(11) The Lisbon Treaty

EP after the Lisbon treaty: Bigger role in shaping Europe

The Lisbon Treaty

TEXT

THE EU CHARTER AND ITS APPLICATION AND INTERPRETATION

 The EU’s New Human Rights Dimension

The Lisbon Treaty creates a new dimension of human rights protection within which the CFREU plays the most important role but within which it also has to be placed. The most important introductory provisions set out the framework of the Union as a whole.

In this context, it should be recalled, from the outset, that the Preamble of the TEU confirms the attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms (fourth recital), and specifically the fundamental social rights (fifth recital).30 Even more importantly, the ‘respect for human rights’ is a value on which the Union is based (Article 2 TEU) and one of the Union’s aims is to promote its values (Article 3(1) TEU). Within this framework, Article 6 TEU represents the core of human rights protection and its multilevel system. Paragraph 1 represents the most innovative dimension: the CFREU, which is made legally binding by having ‘the same legal value as the Treaties’. Paragraph 2 contains the obligation to accede to the ECHR31 and, finally as an own source of EU law (at least understood as a source of legal guidance)32-paragraph 3 recalls the principles already contained in ex-Article 6(2) EU according to which fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States shall constitute general principles of Union law.33

It is within this framework that the CFREU has to be analysed.34 From the outset, three fundamental points can be highlighted: (i) the importance of human rights in general and the absence of economic freedoms at this level in particular; (ii) the legally binding force of the CFREU; and (iii) the overall importance of the ECHR.

The CFREU’s Horizontal Framework

The construction of the CFREU is based on the assumption that all rights (and principles) should be highlighted and made visible as much as possible; restrictions should not appear-as is the case in the ECHR-in relation to each right but in a condensed way and only at the end. The CFREU’s text thus contains in six titles the substantive rights (and principles) in 50 Articles. It is only in the last part (Title VII) that all elements of application and interpretation for all the substantive provisions are defined (Articles 51-54 CFREU). Reinforced by the reference in Article 6(1)(3) TEU the latter are of a transversal character and therefore require a detailed analysis.35

Competences

In response to the main concerns surrounding the creation and adoption of the CFREU on the side of the Member States subparagraph 2 of Article 6(1) CFREU restricts its application to the existing competences of the Union under the Treaties by providing that the CFREU ‘shall not extend in any way the competences of the Union as defined in the Treaties’. This principle had already been expressed by Articles 51(2) and 52(2) CFREU.36 Therefore, the existing competences have to be analysed in more detail.37 One of the findings of this analysis is that-with the exception of the directly excluded matters (pay, the right of association, the right to strike or the right to impose lock-outs) mentioned in Article 153(5) TFEU-nearly all such rights are open to EU secondary legislation, notwithstanding any further conditions to be fulfilled (such as a unanimity requirement).38

According to this approach to competence, any limitation of the legislative power of the EU39 (and within that area limiting the legislative power of the Member States) concerning fundamental social rights would lead to a limitation of the effective application of fundamental social rights. However, a closer look at the source and nature of these rights, as well as the obligation to promote fundamental rights does not seem to permit any further limitation.

Binding Force and Legal Value

The uncertainties accompanying the binding force of the 2000 Nice Charter have now been cleared by the Lisbon Treaty, since Article 6(1) TEU, gives the Charter (as adapted in 2007) ‘the same legal value’ as the Treaties. This brings the Charter to the level of primary EU law-also to be applied in the Member States as part of the national legal system.

Nevertheless, the third subparagraph of this provision-declaring that ‘[t]he rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions of 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’-gives rise to ambiguities with regard to the meaning of ‘same legal value’.

The respective provisions of Title VII (Articles 51–54) CFREU with a complex net of limitations-multiple levels, multiple approaches and multiple subject areas-will thus have to be examined in more detail.

General Obligations

The rights (and principles) in the CFREU create obligations with a general character with regard to defined addressees.

