Individual Rights in EU Law

After the current, introductory, part one, this book is divided into three parts. Part two will look at the issues of implementation, interpretation and application of European Union law rules, and the eventual impact of rules granting, or intending to grant, individual rights in those contexts. In part three, the notion of an individual right will be described from the perspective of adequate judicial protection. By looking at rights from the remedy side of the issue, the overriding question in this part is what it means for an individual to hold a Union law right. The hope is that this will help to cast light on what a Union law right actually is. The aforementioned parts culminate in the main part: Part four will look at the sort of rules and principles that grant rights and when individuals may avail themselves of the protection that comes with the position of right holder—or otherwise follows from the finding that a rule granting an individual right has been infringed. In part five, some concluding remarks of a more overarching nature will be made.

Though it may be possible today to rationalize the role of the notion of an individual right in European Union law, it may still be pertinent to ask what prompted the Court of Justice to first start speaking of rights.

The current part aims to give an overview of some aspects of the application of rules granting individual European Union law rights, i.e. the consequences of the fact that one is faced with individual rights, without going into eventual remedies for infringement.

Unlike regulations, directives are not directly applicable within the legal orders of the Member States, cf. Article 288(3) TFEU (Article 249(3) TEC(A), Article 189(3) TEEC). Directives are, nonetheless, a legal instrument for vesting individuals with rights. In order to equip individuals with rights via directives, however, each Member State must follow up the EU legislative initiatives with provisions that are binding on the courts in the domestic legal system. Otherwise individuals are left with no enforceable rights, unless they may point to some provision of the non-implemented directive which has ‘direct effect’. Equipping individuals with rights is, moreover, of little use if individuals are unaware of their rights. It would therefore seem reasonable that there be a line of judgments from the Court of Justice requiring provisions in directives, the end result of which entails the grant of rights, to be transposed into provisions of national law which are both binding and clear.

In addition to the well settled law that norms of European Union law are supreme and thus will prevail over conflicting national legislation, sufficiently clear, precise and unconditional provisions of Union law will in general be capable of producing direct effects. That is, they must by virtue of Union law be applied within a national legal order although they are not implemented by a national instance with legislative competence. This goes for a number of Treaty provisions which are not meant to be implemented and also applies to directives that have not been (or are improperly) implemented on expiry of the time limit for implementation. The phenomenon of direct effect also applies to some decisions, but not to regulations, as the latter are directly applicable within national legal orders by virtue of Article 288(2) TFEU (Article 249(2) TEC(A), Article 189(2) TEEC).

Part two has aimed to illustrate some of the consequences of individual rights. None of these are particularly characteristic of rights however and thus they do not significantly improve our general understanding of the notion of individual rights in European Union law. Still, they form part of the picture, with the Court of Justice clearly underscoring how crucial individual rights are in the Union legal order.

This part will seek to give an overview of the notion of a European Union law right from an external perspective, taking as our starting point not the right, but judicial protection of it. Hence, it is a sort of functional analysis; the initial aim is to shed light on the role rights actually play within the Union legal order, by looking at how the remedy is linked to the infringed right in order to better understand the notion of rights as such. As the purpose of this exercise is to provide some background to the main issue of when an individual must enjoy the protection that comes with the position as right holder, it is not a complete presentation of remedies for breach of European Union law.

Article 263(1) TFEU (cf. Article 230(1) TEC(A), Article 173(1) TEEC) gives the Court of Justice the competence to review the legality of European Union acts. The Member States, the European Parliament, the Council and the Commission are all potential applicants, according to Article 263(2) TFEU, and need not show any particular reasons for a specific application, i.e. where the conditions in the first paragraph are fulfilled, they must be granted standing. Article 263(3) TFEU concerns the Court of Auditors, the European Central Bank and the Committee of Regions, all of which may have standing when acting to protect their prerogatives. Individuals, for their part, will have to rely on Article 263(4) TFEU, under which any legal or natural person may institute proceedings ‘against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.

Part Three began with a more abstract overview of the topic of rights and remedies. This included some considerations on the different functions of various remedies, as well as on the effects that remedial rules and the actual granting of remedies may be considered to have on the rights those remedies serve to protect.

The foregoing parts have demonstrated the relevance of the notion of individual rights in European Union law. The key issue in the following part will be to determine whether or not rights are conferred upon individuals.

