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7 The Test Under the Charter Is Strict and Considers a Number of Factors

7 The Test Under the Charter Is Strict and Considers a Number of Factors

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5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…

the proportionality principle in the light of Articles 7, 8 and 52 (1) Charter.153 The

interference with a fundamental right was so serious that the EU legislature’s margin of discretion was reduced, with the result that review of that discretion would be

strict. The Court mentioned a number of factors which played a role in reviewing

the validity of the directive. These factors are: “the area concerned, the nature of the

right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference”.154

This ruling is the more or less logical consequence of an approach, which started

with Schecke and Test-Achats,155 in which the Court exercised “stringently its function as the EU’s own constitutional court.”156

5.7.1  S

 checke, Test-Achats, and Google Spain and Google Inc:

Three Cases of Stringent Testing by the CJEU

In Schecke,157 the Court of Justice ruled that certain provisions – so not the entire

legal instrument – of an EU regulation on the publication of information on natural

persons receiving aid from EU agricultural funds were invalid. The Court first

underlined that increasing the transparency of the use of the funds pursued an objective of general interest recognised by the European Union.158 It then noted that the

provisions were appropriate for attaining the objective pursued, since the information made available to citizens reinforced public control of the use to which that

money was put and contributed to the best use of public funds.159 Subsequently, this

objective must be reconciled with the fundamental rights set forth in Articles 7 and

8 Charter.160

It is in the latter context that the Court of Justice of the European Union develops

a stringent proportionality test. The EU legislator is obliged to balance, before disclosing personal data, the Union’s interest in guaranteeing the transparency of its

actions with the infringement of the rights recognised by Articles 7 and 8 Charter.

The legislator should examine alternatives, and no automatic priority can be given

electronic communications services or of public communications networks and amending

Directive 2002/58/EC, OJ L 105/54.


 At 69 of the ruling.


 At 47 of the ruling.


 Case C-236/09, Association Belge des Consommateurs Test-Achats, EU:C:2011:100.


 Ladenburger in: Reports of the FIDE-Congress Tallinn 2012, Tartu University Press: Volume 1,

The Protection of Fundamental Rights Post-Lisbon: The Interaction between the Charter of the

Fundamental Rights of the European Union, the European Convention on Human Rights and

National Constitutions (p. 150).


 Joined cases C-92/09 and C-93/09, Schecke and Eiffert, EU:C:2009:284. The importance of the

case is also recognised in the 2010 Annual Report of the CJEU, mentioning this case under the

heading “significant additions to the case-law on fundamental rights”, at 11 of the Annual Report.


 At 71 of the ruling.


 At 74–75 of the ruling.


 At 76 of the ruling.

5.7  The Test Under the Charter Is Strict and Considers a Number of Factors


to transparency.161 Both in Schecke and in Digital Rights Ireland and Seitlinger,162

the nature of the rights to privacy and data protection played an important role in

determining the test’s strictness.

The same stringent test was applied in Test-Achats,163 in which the Court of

Justice also decided to declare a provision of an EU law instrument invalid,164

because of its incompatibility with the Charter, in particular with Article 21 on non-­

discrimination and with Article 23 on the equality between men and women. The

invalid provision allowed Member States to derogate from a prohibition to use sex

as a factor in the calculation of certain financial benefits. The Court reached its verdict despite the fact that the derogation was subject to certain conditions. For the

Court, it was decisive that the Member States were allowed to maintain the derogation without temporal limitation.

Another example of a stringent test is Google Spain and Google Inc.165 In this

case the Court took account of the seriousness of the interference with the data subject’s fundamental rights under Articles 7 and 8 Charter in deciding that the operator

of a search engine has a wide responsibility for the links to webpages it provides.

5.7.2  T

 he Same Strict Test Does Not Necessarily Extend to All

Fundamental Rights Under the Charter

The nature of the fundamental right is not the only relevant factor for the Court of

Justice, but this factor does seem to make a difference. Case law relating to the fundamental rights, included in Articles 15–17 Charter, illustrates this point. These

fundamental rights are: the freedom to choose an occupation and the right to engage

in work, the freedom to conduct a business and the right to property. Sky Österreich166

is a case on compulsory access to a satellite signal to enable a public broadcasting

company to make short news reports. The Court ruled that the freedom to conduct a

business may be subject to a broad range of interventions on the part of public

authorities which may limit the exercise of economic activity in the public interest.

In Pfleger,167 a case on machines for games of chance, the Court of Justice

answered preliminary questions on the compatibility of a national law with the


 At 83–85 of the ruling.

 Joined cases C-293/12 and C-594/12, Digital Rights Ireland (C-293/12) and Seitlinger

(C-594/12), EU:C:2014:238, at 48.


 Case C-236/09, Association Belge des Consommateurs Test-Achats, EU:C:2011:100.


 Article 5(2) of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services,

OJ 2004 L 373/37.


 Case C-131/12, Google Spain and Google Inc., EU:C:2014:317, at 69–81. See on this case also

Sects. 5.12 and 5.13.


 Case C-283/11, Sky Österreich, EU:C:2013:28, at 46.


 Case C-390/12, Pfleger, EU:C:2014:28.



5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…

freedom to provide services under Article 56 TFEU and with Articles 15–17 Charter.

