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.
– 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