The introduction of a fundamental rights regime into EU law is essentially a story of judge-made law. In some Member States, notably in Germany, concerns were expressed during the 1960s that Community law, declared in 1963-1964 to have direct effect in the legal orders of the Member States and to prevail over national law, posed a threat to the Bills of Rights of the national constitutions, in view of the fact that Community law was silent on the protection of fundamental rights. To meet such concerns, the European Court of Justice (ECJ) in Stauder (1969) introduced an express fundamental rights component into Community law by holding that fundamental rights form part of the general principles of Community law whose observance the Court ensures. Some landmark judgments of the early 1970s developed and refined this approach.
Later developments include political declarations made by the then Community institutions, gradual insertion of fundamental rights and human rights clauses in the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), further developments in ECJ case law and the proclamation, in December 2000, of the Charter of Fundamental Rights of the European Union. Through these developments, there has been a gradual rapprochement between Union law and the European Convention on Human Rights, although the EU is not directly bound by the Convention as a Contracting Party. Article 6(2) TEU, as amended by the Treaty of Lisbon (entered into force on 1 December 2009), provides that the Union ‘shall accede’ to the European Convention but at the time of writing, it is still an open question when, and under what precise modalities, the EU will become a Contracting Party.
The Treaty of Lisbon not only makes the Charter of Fundamental Rights of the European Union a legally binding document but also endows it with the status of Union primary law. It is noteworthy that Article 6(1) TEU provides expressly that the Charter shall be interpreted ‘with due regard’ to the explanations which have been drawn up as a way of providing guidance in its interpretation. The Charter builds upon the European Convention on Human Rights, the European Social Charter and other human rights conventions as well as the constitutional traditions common to the EU Member States. Some of the provisions constitute refinements or even developments of existing human rights instruments. Examples include an absolute prohibition of the death penalty (Article 2), a prohibition on the reproductive cloning of human beings (Article 3) and a prohibition of discrimination on ‘new’ grounds such as disability, age and sexual orientation (Article 21). On the other hand, the Charter preserves the general limitation applying to EU fundamental rights in general: they are only applicable when EU law is relevant. Thus, the provisions of the Charter are addressed to the Member States ‘only when they are implementing Union law’.
Finally, it should be noted that Article 6(3) TEU, as amended by the Treaty of Lisbon, preserves the idea, expressed in the case law of the ECJ since 1969, that fundamental rights constitute general principles of Union law. This arguably will mean that the rather open-ended list of sources of inspiration which the Court has relied upon to find the general principles of Union law, including also other human rights conventions than the European Convention, as well as the constitutional traditions common to the Member States, may continue to be relevant, despite the Charter of Fundamental Rights and even if the EU adheres formally to the European Convention.
The following discussion will not address further these general developments concerning the protection of fundamental rights in the EU legal order but will be focused on the question of balancing between different fundamental rights. If two or more EU fundamental rights, or a fundamental right and another rule of primary law, are in conflict or at least in tension with each other, how should they be reconciled? Let us start by looking at the relation between a fundamental right and a rule of primary law which is not considered a fundamental right stricto sensu (for instance, one of the economic freedoms contained in the Treaty on the Functioning of the European Union (TFEU), which has replaced the TEC).
2. Fundamental Rights and Other Rules of Primary Law
In Schmidberger, the European Court of Justice observed that the case raised the question of ‘the need to reconcile the requirements of the protection of fundamental rights in the Union with those arising from a fundamental freedom enshrined in the Treaty’. The fundamental rights in question were freedom of expression and freedom of assembly while the fundamental freedom referred to was the free movement of goods and thus a so-called economic freedom guaranteed by Union primary law.
Concerning freedom of expression and freedom of assembly, the Court observed further that they, unlike some other fundamental rights such as the right to life and the prohibition of torture and inhuman and degrading treatment, appeared not to be absolute but could, as recognised in paragraphs 2 of Articles 10 and 11 of the European Convention on Human Rights, be subject to limitations. The Court added that in such circumstances, ‘the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests’. The conclusion was that such a fair balance was indeed struck and that the fact that the Austrian authorities did not ban a demonstration which closed the Brenner motorway for a few days and thus restricted the free movement of goods between Austria, Germany and Italy was not incompatible with the then Articles 30 and 34 of the EC Treaty.
