eu charter of rights and echr: the right to a fair trial ejtn/independent... · eu charter –...

EU Charter of Rights and ECHR:

The Right to a Fair Trial

Professor Steve Peers

School of Law,

University of Essex

ECHR – Article 6(1)

• 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

ECHR – Article 6.2

• 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

ECHR – Article 6.3(a) - (c)

• 3. Everyone charged with a criminal offence has the following minimum rights:

• (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

• (b) to have adequate time and facilities for the preparation of his defence;

• (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

ECHR – Article 6(3)(d), (e)

• d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

• (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

ECHR – Article 13

• Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

EU Charter – Article 47 Right to effective remedy & fair trial

• Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

• Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

• Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

EU Charter – Article 48 Presumption of innocence & right of defence

• 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.

• 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.

EU Charter – Article 51(1) Field of application

• 1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

EU Charter – Article 51(2)

• 2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.

EU Charter – Article 52 Scope and interpretation of rights and principles

• 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

EU Charter – Article 52.3

• 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

EU Charter – Article 53

• Level of protection • Nothing in this Charter shall be interpreted as

restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.

Explanations to Charter

• EU Charter – Article 52.7 -

• The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.

TEU – Article 6.1

• 1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

• The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

• The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

Charter Explanations – Article 47.1

• The first paragraph is based on Article 13 of the ECHR.

• However, in Union law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined that right in its judgment of 15 May 1986 as a general principle of Union law (Case 222/84 Johnston [1986] ECR 1651…).

Charter explanations – Article 47.1

• According to the Court, that general principle of Union law also applies to the Member States when they are implementing Union law. The inclusion of this precedent in the Charter has not been intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to admissibility for direct actions before the Court of Justice of the European Union….


• The second paragraph corresponds to Article 6(1) of the ECHR.

• In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case 294/83, ‘Les Verts’ v European Parliament (judgment of 23 April 1986, [1986] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.


• With regard to the third paragraph, it should be noted that in accordance with the case-law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR judgment of 9 October 1979, Airey, Series A, Volume 32, p. 11). There is also a system of legal assistance for cases before the Court of Justice of the European Union.

Charter explanations – Article 48

• Article 48 is the same as Article 6(2) and (3) of the ECHR

• In accordance with Article 52(3), this right has the same meaning and scope as the right guaranteed by the ECHR.


• The aim of Article 51 is to determine the scope of the Charter. It seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity….

• As regards the Member States, it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, Case C-260/89 ERT [1991] ECR I-2925)...


• Paragraph 2, together with the second sentence of paragraph 1, confirms that the Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Union. Explicit mention is made here of the logical consequences of the principle of subsidiarity and of the fact that the Union only has those powers which have been conferred upon it. The fundamental rights as guaranteed in the Union do not have any effect other than in the context of the powers determined by the Treaties. Consequently, an obligation, pursuant to the second sentence of paragraph 1, for the Union's institutions to promote principles laid down in the Charter may arise only within the limits of these same powers.


• Paragraph 1 deals with the arrangements for the limitation of rights. The wording is based on the case-law of the Court of Justice: ‘... it is well established in the case-law of the Court that restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, disproportionate and unreasonable interference undermining the very substance of those rights’ (judgment of 13 April 2000, Case C-292/97, paragraph 45 of the grounds).


• The reference to general interests recognised by the Union covers both the objectives mentioned in Article 3 of the Treaty on European Union and other interests protected by specific provisions of the Treaties such as Article 4(1) of the Treaty on European Union and Articles 35(3), 36 and 346 of the Treaty on the Functioning of the European Union.


• Paragraph 3 is intended to ensure the necessary consistency between the Charter and the ECHR by establishing the rule that, in so far as the rights in the present Charter also correspond to rights guaranteed by the ECHR, the meaning and scope of those rights, including authorised limitations, are the same as those laid down by the ECHR. This means in particular that the legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR, which are thus made applicable for the rights covered by this paragraph, without thereby adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union.


• The reference to the ECHR covers both the Convention and the Protocols to it. The meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case-law of the European Court of Human Rights and by the Court of Justice of the European Union. The last sentence of the paragraph is designed to allow the Union to guarantee more extensive protection. In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR.


