Speculating Human Rights Speculating Human Rights Jurisdiction of the ECJJurisdiction of the ECJ

Siniša RodinSiniša Rodin

Hungarian Penal Code 1993Hungarian Penal Code 1993

Article 269/B, para (1), points a, b, c of the Article 269/B, para (1), points a, b, c of the penal code penal code incriminates to “incriminates to “utilize or utilize or exhibit in public swastika, a badge exhibit in public swastika, a badge descriptive SS, an arrow-cross, hammer descriptive SS, an arrow-cross, hammer and sickle, a five-pointed red star.and sickle, a five-pointed red star.””

In no member-state of the European Union In no member-state of the European Union are prohibited the red star or the are prohibited the red star or the traditional symbol of the workers' traditional symbol of the workers' movement. movement.

Case of Attila VajnaiCase of Attila Vajnai

On 10. March 2003, the Budapest district On 10. March 2003, the Budapest district police station of V and XIII district heard police station of V and XIII district heard Attila Vajnai, the vice-president of the Attila Vajnai, the vice-president of the Workers' Party as a suspect. According to Workers' Party as a suspect. According to the policethe police Attila Vajnai utilized the red star Attila Vajnai utilized the red star on a press conference on 21. on a press conference on 21.

Attila VajnaiAttila Vajnai was was sentenced sentenced oon March to n March to 12 months' probation for displaying a red 12 months' probation for displaying a red star in public, and was arrested again in star in public, and was arrested again in April for the same reason.April for the same reason.

Case C-328/04

Reference has been made to the ECJ by order of the Fővárosi Bíróság, Hungary, of 24 June 2004, received at the Court Registry on 30 July 2004, for a preliminary ruling in the criminal proceedings against Attila Vajnai.

Question 1Question 1

Is Article 269/B, first paragraph, of the Büntető Törvénykönyv (Hungarian Criminal Code), which provides that a person who uses or displays, in public, the symbol consisting of a fivepointed red star commits — where the conduct does not amount to a more serious criminal offence — a minor offence, compatible with the fundamental Community-law principle of non-discrimination?

Question 2Question 2

Do Article 6 TEU, according to which the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, Directive 2000/43/EC, which also refers to fundamental freedoms, and Articles 10, 11 and 12 of the Charter of Fundamental Rights, allow a person who wishes to express his political convictions through a symbol representing them to do so in any Member State?

Jurisdiction depends on ECJ’s Jurisdiction depends on ECJ’s reading of the case...reading of the case...

...as a free movement case, or...as a free movement case, or as a fundamental rights case!as a fundamental rights case!

Costa v. ENEL: Costa v. ENEL: THE COURT HAS POWER TO THE COURT HAS POWER TO EXTRACT FROM A QUESTION IMPERFECTLY EXTRACT FROM A QUESTION IMPERFECTLY FORMULATED BY THE NATIONAL COURT FORMULATED BY THE NATIONAL COURT THOSE QUESTIONS WHICH ALONE PERTAIN THOSE QUESTIONS WHICH ALONE PERTAIN TO THE INTERPRETATION OF THE TREATYTO THE INTERPRETATION OF THE TREATY

The ProblemThe Problem

Whether Communtiy law can restrict Whether Communtiy law can restrict States in exercise of their regulatory States in exercise of their regulatory powers, and where so, on what legal powers, and where so, on what legal basis and to what extent?basis and to what extent?

Two situations:Two situations: 4 freedoms affecting MS regulatory 4 freedoms affecting MS regulatory

powers (Arts. 28-30 TEC)powers (Arts. 28-30 TEC) Fundamental rights affecting MS Fundamental rights affecting MS

regulatory powers (Arts. 6-7 TEU) regulatory powers (Arts. 6-7 TEU)

The TEU (Art. 6)The TEU (Art. 6) The Union is founded on the principles of liberty,

democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

ECJ Jurisdiction re: Art. 6(1) TEUECJ Jurisdiction re: Art. 6(1) TEU

Art. 46 TEU: The provisions of the Treaty (…) concerning the powers of the ECJ and the exercise of those powers shall apply only to the following provisions of this Treaty: (…)

Art. 6(1) not mentioned !!!

