Tag Archives: Charter of Fundamental Rights

The Government’s Great Repeal Bill: How the exception relating to the Charter of Fundamental Rights of the European Union will impact on the protection of Human Rights in UK

Introduction

 

On 13 July 2017 the Government of the UK published the long-awaited Great Repeal Bill, a single legislative measure which is planned to enter into force in March 2019, when the two-year Brexit negotiation process comes to an end. In brief, the bill will revoke the European Communities Act of 1972 and transpose European Union (EU) law, ‘wherever practical’, into UK law. Any European Court of Justice’s case law issued until March 2019 will also acquire the legal strength and authority of a UK Supreme Court’s decision.

Although Parliament will be able to vote on it no sooner than next autumn, the publication of the Bill has already resulted in a great amount of criticisms, above all, on the exclusion of the Charter of Fundamental Rights of the EU (hereafter, ‘the Charter’) from the application of the Bill, pursuant to its section 5 (4). This post first argues that the Charter, as many EU laws, is currently part of UK domestic law, thanks to section 2(1) of the European Communities Act 1972; which contradicts the Government’s stance in this respect; then, it argues that after Brexit, and with regard to those cases currently governed by EU law, the exclusion of the Charter would diminish the level of protection of human rights in the UK. This notwithstanding the European Convention of Human Rights (ECHR), incorporated in UK law via the 1998 Human Rights Act will still be enforced, but it argues that the ECHR will not grant the same human rights protection.

 

The Charter of Fundamental Rights of the European Union and the European Convention of Human Rights

 

In 2000, at the Nice European Council, the EU Members States adopted the Charter of Fundamental Rights of the EU, which in some respects is broader than the ECHR in that it enlists, in addition to civil and political rights, economic and social and societal rights. In 2009, the Charter became binding pursuant to article 6(1) of the Treaty of Lisbon, which assigned to the Charter ‘the same legal value as the Treaties.’ EU Member States have a duty to observe it only in application of the EU law, namely: when a national legislation transposes an EU directive; 
a public authority applies EU law; or a national court applies or interprets EU law.

 

The Treaty of Lisbon, under article 6 (2), provides that the EU “shall accede” to the ECHR. While the accession has not taken place yet, all EU institutions and Member States are in any case obliged to interpret the Charter in light of existing jurisprudence of the ECtHR. Under Article 52(3) of the Charter, States have a legal obligation to give the same meaning and scope to the rights of the two instruments, insofar as they correspond.

 

On the applicability of the Charter to the UK

 

In Lisbon, Protocol 30 to the treaty related to the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom was adopted. This Protocol generated a significant confusion with respect to the legal effects on the UK. Some have argued that this implied a sort of opting out, so that the Charter has no legal value in the UK. Others embraced an opposite view, so that the Charter could have created new justiciable rights. To sort out this controversy, in 2014 the European Scrutiny Committee of the House of Commons published a report with the evocative title of ‘The application of the EU Charter of Fundamental Rights in the UK: a state of confusion’. The Committee concluded that the Protocol had reaffirmed that the Charter has legal strength in so far as all national authorities had to apply and interpret EU law, but it did not create new independent rights. In this respect, the Charter is directly effective in the UK, by virtue of Section 2(1) of the European Communities Act 1972 which in its relevant parts reads as follows:

 

‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly'[emphasis added].

 

The Committee indeed recommended that, in order to disapply the Charter from the UK, ‘primary legislation be introduced by way of an amendment to the European Communities Act 1972’. Therefore, since the Charter has the same legal value as the Treaties, with respect of any EU law, it is automatically part of the UK domestic law, pursuant to the 1972 Act of Parliament. In fact UK Courts have often made reference to the Charter and checked its compatibility with the EU law as implemented in UK.[1] Furthermore, in 2013 the Grand Chamber of the Court of Justice of the EU held:

 

‘where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised’ [emphasis added].

 

Consequently, it is surprising that under Section 5(4) of the Great Repeal Bill, ‘[t]he Charter of Fundamental Rights is not part of domestic law on or after exit’ [emphasis added].

