Join Date: Jun 2009
Originally Posted by Blitzkrieg
I request only clarification, as your initial response failed to clarify on how the european courts will be * interpreting the Charter including Article 51 as it sees fit. * when the same treaty and article that establish the charter's legal power also specify that it must be interpeted as per the provesions outline in title VII of the charter.
This does not make article 51 and article 53 simply two of many articles in the charter, it makes them the articles that enforce the type of legal status that the treaty grants the charter.
The mistake here is applying malicous intent to the court of justice, that they will intention try to work around what has been stated by both the treaties and the charte itself.
You know well Blitzkrieg that as Article 6 TEU is gives the Charter "the same legal-value as the Treaties", that Title VII of the Charter is therefore subject to the interpretation of the ECJ. They will decide how it is interpreted in practice, and the extent to which Title VII limits their jurisdiction. I am aware that Article 51 states that the rights in the Charter only apply to national governments when they are implement European law. But the Charter itself will be European law under Article 6 TEU:
Originally Posted by Article 6 TEU
The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
Under Paragraph 6 of the referendum-wording (28th Amendment to the Constitution Bill 2009
), and indeed under the existing Article 29.4.10 of the Irish Constitution, EU law supersedes Irish law and the Irish Constitution:
Originally Posted by Paragraph 6, 28th Amendment to the Constitition Bill 2009
No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy 10
Community, or prevents laws enacted, acts done or measures
i the said European Union or the European Atomic Energy
Community, or by institutions thereof,
ii the European Communities or European Union existing 15
immediately before the entry into force of the Treaty of
Lisbon, or by institutions thereof, or
iii bodies competent under the treaties referred to in this
section, from having the force of law in the State.
, on the applicability of the Charter to EU institutions and member states, says:
Originally Posted by Article 51, Charter of Fundamental Rights
1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.
The following is what Article 52 of the Charter says:
Originally Posted by Article 52 Charter
1. 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.
2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.
3. In so far as this Charter contains rights which 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. This provision shall not prevent Union law providing more extensive protection.
4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those
14.12.2007 EN Official Journal of the European Union C 303/13
5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.
6. Full account shall be taken of national laws and practices as specified in this Charter.
7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.
Much of the wording of Article 52 is couched in general terms, and judges love general terms, because it increases their power. In a context where the meaning of a legal-text is unclear, the judges step in to decide what it means. In particular, I am talking about this kind of language:
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.
Who will decide whether such limitations "are necessary are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others"? The ECJ does, because under Article 6 TEU the Charter has "the same legal value as the Treaties" and the ECJ has the final authority to interpret the Treaties. Thus, it will be for the ECJ to decide what this terminology means. I am not prepared to trust the ECJ with the tools the Charter gives them, in part because of their record of unconventional interpretation of EU law over the years.
Originally Posted by Article 53 Charter
Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.
Let me give an example of why such terminology fails to reassure me. The ECJ has already given us a window into how the Charter will be interpreted by reference to Article 28 in the Viking judgement
where it stated that the "right to collective bargaining" might be restricted, and that Article 28 actually acknowledged that fact:
Originally Posted by Article 28 Charter
Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.
The shipping line Viking runs ferry services between Finland and Estonia under the Finnish flag. The company’s management decided to re-flag their ferries - using the Estonian flag, and to employ Estonian labour in order to take advantage of the fact that wages are lower in Estonia. In response, the Finnish Seamen’s Union (FSU) warned the company Viking that they might take collective action to stop the re-flagging process. To avoid the danger of being undercut, it also asked the International Transport Workers’ Federation (ITF) under its “Flag of conveniences campaign” to ask their members not to start negotiations with Viking unless they were based in Finland. According to this campaign, the ITF affiliates agreed that only trade unions established in the state of beneficial ownership should have the right to conclude collective agreements covering the vessel concerned. This is a crucial point to understand: The Charter of Fundamental Rights will not improve the working-conditions of Irish or migrant workers. The ECJ has already made its views known on this matter through this ruling. Article 43 of the existing TEC
Originally Posted by Viking judgement
2. The right to take collective action, including the right to strike, is recognised both by various international instruments which the Member States have signed or cooperated in, such as the European Social Charter, to which, moreover, express reference is made in Article 136 EC, and Convention No 87 concerning Freedom of Association and Protection of the Right to Organise, adopted in 1948 by the International Labour Organisation, and by instruments developed by those Member States at Community level or in the context of the European Union, such as the Community Charter of the Fundamental Social Rights of Workers adopted in 1989, which is also referred to in Article 136 EC, and the Charter of Fundamental Rights of the European Union.
Although that right, including the right to strike, must therefore be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures, the exercise of that right may none the less be subject to certain restrictions. As is reaffirmed by Article 28 of the Charter of Fundamental Rights of the European Union, it is to be protected in accordance with Community law and national law and practices.
In that regard, even if the protection of fundamental rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty, the exercise such rights does not fall outside the scope of the provisions of the Treaty and must be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality.