The Schmidberger case is a telling illustration of balancing, this time of balancing between a fundamental right and an economic freedom. The judgment has been criticised by some for having taken the free movement of goods as a point of departure, instead of basing the result squarely on freedom of expression and freedom of assembly. This criticism can be seen as part of a more general criticism levelled against the Court especially in the past for not taking fundamental rights seriously enough. Without going into this debate in all its width, it should be noted that the approach taken in Schmidberger, which was a preliminary ruling case, has to be seen against the background of the questions posed by the national court. The Austrian judge was primarily interested in the question whether the restriction of the free movement of goods was compatible with Union law. That said, the Court in this case seems to have treated the two fundamental rights and the economic freedom concerned at the same level, the fundamental rights as general principles of Union law and the economic freedom as part of written primary law. As both the fundamental rights and the economic freedom in question were not absolute but could be limited on certain grounds, a balance had to be struck.
A similar situation arose in Omega, with the difference that that case concerned the freedom to provide services under the then Article 49 of the EC Treaty and that the Court relied primarily on the right to human dignity as it was recognised under German constitutional law, accepting that this right could be invoked in the context of the derogation relating to public policy recognised in the EC Treaty and hence that a local ban on a laser game with the object of firing on human targets could be justified on public policy grounds .
In this context, mention can also be made of the case law of the Court of Justice on the right of a Member State to expel a Union citizen to another Member State. Here the issue may become one of balancing between the right of Union citizens to move and reside freely within the territory of the Member States (see Article 21 TFEU and Article 45 of the Charter of Fundamental Rights), the right to respect for private and family life (Article 7 of the Charter) and the right of a Member State to invoke grounds of public policy or public security as a justification for an expulsion order.
The so-called Viking Line case offers yet another example of a case where the European Court of Justice was faced with a tension between a fundamental right and an economic Treaty freedom. The case concerned the compatibility with Union law of collective actions undertaken by a Finnish trade union and its international federation to prevent the re-flagging of a vessel from Finland to Estonia. After having established that the right to take collective action, including the right to strike, is a fundamental right forming an integral part of the general principles of Union law (see also 28 of the EU Charter of Fundamental Rights, which existed as a “soft law” instrument at the time of the Viking Line judgment), the Court, citing Schmidberger and Omega, went on to observe that the exercise of this fundamental right had to be ‘reconciled’ with the right of establishment.
The Court noted in this context that the right to collective action can be subject to restrictions and cited both Article 28 of the Charter, which provides that this right is to be protected ‘in accordance with Union law and national laws and practices’, and Finnish national law which also allowed for restrictions. The Court recognised that restrictions on the right of establishment could be justified on the basis of the right to take collective action for the protection of workers, observing, inter alia, that the Union has ‘not only an economic but also a social purpose’. The Court added, however, that such restrictions could only be justified if the collective action to stop the re-flagging pursued the objective of the protection of workers and respected the principle of proportionality. Viking Line is also an example of a case where the task of determining whether the collective action had such an objective and whether the principle of proportionality was respected fell to a large extent on the shoulders of the national court (the Court of Appeal in England and Wales).
One can of course ask whether, and to what extent, fundamental rights and provisions of the Treaties which do not express fundamental rights should be seen as equal bedfellows. Subsequent case law –– I am thinking of the famous Kadi case in particular – and the entry into force of the EU Charter of Fundamental Rights (as part of the entry into force of the Treaty of Lisbon, on 1 December 2009) can be seen as part of a trend suggesting that at least some fundamental rights have special importance, in other words should be given more weight than Treaty provisions which are not expressing fundamental rights. The judgment in Kadi and earlier case law even suggest that the basic values expressed in Article 2 of the TEU – which lists among those values respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights – prevail over the other, or at least some of the other, parts of the Treaties. If that is so, conflicts or tensions between these basic values and Treaty provisions should be addressed in the context of norm hierarchy and lex superior – lex inferior considerations rather than as part of a balancing act. Apart from such fundamental values – to cite Kadi, the ‘very foundations of the [Union] legal order’ – fundamental rights should, in principle, be seen as part of primary law alongside the economic freedoms and other provisions of the Treaties. That said, fundamental rights may, because of their very nature, at least in some instances be giving somewhat more weight when striking a balance between them and other rules of primary law.