• The Charter does not affect the possibilities of Member States to avail themselves of Article 15 ECHR, allowing derogations from ECHR rights in the event of war or of other public dangers threatening the life of the nation, when they take action in the areas of national defence in the event of war and of the maintenance of law and order, in accordance with their responsibilities recognised in Article 4(1) of the Treaty on European Union and in Articles 72 and 347 of the Treaty on the Functioning of the European Union.


• The list of rights which may at the present stage, without precluding developments in the law, legislation and the Treaties, be regarded as corresponding to rights in the ECHR within the meaning of the present paragraph is given hereafter. It does not include rights additional to those in the ECHR.


• 1. Articles of the Charter where both the meaning and the scope are the same as the corresponding Articles of the ECHR:

• — Article 48 corresponds to Article 6(2) and(3) of the ECHR

• 2. Articles where the meaning is the same as the corresponding Articles of the ECHR, but where the scope is wider:

• — Article 47(2) and (3) corresponds to Article 6(1) of the ECHR, but the limitation to the determination of civil rights and obligations or criminal charges does not apply as regards Union law and its implementation,


• This provision is intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law. Owing to its importance, mention is made of the ECHR.

Relevant case law

• Case C-279/09 DEB, Dec. 2010, Court of Justice • - corporate plaintiff (legal person) sought legal aid to

sue German government for damages resulting from alleged non-implementation of EU law on energy market liberalisation

• ‘32 According to the explanations relating to that article [47], which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the ECHR.’

DEB judgment

• 33 In the light of the above, it is necessary to recast the question referred so that it relates to the interpretation of the principle of effective judicial protection as enshrined in Article 47 of the Charter, in order to ascertain whether, in the context of a procedure for pursuing a claim seeking to establish State liability under EU law, that provision precludes a national rule under which the pursuit of a claim before the courts is subject to the making of an advance payment in respect of costs and under which a legal person does not qualify for legal aid even though it is unable to make that advance payment.

• 34 It is apparent from Paragraph 122(1) of the ZPO that legal aid may cover both court costs and debts owed to lawyers. Since the national court has not specified whether the question referred relates to the aspect of court costs alone, it is necessary to examine both aspects.

DEB judgment

• 35 As regards the Charter, Article 52(3) thereof states that, in so far as the Charter contains rights which correspond to those guaranteed by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR. According to the explanation of that provision, the meaning and the scope of the guaranteed rights are to be determined not only by reference to the text of the ECHR, but also, inter alia, by reference to the case-law of the European Court of Human Rights. The second sentence of Article 52(3) of the Charter provides that the first sentence of Article 52(3) is not to preclude the grant of wider protection by EU law (see, to that effect, Case C-400/10 PPU McB [2010] ECR I-0000, paragraph 53).

DEB judgment

• 36 As regards in particular Article 47(3) of the Charter, the last paragraph of the Explanation relating to Article 47 mentions the judgment in Airey v. Ireland of 9 October 1979 (Eur. Court H.R., Series A, No 32, p. 11), according to which provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy. No indication is given as to whether such aid must be granted to a legal person or of the nature of the costs covered by that aid.

• 37 That provision must be interpreted in its context, in the light of other provisions of EU law, the law of the Member States and the case-law of the European Court of Human Rights.

DEB judgment - substance

• 38 As the Commission of the European Communities observed in its written submissions, the word ‘person’ used in the first two paragraphs of Article 47 of the Charter may cover individuals, but, from a purely linguistic point of view, it does not exclude legal persons.

• 39 It should be noted in that connection that, although the explanations relating to the Charter do not provide any clarification in this regard, the use of the word ‘Person’, in the German language version of Article 47, as opposed to the word ‘Mensch’, which is used in numerous other provisions – for example, in Articles 1, 2, 3, 6, 29, 34 and 35 of the Charter – may be an indication that legal persons are not excluded from the scope of that article.

• 40 Moreover, the right to an effective remedy before a court, enshrined in Article 47 of the Charter, is to be found under Title VI of that Charter, relating to justice, in which other procedural principles are established which apply to both natural and legal persons.


