MəqalələrAvropa Birliyi Ədalət Məhkəməsinin əsas hüquqların qorunmasında rolu

Nəzrin Əliyeva Nəzrin ƏliyevaMay 16, 2020

Introduction

The way the Court of Justice of the European Union handles cases involving violations of fundamental rights has certain characteristics not in common with judicial protection mechanisms both in national courts or in the European Court of Human Rights. One of the most significant differences is the multiplicity of the sources applied to deal with court cases relating to the protection of fundamental rights and freedoms of the individual.

Since the foundation of the European Union, considerable changes have occurred in the mechanisms of protection of human rights. Originally, European communities were established as purely economic bodies, therefore, there were not any references to fundamental rights in treaties establishing such communities.[1] However, over time, human rights issues have taken central stage of the EU agenda as a result of increasing political and economic interaction of European states.

Currently, according to the Article 6 the Treaty of the European Union (TEU)[2], there are three formal sources for EU protection of fundamental rights, which includes the legally binding EU Charter of Fundamental Rights,[3] the European Convention on Human Rights (ECHR),[4] considered by the European Court of Justice as a ‘special source of inspiration’ for EU norms, and general principles of EU law set out long before the creation of the EU Charter of Rights.[5] Such general principles were articulated from the constitutional traditions common to the Member States, from the ECHR and other international treaties signed by these States. Alongside Treaty provisions, the EU Charter of Fundamental Rights, and general principles of EU law, there is a growing practice of EU case law dealing with human rights issues.[6]

However, due to the increase in the activities of the Court of Justice of the European Union (CJEU) in the area of human rights, it has become impossible to avoid augmented tension between the CJEU and the European Court of Human Rights (ECtHR) and challenge the coherence of EU fundamental rights and the European Convention on Human Rights.[7] Therefore, the Treaty of Lisbon,[8] besides making the Charter of Fundamental Rights legally binding, enshrines the provision according to which the European Union shall accede to the ECHR.[9] This step, in fact, would mean the full integration of the ECHR provisions into the EU law and would contribute to the promotion of uniform judicial practice in the field of human rights law. Opinion 2/13 constituting the culmination of this process beginning more than three decades ago, declared the draft agreement on European Union accession to the European Convention on Human Rights (ECHR) incompatible with the Treaty on European Union.[10] The essay will attempt to further discuss the rationale behind this decision and its legal consequences.

 

Historical background of promotion of fundamental rights by the EU (European Community)

As stated above, the European Communities were principally designed to further economic goals, as demonstrated by a number of treaties such as Treaty of Paris establishing the European Coal and Steel Community (ECSC),[11] as well as, Treaty of Rome of 1957 establishing Euratom and the Treaty created the European Economic Community (EEC).[12] Both the Paris and Euratom Treaties omitted any provisions related to fundamental rights. Although the Rome Treaty of 1957 provides rules on the free movement of goods, people, capital, and services, the issue of guaranteed human rights and freedoms have been only indirectly addressed through the major goals and objectives of European communities.[13]

Guided by the universally recognized norms and principles of international law, international agreements on human rights signed by Member States of European communities and bearing in mind Community law, as well as constitutional traditions, legislation and law enforcement practice of Germany, Italy, and any other European States, the CJEU sought to address the gaps in founding treaties focusing on economic matters and limited by recognition of only certain human rights for purely economic purposes.[14]

By the end of 1960s, the Court’s stance on the promotion of fundamental rights and freedoms as the EU law regulation has evolved: the right of parties to refer to fundamental rights as grounds to put forward legal requirements were gradually being recognized. For the first time, the issue of fundamental human rights was touched upon by the CJEU in 1969 in connection with the case 29/69 “Erich Staunder c. Ville d’Ulm-Sozialamt”.[15] It involved the European Community Programme that provided the distribution of butter at reduced prices conditional upon the identification of the recipient. Mr. Stauder expressed his objections to the mandatory presentation of the coupon contained his personal information because he believed that it violated his right to privacy and dignity, therefore, he claimed the annulment of such obligation.[16] The CJEU found no violation of the complainant’s rights, however, it decided to protect the fundamental rights as they derive from common principles of community law.[17] In addition, the Court pointed out that it would overrule any decision or acts of EU bodies if they conflict with fundamental human rights.[18]

In its judgment of 17 December 1970, the Court affirmed its position to respect the fundamental rights as an integral part of the general principles of law protected by the Court.[19] İn subsequent case law the Court clarified that in deciding which fundamental rights formed part of general principles of Community Law it would draw inspiration from constitutional traditions common to the Member States and from international treaties for the protection of human rights to which the Member States were signatory or had collaborated.[20]

Thus, though the CJEU decisions, the protection of fundamental rights has become the common principle of EU law which must be followed by all secondary legislation.