3. Balancing Two or More Fundamental Rights
As far as balancing between two or more fundamental rights is concerned, it is obvious that human rights, and if we speak of EU constitutional principles, fundamental rights have often to be balanced against each other. Examples include the right to private and family life (Article 7 of the Charter) and the protection of personal data (Article 8), on the one hand, and freedom of expression (Article 11), on the other, and the right to private and family life and the protection of personal date, on the one hand, and the rights to good administration (Article 41) and of access to documents (Article 42), on the other. Another example could be the right to the integrity of the person (Article 3) and the right to liberty (Article 6), on the one hand, and the right of children to protection and care and the obligation of public authorities and private institutions to make the ‘child’s best interest’ a ‘primary consideration’ (Article 24). As to the right to property (Article 17), tensions often arise between this right and other fundamental rights, such as workers’ rights (Articles 27 to 31) and the principle of environmental protection (Article 37).
These examples are not of academic interest only. Let us consider, for instance, the cases of Volker and Schecke, which concerned the validity of a Union legislative act which required the publication of the names of the beneficiaries of agricultural aid and the amounts received by each beneficiary.  The cases raised the question of the relationship between the right to the protection of personal data (Article 8 of the Charter), which the Court noted was closely connected to the right to respect of private life (Article 7), on the one hand, and the principle of transparency. While in Volcker and Schenke the Court did not cite the principle of transparency as a fundamental right stricto sensu but referred to Articles 1 and 10 of the TEU and Article 15 of the Treaty on the Functioning of the European Union (TFEU), it is obvious that the principle is of relevance for the basic values and fundamental rights referred to in Articles 2 and 6 of the TEU as well as in the Charter of Fundamental Rights, including not only fundamental rights in the strict sense but also the principles of democracy and the rule of law. The Court observed that the protection of personal data is not an absolute right but must be considered in relation to its function in society and that it was necessary to determine whether the Union institutions ‘balanced’ the interest in guaranteeing the transparency of its act and ensuring the best use of public fund against the interference with the right of the beneficiaries concerned to respect for their private life in general and to the protection of their personal data in particular. As the institutions, as far as the publication of the names of natural persons was concerned, had not ‘properly balanced’ the interests involved and the legislative act was held to be invalid to this extent. On the other hand, with respect to the publication of data relating to legal persons, a ‘fair balance’ had been observed in the consideration taken of the respective interests at issue.
Questions relating to the custody and protection of children offer another example where two or more fundamental rights may have to be balanced against each other. If the measures taken to protect the life and well-being of a child involve deprivation of his or her liberty there may be a tension between the right to liberty and security of all persons, including children (Article 6 of the Charter of Fundamental Rights) and the right of the child to protection and care, taking into account the child’s best interests (Article 24 of the Charter).
In Health Service Executive, the Court of Justice recently, when assessing the procedural requirements for enforcing a decision to place a child (in this case of 17 years of age) in a secure care institution of another Member State, took into account the fact that the placement decision, taken in the interests of the child, was opposed by the child herself and thus concerned her fundamental right to liberty as recognised in Article 6 of the Charter. The Court concluded that in order to ensure that the system intended by the so-called Brussels II bis Regulation operates properly, the use of coercion against a child in order to implement a judgment of a court of a Member State ordering her placement in a secure care institution in another Member State presupposes that the judgment has been declared to be enforceable in the latter State.