1. Content

Article 51(1) CFREU requires that the addressees of the Charter’s obligations ‘respect the rights, observe the principles and promote the application thereof’. It follows from this definition that the CFREU is, in an overarching way, demanding not only ‘respect’ for but also the ‘promotion’ of fundamental rights. Therefore, it is not sufficient just to behave ‘in conformity’ with the CFREU 40 but to act positively in a way that ensures the best possible solution in respect of its application. This is all the more important in respect of fundamental social rights.

2. Addressees

From the outset, Article 51(1) CFREU defines that the institutions (Article 13 TEU), bodies, offices and agencies of the EU are the primary addressees of all obligations deriving from the CFREU. The Commission,41 the Parliament42 and the Council43 have recently published their intention to effectively implement the CFREU, and the European Economic and Social Committee (EESC) is working on an opinion in this respect.44

A controversial issue is the impact of the CFREU on the Member States. Article 51(1) CFREU’s first sentence raises the main question: what does it mean for the Member States that the provisions are ‘addressed to’ them, and ‘only when they are implementing Union law’ (emphasis added) and ‘with due regard for the principle of subsidiarity’ (see Blanke, chapter seven in this volume). The reasonable interpretation would be that Member States (and their institutions, bodies, or, as the case might be, even private parties) must observe the Charter’s provisions only when implementing Union law, whereas outside this area they are not obliged to but may observe those rights to the extent that their national system orders or allows them to do so. Explaining this result more clearly, this provision on binding force limits the obligations imposed on Member States by the Union but does not limit or restrict the power of the Member States to ‘address’ either Charter rights or further human rights. It should be a ceiling for Union-imposed obligations, but only the floor for national human rights regimes.45

The Explanations to this provision seem to be clear and to confirm this interpretation. Further Explanations, as well as some Court decisions, appear to interpret the limits on the binding force of the Charter as limitations on the power of the Member States to acknowledge and respect human rights in line with their own traditions, national systems and-possibly-international obligations.46

3. Interpretation

Before dealing more specifically with the legal concept underlying the interpretation of the CFREU contained mainly in Article 52 CFREU, it must be stated that those orientations are not to be understood in an exclusive way. They must be embedded-as a first layer-in the framework described above. The next layer refers to the ‘normal’ interpretation methods, such as ‘effet utile’ and the references to the preambles (in the given context, the Preamble of the CFREU). Preambles are generally considered by the CJEU as a tool of interpretation.47 The Preamble in question contains important principles. In particular, the second recital states that ‘the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity’ and thus underlines the principle of indivisibility of fundamental rights,48 putting civil and political rights on the same level as fundamental social rights. Within this context, the main elements of Article 52 CFREU49-as a third layer-are to be considered.

a)      References to the Explanations

During the whole process of the elaboration of the CFREU and further developments via the Constitutional Treaty to the Lisbon Treaty, the question of trying to define more clearly what could or would be the content of the rights in the CFREU played an increasingly important role. Whereas during the first Convention it was still disputed whether such a search for definitions would be necessary the compromise reached was that the existing ‘Explanations’ would in no way be legally binding but could serve as an indicative basis for a tool of interpretation. Their further development became more important. During the Constitutional Treaty discussions, a new paragraph 7 was added to Article 52 CFREU that now ‘shall be given due regard’. In a slightly less stringent formulation (‘with due regard’) the Lisbon Treaty in Article 6(1)(3) TEU now takes up this principle. In the Court’s words, the Explanations ‘have to be taken into consideration for the interpretation of the Charter’.50 But looking at the Explanations themselves, they demonstrate a less ambitious approach and recall in the Preamble that ‘they do not as such have the status of law’ and only that ‘they are a valuable tool of interpretation intended to clarify the provisions of the Charter’. Therefore, the Explanations should only be seen as one of the elements which have to be taken account of in the interpretation process but are not the only means of interpretation. Explaining the legal value and function of the Explanations in the interpretation of the Charter, the whole document could be described more as a sort of a commentary rather than a legal instrument.

