Summary of the summaries 1

1. Fundamental rights protection in Europe: three levels of

protection must be regarded, the national, supranational
(=EU) and conventional level (=ECHR). They form a
functional unit.

2. You should know:
a) What is a national Constitution? The basic legal order of a
State. The constitution has two parts: institutional part and value
(=FR) part. Who has the constitution-making power? the people
(peoples sovereignty). Reform of the constitution..
b) What is the EU?
Supranational organization, 28 member states, with many
competences. EU law: primary law (EU treaty, Treaty on the
functioning of the EU, FRCh), secondary law: regulations (with
direct effect in the member states, the most important legal act,
functionally a Europewide piece of legislation), directives (have to
be implemented by the member states within a certain time
limit). The legal acts are, to a great extent, voted by two
institutions: European Parliament and the Council of ministers in
co-decision. The proposals for the legal acts come from the
Commission. The Court of Justice of the EU (in Luxembourg)
safeguards the compatibility of the legal acts with EU primary
law.

c) What is the ECHR?
An international treaty binding 47 states, the member states of
the Council of Europe: Convention and additional protocols.
Violation of the rights can be brought before the Strasbourg
court, the European Court of Human Rights, by individual
complaint, after the exhaustion of the national remedies.
The ECHR is called by the jurisprudence a living instrument and
a constitutional instrument of the European public order.
2. FR as rights of defense against restrictions of freedom by the
State (subjective rights, which can be invoked directly before
the courts)
FR are also objective values and have impact on civil law
(direct or indirect impact); indirect impact: general clauses of
civil law (for example good-faith) have to be interpreted in the
light of the FR
FR: no pretenses for financial aid
FR oblige the legislator to adopt laws which protect the values of
the FR (life, health, etc.) against violations from side of other
private persons
3. Restrictions of FR: two types of restrictions: a)authorization of
the legislator by the constitution to restrict; limit of such a
restriction: the very essence of the FR; proportionality (what
are the elements of proportionality?) b) FR, for which such an
authorization of the legislator does not exist, are limited by
other constitutional values (other FR or other constitutional
values) (=inherent limits).
Conflicting FR have to be balanced; the solution shall bring the
optimum for both sides

4. What does substantive and functional efficiency of FR mean?
Substantive efficiency: completeness of the protection, no gaps
Functional efficiency: limited restrictions (see above)

5. FR have to be interpreted, as to the protection, in a large way
(effet utile), as to the restrictions, in a narrow way
(restrictions are exceptions!)

6. Which courts are competent for actions concerning the
fundamental rights? All the courts, administrative courts as
well as constitutional courts. In some countries (Germany,
Spain, Austria, Czech Republic, Slovakia public) there is the
possibility to bring an individual complaint for violation of FR
before the constitutional court. Regularly, this requires that
the complainant addresses to the lower courts before
(exhaustion of remedies).
7. What are the differences between the ECHR and the EU FRCh?

a) ECHR: Council of Europe - FRCh: European Union
b) origin 1950/in force 1953 - drafted in 2000, in force 2009
c) small FR text + additional protocols - one text, aver
50 art.
d) Eur.Court HR/national courts CJEU/Tribunal/national courts
e) Interpretation : effet utile ; protection : broad,
comprehensive ;restrictions narrow (exceptions) - true for
both !
f) Restrictions : by law ; proportionality ; essence of FR: true
for both!
ECHR: specific formulations: what is necessary in a democratic
society =urgent social needs.specific reasons if restrictions
concern personal sphere

g) EU FRCh: 7 chapters..which contents?
Chap. 3 on equality modern?
Chap. 4 on solidarity: social rightscan social rights be
invoked directly? Is the combination classic rights and social
rights in one international document traditional or new?
Chap. 5: who is a EU citizen?
Chap 6: it is drawn from .?
What is the right to good administration? Art. 41 FRCh