Presentation of Peter Gjortler, Programme Director, Riga Graduate School of Law at the international conference "Post Socialist Justice After Two Decades", October 11-12, 2012, in Riga More information www.lawandjustice.lv

1. Post-Socialism,
Human Rights and the
European Union
October 2012
Post-Socialism, Human Rights & EU 10-09-2012 1

2. Post-Socialism, Human Rights & EU
 European Union as a system of Post-War justice
 Human rights
 Legal effects
 Procedural rights
 Post-Socialism and the EU
 Accession
 Revision
 Human rights
 Federalism and constitutionalism
Post-Socialism, Human Rights & EU 10-10-2012 2

3. Human Rights
 1949 European Convention on Human Rights
(ECHR)
 Council of Europe
 Focus on substantive human rights
 Legal effect left to traditional implementation of
international public law
 Denmark 1992
 United Kingdom 1998
 Procedure for individual access to justice at an
international court
Post-Socialism, Human Rights & EU 10-10-2012 3

4. Market Rights
 1957 European Economic Community (EEC)
 Extension of 1951 European Coal and Steel
Community (ECSC)
 Focus on state rights and obligations in cross
border trade
 Limited direct effect
 Regulations
 Remaining instruments subject to traditional
implementation as in international public law
 Limited procedure for individual access to
international court
Post-Socialism, Human Rights & EU 10-10-2012 4

5. European Court of Justice (ECJ)
 Human rights
 Autonomous fundamental rights
 Case 11/70 International Handelsgesellschaft
 Principles of ECHR
 Generic in case 4/73 Nold
 Specific in case 44/79 Hauer
 Codified by Maastricht Treaty on European Union
1992
 Only one example of ECJ principle denied in treaty
revision: Protocol concerning article 119, attached to
Maastricht Treaty
Post-Socialism, Human Rights & EU 10-10-2012 5

6. European Court of Justice (ECJ)
 Legal effect
 Expands direct effect
 Case 26/62 Van Gend en Loos on vertical effect of
treaty provisions
 Case 43/75 Defrenne on horizontal effect of some
treaty provisions
 Case 8/81 Becker on vertical effect of legislative
provisions
 Case 5/88 Wachauf on direct effect of human right
principles when national law implements or
administers EU law
Post-Socialism, Human Rights & EU 10-10-2012 6

7. European Court of Justice (ECJ)
 Procedural rights
 Accepts division of jurisdiction
 Case 314/85 Foto-Frost
 Extends direct effect of rulings
 Case 106/77 Simmenthal
 Refers any extension of individual access to be
decided by Member States in the treaties
 Case C-50/00 Union de Pequeños
 Limited extension introduced
 Lisbon treaty 2007
Post-Socialism, Human Rights & EU 10-10-2012 7

8. Post-Socialist Access to EU
 Acquis communautaire on date of access
 1 May 2004 for Baltic states as part of 10 new
member states
 1 January 2007 for Bulgaria and Romania
 Only time limited transitory exemptions
 Permanent exemptions for Denmark, Ireland and
United Kingdom in Maastricht Treaty 1992, confirmed
in Amsterdam Treaty 1997
 Permanent exemptions refused for Austrian, Finland
and Sweden in Accession Treaty 1994
 No exemptions for human rights
Post-Socialism, Human Rights & EU 10-10-2012 8

9. Post-Socialist Revision
 Preparation of EU for Post-Socialism
 Maastricht Treaty 1992 coincides in time with
Post-Socialism
 Nice Treaty 2001 prepares Post-Socialist
accession
 Polish issue of overrepresentation
 Introduction of the Charter on Fundamental Rights as
soft law instrument
 Constitutional Treaty 2004 coincides in time with
Post-Socialist accession
 Refused by electorate in old member states
Post-Socialism, Human Rights & EU 10-10-2012 9

10. Post-Socialist Revision
 Charter on Fundamental Rights
 Shift from soft law to hard law with Lisbon
Treaty 2007
 New permanent exemption for Poland and United
Kingdom in Protocol 30
 Political undertaking for permanent exemption for
the Czech Republic
 Limited scope
Post-Socialism, Human Rights & EU 10-10-2012 10

11. Post-Socialist Revision
 Interpretation by ECJ
 Pre-emption of incremental adaption of EU law
in case C-236/09 Association Belge
 No formal integration of ECHR in case C-571/10
Kamberaj
 Limited implication of the Protocol 30
exemption in joint cases C-411/10 and C-493/10
M.E.
Post-Socialism, Human Rights & EU 10-10-2012 11

12. C-236/09 Association belge
 25 Article 5(2) of that directive grants certain
Member States – those in which national law did
not yet apply that rule at the time when Directive
2004/113 was adopted – the option of deciding
before 21 December 2007 to permit proportionate
differences in individuals’ premiums and benefits
where the use of sex is a determining factor in the
assessment of risks based on relevant and accurate
actuarial and statistical data.
Post-Socialism, Human Rights & EU 10-10-2012 12

