Civil Rights/The ECJ judicial activism in the area of Human Rights protection in the EU term paper 41575

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Title: The ECJ's judicial activism in the area of Human Rights protection in the EU is both commendable for its vision and lamentable for its lack of results.


In this article, try to examine the ECJ’s application of the European Convention on Human Rights (ECHR). The current set up of the courts, including the novel idea of a ‘Pre-decision interpretation questions’ system, which could assist the application of the ECHR by both the ECJ and the ECHR. Though theoretically ECJ's judicial activism in the area of Human Rights protection in the EU is commendable for its vision, but practically it has some loophole. There are a number of problems with its current application of the Convention. The question arises whether the Court has adequately and effectively applied the Convention. In conclusion, it can be said that several alterations should be made to improve the current situation.

Style: APA

Language Style: English UK


To understand and assess the question, it is necessary to look back to 1945 and a Europe that had been devastated by war: politically, economically, and socially. In the desire to attain some form of harmony in order to guarantee peace and to rebuild Europe. Article 221 provides that the Court of Justice will consist of fifteen judges. They are appointed is for six term of office of six years through the term is renewable. The power of the ECJ defined in Article 243. The Member States mainly, but not exclusively, in exercising its jurisdiction under Articles 173, 177 and 228(6). In order to answer this question it is necessary to discuss whether the Court has adequately and effectively applied the Convention & several alterations should be made to improve the current situation. Section 1 of the Convention contains a list of human rights that have been described as rather vague.

On the other hand the Human Rights Act 1998 is rightly considered to be one of the most significant constitutional developments of past three hundred and fifty years. The clue of status of the Human Rights Act lies in the manner in which the European convention of human rights was incorporated into domestic law.

ECHR may be seen as probably the most wide-ranging piece of legislation to protect rights where the right to freedom of the individual must necessarily be curtailed on occupations by the need to protect the rights of others. (Article 2- right to live, Article 3- prohibition of torture; Article 6- right to fair trial, Article 7-retrospective effect, Article 12- right to marry, article 10- freedom to express, Article 8- respect to private and family life). Article 13, the right to an effective remedy, is not incorporated.

Article 6 provides rather stronger protection and arguably does amount to an entrenchment in some manner. In Daly to show how courts are now taking proper cognisance of human rights in applications for judicial review.

Section 3 of HRA 1998 provides that domestic law will be interpreted compatible with the ECHR. Convention Rights are incorporated into the act through s.1. S.19 requires a Minister to make declaration of compatibility with the ECHR of any proposed primary legislation. S.4 provides for a Court to make declaration of compatibility of any existing provision primary legislation. Finally s.6 requires public authorities to act in a way that is not incompatible Convention Rights.

Fundamental rights: Human Rights Act 1998:

• Although the EC is not formally bound by the decision of the ECHR, the ECJ has referred to specific provisions of the Convention on the number of occupations [National Panasonic ].

• Fundamental rights have been used principally to attack Community norms, such as regulation or decisions.

• Fundamental rights are part of Community law and therefore they should be capable of being used not only when the Community authorities act in contravention of these rights, but also when it is a member state which has done so in an area covered by the treaties

In Internationale Handelsgesellschaft MBH v EVST for the protection of civil rights and liberties, which are inspired by the traditional constitution of Member State, must be construed with the framework to fulfil the obligation of the community.

EC law and Remedies:

In Marleasing SA v La Commercial International de , the ECJ held that, the court and other MS under a duty to fulfil the obligation of EC law according to Article 10. In Francovich & Bonifaci v Italy it was considered that if an individual sustain damages of State Liability, MS take full responsibilities of damage. Here ECJ had contended technological approach with denial of Horizontal Direct Effect of Directives (HDE).

The right to damages is dependent upon three conditions:

a) The rule of law, which was infringed, must have intended to confer rights on individuals;

b) The breach of this rule of law must have been sufficiently serious:

c) There must have been a direct causal link between the breach of the obligation imposed on the state and the damage, which was sustained by the injured parties.

Implication of community law: UK parliament is the supreme law making authority. Now ECJ challenge the primary legislation if it is incompatible with community law.

Firstly, if EC confers any rights on individuals then any national law must give effect to the EC law and domestic law cannot prevail over EC law.

Secondly, the effectiveness of community law should be equal in all Member States and the national courts must follow jurisprudence of ECJ.

Thirdly, Courts of MS must follow the interpretation of laws given by the ECJ or, where there is no authority, and under the certain condition, must refer the matter to the ECJ under Art 234 of the treaty. Art. 227. A Member State, which considers that another Member State has failed to fulfil an obligation under this Treaty, may bring the matter before the Court of Justice.

Finally, if ECJ gives a ruling Member States are under an obligation to amend their national laws so as to conform to community law.

The comments of Lord Denning in McCarthy’s v Smith, and Lord Diplock in Garland v British Rail Engineering Ltd provides an analogy for arguing that the HRA could be repealed if Parliament wished. It cannot be an entrenched bill of Rights, but where a Sex Discrimination Act 1975 appeared inconsistent with Article 141(then Article 119) EC (equal pay). However, HL was able to construe the provision in a manner consistent with Article.