 

International treaties as sources for protection of fundamental rights: the caselaw of the CJEU

According to the Judgment of the Court of 14 May 1974, ‘Fundamental rights are an integral part of the general principles of law, the observance of which the Court ensures…Similarly, International Treaties for the protection of human rights, on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of community law’.[21] Indeed, under internal law, the provisions of these treaties are obligatory for the abovementioned member states, therefore, the CJEU is entitled to invoke such provisions in cases involving disputes between citizens and the Member States.[22] In the case of Mr. Nold, the Court stated that the international documents of human rights acceded to by the Member States, particularly, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950,[23] could and should be addressed to by the CJEU.[24] Since the decision in this case, the Court has started to make frequent references to the Convention (ECHR).

Subsequently, the Court’s justification method of the power to invoke human rights and fundamental freedoms set out in the international instruments has in the meantime been used in the judgment of 28 October 1975, where the Court referred to the ‘…more general principle, enshrined in Articles 8, 9, 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and ratified by all the Member States, and in Article 2 of Protocol No 4 of the same Convention, signed in Strasbourg on 16 September 1963’.[25]

After the next landmark judgment of the Court of 13 July 1989, the Court, for the first time, wondered whether it should monitor the implementation of human rights through the application of the Community law not only by the EU institutions but also by the Member States.[26] The Court’s position was conclusive as the requirements of the protection of fundamental rights in the Community legal order ‘are also binding on the Member States when they implement Community rules’.[27]

The promotion of fundamental human rights has for the first time been officially stipulated in the legally binding Maastricht Treaty on the European Union of 1992 (TEU) which resulted in the creation of the European Union.[28] The chief merit of the TEU has essentially been the codification of the Court’s caselaw having declared that the Union (and the European Community, which formed part of the Union) would “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”.[29] That is to say, the EU law would reflect the substantive provisions of not only general principles of European Union law but also constitutional traditions of the Member States, The ECHR, and Strasbourg’s (ECtHR) case law as well.[30]

According to Article 6 of the Maastricht Treaty, the Union was based on the principle of respect for human rights and fundamental freedoms.[31] Article 2 of the Treaty imposes an obligation on the Union to implement the fundamental rights arising from the European Convention on the Human Rights and Fundamental Freedoms of 1950 and the constitutional traditions common for the Member States as general principles of the EU law.[32] The reference to the fundamental rights is mentioned in Section VI dealing with issues for cooperation in the fields of justice and home affairs.[33]

After signing the Maastricht Treaty, the debates on human rights issues had not ceased as some problems still remained controversial. For instance, there was no resolution for accession to the ECHR even if the Treaty enshrined the paramount importance of the Convention in the EU legal order as non-binding ‘source of inspiration’.[34] Furthermore, the question of elaboration of the protection mechanisms in the law of the European Union had not yet been resolved.[35] Although the CJEU has effectively incorporated the provisions of the ECHR and referred to the caselaw of the European Court of Human Rights, the Court technically is not bound by such decisions and would allegedly insist on the jurisdictional right to interpret the Convention itself.[36] By treating the ECHR as a source of inspiration, the CJEU retained the freedom for the EU law to ‘go beyond’ or diverge from the Convention in different ways.[37] Judgments of the Court of 18 May 1982 served as a good example of the different interpretation of the right to lawyer-client confidentiality, the judgment of 17 February 2009 showed a different approach to refugee rights, the appeal brought on 24 January 2008 by Commission of the European Communities against the judgment of the Court of First Instance delivered on 8 November 2007 was a good illustration of the right to data protection.[38]

