EUROPEAN LAW:

The European Convention on Human Rights (ECHR) plays a critical role in shaping the

human rights framework of the European Union (EU). While the EU is a separate legal entity

from the Council of Europe, which administers the ECHR, all EU member states are

signatories to the ECHR, and its principles deeply influence EU law, particularly through the

Charter of Fundamental Rights.

The European Convention on Human Rights and EU Law

The ECHR, established in 1950, is a comprehensive international treaty aimed at protecting

fundamental civil and political rights across Europe. The European Court of Human Rights

(ECtHR) enforces the ECHR, hearing cases brought by individuals, groups, or states against

member states that have allegedly violated the Convention’s provisions.

Though the EU itself is not formally a party to the ECHR, the Treaty of Lisbon (2009) and

the Charter of Fundamental Rights of the EU (legally binding since 2009) align closely with

ECHR standards. Article 6 of the Treaty on European Union (TEU) emphasizes that the EU

respects fundamental rights as guaranteed by the ECHR. Additionally, Article 52(3) of the

Charter ensures that rights enshrined in the Charter corresponding to those in the ECHR must

be interpreted consistently with ECHR standards.

Types of Rights under the ECHR: Absolute, Limited, and Qualified Rights

The ECHR outlines several key human rights, categorized as absolute, limited, and qualified

rights. Understanding these distinctions is essential for determining how states can lawfully

restrict or intervene in these rights, particularly in the face of contemporary challenges.

Absolute rights are non-derogable and cannot be restricted under any circumstances,

including during states of emergency. They include rights such as:

Article 3: Prohibition of torture and inhuman or degrading treatment or punishment.

Article 4(1): Prohibition of slavery and forced labor.

An important case exemplifying the absolute nature of these rights is the Chahal v. the United

Kingdom (1996) judgment, where the ECtHR ruled that deporting an individual to a country

where they risked torture or ill-treatment was a violation of Article 3. This judgment

established that states could not derogate from their obligations under Article 3, even when

national security was at stake.

b) Limited Rights

Limited rights are those that may be restricted, but only under specific, defined circumstances

set out in the relevant article. These include:

Article 5: Right to liberty and security (exceptions include lawful detention following a court

conviction).

Article 6: Right to a fair trial (may be limited by national security concerns, provided the trial

remains fair).

In A and Others v. the United Kingdom (2009), the European Court of Human Rights

(ECtHR) looked into a situation where the UK government, after the 9/11 attacks, created a

law allowing certain people to be detained (imprisoned) without a trial. This law, called the

Anti-Terrorism, Crime and Security Act (2001), was aimed at people suspected of being

involved in terrorism, even if they weren’t charged with a crime or brought before a court.

The people who were detained brought their case to the European Court of Human Rights

(ECtHR), claiming that their right to liberty was violated. This right is guaranteed under

Article 5 of the European Convention on Human Rights (ECHR), which protects individuals
from being detained without proper legal procedures. The Court agreed with the detainees. It

ruled that:

 Detaining people without trial for an indefinite period violates the right to liberty.

 Even in situations of national security, such as a fight against terrorism, governments

cannot ignore the basic human right to a fair legal process.

 The UK government could not simply hold people for as long as they wanted without

charging them with a crime or letting them challenge their detention in court.

Qualified Rights

Qualified rights may be restricted under broader conditions, as long as the restriction is

lawful, serves a legitimate aim (such as national security or public safety), is necessary in a

democratic society, and is proportionate. Examples include:

Article 8: Right to respect for private and family life.

Article 10: Right to freedom of expression.

Article 11: Right to freedom of assembly and association.

The Handyside v. the United Kingdom (1976) case, which examined the balance between

freedom of expression (Article 10) and the protection of public morals, highlights the

qualified nature of such rights. The ECtHR ruled that states have a “margin of appreciation”

in determining the limitations necessary to uphold public morals, emphasizing that

restrictions on rights must be proportionate to the legitimate aim pursued.

Contemporary Relevance of ECHR Rights

The contemporary relevance of the ECHR, and its influence on EU law, cannot be overstated.

