Fundamental Rights

1
Fundamental Rights

• Article 6, (paragraphs 1, 2, 3) TEU
• 1. 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.

2
Fundamental Rights

• Article 6, (paragraphs 1, 2, 3) TEU (contd)
• 2. 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.
• 3. The Union shall respect the national
  identities of its Member States.

3
Fundamental Rights

• Article 49 (1st paragraph) TEU
• Any European State which respects the principles
  set out in Article 6(1) may apply to become a
  member of the Union. It shall address its
  application to the Council, which shall act
  unanimously after consulting the Commission and
  after receiving the assent of the European
  Parliament, which shall act by an absolute
  majority of its component members.

4
Fundamental Rights

• Article 220 (1st paragraph) TEC
• The Court of Justice and the Court of First
  Instance, each within its juris-diction, shall
  ensure that in the interpretation and application
  of this Treaty the law is observed.

5
Fundamental Rights

• Article 13 (paragraph 1) TEC
• Without prejudice to the other provisions of this
  Treaty and within the limits of the powers
  conferred by it upon the Community, the Council,
  acting unanimously on a proposal from the
  Commission and after consulting the European
  Parliament, may take appropriate action to combat
  discrimination based on sex, racial or ethnic
  origin, religion or belief, disability, age or
  sexual orientation.

6
Fundamental Rights

• Article 286 (paragraph 1) TEC
• From 1 January 1999, Community acts on the
  protection of individuals with regard to the
  processing of personal data and the free movement
  of such data shall apply to the institutions and
  bodies set up by, or on the basis of, this
  Treaty.

7
Fundamental Rights

• Stauder v. City of Ulm
• Facts
• Court jurisdiction
• Issue
• Decision
• Rationale

8
Fundamental Rights

• Discuss Note 1, p. 206
• Discuss Nord v. Commission, Note 3, pp. 206/07
• Claim he was deprived of (i) right to property
  and (ii) right to free pursuit of economics
  activity
• fundamental rights form an integral part of the
  general principles of law . . . Article 220
  The hook

9
Fundamental Rights

• Rights not absolute (not unfettered)
• Can be subject to certain limits justified by
  the overall objectives of Community
• On condition substance of these rights is left
  untouched

10
Fundamental Rights

• Review
• Article 220 TEC the law is observed
• Article 6 TEU respect for human rights
• Article 13 TEC appropriate action to combat
  discrimination . . .
• Article 286 TEC protection of . . . free
  movement of personal data . . .

11
Fundamental Rights

• Review (contd)
• Article 7.1 TEU sanctions for serious breach .
  . . of principles . . . in Article 6(1) . . .
• Article 49 TEU Prospective new MS respects the
  principles set out in Article 6(1) . . .

12
Fundamental Rights

• Access to Community Documents
• . . . the widest possible access . . .
• Exceptions, to protect interests of
• Individual privacy
• Commercial secrecy
• Community financial interests
• Confidentiality of judicial proceedings

13
Fundamental Rights

• Access to Community Documents (contd)
• Public security, international relations, etc.
• Process
• Written application sufficiently precise
• One month to respond
• If deny, must state its reasons

14
Fundamental Rights

• Interporc v. Commission, p. 229
• Facts Request for documents Commission denied
  protect public interest in court proceedings
• Court Jurisdiction Article 226 TEC
• Issue Did Commission provide adequate reasons
  for denial?
• Decision No decision annulled

15
Fundamental Rights

• Interparac v. Commission, p. 229 (contd)
• Rationale
• Applicant does not have to state reasons for
  requesting documents,  48
• Article 253 TEC Commission must state reasons
  for denying access,  53
• Decision contained only conclusions provides no
  explanation

16
Free Movement of Goods

• Article 23 TEC
• 1. The Community shall be based upon a customs
  union which shall cover all trade in goods and
  which shall involve the prohibition between
  Member States of customs duties on imports and
  exports and of all charges having equivalent
  effect, and the adoption of a common customs
  tariff in their relations with third countries.