More specific questions require further consideration. The first relates to the ‘the sources of those provisions’ expressly mentioned in Article 6(1)(3) TEU. Besides the references to the ECHR, which will be dealt with later, it should be recalled that the sources of the social provisions of the CFREU are mainly the ESC and the Revised European Social Charter (RESC), also referred to in the Preamble.51 The latter therefore form important tools for interpretation purposes. As a further important question, it needs to be clarified to what extent the respective Explanations could themselves restrict the content of a given fundamental right. Since they are not legally binding and ‘only’ have to be given ‘due regard’ it does not appear possible that a restriction on fundamental rights could be based solely on the Explanations. Moreover, it has to be analysed ‘by whom’ due regard must be given to the Explanation. Referring to Article 51(1) CFREU one would suppose that the addressees of the Charter are the subject of the duty to pay ‘due regard’ to the Explanations. Surprisingly, however, Article 52(7) CFREU refers to ‘the courts of the Union and of the Member States’. This contradiction could be understood in terms of the way in which it reduces the legal impact of the Explanations.

b)     References to the Treaties

The relations between fundamental rights enshrined, on the one hand, in CFREU and, on the other, now in the Treaties could raise substantial problems in case of different levels of protection. Paragraph 2 of Article 52 CFREU appears to provide for the priority of the latter. But the Explanations restrict the priority to ‘rights which were already expressly guaranteed in the Treaty establishing the European Community’ and refer to ‘notably the rights derived from Union citizenship’. Following this approach, this question loses much of its impact in respect of fundamental social rights. Indeed, besides the equality of men and women in employment (ex-Article 141 EC, now Article 157 TFEU) no social right was found in the previous (or even actual) versions of the Treaties. Therefore, in principle52 Article 52(2) CFREU does not exert a (restrictive) impact on social rights.

c)      References to the ECHR

The predominant role of the ECHR in respect of the CFREU is demonstrated by several provisions, the most precise of which is paragraph 3 of Article 52 CFREU containing two main elements. In the words of the Explanations, the first element could be described as a principle of ‘consistency’ between the two instruments to the extent that the CFREU contains rights which correspond to rights guaranteed by the ECHR. The second could be called the ‘principle of the more favourable clause’ in respect of EU law.53

If the first element would have to be understood in a restrictive way the second element would appear to be in direct contrast to it. How could a fundamental right guaranteed in both the ECHR and the CFREU, but interpreted on the basis of the ECtHR’s case law in a restrictive way, be compatible with the CFREU’s principle allowing for ‘more extensive protection’ than what is provided for in the ECHR? In order to better reconcile the two elements, it is suggested that they should be understood in a procedural way. The first stage of examination would refer to the ECHR and the rights enshrined in it. They contain the absolute minimum. In the words of the Explanations, ‘the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR’.54 This is of the utmost importance, especially as this statement is accompanied by the clarification that it relates not only to the ECHR as such but also to its Protocols.

Even more importantly, as stated in the Preamble of the CFREU and in the Explanations it relates also to the jurisprudence of the ECtHR. This is confirmed by the CJEU’s case law. 55

This examination becomes crucial taking into account the new era of the ECtHR’s jurisprudence concerning fundamental social rights. Indeed, the Grand Chamber’s judgment Demir and Baykara56 has not only recognized the right to collective bargaining as enshrined in Article 11 ECHR (freedom of association) but it has also developed a comprehensive methodology of interpretation of the rights contained in the ECHR by referring to international (labour) standards such as the UN Covenant on Economic, Social and Cultural Rights, the respective ILO Conventions, the RESC and, interestingly enough, the CFREU itself. This approach has led the ECtHR also to accept that the right to strike is included in Article 11 ECHR.57 But this methodology will also have important impacts on further rights, such as the right to a private and family life (Article 8 ECHR) and the prohibition of discrimination (Article 14 ECHR).58

Having thoroughly examined these minimum requirements, the second stage would investigate the extent to which EU law in general and the CFREU, in particular, provide for further protection.