 

On the protection of fundamental rights provided by the Charter and the ECHR

 

After Brexit, as provided by the Great Repeal Bill, any public authority or national court in the UK could keep on applying or interpreting what was originally EU law, as this would become, ‘wherever practical’, UK law. However, so far, the relevant EU law has been interpreted in the case law of the Court of Justice of the EU in light of the Charter. If the Charter were not applicable to the UK any more, this might result in then-former EU law being significantly different from its ‘original’ version at the moment of its transposition; furthermore, its interpretation would be left to decisions to be taken on a case-by-case basis. These two factors taken together might have serious consequences in respect to the certainty of the law.

Concerning the application of the law, as far as the rights overlapping with the ECHR are concerned, this would result in a different kind of protection. Indeed, those civil and political rights provided by the Charter, in compliance with one of the most fundamental principles of the EU law, have a direct effect in the UK as many EU laws do. But if the Charter had no effect in the UK after Brexit, victims of human rights violations could only rely on the ECHR. Yet, under section 6 of the Human Rights Act 1998, while ‘[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right’, this does not apply to an act if

 

—(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

Thus, the kind of protection provided by the ECHR is not comparable to what people in the UK currently have in the application of EU law, thanks to the Charter and the European Communities Act 1972.

The same kind of reasoning would a fortiori apply to all those rights that are not protected by the Human Rights Act, including many economic and social rights, when they already are justiciable rights in the UK and in the application of EU law. Indeed, while it is true that the Charter did not add any new justiciable right, it is currently relevant when it comes to verify whether any EU law is compatible with it; to the contrary, domestic law (as all former EU legislation will become after the Great Repeal Bill is adopted) granting the same rights will not prevail over conflicting statutes.

 

Conclusion

 

On 13 July 2017 the Government of the UK published the Great Repeal Bill, which is going to be discussed in Parliament no sooner than next autumn. Section 5(2) of the Bill, which is meant to enter into force when the UK actually leaves the EU, provides for the Charter of Fundamental Rights of the EU not to be considered domestic law in the UK at the moment of Brexit, nor after it. This post has shown how the Charter is currently part of UK domestic law, thanks to Section 2(1) of the European Communities Act 1972. It has also been argued that, should the Bill enter into force as it stands at the moment, there may arise a problem in terms of the certainty of the law because, lacking the possibility of making reference to the Charter when interpreting and applying it, former EU law would already miss something at the moment of its transposition and national authorities would be left with the burden of filling the gaps it would leave. As for the protection of fundamental rights in the UK, this might be subjected to a considerable change too. Indeed, concerning those civil and political rights that are also provided by the ECHR, national authorities are bound not to give priority to the Human Rights Act, incorporating the ECHR in the UK system, when this is in conflict with national legislation. Thus, the protection of these rights, when violated in application of a norm incorporated by the then former EU law, will be left to a different, less incisive, kind of remedy than that offered by the Charter (and many EU laws!) at present. This would be a fortiori true with regard to those rights, including economic and social rights, which are not protected by the Human Rights Act.

[1] See, for instance, [2017] EWCA Civ 431, [2017] EWCA Civ 397 at 74; [2017] EWHC 1174 (Admin) at 100-101; [2017] EWHC 931 (Admin) at 59; [2017] EWHC 577 (Admin) at 38; [2017] EWCA Civ 35; [2017] EWCA Civ 41 at 136; [2017] EWCA Civ 243 at 1; [2017] EWHC 331 (Admin) at 17; [2017] EWHC 827 (Admin) at 30; [2016] QB 1003 at [99]; [2017] CAT 9 at 80; [2017] UKUT 125 (IAC) at 34; [2017] UKFTT 167 (TC) at 435; on the Charter not conferring new rights nor expanding those rights stemming from EU law, see, e.g., [2017] EWHC 695 (QB) at 13-16; on the disapplication of a national measures conflicting with the Charter see, e.g., [2017] EWCA Civ 121 at 60; [2015] EWCA Civ 311, [2015] 3 WLR 409. Interestingly, the First Section of the ECtHR has recently reaffirmed the legally binding nature of the Charter in a case against the UK.May

 

 

 