The Amsterdam Treaty adopted in 1997 introduced the article 6 into the TEU which establishes unequivocally that the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. [39] According to the Treaty, respect for human rights is a prerequisite for the EU membership, thereby it provided for the possibility of the suspension of membership of the Member States that systematically violate this requirement.[40] The Final Act of the Amsterdam Treaty contained the Declaration regarding persons with a disability demonstrated the willingness of the EU institutions to take into account the special needs of this group of population in developing measures for the approximation of the laws of the EU Member States.[41]

Therefore, only with the adoption of the Amsterdam Treaty provisions relating to the fundamental rights and control provisions over the fundamental principles including respect for human rights, as well as the sanctions that could be applied to the perpetrators have emerged in the law of the European Community (European Union).[42]

However, although the scope of human rights and fundamental freedoms within the EU legal framework has broadened, view of their implementation was restricted by special clauses. For example, part 2 of the non-discrimination and citizenship had been applied in the light of restrictions and conditions specified by the Treaty on the Functioning of the European Union.[43]

The Treaty of Nice supplementary to the Maastricht Treaty had provided for the possibility of the implementation of preventive procedures in addition to the finding of the fundamental principles and sanctions.[44]

Almost simultaneously with the treaty of Nice, the Charter of Fundamental Rights of the European Union has been signed and solemnly proclaimed.[45] The main purpose of the Charter was the commitment to make human rights protection within the EU legal order more accessible and understandable to all EU citizens.[46] The Charter draws upon already existing international and European instruments on human rights, including the European Convention on Human Rights and Fundamental Freedoms and the caselaw of the European Court of Human Rights, as well as the relatively advanced legal practice of the CJEU.[47]

In its preamble, the Charter refers to the main EU objective ‘to share a peaceful future based on common values’ such as freedom, human dignity, rule of law, equality, and solidarity.[48] It also underlines the need to promote the balance among shared values, diversity of cultures and traditions of the peoples of Europe at national, regional and local levels, as well as recognition of rights and responsibilities.[49]

There has been a trend towards the unification of the EU law, as well as human rights jurisprudence of the ECtHR and the CJEU.[50] The relationship between the Charter and the Convention is covered by Article 52 under which ‘…this Charter contains rights that correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning, and scope of those rights shall be the same as those laid down by the said Convention’.[51] The Charter covers not only the rights set out in the ECHR but also includes a range of rights non-listed in the European Convention, such as the right to good administration and social rights of workers.[52] The list of prohibited grounds of discrimination given in article 21 of the Charter is broader than the one provided by article 14 of the ECHR. However, it must be emphasized that the selection of the Charter is exhaustive, while the provisions of the ECHR prohibit discrimination on any grounds. This provision serves to draw the boundary between the scope of the Charter and that of national constitutions and the ECHR.[53]

One of the special features of the Charter has been the ground of the classification of human rights, as, in contrast to the traditional separation of political, economic and social rights, the fundamental rights in the Charter are grouped depending on the common value that they seek to promote, such as freedom, dignity, solidarity, equality, citizens’ rights, and justice.[54] The last part of general provisions reflected the field of application of the Charter, its relationship with the ECHR, as well as the scope and interpretation of rights and principles.[55]

After being amended, the Charter came into direct effect again with the adoption of the Treaty of Lisbon on 1 December 2009, as provided by Article 6(1) TEU, thereby becoming a binding source of primary law.[56] This document has become the new stage of the development of the EU law, particularly in upholding human rights and freedoms.

The Treaty of Lisbon has had a significant impact on the development of human rights protection within the EU legal order, especially by making the Charter of Fundamental Rights legally binding as a result of the addition of the Article 6(1) TEU, as well as by expanding the jurisdiction of the Court of Justice in areas such as immigration, asylum, judicial cooperation in criminal and civil affairs.[57] As a consequence, the number of the CJEU cases involving human rights and fundamental freedoms has increased rapidly. Particularly, the judgment of the Kücükdeveci pronounced just a month after the entry into force of the Lisbon Treaty, has become the first case where the Charter was mentioned as a legally binding document.[58] Since then, whenever the opportunity arises, the case-law refers to the Charter as a source of human rights rules.[59]

 

The legal gap in the autonomy of the EU legal order: the integration of the EU law into the ECHR