d) References to National Constitutional Traditions

Fundamental rights based on the constitutional traditions common to the Member States ‘shall be interpreted in harmony with those traditions’ (paragraph 4). One might be tempted to read this in a restrictive way. Nevertheless, referring to the CJEU’s case law,59 the Explanations state that, under that rule, ‘rather than following a rigid approach of “a lowest common denominator”, the Charter rights concerned should be interpreted in a way offering a high standard of protection which is adequate for the law of the Union and in harmony with the common constitutional traditions’. In any event, analysing the fundamental rights which are-according to the respective Explanations-based on these traditions it becomes apparent that fundamental social rights as such are not touched.60

e)     References to National Laws and Practices

Paragraph 6 states that ‘(f)full account shall be taken of national laws and practices as specified in this Charter’. The Court has now referred to this provision for the first time in an important case concerning the right to collective bargaining. ‘It is apparent from Article 28 of the Charter, read in conjunction with Article 52(6) thereof, that protection of the fundamental right to bargain collectively must take full account, in particular, of national laws and practices’.61 The Explanations do not give any further orientation since they state only that paragraph 6 ‘refers to the various Articles in the Charter which, in the spirit of subsidiarity, make reference to national laws and practices’. This appears more to be a mere duplication without specifically added content. Furthermore, it should be recalled that CJEU has interpreted such a reference to national legislation and/or practice as preventing the Member States from making ‘the existence of that right … subject to any preconditions whatsoever’.62

f) Principles

In the past, the Court has referred to ‘principles’ (constitutional principles) common to the Member States as a firm, strong—unavoidable—source of rules, compulsory even in the absence of explicit mandatory rules. Now, conversely, paragraph 5 on principles is perhaps one of the most problematic ‘horizontal’ provisions.

In any event, the question of principles was one of the most hotly debated general questions. Now, the main definition in paragraph 5 (added in 2007) aims at restricting judicial powers explicitly to (secondary) ‘acts’. Nevertheless, the core social rights (such as Articles 12 and 27–32 CFREU) are not touched on by this provision because they are considered to be rights (from the wording and the content). In the same line, the Explanations themselves do not mention the core social rights.63 Therefore, this restriction might be of less practical importance in respect of social rights but of more relevance concerning equality issues.64 On the other hand, this provision shows that CFREU’s ‘rights’ do not need implementation acts. Otherwise, this provision would be of no added value or any use.

4. Limitations

It is obvious and generally accepted that human rights cannot be exercised without limitations.65 Legally speaking, there are a number of different concepts (for example, limitation, restriction, exception, interference). In order to better understand the CFREU’s novelties, it might be helpful to compare its concept with the one used by the ECHR and the ECtHR.

a)      General Framework

Starting the legal analysis, it appears useful to quote the fundamental provision of Article 52(1) CFREU concerning permissible restrictions. 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. In addition to this definition, the CJEU’s generally used approach should be recalled following which restrictions or limitations have to be interpreted narrowly.66

b) Condition 1 for a Permissible Restriction: Provided for by Law

When examining restrictions in respect of the condition ‘provided for by law’ for the first time under the CFREU’s provisions the CJEU67 saw no problem by accepting specific Articles of the regulation under review as sufficient in respect of the requirement ‘provided for by law’. On the other hand, by referring also to Article 52(1) CFREU the Court68 criticised the absence of a specific legal basis for allowing restriction in respect of procedural rights and, consequently, set aside a judgment of the General Court. In any event, the Court will have to deal with more difficult problems and will then have to base its judgments on the case law of the ECtHR.69

c)      Condition 2 for a Permissible Restriction: Substantive Requirements

The substantive requirements for a permissible restriction of fundamental rights are twofold—‘general interests’ or ‘rights of others’—but are embedded in more general requirements.

General Requirements (‘Only if they are Necessary and Genuinely Meet Objectives’)

To date, it appears that these requirements have not been taken very seriously. However, they should be considered at least as important as all the other elements because they add more and precise conditions. Furthermore, some conditions go beyond the provisions of the ECHR. In this respect, the first element is their general reinforcement by the introductory word ‘only’. Thus, a strict examination is required. The second element concerns the qualification ‘genuinely’. It is not enough simply to refer to certain objectives. Referring to other language versions,70 it is apparent that this formulation requires an examination not only of the legal but of the factual situation. In this context, it is reassuring that the Court appears to have also looked at the facts.71