The Directive (preamble)The Directive (preamble) In accordance with Article 6 of the Treaty In accordance with Article 6 of the Treaty

on Eon EUU, the E, the EUUis founded on the principles is founded on the principles of liberty, democracy, respect for human of liberty, democracy, respect for human rights and fundamental freedoms, and the rights and fundamental freedoms, and the rule of law, principles which are common rule of law, principles which are common to the Member States, and should respect to the Member States, and should respect fundamental rights as guaranteed by the fundamental rights as guaranteed by the European Convention for the protection of European Convention for the protection of Human Rights and Fundamental Freedoms Human Rights and Fundamental Freedoms and as they result from the constitutional and as they result from the constitutional traditions common to the Member States, traditions common to the Member States, as general principles of Community Law.as general principles of Community Law.

ECJ Jurisdiction re: ECJ Jurisdiction re: Directive Directive 2000/43/EC2000/43/EC

Article 1Article 1 - - PurposePurpose The purpose of this Directive is to lay The purpose of this Directive is to lay

down a framework for combating down a framework for combating discrimination on the grounds of discrimination on the grounds of racial or ethnic originracial or ethnic origin, with a view , with a view to putting into effect in the Member to putting into effect in the Member States the principle of equal States the principle of equal treatment.treatment.

Charter of Rights of the EUCharter of Rights of the EU Article 10 - Freedom of thought, conscience and religion

Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

Article 11 - Freedom of expression and information

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Article 12 - Freedom of assembly and of association

Political parties at Union level contribute to expressing the political will of the citizens of the Union.

ECJ Jurisdiction re: Charter of ECJ Jurisdiction re: Charter of RightsRights

Still not a binding documentStill not a binding document Even under the Constitutional Treaty, Even under the Constitutional Treaty,

it will be binding only on EU it will be binding only on EU institutions and Member States when institutions and Member States when implementing EU law.implementing EU law.

Conclusion:Conclusion:

Prima faciae the ECJ does not have Prima faciae the ECJ does not have jurisdiction to hear the case on jurisdiction to hear the case on human rights groundshuman rights grounds

Consequence: Member State can Consequence: Member State can imprison people for displaying a red imprison people for displaying a red star unless the case can be heard as star unless the case can be heard as a free movement case!a free movement case!

Is Atila Admissible as a Free Is Atila Admissible as a Free Movement Case?Movement Case?

TThe Court has power to extract from a he Court has power to extract from a question imperfectly formulated by the question imperfectly formulated by the national court those questions which alone national court those questions which alone pertain to the interpretation of the Treaty pertain to the interpretation of the Treaty (Costa v. ENEL)(Costa v. ENEL)

Q: Does Hungarian Criminal Code restrict Q: Does Hungarian Criminal Code restrict one of the 4 freedoms, e.g. Free one of the 4 freedoms, e.g. Free movement of personsmovement of persons

In such a case, Atila would fit into In such a case, Atila would fit into Schmidberger, Omega line of casesSchmidberger, Omega line of cases

Free Movement AnalysisFree Movement Analysis

Assumption 1: National measure infringes Assumption 1: National measure infringes one of the 4 freedomsone of the 4 freedoms• Less persons can travel to Hungary (FMP)Less persons can travel to Hungary (FMP)• Less Heineken beer can be sold in Hungary Less Heineken beer can be sold in Hungary

(FMG)(FMG) Assumption 2: National measure aims at Assumption 2: National measure aims at

protection of a mandatory requirementprotection of a mandatory requirement• E.g. Public policy, fundamental rights, etc...E.g. Public policy, fundamental rights, etc...

Free Movement AnalysisFree Movement Analysis

Caught by Art. 28Caught by Art. 28 Justified by Art. 30Justified by Art. 30

• Must not be “arbitrary discrimination” or Must not be “arbitrary discrimination” or “disguised restriction” of trade“disguised restriction” of trade

• States have a margin of appreciationStates have a margin of appreciation• Objective must be legitimateObjective must be legitimate• Proportionality testProportionality test

Example of FM analysisExample of FM analysisCase C-112/2000, SchmidbergerCase C-112/2000, Schmidberger

(...) (...) whilst the free movement of goods constitutes one of whilst the free movement of goods constitutes one of the fundamental principles in the scheme of the Treaty, it the fundamental principles in the scheme of the Treaty, it may, in certain circumstances, be subject to restrictions for may, in certain circumstances, be subject to restrictions for the reasons laid down in Article 36 of that Treaty or for the reasons laid down in Article 36 of that Treaty or for overriding requirements relating to the public interest, in overriding requirements relating to the public interest, in accordance with the Court's consistent case-law since the accordance with the Court's consistent case-law since the judgment in Case 120/78 Rewe-Zentral (`Cassis de Dijon') judgment in Case 120/78 Rewe-Zentral (`Cassis de Dijon') [1979] ECR 649. [1979] ECR 649.

