EU Law Policy Making
2025
Dr. Aurélien RACCAH
Protection of Human
Rights in the EU
6th session
2025
Dr. Aurélien RACCAH
ESP
SIR WINSTON
CHURCHILL,
UNIVERSITY OF “We must build a kind of United
ZURICH ON 19 States of Europe. In this way only
SEPTEMBER 1946
will hundreds of millions of toilers
be able to regain the simple joys
and hopes which make life worth
living” […] and the creation of a
Council of Europe”.
The European Union
Protection of Human Rights in Europe
• HR: Important legal area after the 2nd WW
• 1948: Universal Declaration of Human Rights by the UN
• 1950: European Convention on Human Rights
• Incorporation of the HR into the national constitutional legal orders (DDHC,
GG, HRA…)
• Main role played within the Council of Europe and its ECHR
• EEC in 1957 focused on the internal market & EU policies, little on HR
• Developement of the EU conception through the ECHR and ECJ
• After the Lisbon treaty, new challenges for the EU relating to HR
The European Union
The European Union
The European Union
I. The protection of Human Rights through
European institutions
A. The major role of the Council of Europe
1) Institutional organisation of the Council of Europe
a. Creation of the Council of Europe
- Secretary General: Alain Berset
- Committee of Ministers (of foreign affairs)
- Parliamentary Assembly
- Congress of Local and Regional Authorities
- the European Court of HR.
b. The European Court of HR
- President: Marko Bošnjak
- In 50 years: more than 10,000 judgments
The European Union
Council of Europe & ECHR
The European Union
2) Legal conventions of the Council of Europe
a. Convention for the Protection of Human Rights and Fundamental
Freedoms
• Signed on 4.11.1950, into force on 3.9.1953
• Right to life (art. 2), prohibition of torture (art. 3), prohibition of slavery (art. 4), right to
liberty and security (art. 5), right to a fair trial (art. 6), no punishment without law (art.
7), right to respect of private and family life (art. 8), freedom of thought, conscience and
religion (art. 9), freedom of expression (art. 10)…
• Creation of the ECHR
b. The other (212) Conventions of the Council of Europe
• 1957: European Convention for the Peaceful Settlement of Disputes
• 1957: European Convention on Extradition
• 1959: European Convention on Mutual Assistance in Criminal Matters
• 1961: European Social Charter
• 1983: Protocol No. 6 concerning the Abolition of the Death Penalty
• 1992: European Charter for Regional or Minority Languages
• 1995: Framework Convention for the Protection of National Minorities
The European Union
Examples of ECHR Judgements
• Soering c UK [1989]: extradition of a German to the USA to face charges of capital murder
violates Article 3 ECHR guaranteeing the right against inhuman and degrading treatment
• Goodwin [1996]: protection of journalistic sources (Art. 10 ECHR)
• Loizidou v. Turkey [1996]: rights of refugees to get their former properties
• Leyla Şahin v. Turkey [2004]: Turkish law which bans wearing the Islamic headscarf at
universities is compatible with Art. 10 ECHR (expression)
• Hirst v UK [2005]: voting rights for prisoners in the UK
• Bosphorus [2005]: compliance of EU law under ECHR law
• Lautsi v. Italy [2009]: crucifixes in classrooms violate freedom to education
• Mennesson v. France and Labassee v. France: refusal to grant legal recognition in France to
parent-child relationships that had been legally established in the United States between children
born as a result of surrogacy treatment
• M.S.S. v Belgium and Greece [2011]: non respect of Dublin EU regulation on asylum seekers
• Lambert [2015]: right to life Art. 2 ECHR euthanasia
The European Union
B. The European Union institutions facing
1)
Human Rights’ challenges
The minor role of the European Commission
- Commissioner Michael McGrath, responsible for Commissioner for Justice
- Budget:
- Security & Citizenship = EUR 3.7 billion
- EU as global player = EUR 11.4 billion (IPA, European
Neighbourhood and Partnership Instrument (ENPI) and Development
Cooperation Instrument (DCI);
- Programme for Employment and Social Solidarity (PROGRESS)
- EU funds the European Initiative for Democracy and Human Rights
2) The symbolic role of the European Parliament
- Sakharov Prize for Freedom of Thought (2024: Venezualian opposition:
María Corina Machado and Edmundo González)
- Subcommittee on Human Rights (DROI) within the Foreign Affairs
Committee
3) The European Union Agency of Fundamental Rights
The European Union
II. EU competences in Human Rights matters
A. The legal conception of Human Rights in EU Law
1) The EU legal basis for Human rights
a. The value of Human Rights in the treaties (Art. 2 EU):
Article 2 EU: “The Union is founded on the values of respect for human dignity, freedom, democracy,
equality, the rule of law and respect for human rights, including the rights of persons belonging to
minorities”.