First Permissible Objective: Objectives of General Interest Recognised by the Union

In this respect, the Explanations refer to CJEU case law, in particular, the Karlsson case.72 This is more than problematic as this judgment was developed in respect of non-discrimination but, in fact, was not about the equal treatment of human beings in order to respect their equal dignity. Indeed, in this case, no nationals or other persons were concerned: it was an obligation of equal treatment between the Member States under EU law and therefore not relevant for fundamental rights issues. Thus justification based on market (and agricultural policy) reasons might have justified this differentiation, but by no means restrictions on human rights or on the right to equal treatment in general. Such a restriction on the right to equal treatment-for economic policy reasons-would never be accepted under the various international human rights regimes. Thus-again-bringing up this particular case (especially as evidence of ‘established case law’) seems a shrewd choice of wording with the aim of broadening the limitations on human rights. But this aim appears to be even less achievable since the reference to this case is even less convincing bearing in mind that the judgment was rendered before the elaboration of the Nice Charter in 2000. At first sight, the concrete examples of ‘general interests recognised by the Union’ given later by the Explanations could be considered more convincing as they refer to ‘both the objectives mentioned in Article 3 of the Treaty on the European Union and other interests protected by specific provisions of the Treaties such as Article 4(1) [TEU] and Articles 35(3), 36 and 346 [TFEU]’. Looking in more detail at these provisions the reference to Article 3 TEU appears normal as it contains the whole set of objectives of the Union (which must be understood within the framework of the values defined in Article 2 TEU-see Dorssemont, chapter two in this volume). But this is not the case with some of the further ‘specific provisions’. Indeed, Article 4(1) TEU-stating that ‘competences not conferred upon the Union in the Treaties remain with the Member States’-cannot be considered as an objective of ‘general interest’. The reference to Article 35(3) TFEU is even less understandable since paragraph 3 of the said Article does not exist. Only Article 36 TFEU containing a number of objectives73 justifying restrictions on the freedom of goods and Article 346 TFEU concerning ‘essential interests of its security’ can be considered objectives of ‘general interest’. The Court has accepted further specific Treaty provisions,74 as well as those defined in the Preamble of the respective regulation75 as defining ‘general interests’. However, probably the most important question remains to be solved: can all interests of whatever nature which are mentioned in the Treaties (or even in secondary legislation) be considered to be of ‘general’ interest? The first doubts arise from the normal understanding that a ‘general interest’ is something separate from an individual, more economically oriented interests.

The doubts in this respect are reinforced by further language formulations.

Indeed, the French version with its reference to the ‘intérêt général’ and even more the German version with its ‘Gemeinwohl’ (‘public wealth’) would not seem amenable to interpretation in terms of economic interests (even if they are mentioned in the Treaties and are often seen as an overarching principle of EU law) to become the ‘frontline fighters’ against fundamental (social) rights by permitting any sort of (economically justifiable) restriction. This is all the truer when taking into account the non-economic oriented limitations which appear to prevail within the framework of the restrictions to rights guaranteed under the ECHR.76

 

 

30. ‘[A]s defined in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers’. The same references to fundamental social rights are to be found in Article 151(1) TFEU.

31. See also Protocol (No 8) relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms and Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom (see in this connection Case C-411/10 (NS v Secretary of State for the Home Department) and the respective preliminary question 7); see also Dorssemont (ch 2 in this volume). In the meantime, the draft text for an accession instrument has been elaborated by a Working Group (CDDHUE): Draft Legal Instruments on the Accession of the European Union to the European Convention on Human Rights (containing the draft agreement on the accession of the EU to the Convention and the respective Explanatory report, provisional version, 24 June 2011, CDDH-UE(2011)016. Available at: www.coe.int/t/dghl/standard setting/policy/CDDH-UE/CDDH-UE_documents_en.asp.

32. See the Opinion of AG on 19 February 2009, Case C-8/08 T-Mobile Netherlands, fn 78 (in respect of the-not yet legally binding-CFREU).

33. It should be recalled that fundamental rights are referred to also in specific fields such as the area of freedom, security and justice (see Article 67 TFEU) and particularly in respect of fundamental social rights see above (n 30).