In Les Verts v European Parliament the Court referred to the Treaty as the ""basic constitutional charter" of the Community and came to the conclusion that, although the Parliament was not mentioned as a possible defendant in Article 173, binding measures adopted by it were subject to judicial review. The Court stated that by Articles 173, 184 and 177 the Treaty intended to establish a complete system of legal remedies. Les Verts is a prime example of dynamic interpretation, an approach typical of the interpretation.

In Factortame , it was held that the EC law would always prevail over domestic law.


Now it needs to discuss about Proportionality. Proportionality is one of the general principles of community law, and therefore UK court are obliged to have regard to it in those cases that have a Community law dimension. The cases to which the principle of proportionality has been applied can be broadly divided in 3 categories.

The first category deals with proportionality in the context of rights granted by Community Treaties, for example free movement is granted by Art .48. In famous case Cassis de Dijon case, the ECJ considered whether German rule, which prescribe a minimum alcohol content for a certain alcoholic beverage constituted an impediment the free movements of goods under Article 30 of the EC treaty.

Secondly, it applies where the applicant claims that the penalty, which has been imposed, is disproportionate to the offence, which has been committed by R v Intervention board, ex parte Man (sugar) Ltd . The ECJ held that the automatic forfeiture of the entire deposit on the event of any failure to fulfill the time requirement was too drastic given the function performed by the system of the export licenses in Bela Muhle Josef Bergmann.

Thirdly, Proportionality applies where no rights as such are at stake, nor is there any claim that a penalty is over burdensome The essence of the claim in this type of case is that a policy choice made, for example by the Commission, is challengeable because the ends being-pursued could be attained in some less disproportionate manner.

One of the leadings authority on the status of proportionality, in the UK is still the decision of the House of Lords in R v Secretary of state for the Home department ex parte Brind, where argument was made on the reasonableness and proportionality in deciding to restrict the “freedom of express”. This concept was clarified and its correlation Wednesbury unreasonableness was found though the argument was rejected as Lord Bridge held that the applicants’ case could be improved by invoking the idea of proportionality, Lord Roskill said that proportionality might at some time be incorporated within UK law. Lord Lowry was equally wary of overstepping the boundary between a supervisory and an appellate jurisdiction.

Argument against proportionality:

Gradual application of proportionality:

• Those decisions which do unequivocally make reference to proportionality as such, but which are said to reflect that concept, ex parte Hook

• Decisions, which make no explicit reference to proportionality as such, but which are said to reflect that concept, Wheeler

• Cases which acre said to provide some support for proportionality, which do not mention that concept and where one has to dig considerably deeper to find any implicit presence of the idea. Bromley LBC v GLC

There are three reasons why proportionality was inevitable in English law:

First, reason is why this is so is consequence of the changing judicial attitudes to fundamental rights.

The second reason is likely to emerge as an independent head of review, it is relatively easy to apply, in case where the allegation is that it is the punishment or penalty which is disproportionate to the offence committed in Hook.

The third reason, proportionality does certain a more structured methodology through which to decide whether an exercise of discretion should be struck down, as compared with the blunt tool of Wednesbury unreasonableness.

Legitimate expectations:

Legitimate expectations is found n all legal systems of the member states which make up the community. This concept is applied in number of different ways in community law.

One of the most obvious applications of legal certainty is in the context of rules, which have an actual retroactive effect. Following Schwarze, actual retroactivity covers a situation where a rule is introduced and applied to events that have already been concluded. Radioactivity of this nature may occur either where the date of entry into force precedes the date of publication; or where the regulation applies to circumstances, which have actually been concluded before the entry into force of the measure.

Of more direct concern to the present analysis is the problem presented by cases of apparent radioactivity and the way in which the ECJ deals with those problems. A person may have planned on his or her actions on the basis of one policy choice made by the administration, and seek redress when the chosen policy alters, even though this alteration is only prospective and not retrospective.

The case law of the ECJ indicates that the individual must be able to point either to the bargain of some front which has been entered into between the individual and the authorities, which has been said to generate the legitimate expectations.

R v Ministry for agriculture, Fisheries and foods, ex parte hainble (otshore) Fisheries limited.

It was clear that the case raise directly the question as to whether they are substantive legitimate expectations: the applicant’s was not based on the unjust refusal to allow it to fish with the licences which it had obtained up to the change of policy in March 1992.

In Ruddock was the claim for a substantive benefit: that individual who did not fall within the government’s publicised criteria for the telephone surveillance would not have their phones tapped by the security services.

The correct test was, said the Court of Appeal, whether the decision to change policy was unreasonable in the Wednesbury sense. On the facts of the case the decision by the Home Secretary to change the policy was not found to be unreasonable in this facts.