In order to fully review all legal implications of the EU’s intention to accede the ECHR, it is necessary to consider the legal background of the Court of Justice and the subsequent difficulties arising from the legal autonomy of the Court. In fact, the autonomy of the CJEU means the legal independence of the jurisdiction and the power to govern domestic affairs without any external interference. Since its renowned judgment in Costa v Enel, it is a well-established fact that Luxembourg regards the Union’s supranational legal order to be autonomous, in order to ensure the first and foremost the effet utile of the Treaties and thus the supremacy of EU law over the domestic legal orders of the Member States. The CJEU’s teleological interpretation of the Treaties is consequently considered the first step in establishing a functioning constitutional order of its own that is autonomous from the national legal systems of the Union’s Member States. In every case, the Court stated the supremacy of EU law over the conflicting rules of domestic law.[60]

There are two provisions serving as evidence of the supremacy of the EU’s law including Article 19 (1) TEU which guarantees the CJEU’s exclusive jurisdiction over national courts,[61] as well as the Article 344 of the Treaty on the Functioning of the European Union (TFEU) according to which the Court is the only authority to settle disputes concerning the interpretation and application of the Treaties between Member States and the Union’s institutions.[62] These two provisions have played a significant role in the implementation of the Union’s caselaw.[63]

Eventually, the Court had affirmed the principle of primacy of European law, certain national courts raised their concerns about the level of protection of fundamental rights with regards to such case law.[64] They were worried about the unlimited power of the EU law-making it prevailed even over domestic constitutional law which could lead to it would become possible for it to violation of fundamental rights.[65] To address this theoretical risk, in 1974 the German and Italian constitutional courts each adopted a judgment in which they asserted their power to review European law in order to ensure its consistency with constitutional rights.[66]

As the European Convention on Human Rights has become the primary instrument for the promotion of fundamental rights within Europe to which all Member States have acceded, the EC accession to the ECHR appeared as a logical solution to the need to link the EC to fundamental rights obligations.[67] However, although the ECHR binds each of the Member States of the EU by virtue of each state having independently agreed to join the ECHR and it is a good source of inspiration for the CJEU, the EU is neither bound by the ECHR as such, nor subject to the jurisdiction of the ECHR’s principal control mechanism – the Strasbourg Court.[68] Subsequently, the European Commission repeatedly proposed the accession of the EC to the ECHR since 1979 when it presented the Memorandum in which the European Convention was recognized as the fundamental instrument enabling the European Communities to enhance their authority and ensure adequate protection of human rights.[69] This sentiment had been repeatedly supported afterward and still remains relevant in the international agenda. According to its opinion of 2/194, the Court stated that ‘unless the EC Treaty was amended, the Community did not have the power to accede to the Convention…since it would result in a substantial change to the Community’s system for the protection of human rights, entailing the Community’s integration into an institutional system where the provisions of the ECHR would be incorporated into the Community law’.[70]

This situation was remedied by the treaty of Lisbon after the adoption of Article 6(2), under which the EU shall accede to the ECHR.[71] Consequently, the EU legal order becomes subject to review by a legal body external to itself, namely the European Court of Human Rights (ECtHR), as is already being done to its Member States. Therefore, as a result of accession, EU citizens, as well as third-country nationals on EU territory will have the right for legal remedies directly before the European Court of Human rights on the grounds of the provisions of the Convention, in the same way as they may challenge legal acts adopted by the EU Member States.[72]

The next stage of the EU’s accession began with negotiations of the Council of Europe on a Draft Accession Agreement (DAA) resulting in the CJEU’s negative opinion stating that the draft agreement was liable to adversely affect the specific characteristics and the autonomy of EU law.[73] According to the Draft Accession Agreement, the accession would have great impacts on human rights protection in Europe due to independent external monitoring of the EU legal order. Furthermore, it would provide everyone with the opportunity to file a claim about the violation of human rights guaranteed by the ECHR before the ECtHR with the prerequisite of exhaustion of domestic remedies. In doing so, the individual complains should be divided into two categories, one indicating the violation of fundamental rights by the EU Legal Acts, others are concerning the national measures taken to apply and implement the EU law. Finally, the EU integration into the ECHR would contribute to the more harmonious development of the CJEU and ECtHR’s caselaw.[74]