34. Some of the commentaries on the CFREU were written before the entry into force of

the Lisbon Treaty. They might therefore not have been able to take full account of this new framework (for example, PJ Tettinger (ed), Europäische Grundrechte-Charta (München, 2006). But more recent publications are also available (for example, J Meyer (ed), Charta der Grundrechte der Europäischen Union, 3rd end (Baden-Baden: Nomos, 2011); HD Jarass, Charta der Grundrechte der Euroäischen Union-Kommentar (München: Beck, 2010).

35. In the context of fundamental social rights Article 54 CFREU (abuse of rights) does not appear to require any further consideration.

36. Interestingly, the CJEU has expressed the view that by referring to Article 51(1) and (2) CFREU it ‘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’: CJEU, 5 October 2010-Case C-400/ 10 PPU McB (not yet reported) para 51.

37. See Lörcher (ch 6 in this volume).

38. See, in particular, Table 3: Social Fundamental Rights in the Charter of Fundamental Rights in the European Union (CFREU) and respective EU competences in the Treaty on the Functioning of the European Union (TFEU) Annexe to ch 6 in this volume.

39. See, in particular, Article 2(2) TFEU (‘The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence’).

40. In its recent Communication ‘Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union’ COM(2010) 573 final (19 October 2010), the Commission develops a framework for ensuring conformity with the CFREU ‘as effectively as possible’ but, generally speaking, neglects the promotional obligations and in particular fundamental social rights. In order to provide for a more concrete follow-up, the Commission has more recently published a Staff Working Paper, ‘Operational guidance on taking account of fundamental rights in Commission Impact Assessments’, SEC(2011) 567 final (6 May 2011).

41. See above (n 40) and also European Commission (DG Justice, ed) 2010 ‘Report on the Application of the EU Charter of Fundamental Rights’ (Brussels, 2011).

42. European Parliament Resolution of 15 December 2010 on the situation of fundamental rights in the European Union (2009)-effective implementation after the entry into force of the Treaty of Lisbon (2009/2161(INI)).

43. Council Conclusions on the role of the Council of the European Union in ensuring the effective implementation of the Charter of Fundamental Rights of the European Union (3071st Justice and Home Affairs Council meeting, 24-25 February 2011).

44. EESC SOC/401 [2011] OJ C 376/74.

45. See, for example, J Heuschmid, ‘Der Arbeitskampf in EU-Recht’ in W Däubler (ed), Arbeitskampfrecht, Baden-Baden, 2011) § 11, paras 11ff.

46. See the criticism of such a perception of the Charter by me de Jesús Butler and Olivier De Schutter, ‘Binding the EU to International Human Rights Law’ (2008) 27(1)

47. Ample jurisprudence often in respect of the objective to be taken into account (see, for example, CJEU, 10 June 2010—Cases C-395/08 and C-396/08 Bruno and Pettini (not yet reported) paras 28ff; Case C-268/06 Impact [2008] ECR I-2483, paras 110ff).

48. In respect of the Union’s External Action Article 21(1) TEU refers to ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’ (emphasis added).

49. The first paragraph concerning the limitations is dealt with later (see ‘Limitations’ below, section II.B.v). Given the importance of the question of the relevance of the Explanations (para 7) the analysis of the interpretation framework in Article 52 CFREU starts with this provision.

50. CJEU, 22 December 2010-C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft (not yet reported) para 32.

51. See above (n 30).

52. In the social field, para 2 might have an impact on the interpretation of Article 23 CFREU (equality between men and women), which is formulated in harmony with the concept of Article 157 (in particular, paras 3 and 4) TFEU.

53. ‘This provision shall not prevent Union law from providing more extensive protection.’

54. For the further consequences in relation to the limitations see below section II.B.v.

55. See the Explanations, C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft (n 50) para 35 and Case C-400/10 PPU McB (n 36) para 53 (‘the same meaning and the same scope … as interpreted by the case-law of the European Court of Human Rights’); see, for example, Heuschmid (n 45) paras 25 and 27.