13. C-236/09 Association belge
 32 Such a provision, which enables the Member
States in question to maintain without temporal
limitation an exemption from the rule of unisex
premiums and benefits, works against the
achievement of the objective of equal treatment
between men and women, which is the purpose of
Directive 2004/113, and is incompatible with Articles
21 and 23 of the Charter.
Post-Socialism, Human Rights & EU 10-10-2012 13

14. C-571/10 Kamberaj
 59 By its second question, the referring court asks in
essence whether, in case of conflict between the provision
of domestic law and the ECHR, the reference to the latter in
Article 6 TEU obliges the national court to apply the
provisions of the ECHR – in the present case Article 14 ECHR
and Article 1 of Protocol No 12 – directly, disapplying the
incompatible source of domestic law, without having first
to raise the issue of constitutionality before the Corte
costituzionale (Constitutional Court).
 60 According to Article 6(3) TEU, fundamental rights, as
guaranteed by the ECHR and as they result from the
constitutional traditions common to the Member States,
are to constitute general principles of the Union’s law.
Post-Socialism, Human Rights & EU 10-10-2012 14

15. C-571/10 Kamberaj
 61 That provision [Article 6] of the Treaty on
European Union reflects the settled case-law of the
Court according to which fundamental rights form an
integral part of the general principles of law the
observance of which the Court ensures.
 62 However, Article 6(3) TEU does not govern the
relationship between the ECHR and the legal systems
of the Member States and nor does it lay down the
consequences to be drawn by a national court in
case of conflict between the rights guaranteed by
that convention and a provision of national law.
Post-Socialism, Human Rights & EU 10-10-2012 15

16. C-571/10 Kamberaj
 63 The reference made by Article 6(3) TEU to the
European Convention for the Protection of Human
Rights and Fundamental Freedoms, signed at
Rome on 4 November 1950, does not require the
national court, in case of conflict between a
provision of national law and that convention, to
apply the provisions of that convention directly,
disapplying the provision of domestic law
incompatible with the convention.
Post-Socialism, Human Rights & EU 10-10-2012 16

17. C-411/10 and C-493/10 M.E.
 118 It must be noted that Protocol (No 30)
provides, in Article 1(1), that the Charter is not to
extend the ability of the Court of Justice or any
court or tribunal of Poland or of the United
Kingdom, to find that the laws, regulations
administrative provisions, practices or action of
Poland or of the United Kingdom are inconsistent
with the fundamental rights, freedoms and
principles that it affirms.
Post-Socialism, Human Rights & EU 10-10-2012 17

18. C-411/10 and C-493/10 M.E.
 120 In those circumstances, Article 1(1) of Protocol
(No 30) explains Article 51 of the Charter with
regard to the scope thereof and does not intend to
exempt the Republic of Poland or the United
Kingdom from the obligation to comply with the
provisions of the Charter or to prevent a court of
one of those Member States from ensuring
compliance with those provisions.
Post-Socialism, Human Rights & EU 10-10-2012 18

19. Human Rights in the EU
 Limited to the field of application of EU law
 Case C-159/90 Spuc and C-302/06 Kovalsky
 Reaction to limited procedural access for EU law
 Cases on human rights aspects of other
substantive rights before ECtHR
 Requirement of impact on human right
 Fadeyeya v. Russia 2005, 55723/00
 Access to justice
 Concurrent interpretation of ECHR and Charter
in case 279/09 DEB
Post-Socialism, Human Rights & EU 10-10-2012 19

20. Case C-159/90 SPUC
 31 Where national legislation falls within the field of
application of Community law the Court, when requested to
give a preliminary ruling, must provide the national court
with all the elements of interpretation which are necessary
in order to enable it to assess the compatibility of that
legislation with the fundamental rights - as laid down in
particular in the European Convention on Human Rights -
the observance of which the Court ensures. However, the
Court has no such jurisdiction with regard to national
legislation lying outside the scope of Community law.
 In view of the facts of the case and of the conclusions which
the Court has reached above with regard to the scope of
Articles 59 and 62 of the Treaty, that would appear to be
true of the prohibition at issue before the national court.
Post-Socialism, Human Rights & EU 10-10-2012 20

21. C-302/06 Kovalsky
 Interpretation of Article 6 EU and Article 1 of the
Protocol to the Convention on the Protection of
Human Rights and Fundamental Freedoms.
 Property law – National legislation under which
electrical installations may be placed on private
land without the owners being entitled to
compensation.
 The Court of Justice of the European Communities
clearly has no jurisdiction to answer the questions
referred.
 ECJ summary
Post-Socialism, Human Rights & EU 10-10-2012 21