• 41 The fact that the right to receive legal aid is not to be found in Title IV of the Charter, relating to solidarity, indicates that that right is not conceived primarily as social assistance, whereas in German law it does appear to be conceived as such, a factor on which the German Government has relied in support of its argument that that assistance must be reserved to natural persons.

• 42 Similarly, the inclusion of the provision relating to the grant of legal aid in the article of the Charter relating to the right to an effective remedy indicates that the assessment of the need to grant that aid must be made on the basis of the right of the actual person whose rights and freedoms as guaranteed by EU law have been violated, rather than on the basis of the public interest of society, even if that interest may be one of the criteria for assessing the need for the aid.


• 43 The other provisions of EU law relied on by the parties to the main proceedings and by the Member States which submitted observations and the Commission – such as Directive 2003/8, the Rules of Procedure of the General Court and of the Civil Service Tribunal – do not make provision for legal aid to be granted to legal persons. However, no conclusion of general application can be drawn from this, since it is apparent, first, from the scope of Directive 2003/8 and, second, from the jurisdiction of the General Court and of the Civil Service Tribunal that those provisions relate to specific categories of litigation.

• 44 As the Advocate General pointed out in points 76 to 80 of his Opinion, examination of the law of the Member States brings to light the absence of a truly common principle which is shared by all those States as regards the award of legal aid to legal persons. However, in point 80 of that Opinion, the Advocate General also pointed out that, in the practice of the Member States which allow legal aid to be granted to legal persons, there is a relatively widespread distinction between profit-making and non-profit-making legal persons.

DEB judgment – ECHR

• 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.


• 46 Ruling on legal aid in the form of assistance by a lawyer, the

European Court of Human Rights has held that the question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself effectively (Eur. Court H.R., judgments in Airey v. Ireland, § 26; McVicar v. the United Kingdom, §§ 48 and 49; P., C. and S. v. the United Kingdom of 16 July 2002, ECHR 2002-VI, § 91, and Steel and Morris v. the United Kingdom, § 61). Account may be taken, however, of the financial situation of the litigant or his prospects of success in the proceedings (Eur. Court H.R., judgment in Steel and Morris v. the United Kingdom, § 62).


• 47 As regards legal aid in the form of dispensation from payment of the costs of proceedings or from provision of security for costs before an action is brought, the European Court of Human Rights has similarly examined all the circumstances in order to determine whether the limitations applied to the right of access to the courts had undermined the very core of that right, whether those limitations pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (see, to that effect, Eur. Court H.R., judgments in Tolstoy-Miloslavsky v. the United Kingdom of 13 July 1995, Series A No 316-B, §§ 59 to 67, and Kreuz v. Poland of 19 June 2001, ECHR 2001-VI, §§ 54 and 55).

• 48 It is apparent from those decisions that legal aid may cover both assistance by a lawyer and dispensation from payment of the costs of proceedings.

DEB judgment - ECHR

• 49 The European Court of Human Rights has also held that, although a selection procedure for cases may be established in order to determine whether legal aid may be granted, that procedure must operate in a non-arbitrary manner (see, to that effect, Eur. Court H.R., judgment in Del Sol v. France of 26 February 2002, § 26; decision in Puscasu v. Germany of 29 September 2009, p. 6, last paragraph; judgment in Pedro Ramos v. Switzerland of 14 October 2010, § 49).

• 50 That court had occasion to examine the situation of a commercial company which had applied for legal aid in the context of French legislation, which provides for such aid only in the case of natural persons and, exceptionally, in the case of non-profit-making legal persons having their seat in France and lacking sufficient resources. The European Court of Human Rights held that the difference in treatment between profit-making companies, on the one hand, and natural persons and non-profit-making legal persons, on the other, is based on an objective and reasonable justification which relates to the tax arrangements governing legal aid, since those arrangements provide for the possibility of deducting all costs of proceedings from taxable profits and of carrying over losses to a subsequent tax year (Eur. Court H.R., decision in VP Diffusion Sarl v. France of 26 August 2008, pp. 4, 5 and 7).