A similar situation involving a possible tension between liberty and protection can be seen, for instance, in the actions to combat terrorism by imposing sanctions against suspected terrorists. In this case, however, the interest to protect concerns the population at large rather than the individual whose libertarian rights are restricted. Before the EU Courts, this constellation has concerned above all economic and financial sanctions taken by the EU legislator against persons and entities associated with terrorist activities. The Courts have endeavoured to strike a balance between the right to effective judicial protection (including the right of defence) and the right of property, on the one hand, and safety and security concerns, on the other. It should be underlined, however, that the need to ensure safety and security and thus the effectiveness of sanctions has not been formulated in terms of fundamental rights as such, despite the fact that Article 6 of the Charter of Fundamental Rights provides for the right to not only liberty but also ‘security’ of person.
In the Volcker and Schecke case referred to above, the balancing which had to be performed concerned the right to privacy and the principle of transparency. While the latter principle is not formulated as a distinct human right in the Charter of Human Rights, it is, apart from being recognised in the TEU and TFEU, closely linked to fundamental rights which do appear in the Charter, such as the right to good administration recognised under Article 41 and the right of access to documents recognised under Article 42. It should be noted that the latter rights are not explicitly recognised under the European Convention on Human Rights. Such a situation, in other words that a fundamental right appears in both the EU Charter and the European Convention whereas another fundamental right is to be found in the Charter only, raises interesting questions as to the relationship between the two instruments.
It is easy to envisage cases which concern the relationship between the right to privacy and the right of access to documents, in other words a fundamental right which appears in both the Charter and the European Convention and another right which appears only in the Charter. The case of Bavarian Lager concerned the right of access to documents but in a situation which also affected the right to privacy and the right to the protection of personal data (Article 8 of the Charter) in particular. The Court of Justice referred to the ‘equilibrium’ which the Union legislator had intended to establish and accepted the Commission’s refusal to give access to certain documents as the applicant had not been able to demonstrate the necessity for certain personal data to be transferred and the Commission thus had ‘not been able to weigh up the various interests of the parties concerned’. In this case, however, there was no explicit consideration of the European Convention and, in fact, not of the Charter either, and the arguments of the parties and the reasoning of the Court centre on the relationship between two legislative acts, a regulation on the protection of personal data and one on access to documents. These Regulations had been adopted before the proclamation of the Charter of Fundamental Rights as a soft law instrument and the facts of the case, an action of annulment on appeal before the Court of Justice, related to a period preceding the entry into force of the Charter as part of binding primary law.
Such cases could, of course, raise balancing questions more directly and concretely related to the relationship between the EU Charter and the European Convention. I am thinking, in particular, of Article 52(3) of the Charter, which provides that Charter rights which ‘correspond’ to rights guaranteed under the European Convention should be given ‘the same’ meaning and scope as the corresponding Convention rights. At least in theory, one could imagine that the application of a particular human right, recognised under the European Convention, should, if viewed in isolation, imply a higher level of protection than the application of the same right when balanced against another right recognised under the EU Charter but not under the European Convention. Could this lead to an EU level of protection which would be less than the one guaranteed under the European Convention and would such a situation cause a problem in view of Article 52(3) of the Charter?
The problem seems more academic than real. First of all, under EU law the problem could be minimised by giving the fundamental right which corresponds to a right guaranteed by the European Convention somewhat more weight than a another fundamental right which is not be found as such in the Convention. Second, it should be recalled that all other than the non-derogable or absolute rights of the European Convention are subject to derogations, restrictions or limitations on various grounds, such as public safety or the protection of health. Moreover, the European Court of Human Rights has developed a margin of appreciation doctrine which recognises a certain national discretion in balancing the Convention rights against other interests. Thus, what in the context of the EU Charter could be considered as a balancing between two fundamental rights, a similar balancing act could take place in the Strasbourg system between a human right and a ground for restriction and/or the margin of appreciation recognised under the Human Rights Convention.