Given that the notion of rights is flexible, a definite ‘taxonomy’ of rights can hardly be made. This is true of any notion of protected interests as they are found under national laws. Moreover, the complexity—how rights can be general or specific; claimable against the European Union, Member States or individuals; and how some are negative (freedoms) and others positive (claims)—makes it, as scholars have already noted in the context of Union law rights, ‘difficult to detect a common thread in all rights discourses–fundamental rights, civic rights, citizenship rights, ordinary (Hohfeldian) rights from contract or legislation’. Neither is it necessary, as there are no legal consequences to be drawn from a categorization of individual Union law rights as such. But it may prove useful to illustrate precisely the diversity and plurality, by providing a brief typology including at least some groups of rights. Before doing so, some remarks should be made on how different types of rights serve slightly different roles.

Having looked at different sources of rights, different types of rights, and how to determine whether legal provisions confer rights upon individuals, it is time to turn to the issue of protection. Our first question will concern the protective scope of rights: Who are the beneficiaries of the right (the ratione personae) and what is the beneficial position (the ratione materiae)?

The previous chapter dealt with the main issue of personal and material scope. As demonstrated, personal and material scope must be assessed by way of interpretation; the key questions are simply who the legal measure at issue intends to benefit and with respect to what exactly.

Part four is the main part of this volume. Looking, first, at the legal sources from which individual rights may be derived, the most interesting feature was arguably the fact that written sources—primary and secondary law, as well as the Charter—are the primary source of rights, but may be supplemented by general principles of European Union law, some of which call for relatively broad policy assessments, particularly the principle of legitimate expectations. This principle is, naturally, an exception to the rule that unless one may demonstrate that one is a right holder by virtue of specific legislative or administrative measures, one does not hold rights. Although the principle of legitimate expectations is, linguistically, said to confer rights on individuals, these rights depend on a very case-specific assessment and, hence, the principle represents an approach not incomparable to more general notions of interests. Relating this to the conclusion in part three—that the rights notion in Union law is, above all, a matter of determining what should be protected interests in tort—this implies that the issue of protected interests is, in fact, more flexible than what may be suggested by the use of rights language. At times well-founded interests may so-to-say morph into rights, where they qualify as a legitimate expectation.

European Union law without further ado recognizes classical subjective rights. These sorts of rights often originate in national law and are characterized by the way they give the right holder a monopolistic position or at least very squarely place the legal ability to decide and dispose of, e.g., an object with the right-owner. The most important examples are property rights, including intellectual property rights, and the rights to one’s own personal integrity. With respect to property rights, the individual right holder will retain his right until it is eventually transferred—normally voluntarily. Some subjective rights, such as those to personal integrity, e.g. life and health, are not even alienable. Of interest with respect to classical subjective rights, is how they originate in national law and how they may differ between national legal orders. Union law must, on the one hand, operate with an autonomous concept of, e.g., a ‘property right’, yet on the other hand, it does generally not itself provide any classic property rights, such as to ownership of land. This is similar to how rights function under the European Convention for the Protection of Human Rights and Fundamental Freedoms, in line with which the Charter will often have to be interpreted, cf., Article 52(3) of the Charter.

With respect to allegations that the Court of Justice uses ‘rights language’ in order to justify intrusions into national legal orders and hence refers to rights wherever this is considered beneficial for such purposes, it is submitted that this seems a little exaggerated. At least since 1993/1994—when the Member State liability regime was established with the rights notion as one of its basic criteria—the Court seems to have been fairly consistent in speaking of individual rights where it has been faced with rules which are capable of being enforced by individuals via the Union law of tort and restitution. While one should not underestimate what has been coined as ‘the legitimating force and the integrating force’ of the ‘language of rights’ in Union contexts, ‘individual rights’ are often not much more than what might be labelled—somewhat more trivially—‘protected interests in tort’.

There is no doubt that European Union law provisions which grant rights to individuals have a greater impact on national legal orders than any other provisions of Union law. As more and more consequences are derived from the notion of an individual right, i.e. as the right to judicial protection is gradually given more substance, one may in theory imagine this as ultimately leading to scepticism and a certain reluctance on the part of Member States to vote new legislation that entails the grant of rights. One commentator has already pointed to how rights may possibly have been ‘evacuated from directives’ as a consequence of the introduction of the Member State liability regime. There seems, however, to be little, if any, support for this idea.