According to the Opinion 2/13, the DAA was rejected as the autonomy of the Court of Justice of the European Union was determined. The Court states that, to date, only States have been members of the ECHR and the European Union cannot be regarded as a state due to its intrinsic nature. Additionally, the ECJ has characterized the EU as ‘a new legal order’.[75] The Court has given a number of arguments explaining why the draft agreement cannot be accepted. One of them was the Court’s concern that the provision of the Article 53 ECHR, which gives Contracting Parties the power to lay down higher standards of protection than those guaranteed by the ECHR, should not compromise EU law and should be restricted to the extent necessitated by the purpose of the protection of fundamental rights, unity, and effectiveness of the EU.[76] Further, the Court found that the principle of mutual trust under EU law very important in the field of human rights could be undermined.[77] Moreover, it was stated that, according to the Article 344 TFEU, member states may not use dispute resolution methods concerning the application and interpretation of the Treaties to any method of settlement other than those provided for by the Treaties, while the DAA provides for the opportunity to use the ECtHR to settle such disputes. Therefore, the Court found that the accession undermined EU law. In summary, the Court recognized the draft agreement as incompatible with EU law as safeguarding the specific characteristics of the European Union is highly essential for the CJEU.

 

Conclusion

During the last 40 years, the Court of Justice of the European Union has succeeded a lot in expanding the Union’s competences and in enhancing the effectiveness of the Union’s law. Although the primary goal of the EU was initially economic and political integration, the CJEU has decided many cases that deal with fundamental rights due to careful and selective use of protection mechanisms.

The presentation of the Lisbon Treaty and the legally binding nature of the Charter of Fundamental Rights became vital in the promotion of fundamental rights by putting the essential social and civil rights together with economic rights at its core. The legally binding status of the Charter allows fundamental rights to assume even greater importance in the caselaw of the Court of Justice and within the EU legal order.

It could be concluded that the future accession of the European Union to the ECHR would complete the EU system of protection of fundamental rights as the Lisbon Treaty makes it clear that the accession is inevitable.

 

BIBLIOGRAPHY

  1. Case C-2/13, Opinion 2/13 of the Court, EUR-Lex 62013CV0002
  2. Catherine Barnard & Steve Peers (ed), European Union Law (2nd edn, OUP 2017) 251
  3. Charter of Fundamental Rights of the European Union 2012, OJ C 326/391
  4. Daniel Halberstam, “Opinion 2/13 of the Court (C.J.E.U.)” (2016), 55(2) International Legal Materials 267
  5. Elizabeth F. Defeis, “Human Rights and the European Court of Justice: An Appraisal” (2008), 31 Fodham International Law Journal 1104
  6. European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5
  7. Fisnik Korenica, “The EU accession to the ECHR: between Luxembourg’s search for autonomy and Strasbourg’s credibility on human rights protection” (2015)
  8. Jorg Polakiewicz, “Accession to the European Convention on Human Rights (ECHR) – An Insider’s View Addressing One by One the CJEU’s Objections in Opinion 2/13” (2016), 36(1-6) Human Rights Law Journal 10
  9. Lock Tobias, “The future of the European Union’s Accession to the European Convention on Human Rights after Opinion 2/13: is still possible and is still desirable?” (2015), 11(2) European Constitutional Law Review 239
  10. Paul Craig & Grainne de Burca, EU Law: Text, Cases and Materials (6th edn, OUP 2015)
  11. Paul Gragl, The accession of the European Union to the European Convention on Human Rights (Oxford & Portland, Oregon 2013)
  12. Sionaidh Douglas-Scott, “Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice” (2014), UK Constitutional Law Association Blog, available at: https://ukconstitutionallaw.org/2014/12/24/sionaidh-douglas-scott-opinion-213-on-eu-accession-to-the-echr-a-christmas-bombshell-from-the-european-court-of-justice/
  13. Sonia Morano-Foadi & Stelios Andreadakis, “Reflections on the Architecture of the EU after the treaty of Lisbon: the European Juridical Approach to Fundamental Rights” (2011), 17(5) European Law Journal 595
  14. Steve Peers, “The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection” (2014), EU Law Analysis, available at: http://eulawanalysis.blogspot.com/2014/12/the-cjeu-and-eus-accession-to-echr.html
  15. Storgaard Louise Halleskov, “EU Law Autonomy versus European Fundamental Rights Protection – on Opinion 2/13 on EU Accession to the ECHR” (2015), 15(3) Human Rights Law Review 485
  16. Treaty of Lisbon amending the TEU and the Treaty establishing the European Community 2007, OJ C 306/1
  17. Treaty on European Union (Consolidated Version), Treaty of Maastricht, 7 February 1992, Official Journal of the European Communities C 325/5
  18. Vasiliki Kosta & Nikos Skoutaris & Vassilis P Tzevelekos, The EU accession to the ECHR (Oxford & Portland, Oregon 2014)