(...) (...) interests involved must be weighed having regard to all interests involved must be weighed having regard to all the circumstances of the case in order to determine the circumstances of the case in order to determine whether a fair balance was struck between those interests. whether a fair balance was struck between those interests.

The competent authorities enjoy a wide margin of The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary to discretion in that regard. Nevertheless, it is necessary to determine whether the restrictions placed upon intra-determine whether the restrictions placed upon intra-Community trade are proportionate in the light of the Community trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, legitimate objective pursued, namely, in the present case, the protection of fundamental rights. the protection of fundamental rights.

What can be justified? Prohibition What can be justified? Prohibition of lotteries! C-275/92, of lotteries! C-275/92, SchindlerSchindler

When a Member State prohibits in its territory the When a Member State prohibits in its territory the operation of large-scale lotteries and in particular operation of large-scale lotteries and in particular the advertising and distribution of tickets for that the advertising and distribution of tickets for that type of lottery, the prohibition on the importation type of lottery, the prohibition on the importation of materials intended to enable nationals of that of materials intended to enable nationals of that Member State to participate in such lotteries Member State to participate in such lotteries organized in another Member State cannot be organized in another Member State cannot be regarded as a measure involving an unjustified regarded as a measure involving an unjustified interference with the freedom to provide services. interference with the freedom to provide services. Such a prohibition on import is a necessary part Such a prohibition on import is a necessary part of the protection which that Member State seeks of the protection which that Member State seeks to secure in its territory in relation to lotteries. to secure in its territory in relation to lotteries.

How wide is mHow wide is margin of argin of aappreciationppreciationCase C-124/9Case C-124/97, 7, LääräLäärä

It is for [It is for [Member StateMember State] authorities to assess whether it is ] authorities to assess whether it is necessary, in the context of the aim pursued, totally or necessary, in the context of the aim pursued, totally or partially to prohibit activities of that kind or merely to partially to prohibit activities of that kind or merely to restrict them and, to that end, to establish control restrict them and, to that end, to establish control mechanisms, which may be more or less strict.mechanisms, which may be more or less strict.

the mere fact that a Member State has opted for a system the mere fact that a Member State has opted for a system of protection which differs from that adopted by another of protection which differs from that adopted by another Member State cannot affect the assessment of the need Member State cannot affect the assessment of the need for, and proportionality of, the provisions enacted to that for, and proportionality of, the provisions enacted to that end. Those provisions must be assessed solely by reference end. Those provisions must be assessed solely by reference to the objectives pursued by the national authorities of the to the objectives pursued by the national authorities of the Member State concerned and the level of protection which Member State concerned and the level of protection which they are intended to provide.they are intended to provide.

Is prohibition of the Red Star a Is prohibition of the Red Star a justified interferencejustified interference??

Case C-36/02, Omega: (...)Case C-36/02, Omega: (...) the the prohibition on the commercial prohibition on the commercial exploitation of games involving the exploitation of games involving the simulation of acts of violence against simulation of acts of violence against persons, in particular the persons, in particular the representation of acts of homicide, representation of acts of homicide, corresponds to the level of protection corresponds to the level of protection of human dignity which the national of human dignity which the national constitution seeks to guarantee in constitution seeks to guarantee in the territory of the Fthe territory of the FRGRG. .

Is the Hungarian measure Is the Hungarian measure proportionate to the aim pursuedproportionate to the aim pursued??

Omega: (...) Omega: (...) by prohibiting only the by prohibiting only the variant of the laser game the object variant of the laser game the object of which is to fire on human targets of which is to fire on human targets and thus play at killing' people, the and thus play at killing' people, the contested order did not go beyond contested order did not go beyond what is necessary in order to attain what is necessary in order to attain the objective pursued by the the objective pursued by the competent national authorities.competent national authorities.