Sources: To assess the extent to which fundamental rights are effectively protected in the EU legal order, with particular reference to the case law of the Court of Justice, it is necessary to know about sources. There are two main sources for formulating the objectives of EC law. This are-

a) Primary sources: treaties are the main sources of community law. In these aspects where the treaties are silent, secondary sources are used. Article 249 of the EC Treaty defines the different types of legislation. The role of the ECJ for in the most general term by Article 220 of the EC Treaty and the Court of Justice shall ensure that in the interpretation and application of the Treaty, the law is observed.

b) Secondary sources: Secondary sources are Regulations, Directives, Decision, Recommendation, and opinion.

Regulation: Regulations are binding among the member state. They take effect immediately after being issued. No act of parliament is required to adopt it. They have direct applicability and both vertical (binding state and agencies) and horizontal effect (binding on non state agencies). The Community is a new legal order with distinct characteristics. It may also be noted that legal certainty is the underlying reason of Article 174, which enables the Court, when declaring a regulation invalid under Article 173, to specify which of its effects shall be considered definitive, and which has been applied by the Court, by analogy to directives and also by analogy to proceedings under Article 177.

In P v S and Cornwall County Council P’s contract of employment was terminated because of P’s proposed sex change. The question referred to the ECJ related Article 5 of the directive. The Court held that the meaning of the directive, in the view of the fundamental principle of quality, which it represented, could not be interpreted so as to limit the protection to discrimination on grounds of gender.

In the light of the broad terms of this judgement, the ECJ’s more recent ruling in Grant v Southwest Trains Ltd seems a somewhat surprising retreat. The case concerned a claim by a female employee with a female partner for rail benefits to which married couples were entitled. The ECJ rejected this, stating that the reference to ‘sex discrimination’ was confirmed in D v Council .

In K.B. v The National Health Service Pensions Agency and the Secretary of State for Health claim a survivor’s pension. The argument was that a rule, which precluded transsexuals from marrying, had been found incompatible with Article 12 of the ECHR (in Goodwin v United Kingdom) and that, in such circumstance, Article 141 precludes domestic legislation which prevents a couple of whom one partner is a transsexual from marrying. However, the approach adopted by the ECJ in P v S will be reflected in a recital to the recast Equal Treatment Directive.

Directives: Directive 76/207, which is based not on Article 141 of the EC Treaty but on the institutions’ general powers under Article 308 (ex 235), lays down the principle of equal treatment for men and women in Article 1 (1). Directives are not directly applicable like Regulations. But member states enjoy a measure of discretion in the way it adopts or incorporates in to the domestic law by means of primary legislation or delegated legislation or exclusive order with a primary legislation. EC Directives to provide the rights to individuals, and involve disputes between private individuals. It provides protections of working hours and holidays. Now it is necessary to consider, if member states fail to implement directives within specific time limit. Here we see the dynamic role of ECJ, adopt teleological method of interpretation.

A) The Direct Effect (Van Gend en Loos v Nederlandse Tariefcommissie ) whereby the primary laws of the Treaty could be given effect directly in the Member States domestic courts. In Van Duyn v. Home Office Article 39 of the EC Treaty (formally Article 48) and reference was made to the ECJ provides that freedom of movement for workers shall be secured within the community law.

B) The Indirect Effect was developed where, as the Member States had refused to implement the ECJ to develop the doctrine of Direct Effect horizontally. As Article 10 of EC treaty, they were under a duty to give effect to EC laws and as such a method of statutory interpretation was adopted by the ECJ under Indirect Effect (Von Colson , and Marleasing v La Comercial Internacionale de Alimentacion SA). But in Webb v EMO cargo court took liberal view by not following the EC law. So, this issue here is very much unclear.

C) Those Directives can only have vertical effect as individual can take action against Member States, but Member States cannot take steps against individual. Those Directives do not have horizontal effect (Lord Bethell v SABENA . In Defrenne v. SABENA, it was certain that Member States the granting of direct effect to Article 119 would have grave economic effects. the ECJ confirmed the principle of horizontal direct effect of Treaty provision.

In Wachauf v Germany , Wachauf was a farmer who, upon the expiry of his tenancy, requested compensation arising out of the loss of ‘reference quantities’ on the discontinuance of milk production. When this was refused, he claimed that this was an infringement of his right to private property, protected under the German constitution. The German authorities claimed that the rules that they applied were required by the community regulation, but the ECJ held that on its proper interpretation the regulation required no such thing: although the regulation did not itself provide the right to compensation, equally it did not preclude it. The discretion thereby given to the Member State by the regulation by the regulation should be exercised in accordance with fundamental rights, thus, in practice meaning that the applicant should receive the compensation.


In this article, try to examine the ECJ’s application of the European Convention on Human Rights (ECHR). The current set up of the courts, including the novel idea of a ‘Pre-decision interpretation questions’ system, which could assist the application of the ECHR by both the ECJ and the ECHR. Though theoretically ECJ's judicial activism in the area of Human Rights protection in the EU is commendable for its vision, but practically it has some loophole. There are a number of problems with its current application of the Convention. The question arises whether the Court has adequately and effectively applied the Convention. In conclusion, it can be said that several alterations should be made to improve the current situation.


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