 

[1] Elizabeth F. Defeis, “Human Rights and the European Court of Justice: An Appraisal” (2008), 31 Fodham International Law Journal 1104, 1105

[2] European Union, Consolidated version of the Treaty on European Union, 13 December 2007, 2008/C 115/01, available at: https://www.refworld.org/docid/4b179f222.html [accessed 14 March 2019]

[3] Charter of Fundamental Rights of the European Union 2012, OJ C 326/391

[4] European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5

[5] European Union, Treaty on European Union (Consolidated Version), Treaty of Maastricht, 7 February 1992, Official Journal of the European Communities C 325/5; 24 December 2002, available at: https://www.refworld.org/docid/3ae6b39218.html [accessed 1 March 2019]

[6] Paul Craig & Grainne de Burca, EU Law: Text, Cases and Materials (6th edn, OUP 2015), 380

[7] Storgaard Louise Halleskov, “EU Law Autonomy versus European Fundamental Rights Protection – on Opinion 2/13 on EU Accession to the ECHR” (2015), 15(3) Human Rights Law Review 485, 486

[8] European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01, available at: https://www.refworld.org/docid/476258d32.html [accessed 1 March 2019]

[9] Article 6(1) and (2) TEU

[10] Case C-2/13, Opinion 2/13 of the Court, EUR-Lex 62013CV0002

[11] Paris Treaty establishing the European Coal and Steel Community, Apr. 18, 1951, 261 U.N.T.S. 140

[12] Treaty establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11

[13] Daniel Halberstam, “Opinion 2/13 of the Court (C.J.E.U.)” (2016), 55(2) International Legal Materials 267, 267

[14] Defeis, “Human Rights and the European Court of Justice” (2008), 31 FILJ 1104,1106

[15] Case 29/69 Staunder v City of Ulm [1969] ECR 419

[16] Ibid

[17] Ibid para 7

[18] Catherine Barnard & Steve Peers (ed), European Union Law (2nd edn, OUP 2017) 230

[19] Case 11/70 Internationale Handelsgesellschaft MbH v Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125

[20] Ibid (n 18)

[21] Case 4/73 Nold KG v. Commission [1974] ECR 491

[22] Paul Gragl, The accession of the European Union to the European Convention on Human Rights (Oxford & Portland, Oregon 2013) p 53

[23] Charter of Fundamental Rights of the European Union 2012, OJ C 326/391

[24] Ibid (n 21)

[25] Case 36/75 Roland Rutili v Ministre de l’intérieur [1975] ECR 1219 para 32

[26] Case 5/88 Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609

[27] Ibid para 19

[28] Ibid (n 23)

[29] Halberstam, “Opinion 2/13 of the Court (C.J.E.U.)” (2016), 55(2) ILM 267

[30] Ibid (n 22) p 20

[31] European Union, Treaty on European Union (Consolidated Version), Treaty of Maastricht, 7 February 1992

[32] Ibid Article 2

[33] Ibid Section VII

[34] Rafat Maliko, “EU accession to the European Convention on Human Rights (ECHR)” (2017), European Parliamentary Research Service – Briefing, 3

[35] Defeis, “Human Rights and the European Court of Justice” (2008), 31 FILJ 1104,1115

[36] Ibid

[37] Craig & Burca, EU Law: Text, Cases and Materials (2015) 380, 386

[38] Cases 155/79 AM & S Europe Limited v Commission of the European Communities [1982] ECR 1982; C-465/07 Elgafaji v Staatssecretaris van Justitie [2009] ECR I-921; C-28/08 Commission v Bavarian Lager [2010] ECR I-6055

[39] Ex Article F (2) of the TEU (now Article 6(3) TEU)