The digital age and the global political environment bring new challenges in balancing rights.
a) Privacy and Digital Rights (Article 8)

In the age of digital data collection, the right to privacy (Article 8 ECHR) has been frequently

litigated. In Big Brother Watch and Others v. the United Kingdom (2018), the European

Court of Human Rights (ECtHR) looked at whether the UK’s mass surveillance programs—

where the government intercepted large amounts of people's online communications—

violated people's right to privacy. The ECtHR ruled that the way the UK was conducting

mass surveillance did violate privacy rights. It wasn’t that surveillance itself was completely

wrong; the Court recognized that governments need to protect national security. However, the

UK’s surveillance programs lacked proper safeguards—rules to make sure they weren’t

collecting more information than necessary or misusing the data. The Court said that:

 Bulk interception of communications can violate privacy rights if there aren’t enough

rules and protections in place.

 There need to be better safeguards to prevent abuse and to ensure that people's data

isn’t collected or used in ways that are unfair or unnecessary.

 Surveillance should be proportionate—meaning the government should balance the

need for security with protecting people’s privacy.

Freedom of Expression (Article 10) and Misinformation

Freedom of expression has also gained renewed attention in the era of social media, where

misinformation and hate speech pose significant challenges. The Delfi AS v. Estonia (2015)

case involved a news website held liable for defamatory comments posted by its users. The

ECtHR upheld Estonia's decision, emphasizing that digital platforms have responsibilities to

moderate harmful content, balancing freedom of expression with the need to prevent harm.

Conclusion:
The ECHR remains central to the EU's human rights framework, influencing both member

states’ domestic laws and EU-wide regulations. As global challenges evolve, particularly in

the realms of digital rights, migration, and security, the protection of human rights remains at

the forefront of both the ECHR and EU’s legal and political agenda.

 The Charter of Fundamental Rights of the European Union was proclaimed in Nice in
December 2000. It is now legally binding after signing of the Treaty of Lisbon, which
came into force on 1 December 2009
The fundamental basis of the European Union (EU) is built on the idea that any European

country can join the EU, but they must meet certain requirements. These requirements make

sure that the country respects democracy, human rights, freedom, and the rule of law.

1. Legal Requirements for Membership

To join the EU, a country must agree to follow all EU laws and principles. According to the

Lisbon Treaty (Article 49), any European country that respects the values of liberty,

democracy, human rights, and the rule of law can apply to become a member.

2. Copenhagen Criteria (1993)

In 1993, when many former communist countries wanted to join the EU, the EU set three

main conditions for them to meet:

Stable Institutions: The country must have strong systems that protect democracy, the rule of

law, human rights, and the rights of minorities.

Market Economy: The country must have a functioning economy that can handle competition

within the EU.

Obligations of Membership: The country must be able to follow EU rules and laws, and

support the EU’s goals. This means having a government that can put EU laws into practice.
Article 288 of the Treaty on the Functioning of the European Union (TFEU) explains the

main legal tools, or instruments, that the EU uses to carry out its work. These tools include

regulations, directives, decisions, recommendations, and opinions. Here’s what each one

means in simple words,

1. Regulations

A regulation is a law that applies to everyone in all EU countries. It is binding and must be

followed exactly as written by all EU member states. It applies automatically and

immediately, meaning all countries must follow it without changing anything.

2. Directives

A directive sets a goal that all EU countries must achieve, but each country can decide how to

reach that goal. It is binding on the countries it is addressed to, but it gives them flexibility on

how to apply it in their own national laws. For example, the EU might tell countries they

need to reduce pollution, but each country can choose how they want to do it.

3. Decisions

A decision is a law that is also binding but only for the specific people, companies, or

countries it addresses. If a decision names certain countries or organizations, only they have

to follow it.

4. Recommendations and Opinions

Recommendations and opinions are not binding. They are more like advice or suggestions

from the EU. Countries or individuals can choose to follow them, but they don’t have to.

In short, regulations must be followed exactly by everyone, directives allow flexibility in how

they are applied, decisions apply to specific people or groups, and recommendations and

opinions are just guidance with no legal force.

The concept of Direct Effect of EU law means that certain EU laws can be enforced by

individuals in national courts, not just by governments or EU institutions. This was first

explained by the European Court of Justice (ECJ) in the Van Gend en Loos case in 1963.

What Happened in the Van Gend en Loos Case?

In this case, a Dutch company called Van Gend en Loos was charged higher customs duties

when importing goods from Germany to the Netherlands. The company argued that this was

against Article 12 of the Treaty establishing the European Economic Community (EEC) (now

the EU), which said that member states cannot introduce new customs duties or increase

existing ones when trading with each other.

The Court’s Decision

In order to arrive at its decision, the ECJ drew heavily on its purposive method of in

interpretation relying not only on the wording of the treaties, but also on the spirit and aims of

the community.