It follows that the fundamental nature of the right to take collective action is not such as to render Article 43 EC inapplicable to such an action, initiated against an undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which are liable to deter it from exercising freedom of establishment.
(see paras 43-47)
3. Article 43 EC is such as to confer rights on a private undertaking which may be relied on against a trade union or an association of trade unions.
The abolition, as between Member States, of obstacles to freedom of movement for persons and freedom to provide services would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise, by associations or organisations not governed by public law, of their legal autonomy. Moreover, the fact that certain provisions of the Treaty are formally addressed to the Member States does not prevent rights from being conferred at the same time on any individual who has an interest in compliance with the obligations thus laid down. Furthermore, the prohibition on prejudicing a fundamental freedom laid down in a provision of the Treaty that is mandatory in nature applies in particular to all agreements intended to regulate paid labour collectively.
(see paras 57-58, 66, operative part 2)
4. Article 43 EC is to be interpreted to the effect that collective actions which seek to induce a private undertaking whose registered office is in a given Member State to enter into a collective work agreement with a trade union established in that State and to apply the terms set out in that agreement to the employees of a subsidiary of that undertaking established in another Member State, constitute restrictions within the meaning of that article.
Such collective action has the effect of making less attractive, or even pointless, the exercise by an undertaking of its right to freedom of establishment, in asmuch as it prevents that undertaking from enjoying the same treatment in the host Member State as other economic operators established in that State. Similarly, such collective action, seeking to prevent shipowners from registering their vessels in a State other than that of which the beneficial owners of those vessels are nationals, must be considered to be at least liable to restrict an undertaking’s exercise of its right of freedom of establishment.
Those restrictions may, in principle, be justified by an overriding reason of public interest, such as the protection of workers, provided that it is established that the restriction is suitable for ensuring the attainment of the legitimate objective pursued and does not go beyond what is necessary to achieve that objective.
In this context, it is useful to compare Article 43 TEC
at present, with its renumbered form i.e. Article 49 TFEU
Originally Posted by Article 43 TEC (at present)
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
Originally Posted by Article 49 TFEU
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
It is my firm contention then, that because of the reference to Article 28 of the Charter by the ECJ, that we have an window into how the ECJ is likely to interpret the 'rights' of workers contained in the Charter i.e. to interpret them as secondary to the right of freedom of Establishment. In the aforementioned respects, and taking account of the Ruffert judgement I mentioned in a previous post, it is clear that where worker's rights and freedom of establishment clash, the latter, and the consequent right of unscrupulous businesses to exploit migrant labour will take precedence. The qualifications contained on the right to collective-bargaining in Article 28 of the Charter leave no room for doubt in that respect, for the objective observer.
The ECJ is in the fortunate position of being both hunter and gamekeeper where determining its jurisdiction is concerned. It can decide what the Charter means, and what the parameters of its jurisdiction set down in Articles 51/2/3 governing its scope mean. Articles 51/2/3 are also part of the Charter, and the Charter is part of EU law "with the same legal-value as the Treaties". In that context I am unpersuaded by your argument that somehow the extent to which the ECJ may intrude on national issues is restricted in a meaningful way in those Articles. The ECJ is the final authority on the Treaties. Article 6 TEU as amended by Lisbon states that the Charter shall have "the same legal-value as the Treaties". Therefore, the ECJ is the final authority on what the Charter - including the paremeters determining its applicability - mean.
Why do I distrust the ECJ with respect to interpretation of the Charter? Because it is a history of encroaching on the sovereignty of member states and retrospectively new competences for the EU not explicitly contained within the Treaties. How can we be sure that they will not behave in kind with respect to interpreting the Charter? Claiming the Charter won't create any 'new power' for the Union will not prevent the ECJ doing what it has a tendency to do - namely retrospectively declaring new competences (such as criminal-penalties in 2005) based on it's interpretations of the Treaties despite the absence of relevance to the specifics it is claiming the EU has a competence in? Claiming a competence is 'already there', based on the ECJ reading between the lines of existing Treaties, will not be protected against by Article 51 of the Charter. Examples of recent rulings where the ECJ has engaged in "competence creep" include the German http://euobserver.com/9/26712
"]Mangold case[/URL] (see report on criticism
here) positive age-discrimination on restrictions on employment contracts,, a case in 2005 where the ECJ ruled that the EU had a competence in the area of criminal-penalties, despite the European Parliament and the Council disagreeing with this, and a case where an Austrian cap on foreign-students was struck down, despite education not being an EU competence:
Originally Posted by Euobserver.com
The European Court of Justice needs to be stopped from undermining national jurisdiction, former German President Roman Herzog and Lüder Gerken, the director of the Centre for European Policy, have warned in a comment published by the EUobserver.
The sharp words come in the wake of similar arguments coming from Denmark and Austria accusing the court of stepping beyond its bounds.
Several cases analysed by Mr Herzog prove, in his view, that the European Court of Justice "systematically ignores fundamental principles of the Western interpretation of law", that it "ignores the will of the legislator, or even turns it into its opposite" and "invents legal principles serving as grounds for later judgements". One key judgement, known as the Mangold case, is set to be analysed by the German Constitutional Court in Karlsruhe and will set the tone for future relations between the ECJ and national courts, writes Mr Herzog.