DEB judgment - ECHR

• 51 Similarly, in the case of a community of users of communal rural property applying for legal aid in order to challenge an action for restitution of title to land, the European Court of Human Rights considered that account should be taken of the fact that funds approved by private associations and companies for their legal representation come from funds accepted, approved and paid by their members and noted that the application was made in order to intervene in civil litigation relating to the ownership of land, the outcome of which would affect only the members of the communities in question (Eur. Court H.R., decision in CMVMC O´Limov. Spain of 24 November 2009, paragraph 26). That court concluded from this that the refusal to grant free legal aid to the applicant community had not undermined the very core of its right of access to a court.

• 52 It is apparent from the examination of the case-law of the European Court of Human Rights that the grant of legal aid to legal persons is not in principle impossible, but must be assessed in the light of the applicable rules and the situation of the company concerned.

• 53 The subject-matter of the litigation may be taken into consideration, in particular its economic importance.

DEB judgment - ECHR

• 54 For the purposes of taking account of the financial capacity of an applicant, where that applicant is a legal person, consideration may be given inter alia to the form of the company (whether it is a capital company or a partnership, whether it is a limited liability company or otherwise); the financial capacity of its shareholders; the objects of the company; the manner in which it has been set up; and, more specifically, the relationship between the resources allocated to it and the intended activity.


• 55 In its observations, the EFTA Surveillance Authority submits that, according to German law, a company will never fulfil the conditions for obtaining legal aid in a situation where it has not succeeded in becoming genuinely established, with employees and other infrastructure. That condition can specifically affect applicants for such aid who rely on rights conferred by EU law, in particular freedom of establishment or access to a particular market in a Member State.

• 56 It should be observed that such a factor must undoubtedly be taken into account by the national courts. However, it is for those courts to strike a fair balance in order to ensure that applicants relying on EU law have access to the courts, but without favouring such applicants over others. In this respect, the referring court and the German Government have stated that, according to the case-law of the Bundesgerichtshof, the legal concept of ‘public interest’ can cover all conceivable general interests for the benefit of the legal person.

DEB judgment – conclusions

• 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.

• 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.

DEB judgment – conclusions

• 61 In making that assessment, the national court must take into consideration the subject-matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the applicable law and procedure; and the applicant’s capacity to represent himself effectively. In order to assess the proportionality, the national court may also take account of the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an insurmountable obstacle to access to the courts.

Case C-400/10 McB - judgment Oct. 2010

• Litigation concerning custody of children, removed from Ireland to UK by mother

• Parents are not married; Irish law awards custody to mother

• Reg 2201/2003 (Brussels IIbis) applies

• ECJ: ‘rights of custody’ must have uniform interpretation in EU law – includes determination of child’s residence

McB judgment

• Identity of person with custody is however left to national law by Regulation

• Is this changed by Article 7 of Charter – right to family life?

McB case – scope of Charter

• Article 51 means ‘the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it.’

• ‘It follows that, in the context of this case, the Charter should be taken into consideration solely for the purposes of interpreting Regulation No 2201/2003, and there should be no assessment of national law as such. More specifically, the question is whether the provisions of the Charter preclude the interpretation of that regulation set out in paragraph 44 of this judgment, taking into account, in particular, the reference to national law which that interpretation involves.’

McB case – Article 7 Charter

• 53 Moreover, it follows from Article 52(3) of the Charter that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR. However, that provision does not preclude the grant of wider protection by European Union law. Under Article 7 of the Charter, ‘[e]veryone has the right to respect for his or her private and family life, home and communications’. The wording of Article 8(1) of the ECHR is identical to that of the said Article 7, except that it uses the expression ‘correspondence’ instead of ‘communications’. That being so, it is clear that the said Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights (see, by analogy, Case C-450/06 Varec [2008] ECR I-581, paragraph 48).

