BASIC INFORMATION ABOUT THE COURSE
Fundamental Rights in the European Union leaflet
Elearning platform MERLIN (log in using AAI identity)
https://moodle.srce.hr/2018-2019/?lang=en
TIME AND VENUE
The first lecture starts on 18 October 2018!
Lectures takes place every Thursday from 13.00-15.00, Cirilometodska 4, classroom no. 7, second floor
LECTURER
Izv. prof. dr. Snježana Vasiljević
Email: svasilje@pravo.hr
GUEST PROFESSORS:
Guest lecturer to be confirmed
COURSE REQUIREMENTS
1) take-home open-book exam (essay on a given topic or solving of a hypothetical case) - 60% of the grade
2) participation in "online" and "in class" discussions; individual or group presentation - 30%
3) regular attendance - 10% of the grade
EXAM DETAILS:
The exam will be uploaded on the course website on the date of the exam. You are supposed to send your answers in 48 hours. This means you have 48 hourse for writing the answers. Any answer received later than the stated time shall not be taken into consideration. Your answers should be computer-typed and should not exceed 4 pages (cca 7200 characters). They should be sent to the following mail address: svasilje@pravo.hr If for any reason this mail address does not work, you can send your replies to: snjezana.vasiljevic@gmail.com
You are allowed to use books, articles and internet resources you find relevant, but you are not allowed to copy/paste sentences you find there. Whichever source you use, you must respect the rules concerning plagiarism and if you use an idea which is not your own, you must quote the source. Equally, you are not allowed to consult each other or any other person as to the answers to be offered.
Course units
Unit 1 – Introduction - Fundamental rights in the EU and global arena (2 teaching hours)
Objective: To develop understanding how and why is the European Union bound by international human rights; familiarizing students with the development of fundamental rights law in the European Union and the role of the EU in the protection of fundamental rights in global arena.
Reading:
G. de Búrca, ‘The Evolution of EU Human Rights Law’, in: Craig/de Búrca, The Evolution of EU Law, 2nd edn, OUP (2011), Chapter 16
M. Freeman. 'Order, Rights and Threats: Terrorism and Global Justice', in R. A. Wilson, Human Rights in the 'War on Terror', Cambridge University Press (2005)
Unit 2 – Development and significance of fundamental rights in the EU (2 teaching hours)
Objective: To understand the nature of attributed powers of the EU and the importance of attribution in context of fundamental rights; understanding in what respect does the EU affect protection of fundamental rights within the framework of EU law; understanding the emergence of fundamental rights in the case-law; understanding the role of fundamental rights in the establishment of the internal market
Reading:
Pre-Charter CJEU cases on fundamental rights as general principles:
Case 11/70 Internationale Handelsgesellschaft
Case 4/73 Nold
CJEU cases on the application of EU fundamental rights in the MS:
Case 5/88 Wachauf
Case C-260/89 Elliniki Radiophonia Tiléorassi AE (ERT)
Case 29/69 Stauder v City of Ulm
S. Smismans, ‘The European Union’s Fundamental Rights Myth’, 48:1 (2010) JCMS, 45-66
P. Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’, 39 (2002) CMLRev 945-994
Unit 3 - Fundamental Rights v Fundamental Freedoms (2 teaching hours)
Objective: understanding the relationship between the EU’s fundamental freedoms (i.e. the free movement of goods, workers, and capital, freedom of establishment and freedom to provide services) and fundamental rights; understanding and discussing the aim of the Article 51 (1) CFR and the ERT line of case law, which was recently confirmed in Pfleger; understanding and discussing clashes between fundamental rights as became evident in Sky Austria before tackling the thorny question of whether fundamental rights can be used to justify derogations from fundamental freedoms.
Reading:
CJEU cases:
Case C-112/00 Schmidberger Internationale Transporte und Planzuge v. Austria
Case C-36/02 Omega Spielhallen und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn
Case C-159/90 SPUC v. Grogan – NB Opinion of AG Van Gerven
Case C-438/05 Viking Line
S. A. De Vries. “Balancing Fundamental Rights with Economic Freedoms According to the European Court of Justice”, Utrect Law Review (2013)
J. Morijn. "Balancing fundamental rights in Uninon law: Schmidberger and Omega in the light of the European Constitution", European Law Journal, 12 (1): 15-40 (2006).
Unit 4 – The Charter of Fundamental Rights (2 teaching hours)
Objective: understanding the internal dimension of EU fundamental rights; focusing on the EU Charter of Fundamental Rights; understanding and discussing a number of doctrinal questions, e.g. implication of the applicability of the Charter in the Member States; applicability of the Charter in private relationships (CJEU case law); limits to the rights guaranteed in the Charter; difference between rights and principles.