 

 

 

 

 

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Article 21 of the Charter of Fundamental Rights vs the national public interest in prohibiting age discrimination (Directive 2000/78): Hütter and Schmitzer cases

Introduction

Article 21 of the Charter of Fundamental Rights (CFR) on “Non-discrimination” embraces a positive task for the Member States to eliminate anything which produces unlawful distinctions in society or concrete hurdles towards achieving equality. [1] In 2009, after the entry into force of the Lisbon Treaty, the Charter became a legally binding catalogue of fundamental rights within the EU legal order.[2] The Preamble of Directive 2000/78, at point 6, cites the Charter as a legitimating source for combating discrimination against elderly people. Thus, the relationship between the Charter and Directive 2000/78 on “Equal Treatment in Employment and Occupation” has been understood as a link between ‘legitimacy’ and ‘potency’[3], and it became particularly relevant by virtue of the Charter’s new legal status.

The equality approach embedded in article 21 CFR, which prohibited any discrimination on the basis of the listed grounds, is recalled in article 2 of Directive 2000/78, which defines how the “principle of equal treatment” needs to be interpreted within the boundaries of the Directive and particularly in accordance with article 1.[4] The Directive, however, at article 6 incorporates a contradiction. In fact, article 6 allows certain age discriminations, by considering ‘lawful’ both direct discrimination (when one person is treated less favourably than the other in a comparable situation) and indirect discrimination (an apparently neutral practice which can create disadvantages). According to article 6, such differences can be objectively justified only by a legitimate aim and the means of achieving that aim needs to be appropriate and necessary. Thus, while Article 21 provides a broad but unequivocal legal framework for prohibiting discriminations, articles 2 and 6 of the Directive 2000/78 respectively provide  both the grounds on which discrimination is prohibited and the grounds on which age discrimination can be justified.  Such duality means, Member States often face the uncertainty of what can objectively justify age discrimination.

Two notable Austrian cases, decided by the European Court of Justice (hereinafter: the Court), demonstrate how article 21 CFR and article 6 of Directive 2000/78 should be mitigate by the principle of proportionality, which requires an adequate balance between a rights provision and a state or public interest. The cases are: David Hütter v Technische Universität Graz[5] and Schmitzer v Bundesministerin für Inneres.[6]

Case law

1) The Hütter case and article 6 of Directive 2000/78

According to article 6 of Directive 2000/78, a justification for difference of treatment must be “objective”. This means that it should be supported by a legitimate aim within the context of national law and the means to achieve such legitimate aim must be “appropriate and necessary”. The legitimate aims listed under Article 6 include: legitimate employment policies, labour market and vocational training objectives. Indeed, under article 6, differences of treatment may include “minimum conditions of age… for access to employment or to certain advantages linked to employment”.

Mr Hütter, who worked as a public servant under Austrian law, was entitled to be paid in accordance with the length of his service. However, the law prescribed that the time he had spent working or training before the age of 18 was not to be included in the calculus. Consequently when, Mr Hütter, completed a period of apprenticeship as a laboratory technician with Technische Universität Graz (TUG), he was recruited at a lower incremental pay point compared to a female colleague in materially similar circumstances, but only 22 months older. The age limit imposed by Austrian law (Vertragsbedienstetengesetz ‘the VBG’) determined an unlawful direct discrimination. The TUG argued that the discrimination was justified by legitimate aims: to ensure that those who had pursued a general secondary education would not be treated less favourably than those who had pursued vocational qualifications; and to promote entry into the labour market for young people.

Mr Hütter brought a claim before the Landesgericht für Zivilrechtssachen Graz (Graz Regional Court for Civil Matters). He sought the payment of compensation equivalent to the difference in treatment he had received due to his age. He considered the difference in treatment to be unjustified and in breach of both Austrian Law and Directive 2000/78. That difference in treatment corresponded to a sum of EUR 69.60.  On the possibility to justify the discrimination suffered by Mr Hütter the ECJ (but he took the claim to Graz) expressed the following opinion:

National legislation which…excludes periods of employment completed before the age of 18 from being taken into account for the purpose of determining the incremental step at which contractual public servants of a Member State are graded, is incompatible with Articles 1, 2 and 6 of Directive 2000/78”.