b. The procedure against violation by a MS (Art. 7 EU)
Case C-216/18 PPU, LM [2018]: European Arrest Warrant
Aurélien Raccah, EU vs. Poland: Preventing political control over judiciary, in Diane Fromage,
Jacques Ziller: a European scholar, 2022
c. Conditionality regime Regulation 2020/2092 of 16 December 2020 on a general regime of
conditionality for the protection of the Union budget
d. The Union’s external action includes the protection of human rights (Art. 3§5 EU)
2) The growing Case-law of the ECJ
Ex.: Case C‑673/16 Coman [2018]: same sex couples
Case C-123/22 | Commission v Hungary [2024]: procedures for granting international protection and
returning illegally staying third-country nationals
The European Union
B. New scale of protection after the Lisbon treaty
1) The “new” European Charter of Case C‑204/21 European Commission
Fundamental Rights of the EU vs. Poland [2023]:
Applicable from 1. Dec. 2009 Disciplinary Chamber of the Sąd
Najwyższy (Supreme Court), whose
Art. 47 :
independence and impartiality are not
- right to an effective remedy before a guaranteed, jurisdiction to hear and
tribunal determine cases having a direct impact
- Everyone is entitled to a fair and on the status of judges + the
public hearing within a reasonable examination of compliance with the EU
time by an independent and impartial requirements relating to an independent
tribunal previously established by law. and impartial tribunal previously
Everyone shall have the possibility of established by law to be classified as a
being advised, defended and disciplinary offence
represented”. “Article 19(1) TEU, + Article 47 of
the Charter of Fundamental Rights of
the European Union
The European Union
2) The forthcoming accession of the EU to the European Convention of
Human Rights
Art. 6 EU:
• “2. The Union shall acceed to the European Convention for the Protection of
Human Rights and Fundamental Freedoms. Such accession shall not affect the
Union's competences as defined in the Treaties.
• 3. Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms and as they result
from the constitutional traditions common to the Member States, shall
constitute general principles of the Union's law”.
• See the current negotiations between the Council of Europe and the EU:
http://hub.coe.int/web/coe-portal/european-union
The European Union
Relationship between EU & ECHR
– The ECJ refers to the ECHR since the 1970’s
Case 11/70, Internationale Handelsgesellschaft, §4 and Case 4/73, Nold v Commission, §13
– Since 2009, the EU has created its own Charter of Fundamental Rights (Art. 6, §1
EU)
– Since 2009, is also foreseen the adhesion of the EU to the European Convention of
Human Rights (Art. 6, §2 EU)
– Cf. Opinion no 2/13 on 18 December 2014: The CJEU invalidated the project of
adhesion of the EU to the ECHR
– Since 2009, the ECJ refers principally to the Charter:
• Ex.: Case “Facebook” : Case 362/14 Maximillian Schrems v Data Protection
Commissioner [2015]: Invalidates the agreement “Safe harbor” relating to
European measures permitting the transfer of private data to the USA (+
opinion of the AG) Articles 7, 8 & 47 of the Charter
Case C-311/18, Schrem II [2020]: invalidates Decision 2016/1250 on the
adequacy of the protection provided by the EU-US Data Protection Shield
• But not exclusively: cf. Case C‑294/16 PPU, JZ [2016] referring to the ECHR