Mandatory reading:
Charter of Fundamental Rights of the European Union
Available at: http://www.europarl.europa.eu/charter/pdf/text_en.pdf
Optional reading:
Article 52 CFR - horizontal effect and rights v principles
Joined Cases C-92/09 and 93/09 Schecke
Case C-144/04 Mangold v. Helm
Case C-555/07 Kücükdeveci v. Swedex GmbH&Co KG
Unit 5 - Equality & Non-discrimination principle (2 teaching hours)
Objective: methodological and conceptual understanding of modern anti-discrimination law; examining the application of the non-discrimination principle before European (case law of the CJEU and ECHR) and the national courts; understanding critical approaches to European anti-discrimination law, scope and limits of its implementation; examining the causes of racial and religious discrimination, limitation of minority rights and invisibility of intersectional discrimination.
Reading:
CJEU case:
Case C-54/07 Feryn
ECtHR cases:
Thlimmenos v. Greece, Application No. 34369/97
D.H. and others v. Czech Republic, Application No 57325/00
Nachova & others v. Bulgaria, Application No 43577/98 & No 43579/98
Abdulaziz, Cabales, and Balkandali v. UK, Application No 9214/80; 9473/81; 9474/81
Leyla Sahin v. Turkey, Application No 44774/98
S. Vasiljević, “Intersectional Discrimination: Difficulties in Interpretation of European Norm”, in M. Thiel & E. Prugl (eds.), Diversity and European Integration, New York: Macmillan/Palgrave, (2009).
E. Ellis & P. Watson, European Ani-discrimination Law, OUP, (2012), Chapter 4.
Unit 6 - Human Rights in the External Policies of the Union
Objective: The focus of this Unit is to discuss counter-terrorism policies, the rise of new anti-democratic regimes, the management of surveillance, migration and refugee flows are all areas which pose new challenges for the EU as a promoter and an implementer of international norms. Multiple crises at home and in the EU’s immediate neighbourhood have exacerbated the perception of tensions between human rights promotion and other priorities – such as security, diplomatic relations or trade.
Reading:
Unit 7 - Freedom of expression and hate speech in a digital age (2 teaching hours)
Objective: understand and discuss the application of CFR provision in the practice. In the field of internet-related activities and data protection at large; examining whether there is a threshold for privacy in Europe defined by the ECtHR, is there a European consensus on the topic, and what kind of violations of this right are found by the Court; discussing whether the CJEU falls in line with the ECtHR with respect to right to privacy (considering the «right to be forgotten»), and what the CFR and EU secondary sources say about the right to privacy in the EU, and what is the regulatory approach to data protection in the EU; understanding points of converging and diverging concepts of privacy within the Union (EU regulation and CJEU case law) and Europe (EctHR case law and margin of appreciation).
Reading:
CJEU Case C-131/12, Google Spain, SL, Google Inc v Agencia Espanola de Proteccion de Datos
EctHR cases:
Von Hannover v. Germany (II.), Application No. 40660/08 & 60641/08
Aleksey Ovchinnikov v. Russia, Application No. 24061/04
Malone v. United Kingdom, Application No. 8691/79
Klass v. Germany, Application No. 5029/71
K. Eltis, ‘Breaking through the Tower of Babel: A Right to be Forgotten and How Trans-Systemic Thinking Can Help Re-Conceptualize Privacy Harm in the Age of Analytics’ (2011) 22 Fordham Intell. Prop. Media & Ent. LJ 69
Unit 8 - Multi-level protection of fundamental rights (2 teaching hours)
Objective: understand and discuss the dual nature of fundamental rights protection: national constitutions – EU law; examining the relationship between national fundamental guarantees and those set out in the Charter.
Reading:
CJEU cases:
Case C-399/11 Melloni
Case C-617/10 Åkerberg Fransson
Tribunal Constitucional (Spain) Judgment 26/2014, of 13 February 2014
L. Besselink, The parameters of constitutional conflict after Melloni, 39 ELRev (2014) 531
Unit 9 - The Role of the Fundamental Rights Agency (2 teaching hours)
Objective: understand and discuss the role of the Fundamental Rights Agency
Unit 10 - The relationships between the Union and the Council of Europe (2 teaching hours)
Objective: understanding the external dimension, which is the relationship between the EU and the European Convention on Human Rights; discussing the potential conflict between European and International Human Rights Law, more precisely the clash between fundamental rights and UN Security Council Resolutions, the responsibility of EU Member States before the European Court of Human Rights and its impact on both the EU and the ECHR systems.
Reading:
The EU Member States before the ECtHR Cases:
Case Matthews v. United Kingdom [GC], Application No. 24833/94, ECHR 1999-I
Case Bosphorus v. Ireland [GC], Application No. 45036/98, ECHR 2005-VI
Case Michaud v. France, Application No. 12323/11
Kokkelvisserij v. Netherlands, Application No. 13645/05
T. Lock, Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights, 10 HRLR, 2010, 529-545