andrew Rettman, Criminals Exploiting EU Travel Freedoms, Dutch Data Shows, Euobserver, (2013), http://euobserver.com/justice/119440.Google Scholar
47 See Rhonda Louise Powell, Security and the Right to Security of Person (2008) (DPhil thesis, University of Oxford) (referring to P. Hough, Security and Securitization, in Understanding Global Security (2004)).Google Scholar
48 Id. Google Scholar
49 Id. at 79.Google Scholar
50 In general terms this has been known in philosophy as the trolley problem. For the actual cases and more legally specific debates, see Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681 (2005); Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], 59 NJW 751, 2006 (Ger.); Oliver Lepsius, Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism Provision in the New Air-transport Security Act, 7 GERMAN L.J. 733, 761– 76 (2006).Google Scholar
51 Consolidated Version of the Treaty on the Functioning of the European Union art. 67/1, May 9, 2008, 2008 O.J. (C 115) 47 [hereinafter TFEU].Google Scholar
52 Id. at art. 67/2.Google Scholar
53 Id. at art. 67/3.Google Scholar
54 Id. at art. 67/4.Google Scholar
55 Sandra Lavenex & Wolfgang Wagner, Which European Public Order? Sources of Imbalance in the European Area of Freedom, Security and Justice, 16 Eur. Security 225, 229 (2007).Google Scholar
56 Monar, Joerg, The Area of Freedom, Security and Justice, in Principles of European Constitutional Law, at 562 (Armin von Bogdandy & Jürgen Bast eds., 2009).Google Scholar
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58 Huymans, See Jef, The European Union and Securitization of Migration, 38 J. Common Mkt. Stud. 5, 751–777 (discussing securitization in the field of migration).Google Scholar
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62 Initially the Council adopted a Common Position 1999/727/CFSP concerning restrictive measures against the Taliban (OJ 1999 L 294, p. 1) and Regulation (EC) No 337/2000 concerning a flight ban and a freeze of funds and other financial resources in respect to the Taliban of Afghanistan (OJ 2000 L 43, p. 1). Following the Resolution 1333/2000, the Council on March 2001 adopted Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, which repealed the previous Regulation No 337/2000. The Regulation (EC) No 467/2001 was repealed by Regulation No 881/2002 leaving, however, the previously established sanctioning regime basically unchanged.Google Scholar
63 Commission Regulation 2062/2001, 2001 J.O. (L 277) (EC).Google Scholar
64 Kadi v. Comm'n, CJEU Case T-315/01, para. 136 (Sept. 21, 2005),Google Scholar
65 Id. at para. 209.Google Scholar
66 Id. at para. 204.Google Scholar
67 Id. Google Scholar
68 Id. para. 226, para. 292.Google Scholar
69 Kadi v. Commission, CJEU Case C-402/05 P, 2008 E.C.R. para. 380.Google Scholar
70 Id. Google Scholar
71 Commission Implementing Regulation 933/2012, 2012 J.O. (L 278) (EU).Google Scholar
72 Kadi v. Commission at para. 197.Google Scholar
73 See Press Release, Security Council, Security Council Al-Qaida Sanctions Committee Deletes Entry of Yasin Abdullah Ezzedine Qadi from its List, U.N. Press Release SC/10785 (Oct. 5, 2012); Commission Implementing Regulation 933/2012, 2012 J.O. (L 278) (EU).Google Scholar
74 See Commission v. Kadi, CJEU Joined Cases C-584/10 P, C-593/10 P & C-595/10 P. (Please note that this paper was finalized before the final decision of the CJEU in the Kadi affair has been handed down).Google Scholar
75 Most recently, see, e.g., Juliane Kokott & Christoph Sobotta, The Kadi Case–Constitutional Core Values and International Law–Finding the Balance, 23 Eur. J. Intl. L. 4; Takis Tridimas, Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments, 12 Cambridge Y.B. Eur. L. 455–490.CrossRefGoogle Scholar
76 Charbonneau, Louis, Saudi Man Dropped from U.N. Al Quaeda Sanctions List, Reuters, Oct. 5, 2012, available at http://www.reuters.com/article/2012/10/06/us-alqaeda-sanctions-un-idUSBRE89501K20121006.Google Scholar
77 See Comm'n v. Kadi, CJEU Cases C-584/10 P, C-593/10 P, and C-595/10 P, 2013 E.C.R. paras. 342–344.Google Scholar
78 Id. at para. 230. As the CJEU explained:Google Scholar
Such measures could have a particular effect on trade between Member States, especially with regard to the movement of capital and payments, and on the exercise by economic operators of their right to establishment. In addition, they could create distortions of competition, because any differences between the measures unilaterally taken by the Member States could operate to the advantage or disadvantage of the competitive position of certain economic operations although there were no economic reasons for that advantage or disadvantage.
79 See id. at para. 235 (the Court appears to be of such opinion: “[…] that regulation could legitimately be regarded as designed to attain an objective of the Community and as, furthermore, linked to the operation of the common market within the meaning of Article 308 EC”).Google Scholar
80 Id. at para. 230.Google Scholar
81 Comm'n v. Kadi, CJEU Joined Cases C-584/10 P, C-593/10 P, and C-595/10 P, 2013 E.C.R. paras. 3–8.Google Scholar
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