Can Atila still be admissible as a Can Atila still be admissible as a fundamental rights case?fundamental rights case?

Fundamental rights are a general Fundamental rights are a general principle of lawprinciple of law

Fundamental rights bind both the EU Fundamental rights bind both the EU and its Member Statesand its Member States

There has to be an effective legal There has to be an effective legal protectionprotection

Respect for FR is a requirement for Respect for FR is a requirement for EU membershipEU membership

ECJ: FR = general principle of lawECJ: FR = general principle of law

(...) (...) fundamental rights form an integral fundamental rights form an integral part of the general principles of law the part of the general principles of law the observance of which the Court ensures, observance of which the Court ensures, and that, for that purpose, the Court draws and that, for that purpose, the Court draws inspiration from the constitutional inspiration from the constitutional traditions common to the Mtraditions common to the MSS and from the and from the guidelines supplied by international guidelines supplied by international treaties for the protection of treaties for the protection of HRHR on which on which the Mthe MS S have collaborated or to which they have collaborated or to which they are signatories. The Eare signatories. The ECHR CHR has special has special significance in that respectsignificance in that respect..

Omega; SchmidbergerOmega; Schmidberger

Since both the Community and its Since both the Community and its Member States are required to Member States are required to respect fundamental rights, the respect fundamental rights, the protection of those rights is a protection of those rights is a legitimate interest which, in legitimate interest which, in principle, justifies a restriction of the principle, justifies a restriction of the obligations imposed by Community obligations imposed by Community law, even under a fundamental law, even under a fundamental freedom guaranteed by the Treatyfreedom guaranteed by the Treaty......

Effective legal protectionEffective legal protectionLeerlaufende Rechte?Leerlaufende Rechte?

Since both, the Community and Since both, the Community and Member States, are required to Member States, are required to respect fundamental rights, does the respect fundamental rights, does the ECJ have an obligation to effectively ECJ have an obligation to effectively protect rights guaranteed by the protect rights guaranteed by the Treaty?Treaty?

Effective Judicial RemedyEffective Judicial RemedyCase 222/84, JohnstonCase 222/84, Johnston

The requirement of judicial control stipulated by that article The requirement of judicial control stipulated by that article reflects a general principle of law which underlies the reflects a general principle of law which underlies the constitutional traditions common to the member states. That constitutional traditions common to the member states. That principle is also laid down in articles 6 and 13 of the EHRC of 4 principle is also laid down in articles 6 and 13 of the EHRC of 4 NNovov. . 1950. As the European Parliament, Council and Commission 1950. As the European Parliament, Council and Commission recognized in their joint declaration of 5 recognized in their joint declaration of 5 AApril 1977, and as the pril 1977, and as the Court has recognized in its decisions, the principles on which that Court has recognized in its decisions, the principles on which that Convention is based Convention is based must be taken into consideration in must be taken into consideration in Community lawCommunity law..

By virtue of article 6 of directive no 76/207, interpreted in the light By virtue of article 6 of directive no 76/207, interpreted in the light of the general principle stated above , all persons have the right to of the general principle stated above , all persons have the right to obtain an effective remedy in a competent court against measures obtain an effective remedy in a competent court against measures which they consider to be contrary to the which they consider to be contrary to the principle of equal principle of equal treatmenttreatment for men and women laid down in the directive. It is for for men and women laid down in the directive. It is for the member states the member states to ensure effective judicialto ensure effective judicial control as control as regards compliance with the applicable provisions of regards compliance with the applicable provisions of CCommunity ommunity law and of national legislation intended to give effect to the rights law and of national legislation intended to give effect to the rights for which the directive provides.for which the directive provides.

Respect for FR is requirement for Respect for FR is requirement for accessionaccession

Copenhagen Council 1993 criteria: Copenhagen Council 1993 criteria:

“... “... stability of institutions stability of institutions guaranteeing democracy, the rule of guaranteeing democracy, the rule of law, human rights and respectlaw, human rights and respectfor and protection of minoritiesfor and protection of minorities””

Are these criteria applicable after Are these criteria applicable after membership?membership?