[40] European Union: Council of the European Union, Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European Communities and Related Acts, 10 November 1997, available at: https://www.refworld.org/docid/51c009ec4.html [accessed 12 March 2019]

[41] Ibid part 3 para 22

[42] Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European Communities and Related Acts, 10 November 1997

[43] European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December 2007, 2008/C 115/01, available at: https://www.refworld.org/docid/4b17a07e2.html [accessed 13 March 2019]

[44] European Union, Treaty of Nice, Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 11 December 2000, Official Journal C 80 of 10 March 2001; 2001/C 80/01, available at: https://www.refworld.org/docid/3f4e45f54.html [accessed 13 March 2019]

[45] European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, available at: https://www.refworld.org/docid/3ae6b3b70.html [accessed 13 March 2019]

[46] Sonia Morano-Foadi & Stelios Andreadakis, “Reflections on the Architecture of the EU after the treaty of Lisbon: the European Juridical Approach to Fundamental Rights” (2011), 17(5) European Law Journal 595, 600

[47] Ibid 1114

[48] Ibid (n 47)

[49] Ibid

[50] Craig & Burca, EU Law: Text, Cases and Materials (2015) 380, 383

[51] Ibid (n 47) art 52 para 3

[52] Defeis, “Human Rights and the European Court of Justice” (2008), 31 FILJ 1104, 1108-1109

[53] The Protection of Fundamental Rights in the EU – Facts Sheet on the European Union (2019), 3

[54] Barnard & Peers (ed), European Union Law (2017) 240

[55] Charter of Fundamental Rights of the European Union, 26 October 2012, Title VII

[56] Halleskov, “EU Law Autonomy versus European Fundamental Rights Protection” (2015), 15(3) HRLR 485

[57] Treaty of Lisbon amending the TEU and the Treaty establishing the European Community [2007] OJ C 306/1

[58] Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECR 2010 I-00365

[59] Morano-Foadi & Andreadakis, “Reflections on the Architecture of the EU after the treaty of Lisbon” (2011), 17(5) ELJ 595,595

[60] Paul Gragl, The accession of the European Union to the European Convention on Human Rights (Oxford & Portland, Oregon 2013) p 19

[61] Treaty on European Union (Consolidated Version), Treaty of Amsterdam, 2 October 1997

[62] Consolidated version of the Treaty on the Functioning of the European Union, 13 December 2007

[63] Case 106/77 Simmenthal II [1978] ECR 629; Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727

[64] Ibid (n 62)

[65] Defeis, “Human Rights and the European Court of Justice” (2008), 31 FILJ 1104, 1110

[66] BvL 52/71 Solange I BVerfGE 37, 271; 2 BvR 197/83 Solange II BVerfGE 73, 339

[67] The Protection of Fundamental Rights in the EU – Facts Sheet on the European Union (2019), p 2

[68] Daniel Halberstam, “Opinion 2/13 of the Court (C.J.E.U.)” (2016), 55(2) International Legal Materials 267, 267

[69] Bulletin of the European Communities, Supplement 2/79

[70] Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion 2/94, [1996] E.C.R 1996 I-01759

[71] Ibid 63

[72] Ibid

[73] Case Opinion 2/13 of the Court Opinion pursuant to Article 218(11) TFEU : Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms — Compatibility of the draft agreement with the EU and FEU Treaties [2014]

[74] Sionaidh Douglas-Scott, “Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice” (2014), UK Constitutional Law Association Blog, available at: https://ukconstitutionallaw.org/2014/12/24/sionaidh-douglas-scott-opinion-213-on-eu-accession-to-the-echr-a-christmas-bombshell-from-the-european-court-of-justice/

[75] Ibid

[76] European Convention on Human Rights, article 53

[77] Ibid (n 76)

Bu bloqda yerləşdirilən məqalələr hüquqi məsləhət xarakteri daşımır və belə olaraq nəzərə alınmamalıdır. Əlaqədar məsələ üzrə hüquqi dəyərləndirmənin və məsləhətin əldə olunması üçün müvafiq hüquqi məsləhət xidmətləri göstərən şəxsə müraciət etməyiniz tövsiyə olunur.

Nəzrin Əliyeva

Nəzrin Əliyeva

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