Mr Mangold, a 56-year-old lawyer, was employed in June 2003 on a permanent contract, in compliance with a temporary provision to the German labour law, which lowered the minimum age for temporary contracts from 58 to 52 years, in an attempt to encourage employers to hire more older workers.
Mr Mangold argued that this particular piece of German legislation contravened the principles within the EU's Equal Treatment Framework Directive adopted in 2000, as it was clearly age discriminatory.
The ECJ ruled in November 2005 that the provisions of the German labour market reform were indeed infringing the directive, although it accepted that member states still had until December 2006 to transpose it into national law.
However, according to the ECJ ruling, in the period leading up to the transposition of the directive, member states "must refrain from taking any measures liable to seriously compromise the attainment of the result prescribed by that directive."
Mr Herzog argues however that both labour market policy and social policy are under the jurisdiction - or in Brussels jargon - 'core competences' of the member states: "This case clearly demonstrates to what extent EU regulation and EU jurisdiction nevertheless interfere in the governing of these core competences."
In order to justify its judgement, the ECJ also resorted to a "somewhat adventurous construction", that a ban on age discrimination was included in the "constitutional traditions common to the member states" and "various international treaties", notes the former German president.
However, this was a "fabrication", he believes, as only in two of the then 25 member states - Finland and Portugal - was there any reference to a ban on age discrimination, and no international treaty mentions this at all.
"To put it bluntly, with this construction, which the ECJ more or less pulled out of a hat, they were acting not as part of the judicial power but as the legislature," he says.
The former German president proposes the setting up of an independent EU court to deal with competence questions, since the ECJ is "not appropriate" to watch over the subsidiarity principle and the matters of member states.
"The ECJ was created with the aim of providing a arbitrator to mediate in the interests of the EU and those of the member states," but on the other hand, it is bound by the EU Treaty to act towards achieving a closer Union, and therefore it is "no wonder" it overrides national competences, he argues.
Thus, he says, it is necessary for the German Constitutional Court to reject the ruling in the Mangold case, and to "restrain" the ECJ, otherwise it will be much more difficult to control the ECJ in the future.
Court under fire in Denmark, Austria
Mr Herzog's comments come amid growing frustration amongst Danish leaders that a ruling by the court regarding Irish legislation covering the residency rights of non-EU citizens who are spouses of citizens, is having a knock-on effect on similar Danish legislation.
In July, Ralf Pittelkow, an adviser to former Social Democratic Prime Minister Poul Nyrup Rasmussen, used language similar to that of Mr Herzog to describe the court.
"The judges are crafting a lot of policies because the politicians allow them the margin to do so," he said, writing in the Jyllands-Posten. "Political decisions that ought to be the responsibility of elected representatives are left with the court."
In 2006, former Austrian Chancellor Wolfgang Schussel also attacked the European Court of Justice after it forced Austrian universities to open its doors to more foreign students, arguing that the court was interfering in education, "a clear national competence," he said at the time.
I also wish to bring up a new danger from the Lisbon Treaty - that of the creation of a European legal-system that will override that of Ireland. The Lisbon Treaty provides for the creation of an office of European Public Prosecutor, by unanimity on the Council. It also provides for the establishment of "specialised courts" which will override those of Ireland. The Government claims we have an optout on Justice and Home Affairs. However, in Paragraph 7 of the referendum-wording, the Government is providing itself and the Oireachtas with the power to abolish that optout without a referendum. That would mean Qualified Majority Voting on Justice and Home Affairs. Specifically, it would mean QMV imposing laws on Ireland in the areas of
: Asylum , Border checks, * Immigration, Incentive measures in the field of crime prevention, Eurojust – structure, operation, field of action and tasks, Europol – structure, operation, field of action and tasks .
Originally Posted by Article 86 TEU
1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft regulation concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
This will lead to Irish citizens being tried in EU courts for matters that the Irish people may not want to become crimes under Irish law. The abolition of the vetoes under Paragraph 7(iii) of the referendum-wording (28th Amendment to the Constitution Bill 2009
) allowing for the Government/Oireachtas to abolish the optout Protocol 21 will pave the way for foreign governments, the Commission and the European Parliament, forcing changes in Irish criminal law, including on sentencing and the criminal-code, that the Irish people and Government may not agree with. In spite of the fact that the Irish people and government may not approve of such a criminal-code, the European Public Prosecutor's office will have the power to prosecute them. This is unacceptable and represents foreign, colonial rule in this country over our justice-system, which until Lisbon had remained relatively free of intrusion from the EU institutions. A country that doesn't even control its own justice policy is more a province than a nation once again.
Originally Posted by Paragraph 7, 28th Amendment to the Constitution Bill 2009
The State may exercise the options or discretions—
i to which Article 20 of the Treaty on European Union relating to enhanced cooperation applies,
ii under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community), and
iii under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.
Last edited by FutureTaoiseach; 01-10-2009 at 16:40.