This project has received funding from the European Union’s Seventh Framework Programme for research, technological development and demonstration under grant agreement no 320294

EU

WP7 Civil Rights

As civil rights refer to the rights that are necessary for the individual freedom of citizens and therefore belong to the nucleus of rights of citizens, a study into these rights is essential for understanding the obstacles and opportunities  for realising EU citizenship.  In other words, the enjoyment  of – at least certain  – civil rights  could  be qualified  as crucial  to the enjoyment of European  citizenship  rights (Azoulai 2011; Van Eijken & De Vries 2011).

Yet  it  was  not  until  the  adoption  of  the  Maastricht  Treaty  (1992),  that  established  the European Union, that formal recognition  was given to human rights as part of EU law. Later a ‘EU Bill  of Rights’  was  set  up  through  the  adoption  of the  Charter  of Fundamental  Rights,  solemnly proclaimed  in Nice (2000) but without being granted binding effect. This ‘constitutional  coming-of- age’ of human or civil rights at EU level has triggered a number of publications focusing on the status of human  rights  protection  in the  European  Union,  mostly  from  a constitutional  perspective  (e.g. Alston,  Heenan & Bustelo  1999;  Besselink  1998;  Von Bogdandy  and Bast 2009; De Búrca 2011; Douglas Scott 2004; Lenaerts & de Smijter 2001; O’Leary 1995, Weiler & Lockhart 1995).

Even before the Treaties of Maastricht and Nice, the European (Economic)  Community  and later  the  European  Union, already  engaged  in  civil  rights  protection,  although  in  the  European Economic Community the focus was on the safeguarding of (economic) rights such as the freedom of movement and residence. Citizens in Europe acquired rights of free movement and residence in the European  Union  first  as market  citizens  and  only  later  as EU  citizens  (Nic  Shuibhne 2010).  The Treaties did recognise certain rights that were similar to fundamental rights, such as the principle of non-discrimination and the right to equal pay for men and women. Even so, the primarily economic orientation of the European Communities did not appear to be a handicap for the CJEU to develop a European fundamental rights dimension, partially influenced by the discussions in Germany regarding the assumed power of the German constitutional court (Bundesverfassungsgericht) to assess EU law in the light of the German constitution. In its case law, the CJEU decided that fundamental human rights are enshrined in the general principles of Community law. Furthermore, the Court referred to the constitutional traditions common to the Member States as a source of inspiration (De Búrca 2011).

Recent developments in EU law, however, make new research into the field of civil rights of paramount importance.  The coming into force of the Lisbon Treaty (December 2009) marked a new phase in the remarkable expansion of fundamental rights protection at European Union level. Article 6 of the EU Treaty now recognises the binding force of the Charter of Fundamental Rights, it embraces the  intention  to  accede  to  the  European  Convention  on  the  Protection  of  Human Rights  and Fundamental Freedoms, and codifies the European Court of Justice’s case law that fundamental rights shall constitute general principles of the Union’s law. Furthermore,  the respect for human rights has been incorporated  in the Treaty as one of the EU’s core values. These ‘post-Lisbon’  developments present a number of fresh and intriguing challenges to the EU as an entity committed to the protection and promotion of fundamental rights. So far, research into the consequences of the binding character of the Charter, its scope of application and the accession of the EU to the ECHR, should, according to Article 6(2) TEU not affect the EU’s competences in the Treaties, for the exercising of EU citizens’ rights is still in its infancy (De Búrca 2011, De Vries, Weatherill & Bernitz 2012). Several intriguing and difficult issues relating to these recent developments require close attention.

If civil rights are studied from the perspective of EU citizenship, what will be the position of third country nationals who enjoy derived rights on the basis of EU law (Staples 1999)? Furthermore, the scope of EU citizens’ civil rights on the basis of EU law is limited, as these rights can only be invoked when they implement EU law or, at best, in situations which fall within the scope of EU law. This  creates  significant  uncertainty  as  to  when  EU  civil  rights  can  be  relied  upon  to  challenge domestic restrictive measures or practices. Until recently, the scope of residency rights afforded to EU citizenship was traditionally limited to transnational situations, leading to divergences in the protection afforded  by  EU  citizenship  and  the EU  ‘Bill  of  Rights’  between  mobile  EU  citizens,  who  have exercised their rights to freedom of movement and ‘sedentary’ EU citizens (reverse discrimination). Recent CJEU case law, however, suggests that an essential core of citizenship rights may be enjoyed without proving a transnational dimension. It remains to determine what this essential core consists of and how to define the boundaries of EU law. Moreover, there may be significant practical obstacles to EU citizens exercising the civil rights they enjoy under EU law. Further systematic research into the interaction between law and practice in this field is clearly needed.

The Work Package  on Civil Rights (WP7) starts with investigating  the civil rights citizens should have access to on the basis of a combination of EU citizenship and EU fundamental rights standards. This will be done by studying EU legal provisions and CJEU case law, policy documents and academic commentaries, partly building on current academic research. This will lead to a typology of civil rights to which EU law may give rise and the limitations which exist in this field, followed by a more detailed analysis of the specific civil rights, exploring the various types of legal and practical obstacles which undermine their effective enjoyment. These are: the right to freedom of movement (migration  and residence  rights)  and equal  treatment;  the right  to effective  judicial  protection;  the freedom of speech/expression,  the right to property and the freedom of contract; the right to family life; the protection  against loss of nationality  and the right to diplomatic  and consular protection  in third countries.

References:
–  Alston P., J. Heenan and M. Bustelo (eds) (1999), The EU and Human Rights (Oxford: University Press)
–  Besselink  L. (1998),  ‘Entrapped  by Maximum  Standard;  On Fundamental  Rights,  Pluralism  and Subsidiarity in the European Union’, Common Market Law Review, 35: 629
–  von Bogdandy  A. and J. Bast (eds) (2009),  Principles  of European  Constitutional  Law (Oxford: Hart Publishing)
–  Douglas  Scott  S.  (2004),  ‘The  Charter  of  Fundamental  Rights  as  a  Constitutional  Document’, European Human Rights Law Review, 37
–  Van Eijken H. & S.A. de Vries (2011), ‘A new route into the promised  land? Being a European citizen after Ruiz Zambrano’, European Law Review, 36:704
–  Lenaerts K. and E. de Smijter (2001), ‘A Bill of Rights for the EU’, Common Market Law Review, 38:1201.
–  Shuibhne N. Nic (2010), ‘The Resilience of EU Market Citizenship’, Common Market Law Review, 47:1597
–  O’Leary  S.  (1995),  ‘The  relationship   between  Community   citizenship   and  the  protection  of fundamental rights in Community law’, Common Market Law Review, 32:519
–  Staples H. (1999), The Legal Status of Third Country Nationals  Resident in the European  Union (Den Haag: Kluwer)
–  Tridimas T. (2007), The General Principles of EU Law (Oxford: Oxford University Press)
–  de Vries S.A., S. Weatherill and U. Bernitz (2012), The Protection of Fundamental Rights in the EU After Lisbon (Oxford: Hart Publishing) (forthcoming)
–  De Vries S.A., X. Groussot and G. Thor Petursson (2012), Balancing Fundamental Rights with the EU Treaty Freedoms: The European Court of Justice as ‘tightrope’ dancer (The Hague: Eleven International Publishing)
–  Weiler  J.H.H.  and  N.  Lockhart  (1995),  ‘Taking  Rights  Seriously:  The  European  Court  and  its Fundamental Rights Jurisprudence’, Common Market Law Review, 32:51 and 579