In its ruling, the Court analysed the national law at stake under Article 56 TFEU and

added a few considerations on the Charter. Its main message is that what is unjustified or disproportionate under Article 56 TFEU is not permitted under the Charter

either.168 In other words, the Charter – in particular Article 16 thereof – has no added

value here. One could argue that this reasoning of the Court is the consequence of

Article 52 (2), which provides that the Charter does not alter the system of rights

recognised under the former EC Treaty,169 but this argument does not explain the

relatively lean test applied to Article 16 Charter on the freedom to conduct a


Admittedly, the Court of Justice adopted this position in view of the circumstances of the case. In UPC Telekabel Wien,170 on the blocking of access by an

internet service provider to copyright-protected films, the Court took a different

approach and interpreted Article 16 Charter in a more substantive manner. However,

the ruling in UPC Telekabel Wien does not contradict Pfleger, since the test under

Article 16 Charter is not very strict.

5.8  T

 he Notion of Fundamental Rights: Different Methods

of Defining Fundamental Rights Are Useful

for Understanding Fundamental Rights

The notion of ‘fundamental rights’ comprises notions such as ‘human rights’ and

‘civil and political rights’. The European Court of Justice initially used the term

‘fundamental human rights’.171 The main convention in Europe is the European

Convention on Human Rights, whilst on 19 December 1966, the General Assembly

of the United Nations adopted an International Covenant on Civil and Political

Rights (ICCPR).172 All these rights are first generation fundamental rights and have


 See mainly para. 50 of the ruling.

 Article 52(2) as explained in the Explanations relating to the Charter of Fundamental Rights (OJ

(2007) C 303/17) on Article 52.


 C-314/12, UPC Telekabel Wien, EU:C:2014:192, at 49: “The freedom to conduct a business

includes, inter alia, the right for any business to be able to freely use, within the limits of its liability for its own acts, the economic, technical and financial resources available to it.”


 E.g., case C-29/69, Stauder, EU:C:1969:57, at 7. It is worth noting that in Dutch a similar term

is used (“fundamentele rechten van de mens”), but that in most other language versions no equivalent can be found.


 The recitals of the Covenant state that for the ideal of free human beings, conditions must be

created whereby everyone may enjoy his or her civil and political rights.


5.8  The Notion of Fundamental Rights: Different Methods of Defining Fundamental…


a primarily negative character since they require governments to refrain from


The notion of ‘fundamental rights’ also includes ‘social rights’ such as the rights

contained in the European Social Charter and the Community Charter of the

Fundamental Social Rights of Workers.174 These are called ‘second generation fundamental rights’ and require governments to act. In the EU legal order, the fundamental freedoms guaranteed by the Treaties that ensure free movement within the

European Union are considered to be fundamental rights.175 The notion of ‘fundamental rights’ suggests that it relates to something special that is more than a claim

relating to social or economic interests.176 However, this suggestion does not

describe what fundamental rights are.

5.8.1  A Positivist Method of Defining Fundamental Rights

One could define fundamental rights in a positivist way, which in the EU legal order

would mean that the term encompasses all the rights mentioned in the Charter of

Fundamental Rights of the European Union. The Charter contains a relatively long

catalogue of fundamental rights, in 50 articles. A positivist method qualifying all

Charter rights as fundamental rights reflects the primacy and the autonomy of the

system of EU fundamental rights’ protection, as recognised by the Court of Justice

in Kadi and Al Barakaat.177 However, this method would also reflect what is often

called a proliferation of fundamental rights.178 Arguably, if more rights need protection, the level of protection will be weakened.179

The Charter does not distinguish between fundamental rights. The only distinction the Charter makes is between rights and principles. Article 51 (1) Charter


 See: J.H. Gerards, ‘Fundamental rights and other interests – should it really make a difference?’,

in: E. Brems (ed.), Conflicts between Fundamental Rights, Intersentia, 2008, Antwerp p. 655–689;

C. Fabre, Constitutionalising Social Rights, The Journal of Political Philosophy: Volume 6,

Number 3, pp. 263–284, 1998; and the references mentioned in both papers. This categorisation of

the rights is much more subtle, as will be explained below in Sect. 5.9.


 As referred to in Article 151 TFEU.


 The reasoning of the CJEU in Case C-112/00, Schmidberger, EU:C:2003:333, may imply that

the CJEU places the right to free movement on the same level as a human right. See also Sect. 5.9

of the chapter.


 J.H. Gerards, ‘Fundamental rights and other interests – should it really make a difference?’, in:

E. Brems (ed.), Conflicts between Fundamental Rights, Intersentia, Antwerp, 2008, pp. 655–690,

at 655.


 Joined cases C-402/05P and 415/05P, Kadi and Al Barakaat, at 282–285.


 Carl Wellman, The Proliferation Of Rights: Moral Progress Or Empty Rhetoric?, Westview

1999; J.H. Gerards, ‘Fundamental rights and other interests – should it really make a difference?’,

in: E. Brems (ed.), Conflicts between Fundamental Rights, Intersentia, Antwerp, 2008, at 657.


 Carl Wellman, The Proliferation Of Rights: Moral Progress Or Empty Rhetoric?, Westview,


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