fundamental rights in the administrative process

Fundamental rights in the administrative

processDr. Mariolina Eliantonio, LL.M.

Maastricht University

Outline1. Application of fundamental rights

by the administrative courts– EU human rights– ECHR human rights

2. Respect of fundamental rights by the administrative courts– EU human rights– ECHR human rights

1. Application of fundamental rights by the administrative courts

• EU human rights– In ECJ’s case law– In Charter–When applicable?• When EU law is at stake!

• ECHR human rights–Depending on the value of the ECHR in the

national legal systems

EU human rights: ECJ’s case law

• Treaty of Rome: focus on economic integration, no mention of human rights

• Stauder (1969): human rights are ‘enshrined in the general principles of Community law and protected by the Court’

• Rutili (1975): EU human rights are binding on the Member States

EU human rights: Charter

• Binding since Lisbon Treaty...• ... for EU institutions and for Member

States

• Article 51: Charter of Fundamental Rights is binding upon the Member States 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’).

EU human rights: Charter

When are EU human rights applicable before national courts?• ... when they are implementing EU law (ECJ’s

case law + Article 51 Charter) – What does it mean?

• When an administrative act is financed by the EU?• Only strict implementation?• If there is a connection between national act and

EU law?

• ECJ's case law: 2 phases– strict interpretation: fundamental rights may be

invoked against acts of public authorities when they apply EU law

– broad interpretation: fundamental rights must be respected by administrative authorities when they act within the field of EU law

• Conclusion – ECJ’s case law is vague– Article 51 did not clarify the issue

When are EU human rights applicable before national courts?

• From the perspective of HR protection, broad interpretation is desirable: national administrations act as EU administration when they act within the framework of EU law so HR binding when...– act applies EU law– matter is governed by EU law– aim of the measure is to fulfil EU obligations– act pursues the objective of an EU policy– act inhibits the achievement of an EU objective


• Role of national administrative courts?–Control whether the rights contained in

the Charter are violated by national administrative authorities when • they are acting within the scope of EU law• they are derogating from EU law

(Schmidtberger)


ECHR human rights

• Application and relevance depends on the value of the ECHR in the national legal systems– E.g. in Germany more reliance on

constitutional human rights– E.g. in NL strong reliance on ECHR and

intense application by courts

• EU human rights– In ECJ’s case law• Right to effective judicial protection

– In primary law– In Charter

• ECHR human rights–Article 6 ECHR• Applicability• Content

2. Respect of fundamental rights by the administrative courts

EU human rights: ECJ’s case law• Principle of national procedural autonomy– When enforcing EU law before national courts,

national procedural rules are applicable subject to…

– Principle of equivalence: procedural rules used to enforce European law should not be less favourable than those used to enforce national law

– Principle of effectiveness: procedural rules should not make it impossible or excessively difficult to enforce EC law in national courts

Right to effective judicial protection

Effective judicial protection• National procedural rules must respect

principles of equivalence and effectivess• Rules on…– Access to court (Borelli, Verholen)– Time limits (Santex)– Ex officio application of EU law (Peterbroeck, Van

Schijndel, Vandeweerd)– Interim relief (Factortame, Zuckerfabrik, Atlanta)– Evidence regime (San Giorgio)– …

• National administrative courts must set national procedural rules aside

EU human rights: primary law

• Article 19 TEU: Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law

EU human rights: Charter• Article 47 – Everyone whose rights and freedoms

guaranteed the law of the Union are violated has the right to an effective remedy before a tribunal...– Everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial tribunal previously established by law...– Legal aid shall be made available ... in so fas as

... necessary to ensure access to justice

ECHR human rights: Article 6• Article 6: fair trial– In the determination of his civil rights and

obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an impartial tribunal established by law– Is it applicable to administrative trial?–What does it entail?• Access to court• Fair trial

Is Article 6 applicable?• Proceedings for permission, licence or other act of a

public authority which forms a condition for the legality of a contract to be concluded by a private party (Ringeisen v. Austria)

• Proceedings which may lead to the cancellation or suspension by a public authority of the qualification for practising a profession or carrying on an economic activity (König v. Germany)

• Proceedings concerning the granting or revocation of a licence by a public authority which is required for setting up or carrying on a certain economic activity (Pudas v. Sweden)

• Exclusion for– disputes relating to tax law (Ferrazzini v. Italy)– admission and expulsion of aliens (Maaouia v. France) – civil service law (Pellegrin v. France)

The right of access to court

• Golder: access to court is implied in fair trial

• Airey: requirement of effectiveness• Le Compte: full jurisdiction of the court to

rule on the facts and on the law–However: restraint on factual review is

acceptable if full review has been carried out by the administrative authorities

The right to fair trial• Equality of arms– Each party must be given reasonable opportunity

to present his case under conditions which do not place him at a substantial disadvantage vis-á-vis his opponent (Kress v. France)

– Possibility to be informed and be able to challenge the reasons for an administrative measure (Hentrich v. France)

– Court appointed expert must be neutral (Eggertsdottir v. Iceland)

– Unequal time limits may be breach of equality of arms (Platakou v. Greece)

The right to fair trial

• Adversarial proceedings– Opportunity for the parties to have knowledge on

and comment on all evidence adduced or observations filed (Vermeulen v. Belgium)

Future prospects and challenges?• EU human rights: application– When are EU human rights applicable?– What is the added value of the Charter?

• EU human rights: respect– What is the added value of Article 19 TEU?– What is the added value of Article 47 Charter?– How to judge equivalence and effectiveness?– How to prevent discrimination?

Should we have a European Code of Administrative Procedure?

Every remark, question, comment or suggestion is welcome at

[email protected]

Thank you for your attention!

fundamental rights in the administrative process

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