This declaration motivated a subsequent amendment on Austrian law.

2) The Schmitzer case

The Amending Law apparently solved the incompatibility with Directive 2000/78, by modifying with retroactive effect the wording of Paragraphs 8 and 12 of the GehG (the Law on Salaries of 1956, Gehaltsgesetz) and acknowledging as full work experience the work period before the age of 18. Since then this is now taken into account for the purpose of determining the advancement reference date. Clearly, after the ECJ’s decision in Hütter the financial impact was considerably relevant for the Austrian State. In order to mitigate the financial impact, the Amended Law stated that those who suffered discrimination under the previous system could make an application to switch to the new system. However, in Schmitzer case it was argued that national legislation neutralises the advantage resulting from the inclusion of periods before the age of 18, also placing at a disadvantage only the civil servants disadvantaged by the previous system. In fact, the extension to the periods for the advancement reference date is likely to apply to them alone. Consequently, the adverse effects of the system existing prior to the Amending Law have not ceased entirely for civil servants.

Mr Schmitzer brought an action before the Verwaltungsgerichtshof (Administrative Court), challenging the decision of the Bundesministerin für Inneres which turned down his request for a review of his remuneration status under Paragraph 8 of the GehG, in the version prior to the Amending Law. The Schmitzer case was brought before the ECJ for a Preliminary Ruling which clarified how the “submission of a request by each interested party, as well as those relating to the extension of advancement periods” served “objectives of procedural economy, of respect for acquired rights and of the protection of legitimate expectations”. Mr Schmitzer, had  worked as a civil servant before turning 18,  claimed that the Amending law was still contrary to Directive 2000/78/EC, as it ingrained the effect of the original law. Thus, the ECJ focused on whether this difference in treatment could be justified in the light of article 6.

The Austrian government argued that the legitimate aim pursued by the Amending law was a “budgetary consideration”. The ECJ considered that although budgetary consideration could underpin a social policy of a Member State, it cannot constitute a self-standing legitimate aim within the meaning of article 6. For this reason, such age-based difference in treatment is not objectively justified as appropriate and necessary.

Conclusion

In the Hütter case, the Court recognized Member States’ freedom to determine public measures to promote the integration of young apprentices into the labour market. This freedom is somewhat ambivalent, as it is subjected to the interpretation of the Court. The Austrian policy that did not consider the work experience before the age of 18 was not objectively justified in relation to article 6. The ECJ decision had serious financial consequences for the State, compared to a trivial monetary detriment for Mr Hütter. In the subsequent Schmitzer case, the amendment of Austrian law was still considered to be unlawfully discriminatory as  ‘budgetary considerations’  cannot justify a measure that maintains indefinitely an age-based difference in treatment which was supposed to be eliminated. For this reason, it was not considered “a proportionate means of achieving a legitimate aim”, as required by article 6 of the Directive, although considering “budgetary considerations” as transitional arrangements for age discrimination could instead require a closer consideration by the Court.

[1]     Article 21 of the Charter of Fundamental Rights prohibits any discriminations based on “sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation”, reinforcing in this way the link to fundamental or human rights.

[2]                 Francesca Ferraro, Jesús Carmona, “Fundamental Rights in the European Union. The role of the Charter after the Lisbon Treaty”, (2015) EPRS European Parliamentary Research Service. Available online: <http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/554168/EPRS_IDA%282015%29554168_EN.pdf > accessed 21.05.2015

[3]     This is confirmed by the case Kücükdeveci v Swedex GmbH & Co KG [2010] IRLR 346  (concerning employment discrimination) where the Court noted that the Charter have the same legal value as the Treaties, including the horizontal effect

[4]     Article 1 (Purpose) “The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.”; Article 2 (Concept of discrimination) “ 1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1”.

[5]               Hütter v Technische Universität Graz [2009] ECR I- 5325 (C-88/08). Judgment of June 18, 2009

[6]                Leopold Schmitzer v Bundesministerin für Inneres [2014] ECR,  Case C-530/13

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