The European Court of Justice ruled that:

EU law can create rights for individuals, which they can rely on in their national courts.

Article 12 was meant to directly affect people and companies, not just governments.

Therefore, Van Gend en Loos could use Article 12 in a Dutch court to challenge the increased

customs duty.

Judgement ECJ declared that the community constitutes a new legal order of international

law which creates both rights and obligations for the member states and also for individuals

(as citizens of member states and EU)

Community law provides not only member states with rights and obligations, but individuals

also and Such rights and obligations can be enforced by individuals before their national

courts.In other words, the ECJ provided that EC Law (which was renamed as TFEU under

the Treaty of Lisbon) has direct effects

This case laid the foundation for the idea that EU laws have "direct effect," meaning that

people can rely on them directly in their national courts without needing special approval

from their government.

To understand how EU law works, especially when it comes to individuals being able to use

it in national courts, the European Court of Justice (ECJ) has developed the idea of Direct

Effect. This means that under certain conditions, people and companies can directly rely on

EU law in their own country’s courts. Let's break it down in simple terms, starting with the

Van Gend en Loos case, which first set the rules for Direct Effect.

1. Direct Effect of Treaty Articles (Van Gend Criteria)

In the Van Gend en Loos case (1963), the ECJ established that individuals can use EU treaty

articles in national courts if certain criteria are met. These criteria for direct effect are:

Clear and precise: The law must be written in a way that is easy to understand and leaves no

room for interpretation.

Unconditional: The law must not depend on any further action or decision by an authority. It

should apply directly without needing any additional steps.

No further action needed: The law must not require the EU or a national government to take

any more steps to make it work.

If a treaty provision meets these three conditions, individuals can use it directly in their

national courts.
2. Types of Direct Effect

There are two main ways that EU laws, especially treaty articles, can have direct effect:

Vertical Direct Effect: This allows individuals to enforce their rights under EU law against

the state or public bodies. For example, if the government or a public institution violates an

EU law, individuals can go to court to defend their rights.

Horizontal Direct Effect: This allows individuals to enforce their rights under EU law against

other private individuals or companies. For example, in the Defrenne v. Sabena (1975) case,

an airline employee used EU law to challenge discrimination by her employer, a private

company.

3. Direct Effect of Regulations and Decisions

EU regulations are described as “directly applicable” under Article 288 of the Treaty on the

Functioning of the European Union (TFEU). This has two meanings:

Individuals can directly enforce regulations in their national courts.

Regulations automatically become part of national law, without needing to be approved or

passed by national governments.

Regulations and decisions must meet the Van Gend criteria (clear, unconditional, and no

further action needed) to have direct effect.

4. Direct Effect of International Agreements

This is a controversial area. Sometimes, international agreements between the EU and non-

EU countries may have direct effect, but only if the circumstances are right and the

agreement meets the Van Gend criteria.

5. Direct Effect of Directives

Directives are different from regulations because they require member states to pass national

laws to achieve certain goals. Normally, directives do not have direct effect until they are

incorporated into national law.

However, in the Franz Grad case (1970), the ECJ ruled that if a member state fails to

implement a directive by the required deadline, individuals can still rely on it in court to

enforce their rights—but only against the state or public bodies (vertical direct effect).

6. Indirect Effect

Even if a directive does not have direct effect, it can still have indirect effect, meaning that

national courts must interpret their laws in line with EU directives. In the Von Colson case

(1984), the ECJ ruled that national courts must do their best to interpret national laws in a

way that achieves the goal of the EU directive.

7. Supremacy of EU Law

The principle of Supremacy of EU Law means that EU law takes priority over national law.

This was confirmed in the Costa v. ENEL case (1964), where the ECJ ruled that if a national

law conflicts with EU law, EU law must prevail.

8. Direct Effect of General Principles of EU Law

The ECJ has also recognized that certain general principles of EU law, such as equality and

non-discrimination, can have direct effect. In the Mangold case (2005), the ECJ ruled that

these general principles must be respected by member states and can be enforced in national

courts, even if they are not part of specific EU legislation.

Competence in EU Law: Understanding the Concept and its Application

In simple terms, competence in EU law refers to the legal powers or authority the European

Union (EU) has to make decisions and pass laws in certain areas. The EU doesn't

automatically have powers—it only has the powers that the EU countries (Member States)

have given to it through treaties, especially the Treaty of Lisbon.

