This document provides a 3,021 word essay on the topic of "When are Human Rights Binding on Member States under EU Law?". The essay discusses: 1. How the EU Court of Justice gradually recognized the need to incorporate human rights into EU law and began prioritizing human rights, extracting legislation from member states. 2. How the Lisbon Treaty made the Charter of Fundamental Rights legally binding and of equal value to the EU Treaties, but also established the principle of conferral limiting the EU's competences. 3. Three circumstances outlined by Craig and De Búrca where member states must respect human rights: when implementing EU legislation, when implementing or enforcing EU law, and when

1. Name: Michael Cluett
ID: 216595M
Course: Bachelor of European Studies (Honours) with Oriental
Studies (Chinese)
When are Human Rights Binding on Member States under EU Law?
Study-Unit: Legal Safeguards for Human Rights in Europe
Code: EST 3180
Lecturer: Dr Sylvann Aquilina Zahra
Word Count: 3,021

2. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
Human rights, despite their historical place at the forefront of the European agenda, have not always
received full recognition by the European Union and its institutions. The founding Member States1
were perhaps more occupied with fulfilling economic objectives, such as the integration of markets
and dismantling intra-community trade barriers, with fundamental rights being ignored in the
original Treaties. The Court of Justice, however, gradually recognised the need to incorporate
human rights into Union law. The prioritisation of human rights in the EU thus began to take shape,
with the Court playing a key role in developing this concept on the basis of the general principles of
law that it seeks to observe.
Subsequently, it sought to extract targeted human rights legislation from Member States’ national
laws, creating interlinkages between such fundamental rights, the Treaties and other sources of EU
law such as Directives and Regulations. One example of such an approach is the extension of non-
discrimination as a human right through the general principles, derived from the provisions of
Article 18 TFEU which prohibited discrimination on the basis of nationality. This secured the
implementation of human rights into Union law and the closure of legal lacunae which had emerged
due to the lack of protective provisions. The protection of human rights now enjoys independent
status within the Union and is a vital component of the Treaties.
The result of this added focus on fundamental rights is the EU in its present form - a leading
proponent for the defence of individual liberties and a key actor in addressing global issues such as
migration. Initially, the protection of human rights in the context of Union law was aimed at
guaranteeing the lawfulness of acts carried out by the Union and its institutions. Since then, the
Court has expanded the sphere of fundamental rights by also making such rights binding on
Member States. This development was ratified through the Lisbon Treaty which rendered the
Charter of Fundamental Rights legally binding and of “the same legal value as the Treaties”.2
The Lisbon Treaty, however, also established the ‘principle of conferral’, which ensures that “the
Union shall only act within the limits of the competences conferred upon it by the Member States in
the Treaties to attain the objectives set out therein”. This principle indicates that the Court’s
jurisdiction over human rights is determined by the scope of EU law, as opposed to EU law being
Smismans, S. (2010), The European Union’s Fundamental Rights Myth, 48 Journal of Common Market Studies, p. 451
European Parliament (2016), Respect for Fundamental Rights in the Union, Fact Sheets on the European Union, Web, http://2
www.europarl.europa.eu/ftu/pdf/en/FTU_2.1.2.pdf
Page of 2 12

3. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
determined by the Court’s jurisdiction over such rights. Article 51 of the Charter reinforces this by3
prohibiting an extension, by way of the Charter itself, of “the field of application of Union law
beyond the powers of the Union […] as defined in the Treaties”. Thus, Member States are legally
obligated to respect fundamental rights when acting within the scope of application of Union law.
This evolution is significant as it has created the possibility of challenging a Member State’s actions
on the grounds of violation of human rights. Debate on the subject is unabating due to the general
reluctance among Member States to accept the notion that the CJEU is able to determine the level
of protection applied to them. Moreover, the ambiguity over what falls “within the scope of
application” of Union law has divided opinion, with Craig and De Búrca identifying three
circumstances which bind Member States to respect fundamental rights. This paper shall delve into
each situation with supporting references to relevant case law.
(i) Member States applying provisions of Union legislation based on protection of
fundamental rights.
The first instance outlined by Craig and De Búrca where Member States must respect human rights
is perhaps the most clear-cut of the three. Member States are “bound by the general principles” of
Union law when implementing EU legislation, including during transposition of directives and
regulations. Two landmark cases which demonstrate the binding nature of fundamental rights on
Member States in this circumstance are Rutili v Ministre de l’intérieur and Johnston v Chief
Constable of the RUC.
The Rutili case concerned the application of Directive 64/221, which placed a limit on the
restrictions that Member States were permitted to impose on the free movement of labour within the
Union’s internal borders under Article 45(3) TFEU. The actions carried out by the French
authorities to restrict the movement of Mr Rutili, an Italian national resident in France, were done
so at their own discretion but were also in line with the implementation of a Community directive; a
source of EU law. In view of the characteristics of the Directive being implemented, the Court held
Ferraro, F., Carmona, J. (2015), Fundamental Rights in the European Union: The Role of the Charter after the Lisbon Treaty, Web,3
European Union, http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/554168/EPRS_IDA(2015)554168_EN.pdf
Page of 3 12

4. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
that the French authorities’ action must be assessed in order to ascertain whether they were
compliant with the Directive in question. 4
The Court held that the provisions laid out in the Directive drew inspiration from the general
principles of the Union as enshrined in the Treaties and human rights law. Moreover, the Court
described this Directive as an expression of the general principles of the ECHR, thus confirming the
Court’s contention of the previous year that fundamental rights protection in the EU may be based
on international pacts to which the Member States are signatories.
The Johnston case, meanwhile, began with the unpreparedness of a British chief constable to
employ women due to the legal prohibition to carry firearms placed on female officers. Ms
Marguerite Johnston claimed that this Northern Irish law in question had deprived her of the rights
granted to her by the Equal Treatment Directive . The Secretary of State appeared to have5
obstructed the national courts from hearing Ms Johnston’s claim through a statement which cited
protection of national security, public safety and public order as sound justification for turning away
Ms Johnston’s application for full-time employment.
The Court of Justice, however, stated that the actions carried out by the authorities of the United
Kingdom were not permitted due the requirement of judicial control emanating from the Equal
Treatment Directive. Article 6 of this Directive obliges Member States to enable persons who have
been wronged to pursue their claims by judicial process after possible recourse with the competent
authorities. The Court explains that the right to make a claim before the courts is a provision
reflected in the general principles of law of the Member States’ constitutional traditions. Moreover,
this doctrine is also laid out in Article 7 of the ECHR.
Thus, the Court held that Member States are duty-bound to “ensure effective judicial control as
regards compliance with the applicable provisions of Community law” in line with the Equal6
Treatment Directive in question. The Court’s ruling established a fundamental guideline for
Member States to guarantee citizens’ right to judicial review of pieces of national legislation that
appear to breach Union law which seeks to uphold human rights. In fact, the Court states that;
European Court of Justice (1975), Rutili v Ministre de l’intérieur, Case C-36/754
Council Directive No 76/207 OJ 1976 L39/405
European Court of Justice (1986), Johnston vs. Chief Constable of the Royal Ulster Constabulary, Case 222/84, ECR 1651.6
Page of 4 12

5. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
“all persons have the right to obtain an effective remedy in a competent court against
measures which they consider to be contrary to the principle of equal treatment for men and
women laid down in the directive”.7
(ii) Member States implementing or enforcing European Union law.
The wider second scenario where Craig and De Búrca consider fundamental rights to bind Member
States is when Member States are “acting as ‘agents’” by implementing Union law and measures.8
In this way, the Member States are bound by the same general principles and fundamental rights
that bind the EU its actions. The Court expanded the scope of application by stating that Member
States are obligated to legislate in accordance with the fundamental rights recognised by the Union
even when “interpreting and implementing Community law” . Moreover, Member States have a9
duty to uphold human rights even if a claimant opens a case citing a breach of a particular
fundamental right which is not laid out in the EU measure being implemented.
The Court examined the legality of an act of a Member State against fundamental rights for the first
time in 1989 in the Wachauf Case. This case revolved around Germany’s implementation of an EC
Regulation which established a quota scheme on milk. Mr Wachauf, the German tenant of a milk-
producing farm, discontinued production and sought appropriate compensation from the state. The
refusal of Mr Wachauf’s landlord to grant consent for the farmer to surrender the quota resulted in
the German authorities denying his claim for compensation, in accordance with the German order
that had been issued in implementation of the EC scheme.
The plaintiff claimed in the national courts that the domestic legislation implementing this
Regulation and “governing the organisation of the milk market infringed his rights under the
German Constitution”. The Court agreed with this assertion, explaining that fundamental rights10
form an intrinsic part of EU law and stressing that any EU measures having the effect of depriving
Johnston Case, Paragraph 197
Craig, P., De Búrca, G. (2008). EU law: text, cases, and materials, Fourth Edition, Oxford University Press, p. 3958
ibid, p.3959
Groussot, X., Pech, L., and Petursson, G.T. (2011), The Scope of Application of Fundamental Rights on Member States' Action: In10
Search of Certainty in EU Adjudication, Web, http://www.era-comm.eu/charter_of_fundamental_rights/kiosk/pdf/
EU_Adjudication.pdf?
Page of 5 12

6. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
the tenant “without compensation, of the fruits of his labour and investment” would be incompatible
with the protection of fundamental rights within the Union’s legal order.11
The Court, therefore, ruled that Mr Wachauf was entitled to compensation and opined that the issues
of this case did not concern the EC Regulation imposed, which the Court considers legitimate, but
the implementing order issued by the German government. The requirement to uphold a claimant’s
fundamental rights is binding on Member States when implementing EU measures, meaning that
Member States must ensure that such laws are implemented in adherence to the fundamental rights
recognised by the Union. Accordingly, the Court instructed the German authorities to review the
government order implementing the milk quota regulation so as to observe the right to
compensation for claimants with sufficient grounds.
Another case involving the German courts which developed the binding nature of fundamental
rights on Member States when implementing Union law is Werner Mangold v Rüdiger Helm. This
case concerned the ratification by the German government of a piece of legislation effectively
permitting the termination of fixed term contract workers over the age of 52. Mr Mangold, a 56-
year-old who was in-work through a lawful contract with a private employer, claimed that this
national measure was incongruent with the principle of non-discrimination on the basis of age laid
out in Directive 2007/78.
It is important to note that Germany’s period of transposition for this directive had not yet expired.
However, it was immediately evident that a Member State may not adopt measured that hindered
the attainment of results required through the transposition of a directive. Subsequently, the Court
ruled in favour of Mr Mangold and held that the German measure was incompatible with Directive
2000/78, despite the fact that this directive did not explicitly lay down the principle of equal
treatment in the field of employment. The Court held that the German court must
“guarantee the full effectiveness of the general principle of non-discrimination in respect of
age, setting aside any provision of national law which may conflict with Community law,
even where the period prescribed for transposition of that directive has not yet expired”.12
European Court of Justice (1989), Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft, Case 5/88, ECR 260911
European Court of Justice (2005), Werner Mangold vs Rüdiger Helm, Case C-114/04,12
Page of 6 12

7. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
The Court established the principle of non-discrimination as a general principle of Union law
derived from various international legal instruments. The Court was thus able to lay down that the
absence of transposition of this directive could not enable German law to discriminate on the basis
of age. The piece of German legislation in question was intended to implement another directive
and therefore was it was clear that the national measure fell within the scope of EU law. The
primary point of accordance in this case is that the general principles of law that the Union seeks to
uphold, including fundamental rights, can be horizontally relied upon in legal disputes between
private parties when reviewing the results of directives, regardless of whether the transposition
deadline has passed.13
(iii)Member States derogating from European Union rules on grounds of public policy, public
interest and public security.
Craig and De Búrca, in the circumstances above, outline scenarios where Member States are
implementing Union law and measures, “including where they enjoy room for discretion in
implementation”. However, provisions laid down in the TFEU, such as Article 36, permit14
Member States to derogate from implementing EU law due to extenuating circumstances requiring
the safeguarding of public policy, public interest and public security. The Court ensured that
Member States are still considered to be acting within the scope of Union law when derogating
from measures requiring implementation, meaning that Member States must endeavour to protect
citizens’ fundamental rights even when restricting Union law on the basis of public policy.
This development has been criticised as a step too far by several authors, despite the fact that this
actually empowers citizens as opposed to stripping Member States of their sovereignty. If Member
States were in fact viewed to be acting outside the scope of EU law, then their derogative actions
would not be open to legal redress in European courts and thus would not be subjected to judicial
review. One case which effectively shaped the Court’s approach in this regard is the ERT Case.
Elliniki Radiophonia Tileorassi AE (ERT) was a Greek radio and television company which enjoyed
exclusive rights over domestic telecommunications under national law. Another undertaking had
opened a television station in direct competition with ERT, who quickly moved to file for an
Groussot, X., Pech, L., and Petursson, G.T. (2011)13
Craig, P., De Búrca, G. (2008), p.39614
Page of 7 12

8. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
injunction from the national courts against this new competitor on the basis that this infringed
ERT’s exclusive right to transmission that was granted under Greek law. The respondents of the
case - ERT’s rivals - cited Union law, specifically the Treaty provisions of free movement of goods
and free competition as well as the principles enshrined in the ECHR relating to freedom of
expression, in its attempt to liberalise the Greek telecommunications market.
The Court emphasises fundamental rights' indispensable contribution to the general principles of
Union law and goes on to reiterate its previous statement regarding the inspiration drawn by the
Court from Member States’ constitutional traditions as well as the international treaties, which seek
to protect human rights, to which the Union’s Member States are signatories. The Court also refers
to relevant case law, including the Wachauf and Johnston cases discussed earlier in this paper, to
reiterate that any measures which are incompatible with the observance of human rights can not be
recognised by the Community.
The Court held that when a Member State relies on derogation provisions to establish national laws
restricting free movement, those national laws may be accepted to be aligned with such provisions,
so long as they are “compatible with the fundamental rights” observed by the Court. The general15
principles of Union law, according to the Court, demand that human rights are respected even when
Member States derogate from Union law.
The Court effectively instructed the Greek courts to consider the principle of freedom of expression,
embodied in Article 10 of the ECHR, as sufficient grounds for a restriction imposed on Greece’s
power to apply the provisions of Article 56 and 66 TFEU, which in this case restricted free
movement of goods (telecommunications) on the basis of public policy, public security and public
health. In essence, the Court held that the right to freedom of expression constituted sound
justification for restricting ERT’s exclusive rights granted under national law as this domestic
measure was incompatible with the fundamental rights that the Court seeks to observe.
Craig and De Búrca view the Court’s judgment as a reaffirmation of the power vested in the CJEU
to “review [Member States’] compliance” with human rights, and as evidence of further
impingement on Member States’ legal systems, and arguably their national sovereignty, by the
European Court of Justice (1991), Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas,15
Case C-260/89, ECR I-2925, Paragraph 43
Page of 8 12

9. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
general principles of EU law. This ruling has been progressively reinforced several times through16
different judgements, despite calls for their extent to be curtailed, and as a result, the prior
understanding of what fell within the scope of Union law was stretched even further.
The Carpenter Case illustrates the persistent expansion of the Court’s power to examine Member
States’ measures against their compatibility with human rights. The Court determined that the
proposal put forward by the United Kingdom to expel the non-EU spouse of a national citizen
violated the British citizen’s right to respect for family life. This case was determined to have17
fallen within the scope of Union law as the proposed deportation would have constituted a
restriction on the local citizen’s “freedom to provide cross-border services”.18
***
Judicial review of Member States’ actions, regardless of what is being examined, is always likely to
give rise to claims of sovereignty-stripping and excessive supranationalism by the Union and its
institutions. However, the ratification of the Charter and transfer of increased legal powers to the
Court have been instrumental in safeguarding the individual liberties of the Union’s citizens as
Member States are now bound to adhere to fundamental rights when acting within the scope of
Union law.
The case law referred to above demonstrates situations where the Court enjoys jurisdiction to assess
the “compatibility with human rights” of Member States’ actions which fall within the scope of19
EU law. There are situations, however, where these dividing lines are blurred and where the Court’s
power of judicial review over national measures is called into question. Given that the Court of
Justice has sought to align the general principles of EU law with the provisions laid out in the
Treaties, the ECHR and the constitutional traditions of Member States, the most comprehensive
way to protect citizens’ rights would be for Member States themselves to align their domestic laws
and policies with the fundamental rights observed by the EU.
Craig, P., De Búrca, G. (2008), p.39816
European Court of Justice (2002), Carpenter v Home Secretary, Case C-60/00, ECR I-6279, Paragraph 37-4617
Craig, P., De Búrca, G. (2008), p.39818
Craig, P., De Búrca, G. (2008), p.40019
Page of 9 12

10. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
In this way, disputes over which measures lie inside or outside the field of application would be
irrelevant as there would be harmonisation between the objectives of the Union, the Court and
Member States relating to the protection of fundamental rights. Although this seems like a utopian
idea, it is not imperceivable when one considers the progress that has already been made in recent
decades. The political will shared among Member States and the Union’s policy-makers to
eventually become a contracting party to the ECHR shows that fundamental rights remain a top
priority for all parties going forward. Convergence must also take place between the aspirations of
the Union and those of the Court of Justice, with compromise and legal gymnastics undoubtedly
required in order to establish a power-sharing mechanism with the Strasbourg-based European
Court of Human Rights that satisfies the Court of Justice.
Page of 10 12

11. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
Bibliography
Books
• Craig, P., De Búrca, G. (2008). EU law: text, cases, and materials, Fourth Edition, Oxford
University Press
Documents
• European Court of Justice (1975), Rutili v Ministre de l’intérieur, Case C-36/75
• European Court of Justice (1986), Johnston v Chief Constable of the Royal Ulster Constabulary,
Case C-224/84, ECR 1451
• European Court of Justice (1989), Hubert Wachauf v Bundesamt für Ernährung und
Forstwirtschaft, Case C-5/88, ECR 2609
• European Court of Justice (1991), Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia
Pliroforissis and Sotirios Kouvelas, Case C-260/89, ECR I-2925
• European Court of Justice (2002), Carpenter v Home Secretary, Case C-60/00, ECR I-6279
• European Court of Justice (2005), Werner Mangold v Rüdiger Helm, Case C-144/04
Journals
• Smismans, S. (2010), The European Union’s Fundamental Rights Myth, 48 Journal of Common
Market Studies, p. 45
Page of 11 12

12. Michael Cluett When are Human Rights Binding
on Member States under EU Law?
EST3180
Web
• Ferraro, F., Carmona, J. (2015), Fundamental Rights in the European Union: The Role of the
Charter after the Lisbon Treaty, Web, European Union, http://www.europarl.europa.eu/RegData/
etudes/IDAN/2015/554168/EPRS_IDA(2015)554168_EN.pdf
• European Parliament (2016), Respect for Fundamental Rights in the Union, Fact Sheets on the
European Union, Web, http://www.europarl.europa.eu/ftu/pdf/en/FTU_2.1.2.pdf
• Groussot, X., Pech, L., and Petursson, G.T. (2011), The Scope of Application of Fundamental
Rights on Member States' Action: In Search of Certainty in EU Adjudication, Web, http://
www.era-comm.eu/charter_of_fundamental_rights/kiosk/pdf/EU_Adjudication.pdf?
Page of 12 12