Constitutional opportunity of AtilaConstitutional opportunity of Atila

To make FR a standard of judicial To make FR a standard of judicial reviewreview

To give Art. 6 TEU teethTo give Art. 6 TEU teeth To make further step in To make further step in

constitutionalisation of the Treatiesconstitutionalisation of the Treaties

FR as a standard of reviewFR as a standard of review

For the time being FR are standard of For the time being FR are standard of review only accessory, e.g. as a review only accessory, e.g. as a mandatory requirement.mandatory requirement.

Question: Can ECJ anticipate the Question: Can ECJ anticipate the Charter of Rights becoming legally Charter of Rights becoming legally binding? Probabbly not!binding? Probabbly not!

Van Gend en Loos RevisitedVan Gend en Loos Revisited(teeth & constitutionalisation)(teeth & constitutionalisation)

Choice between avenues of review: Choice between avenues of review: vigilance of individuals + direct vigilance of individuals + direct effecteffect

Jurisdiction of the ECJ: Jurisdiction of the ECJ: Was it undisputable then?Was it undisputable then?

Constitutionalisation THEN and NOW:Constitutionalisation THEN and NOW:new legal order & Constitutional new legal order & Constitutional TreatyTreaty

Van Gend – issue of jurisdictionVan Gend – issue of jurisdiction The government of the Netherlands and the Belgian The government of the Netherlands and the Belgian

government challenge the jurisdiction of the Court on the government challenge the jurisdiction of the Court on the ground that the reference relates not to the interpretation ground that the reference relates not to the interpretation but to the application of the Treaty in the context of the but to the application of the Treaty in the context of the constitutional law of the Netherlands, and that in particular constitutional law of the Netherlands, and that in particular the Court has no jurisdiction to decide.the Court has no jurisdiction to decide.

The solution of such a problem, it is claimed, falls within the The solution of such a problem, it is claimed, falls within the exclusive jurisdiction of the national courts, subject to an exclusive jurisdiction of the national courts, subject to an application in accordance with the provisions laid down by application in accordance with the provisions laid down by articles 169 and 170 of the Treaty.articles 169 and 170 of the Treaty.

The Belgian government further argues that the Court has The Belgian government further argues that the Court has no jurisdiction on the ground that no answer which the no jurisdiction on the ground that no answer which the Court could give to the first question of the Court could give to the first question of the TTariefcommissie ariefcommissie would have any bearing on the result of the proceedings would have any bearing on the result of the proceedings brought in that court.brought in that court.

The Newest Legal Order?The Newest Legal Order?

In Atila, the ECJ is facing a dilemma In Atila, the ECJ is facing a dilemma similar to one in Van Gend: similar to one in Van Gend: • Van Gend – GATT or New Legal OrderVan Gend – GATT or New Legal Order• Atila – NLO or the ConstitutionAtila – NLO or the Constitution

How to Justify?How to Justify?

Incorporation?Incorporation?• TEU and TEC are functionally inextricable. TEU and TEC are functionally inextricable. • Art. 220 TEC: Art. 220 TEC: The Court of Justice and the

Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed.

• Law can not be observed if Art. 6 TEU is not effectively protected!

• However, this would require decision against Art. 46 TEU (word “only”)

How to Justify?How to Justify?

Extension of free trade provisions to Extension of free trade provisions to other regulatory purposes?other regulatory purposes?• Example US: Katzenbach v. McClung – Example US: Katzenbach v. McClung –

racial discrimination in a highway racial discrimination in a highway restaurant is prohibited by the restaurant is prohibited by the Constitution since it affects trade Constitution since it affects trade between States.between States.

Bottom LineBottom Line

Jurisdiction of ECJ is not impossible to Jurisdiction of ECJ is not impossible to justifyjustify

Member States will always have a margin Member States will always have a margin of discretion how to exercise police powersof discretion how to exercise police powers

Both the Union and MS have to respect Both the Union and MS have to respect fundamental rights (...)fundamental rights (...)

(...) subject to prinicple of proportionality (...) subject to prinicple of proportionality Margin of discretion and compliance with Margin of discretion and compliance with

proportionality are controlled by the ECJ.proportionality are controlled by the ECJ.

If this approach is taken...If this approach is taken...

ECJ would control compliance with ECJ would control compliance with Art. 6 subsidiary - as long as it is not Art. 6 subsidiary - as long as it is not complied by the Member States.complied by the Member States.

Is it likely? Is it likely?

No!No!