22. C-279/09 DEB
 45 Review of the case-law of the European Court of
Human Rights shows that, on several occasions, that
court has stated that the right of access to a court
constitutes an element which is inherent in the right to a
fair trial under Article 6(1) of the ECHR (see, inter alia, Eur.
Court H.R., judgment in McVicar v. the United Kingdom of
7 May 2002, ECHR 2002-III, § 46). It is important in this
regard for a litigant not to be denied the opportunity to
present his case effectively before the court (Eur. Court
H.R., judgment in Steel and Morris v. the United Kingdom
of 15 February 2005, ECHR 2005-II, § 59). The right of
access to a court is not, however, absolute.
Post-Socialism, Human Rights & EU 10-10-2012 22

23. C-279/09 DEB
 59 In the light of all of the foregoing, the answer to
the question referred must be that the principle of
effective judicial protection, as enshrined in Article
47 of the Charter, must be interpreted as meaning
that it is not impossible for legal persons to rely on
that principle and that aid granted pursuant to that
principle may cover, inter alia, dispensation from
advance payment of the costs of proceedings
and/or the assistance of a lawyer.
Post-Socialism, Human Rights & EU 10-10-2012 23

24. C-279/09 DEB
 60 In that connection, it is for the national court to
ascertain whether the conditions for granting legal
aid constitute a limitation on the right of access to
the courts which undermines the very core of that
right; whether they pursue a legitimate aim; and
whether there is a reasonable relationship of
proportionality between the means employed and
the legitimate aim which it is sought to achieve.
Post-Socialism, Human Rights & EU 10-10-2012 24

25. Post-Recession EU
 President of the European Commission
 Speech to the European Parliament on 12
September 2012
 “Let's not be afraid of the words: We will need to
move towards a federation of nation states. This is
our political horizon. This is what must guide our
work in the years to come.”
 “A democratic federation of nation states that can
tackle our common problems, through the sharing of
sovereignty in a way that each country and its citizens
are better equipped to control their own destiny.”
Post-Socialism, Human Rights & EU 10-10-2012 25

26. Post-Recession EU
 German Constitutional Court 12 September 2012
 Cases 2 BvR 1390/12 etc.
 1. The provision under Article 8 paragraph 5 sentence
1 of the Treaty establishing the European Stability
Mechanism limits the amount of all payment
obligations arising to the Federal Republic of
Germany from this Treaty to the amount stipulated in
Annex II to the Treaty in the sense that no provision
of this Treaty may be interpreted in a way that
establishes higher payment obligations for the
Federal Republic of Germany without the agreement
of the German representative.
Post-Socialism, Human Rights & EU 10-10-2012 26

27. Federalism and Constitutionalism
 Czech Constitutional Court 15 February 2012
 Case Pl. US 5/12
 By the contested judgements and decisions, the
pension of the petitioner had been calculated
regardless of the previous case-law of the
Constitutional Court concerning the so-called Slovak
pensions.
 In this respect, the Constitutional Court believes that a
European regulation which governs co-ordination of
pension system among the member states may not be
applied to an entirely specific situation of a dissolution
of the Czechoslovak federation and to consequences
stemming thereof.
Post-Socialism, Human Rights & EU 10-10-2012 27

28. Federalism and Constitutionalism
 In the view of the Constitutional Court, the Court of
Justice of the EU [Case C-399/09 Landtová] accidentally
overlooked these facts which otherwise must lead to
the conclusion of inapplicability of European law in the
instant situation. As a result of this, an excess of the
European body and a conduct ultra vires occurred. The
Constitutional Court expressed the conviction that the
false conclusions of the Court of Justice of the EU had
resulted also from the insufficient, wrong and in this
respect unprecedented statement of the government
of the Czech Republic which itself had stated in the
proceedings before the Court of Justice of the EU that
the case-law of the Constitutional Court violates
European law.
Post-Socialism, Human Rights & EU 10-10-2012 28

29. Federalism and Constitutionalism
 German Constitutional Court 2009
 Cases 2 BvE 2/08 ect.
 As long as, consequently, no uniform European
people, as the subject of legitimisation, can express
its majority will in a politically effective manner that
takes due account of equality in the context of the
foundation of a European federal state, the peoples
of the European Union, which are constituted in their
Member States, remain the decisive holders of public
authority, including Union authority.
Post-Socialism, Human Rights & EU 10-10-2012 29

30. Federalism and Constitutionalism
 In Germany, accession to a European federal state
would require the creation of a new constitution,
which would go along with the declared waiver of the
sovereign statehood safeguarded by the Basic Law.
 There is no such act here.
 The European Union continues to constitute a union
of rule founded on international law, a union which is
permanently supported by the intention of the
sovereign Member States.
Post-Socialism, Human Rights & EU 10-10-2012 30

31.  Master programmes in
Law with Policy, Business
and Linguistics
 Bachelor programmes in
Law, Business and
Diplomacy
 PhD programmes and
Continuous Education
 Library and Information
Services
RGSL
Riga Graduate School of Law
www.rgsl.edu.lv
study@rgsl.edu.lv
Post-Socialism, Human Rights & EU 10-10-2012 31