17
Free Movement of Goods

• Article 23 TEC (contd)
• 2. The provisions of Article 25 and of Chapter 2
  of this title shall apply to products originating
  in Member States and to products coming from
  third countries which are in free circulation in
  Member States.

18
Free Movement of Goods

• Article 24 TEC
• Products coming from a third country shall be
  considered to be in free circulation in a Member
  State if the import formalities have been
  complied with and any customs duties or charges
  having equivalent effect which are payable have
  been levied in that Member State, and if they
  have not benefited from a total or partial
  drawback of such duties or charges.

19
Free Movement of Goods

• Sociaal Fonals v. Sa. Ch. Brachfeld (p. 453)
• Facts Belgium required all importers of uncut
  diamonds to contribute to diamond workers social
  fund. Fund sued non- payors.
• Court Jurisdiction Article 234 TEC
• Issue Was the required contribution a charge
  having equivalent effect

20
Free Movement of Goods

• Sociaal Fonals Case (contd)
• Decision Yes
• Rationale
• Article 23 fundamental
• Treaty not distinguish between goods according
  to whether or not they enter into completion with
  the products of the importing country 11/14
• Purpose of Treaty ensure free movement of
  goods, not merely to eliminate their charges
  protective nature

21
Free Movement of Goods

• Sociaal Fonals Case (contd)
• Not look to purpose of charge
• Any charge imposed by reason of goods crossing a
  border obstacle to free movement
• Even if not charged for benefit of MS, 15/18
• Prohibition does not permit any exceptions . .
  ., 19/21
• Does not matter that the charge only adversely
  effected nationals of the MS which was
  responsible for the measure, 24/26

22
Free Movement of Goods

• Notes p. 454-55
• Note 1 Why revenue objective immaterial?
• Note 3 Goods
• Note 4 Public Health

23
Free Movement of Goods

• Article 90 TEC
• No Member State shall impose, directly or
  indirectly, on the products of other Member
  States any internal taxation of any kind in
  excess of that imposed directly or indirectly on
  similar domestic products.
• Furthermore, no Member State shall impose on the
  products of other Member States any internal
  taxation of such a nature as to afford indirect
  protection to other products.

24
Free Movement of Goods

• Article 90 has Direct Effect
• Part 1 - Tax in excess of tax imposed on similar
  domestic products
• Part 2 Tax afford indirect protection to other
  products

25
Free Movement of Goods

• Humblot case, p. 459
• Facts France had progressive tax on all new
  cars high tax on most powerful cars, all of
  which were imported purchaser Humblot says
  tax violates Article 90 TEC
• Court Jurisdiction Article 234 TEC
• Issue Does Article 90 TEC prohibit charging tax
  on high power cars which is multiples higher than
  tax on cars with less power?

26
Free Movement of Goods

• Decision Yes, the tax is contrary to the
  principle of neutrality
• Rationale
• MS cannot create discrimination between imported
  and domestically-produced cars
• Rejects France argument that since no comparable
  domestic cars, tax does not discriminate. Part
  2 of Article 90 indirect protection of other
  products
• Since no harmonization yet, MS can impose
  progressive tax so far as it is free from any
  discriminating or protection effect.

27
Free Movement of Goods

• Note 4, page 461 follow on French cases
• Note 2, page 460 Greek consumption tax allowed.
  Why?

28
Free Movement of Goods

• Commission v. France, p. 463
• Facts
• Court jurisdiction
• Issue
• Decision
• Rationale

29
Free Movement of Goods

• Commission v. France, p. 463
• Article 90 demand neutrality
• What are similar products?
• Similar and comparable use aperitifs v.
  digestives
• Common characteristics
• Indirect competitive advantage
• Fact whiskey share of sales has increased does
  not prove no protective effectWhy not?  41

30
Free Movement of Goods

• Article 93 TEC
• The Council shall, acting unanimously on a
  proposal from the Commission and after consulting
  the European Parliament and the Economic and
  Social Committee, adopt provisions for the
  harmonization of legislation concerning turnover
  taxes, excise duties and other forms of indirect
  taxation to the extent that such harmonization is
  necessary to ensure the establishment and the
  functioning of the internal market within the
  time limit laid down in Article 14.