Europe Day – and Charter References

>> Happy Europe Day!

>> Fourth reference to Charter of Fundamental Rights (plus an overview).

Today, the “continent will be lit up by a festival of music and colour across Europe”, commemorating the Schuman Declaration of 9 May 1950.

It could also be commemorating the growing importance of the Charter of Fundamental Rights.

In fact, Faith in Europe, a body in association with Churches Together in Britain and Ireland (
CTBI), is doing just that. In a statement for Europe Day, they write:

“A hundred years ago you could have driven your primitive motorcar from Brussels to Brindisi or Leipzig to Lisbon without an official asking who you were. Fifty years ago, after two devastating wars, you couldn't. Now you can. You don't even have to change your money on the way.

What has this to do with 'Faith in Europe'?

Our faith tells us that the teachings of the traditional religions, culminating, as we see it, in those of Jesus Christ, have done much to build up the trust and relationships which now link European countries and their peoples. Our witness depends on seeing all humankind as children of God.

We therefore welcome and value the Council of Europe's European Convention on Human Rights, and its Court which can make up for national deficiencies. We welcome the European Union's Charter of Fundamental Rights which follows the earlier document closely - we have no treaty to give it statutory force, but the European Court of Justice (in Luxembourg) uses it as a point of reference. And of course we welcome the UK Human Rights Act. ... ” (for full text of statement, see e.g.
this website).

Faith of Europe certainly keeps up with latest developments. The Court of Justice did not refer to the Charter of Fundamental Rights until June last year (
see this post), although, before, it was often referred to by the Court of First Instance (see e.g. this post) and the Advocates General.

Last week, in Advocaten voor de Wereld (
see this post), the Court already made its fourth reference to the Charter.

Following my post about the
third reference, I received a number of e-mails asking me for an an overview. So here it is (in chronological order):

1) Case C-540/03, Parliament v Council [2006].

>> Court rejected claim of European Parliament that it should annul the last subparagraph of Arts 4(1), (6) and 8 of Council Directive 2003/86/EC on the right to family reunification.


34 The Council observes that the Community is not a party to the various instruments of public international law invoked by the Parliament. In any event, those norms require merely that the children’s interests be respected and taken into account, and do not establish any absolute right regarding family reunification. Nor should the application be examined in light of the Charter given that the Charter does not constitute a source of Community law.

Findings of the Court (…)

38 The Charter was solemnly proclaimed by the Parliament, the Council and the Commission in Nice on 7 December 2000. While the Charter is not a legally binding instrument, the Community legislature did, however, acknowledge its importance by stating, in the second recital in the preamble to the Directive, that the Directive observes the principles recognised not only by Article 8 of the ECHR but also in the Charter. Furthermore, the principal aim of the Charter, as is apparent from its preamble, is to reaffirm ‘rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court … and of the European Court of Human Rights’.


58 The Charter recognises, in Article 7, the same right to respect for private or family life. This provision must be read in conjunction with the obligation to have regard to the child’s best interests, which are recognised in Article 24(2) of the Charter, and taking account of the need, expressed in Article 24(3), for a child to maintain on a regular basis a personal relationship with both his or her parents.

59 These various instruments stress the importance to a child of family life and recommend that States have regard to the child’s interests but they do not create for the members of a family an individual right to be allowed to enter the territory of a State and cannot be interpreted as denying Member States a certain margin of appreciation when they examine applications for family reunification.


2) Case C-411/04 P, Mannesmannröhren-Werke AG v Commission [2007]

>> Court dismissed appeal to set aside the CFI judgment in Case T-44/00, Mannesmannröhren-Werke AG v Commission.


32 Mannesmann also relies on the case-law of the European Court of Human Rights on the right to a fair legal process, which is laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). According to that case-law, a defendant must have the opportunity to challenge not only the authenticity of anonymous statements but also the credibility of the person protected by anonymity. Furthermore, that case-law confirms that even if the use of anonymous statements is permissible during the investigation stage of a procedure, such statements cannot be used as incriminating evidence against the accused.

33 The appellant also relies on Articles 46 and 47 of the European Union Charter of Fundamental Rights, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1), which correspond with Article 6 of the ECHR and guarantee the right to a fair legal process. It contends that, under Article 52(3), the Charter must be interpreted by the
courts in such a way as to ensure a level of protection which is not lower than that offered by the ECHR.


35. The Commission contends that this plea is inadmissible, since … Mannesmann criticise the Commission for having infringed the Charter, which was not proclaimed until 7 December 2000, whereas the contested decision is dated 8 December 1999.

(…) Findings of the Court (…)

45 In light of the foregoing considerations, the Court of First Instance was correct to hold:


50 In the light of all of the foregoing, the first plea must be rejected, without its being necessary to adjudicate on the question whether Mannesmann had invoked, in substance, the right to a fair legal process before the Court of First Instance or on the question whether it could rely in the present case on the Charter, which was proclaimed after the adoption of the contested decision. (…)

3) Case C-432/05, UNIBET (London) LTD v Justitiekanslern [2007]

>> Court held that principle of effective judicial protection did not require that national legal order provided for free-standing action


37. It is to be noted at the outset that, according to settled case-law, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19; Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 14; Case C-424/99 Commission v Austria [2001] ECR I-9285, paragraph 45; Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 39; and Case C-467/01 Eribrand [2003] ECR I-6471, paragraph 61) and which has also been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1).


4) Case C-303/05, Advocaten voor de Wereld [2007]

>> Court upheld Framework Decision European arrest warrant


45 It must be noted at the outset that, by virtue of Article 6 EU, the Union is founded on the principle of the rule of law and it respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and as they result from the constitutional provisions common to the Member States, as general principles of Community law. It follows that the institutions are subject to review of the conformity of their acts with the Treaties and the general principles of law, just like the Member States when they implement the law of the Union (see, inter alia, Case C-354/04 P Gestoras Pro Amnistía and Others v Council [2007] ECR I-0000, paragraph 51, and Case C‑355/04 P Segi and Others v Council [2007] ECR I-0000, paragraph 51).

46 It is common ground that those principles include the principle of the legality of criminal offences and penalties and the principle of equality and non-discrimination, which are also reaffirmed respectively in Articles 49, 20 and 21 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1).