56. ECtHR (Grand Chamber) (12 November 2008), No 34503/97 Demir and Baykara v Turkey. See, for example, K Ewing and J Hendy, ‘The dramatic implications of Demir and Baykara’ (2010) 39(1) ILJ 1; K Lörcher, ‘Das Menschenrecht auf Kollektivverhandlung und Streik—auch für Beamte (Zu den Urteilen … Demir und Baykara und … Enerji Yapi-Yol-Sen) (2009) AuR 299ff.

57. ECtHR (21 April 2009), No 68959/01 Enerji Yapi-Yol Sen v Turkey.

58. N Bruun and K Lörcher, ‘Social innovation: the new ECHR jurisprudence and its impact on fundamental social rights in labour law’ in I Schömann (ed), Mélanges à la mémoire de Yota Kravaritou: a trilingual tribute 335ff.

59. For example, CJEU, Cases 44/79 Hauer [1979] ECR 3727 and 155/79 AM&S [1982]

ECR 1575.

60. Such definitions relate to CFREU’s Article 10 (Freedom of thought, conscience and religion), para 2 (Media), Article 14 (Right to education) and Article 49 (Principles of legality and proportionality of criminal offences and penalties) and para 3 (principle of proportionality).

61. CJEU, 15 July 2010-C-271/08 Commission /Germany (not yet reported) para 38. On Article 28 CFREU, see B Veneziani, ‘Right of collective bargaining and action (Article 28)’ in B Bercussion (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, 2006) 291ff.

62. See Case C-173/99 BECTU [2001] ECR I-4881, para 53.

63. For example, Articles 25 (rights of the elderly) [in contrast to the word ‘rights’], 26

(integration of persons with disabilities) and 37 (environmental protection). In some cases, an Article of the Charter may contain both elements of a right and of a principle, for example, Articles 23 (equality between men and women), 33 (family and professional life) and 34 (social security and social assistance) CFREU.

64. For more detail see below section III.

65. Even beyond the distinction between categories of human rights—such as absolute and relative-as already distinguished by the CJEU, the latter are limited by their social purpose. See CJEU Case C-112/00 Schmidberger [2003] ECR I-5659, para 80.

66. For example, CJEU, 28 October 2010—C-72/09 Établissements Rimbaud (not yet reported) para 48.

67. CJEU, 9 November 2010—Cases C-92/09 and C-93/09 Volker und Markus Schecke (not yet reported) para 66.

68. CJEU, 1 July 2010—Case C-407/08 P Knauf Gips / Commission (not yet reported) para 91.

69. See, for example, Jarass (n 34); Article 52 CFREU, para 65.

70. German ‘tatsächlich’, French ‘effectivement’.

71. See CJEU, Cases C-92/09 and C-93/09 Volker und Markus Schecke (n 67) paras 69 and 70.

72. CJEU, Case C-292/97 Karlsson and Others [2000] ECR I-2737, para 45. ‘However, it is well-established in the case-law of the Court that restrictions may be imposed on the exercise of those rights [“principle of non-discrimination”, see para 44], in particular in the context of a common organisation of a 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’ (Case 5/88 Wachauf [1989] ECR 2609, para 18) (emphasis added).

73. For example, ‘grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property’.

74. Concerning the principle of transparency: Articles 1 TEU and 10 TEU and in Article 15 TFEU, see Cases C-92/09 and C-93/09 Volker und Markus Schecke (see n 67) para 68.

75. CJEU, Cases C-92/09 and C-93/09 Volker und Markus Schecke (n 67) para 67.

76. Looking at, for example, Articles 10(2) and 11(2) ECHR it would seem difficult to imagine (in particular individual) economic interests as ‘legitimate aims’ justifying restrictions; even in the only case where economic elements are mentioned (Article 8(2) ECHR) it is their general aspect in respect of the country as a whole (‘economic well-being of the country’). See in this respect also below section II.B.v.f Condition 5.

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ar bg ca zh-chs zh-cht cs da nl en et fi fr de el ht he hi hu id it ja ko lv lt no pl pt ro ru sk sl es sv th tr uk vi

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