McB case – Article 7

• 54 The European Court of Human Rights has already considered a case in which the facts were comparable to those of the case in the main proceedings, where the child of an unmarried couple was taken to another State by its mother, who was the only person with parental responsibility for that child. In that regard, that court ruled, in essence, that national legislation granting, by operation of law, parental responsibility for such a child solely to the child’s mother is not contrary to Article 8 of the ECHR, interpreted in the light of the 1980 Hague Convention, provided that it permits the child’s father, not vested with parental responsibility, to ask the national court with jurisdiction to vary the award of that responsibility (Guichardv.France ECHR 2003-X 714; see also, to that effect, Balbontinv.United Kingdom, no.39067/97, 14 September 1999).

• 55 It follows that, for the purposes of applying Regulation No 2201/2003 in order to determine whether the removal of a child, taken to another Member State by its mother, is lawful, that child’s natural father must have the right to apply to the national court with jurisdiction, before the removal, in order to request that rights of custody in respect of his child be awarded to him, which, in such a context, constitutes the very essence of the right of a natural father to a private and family life.

• 56 The European Court of Human Rights has also ruled that national legislation which does not allow the natural father any possibility of obtaining rights of custody in respect of his child in the absence of the mother’s agreement constitutes unjustified discrimination against the father and is therefore a breach of Article 14 of the ECHR, taken together with Article 8 of the ECHR (Zauneggerv.Germany, no. 22028/04, § 63 and 64, 3 December 2009).

Case law – criminal law issues

• Case C-617/10 Fransson – scope of Charter, Article 52 – does Charter apply to national law punishing violations of VAT legislation?

• Advocate-General – not sufficient link to EU law; also in this case the ECHR case law regarding Protocol 4 (double jeopardy) should not be followed, since some Member States had reservations or did not ratify

• Judgment 26 February 2013 says…?


• Case C-396/11 Radu – judgment Jan. 2013

• European Arrest Warrant (EAW) – Advocate-General’s opinion – EU law should set higher standards than ECHR as regards refusal of extradition requests (Article 6 ECHR)

• Judgment – does not mention issue


• Case C-399/11 Melloni – articles 47, 48, 53

• Advocate-General – EAW execution cannot be refused in relation to in absentia trials, except on the basis of the criteria spelled out in EU legislation - even if national law sets higher standards - not justified to have higher standards than the ECHR in EU law here

• Judgment of 26 Jan. 2013 says….?

EU road map – criminal suspects’ rights

• Directive 2010/64 – interpretation and translation – apply by Oct. 2013

• Directive 2012/13 – letter of rights, information about charges and rights – apply by spring 2014

• Proposal 2011 – access to a lawyer, communication rights

• Proposals 2013 – presumption of innocence, legal aid, vulnerable suspects?

Administrative law – Volker judgment

• C-92/09 and C-93/09 Volker and Schenke • Concerns validity of EU legislation requiring publication of names of

farmers getting EU aid

• 46 In those circumstances, the validity of Articles 42(8b) and 44a of Regulation No 1290/2005 and of Regulation No 259/2008 must be assessed in the light of the provisions of the Charter.

• 47 In this regard, Article 8(1) of the Charter states that ‘[e]veryone has the right to the protection of personal data concerning him or her’. That fundamental right is closely connected with the right to respect of private life expressed in Article 7 of the Charter.

• 48 The right to the protection of personal data is not, however, an absolute right, but must be considered in relation to its function in society (see, to that effect, Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 80 and the case-law cited).

Volker judgment

• 49 Article 8(2) of the Charter thus authorises the processing of personal data if

certain conditions are satisfied. It provides that personal data ‘must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law’.

• 50 Moreover, Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights such as those set forth in Articles 7 and 8 of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

• 51 Finally, according to Article 52(3) of the Charter, in so far as it contains rights which correspond to rights guaranteed by the Convention, the meaning and scope of those rights are to be the same as those laid down by the Convention. Article 53 of the Charter further states that nothing in the Charter is to be interpreted as restricting or adversely affecting the rights recognised inter alia by the Convention.

Volker judgment

• 52 In those circumstances, it must be considered that the right to respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual (see, in particular, European Court of Human Rights, Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II, and Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000-V) and the limitations which may lawfully be imposed on the right to the protection of personal data correspond to those tolerated in relation to Article 8 of the Convention.

• Court – disproportionate interference with Charter rights; EU legislation is invalid

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