The Treaty of Lisbon laid down clear rules about who (the EU or the Member States) has the

power to act in different areas. These rules are based on the Principle of Conferral, which

means that the EU can only act where it has been given permission to do so by the treaties. If

an area isn't mentioned in the treaties, the power stays with the individual countries.

Let's break down the types of competence, principles that govern them, and their implications

in EU law:

1. Categories of Competence

The Treaty of Lisbon introduced three main types of competence that define the division of

powers between the EU and its Member States:

1. Exclusive Competence

2. Shared Competence

3. Supporting Competence

1.1. Exclusive Competence (Article 3 of TFEU)

When the EU has exclusive competence, it means that only the EU can pass laws and make

binding decisions in those areas. The Member States can only act if the EU specifically gives

them permission.

Key areas where the EU has exclusive competence:

  Customs Union (rules on goods crossing borders within the EU)

 Competition rules for the internal market

 Monetary policy (for countries using the euro)

 Common Fisheries Policy (fishing rules)

 Trade policy with countries outside the EU

 Conclusion of international agreements in specific areas

For example, when it comes to the Customs Union, only the EU can make decisions about

tariffs and import duties between Member States, preventing individual countries from

imposing their own trade barriers.

1.2. Shared Competence (Article 4 of TFEU)

In areas of shared competence, both the EU and the Member States can pass laws. However,

when the EU decides to act, it takes priority, and Member States can only act in areas where

the EU has chosen not to.

Key areas of shared competence include:

 Internal market (e.g., laws on businesses operating across EU borders)

 Agriculture and fisheries

 Environment (laws on pollution, climate change)

 Transport and energy policies

 Consumer protection

 Social policy in certain areas

An important point here is that if the EU doesn't use its competence in one of these areas,

Member States are free to act independently. This flexibility is a defining feature of shared

competence.

1.3. Supporting Competence (Article 6 of TFEU)

In areas of supporting competence, the EU can only help or support the actions of Member

States. It cannot make binding laws or change national laws in these areas. Instead, the EU's

role is limited to coordination and providing guidance.

Key areas of supporting competence include:

 Health care

 Education and culture

 Tourism

 Civil protection (e.g., disaster response)

 Industry

The EU, for instance, can create initiatives to improve education across Europe but cannot

force Member States to follow specific rules in this area.

2. Special Competence

There are some areas where the EU has special competence, especially in economic,

employment, and social policy, and in the Common Foreign and Security Policy (CFSP).

For instance:
  The EU helps coordinate the economic policies of Member States.

 It creates guidelines for employment policies.

 In foreign policy, the European Council (which consists of national leaders) and the

Council of the EU (ministers from each Member State) decide the direction, with

limited involvement from the European Commission or European Parliament.

3. Principles Governing the Exercise of Competence

Once the EU has been given the power to act in a specific area, it is still guided by two key

principles:

3.1. Subsidiarity (Article 5 of the TEU)

The principle of subsidiarity ensures that the EU only acts when it is necessary, and when

the goals cannot be effectively achieved by Member States acting on their own. For example,

if a problem (like climate change) requires a collective solution across Europe, the EU can

step in.

3.2. Proportionality (Article 5 of the TEU)

The principle of proportionality makes sure that the EU’s actions are not excessive. The EU

can only take action that is necessary to achieve its goals, without going too far. For example,

if the EU creates a new law, the law must be limited to what is strictly necessary to solve the

problem.

4. Competence Creep
Sometimes, the European Commission or other EU institutions may slowly expand their

powers beyond what was originally agreed by Member States. This is known as competence

creep. It happens when the EU starts taking actions in areas where its powers were not

clearly defined, but are implied based on existing powers.

For example, in the Tobacco Advertising Directive case (Germany v. European Parliament

and Council), the EU tried to ban tobacco advertising across all Member States, arguing it

was necessary for the internal market. However, the Court of Justice of the EU (CJEU)

ruled that the EU had overstepped its powers, as this ban went beyond what was necessary

for market regulation.

Conclusion

The division of powers (competence) between the EU and its Member States is central to the

functioning of the EU. The Treaty of Lisbon clarified these powers through three main

categories: exclusive, shared, and supporting competence, with additional special

competences in areas like foreign policy. The principles of subsidiarity and proportionality

act as safeguards to ensure that the EU only acts when necessary and does not overstep its

boundaries.

Understanding how these competences work helps explain the balance between EU-wide

decision-making and national sovereignty, a crucial aspect of how the EU operates.