4. General Criteria for Balancing?
When, in the context of the EU legal order, judges are faced with the need for balancing between fundamental rights and other rights and freedoms protected by primary law, or between two or more fundamental rights, it can be asked if there are some general criteria or signposts to guide them in their task. The answer is that it is extremely difficult if not impossible to lay down any clear rules in this regard. What can be done is to list some considerations which may play a role in arriving at a solution in concrete cases. The following considerations and questions may be mentioned:
* can it be held that at least one of the fundamental rights concerned of a ‘more fundamental’ nature than another fundamental right, notably if, under international human rights instruments, the former is to be seen as a non-derogable (absolute) right (such as the prohibition of torture and inhuman and degrading treatment mentioned as an example in Schmidberger)?
* the first question is obviously also related to the wording and context of the fundamental rights provision in question; does the provision, for instance, provide that someone has a right ‘in accordance with national laws and practices’ (which would suggest a wider margin of appreciation for the Member States)
* is there EU secondary law which can be seen as an implementation of a fundamental right and is there more far-reaching or specific legislation relating to a certain right as compared to another? sometimes the case will be in the first place about comparing two or more legislative acts while the interpretation of the fundamental right(s) in question is of secondary importance or becomes a mere background factor
* if the balancing takes place between a fundamental right and a Treaty provision which is not recognised as expressing a fundamental right it may well be that, at least as far as some fundamental rights are concerned, they are given somewhat more weight than the relevant Treaty provision (‘fundamental rights-friendly’ interpretation)
* much will of course also depend on the facts of the case and its more general legal and factual context
* if one of the EU fundamental rights corresponds to a right guaranteed by the European Convention on Human Rights, Article 52(3) of the EU Charter, as noted above, provides that the EU fundamental rights shall be given the same meaning and scope as the corresponding right guaranteed under the Convention; this may in some instances speak in favour of giving the Convention right somewhat more weight than another right not to be found as such in the Convention (although, as was explained above, this does not preclude some balancing between the two rights in the EU system and a corresponding balancing between a right and a limitation or restriction allowed under the Convention system)
5. Problems Arising under the European Convention on Human Rights
Finally, some attention should be paid to the relation between the EU Charter and the European Convention on Human Rights more generally. Up till now, ‘harmony rather than conflict’ has characterised the case law of the Court of Justice and the European Court of Human rights, respectively. That said, tensions between EU law and the European Convention as interpreted by the European Court of Human Rights cannot be excluded.
Apart from the specific question of balancing between two or more rights recognised under the EU Charter when only one of them appears in the European Convention, to which reference was already made above, a more general problem relating to the specific characteristics of the EU and its legal order should be mentioned: The EU is not an intergovernmental organisation comparable to the United Nations or the Council of Europe but a ‘federative’ union of States and peoples which has the competence to enact directly applicable rules for the whole Union territory (leaving aside here various ‘opt-outs’ granted some Member States), which in many cases imply a breaking down of borders between the Member States. The most well-known examples are the regimes relating to the internal market (which according to Article 26(2) TFEU is an ‘area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’) and the Schengen area of freedom, security and justice (which according to Article 3(2) TEU is an ‘area without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’).
To be somewhat more concrete, EU law in these areas is to a large extent based on the principle of mutual recognition, which again is based on the assumption of mutual trust between the Member States. Thus, legislation relating to, say, the recognition of diploma, the European arrest warrant, the recognition and enforcement of judgments and the determination of the Member State responsible for examining an asylum application is based on the idea that a Member State may have to recognise and enforce acts adopted by the courts or authorities of another Member State almost as if they had emanated from the former. Thus, a European arrest warrant has to be enforced in another Member State unless the applicable secondary law provides for a specific ground of refusal. In such situations, tensions and even conflict may well arise between EU law and the Strasbourg system. Although this problem does not strictly speaking concern the balancing between two or more fundamental rights recognised under EU law, it will be briefly considered in the following, given its obvious relevance for the question of how EU law relates to the human rights regime established under the European Convention on Human Rights. It is a question of reconciling two different legal regimes rather than of balancing between two specific human or fundamental rights.
To take an example of a case which was recently decided by the Court of Justice, in NS and ME, the Court was faced with the question of whether under the so-called Dublin Regulation asylum seekers whose asylum application should have been examined in Greece but who had managed to enter Ireland or the United Kingdom could be sent back to Greece, despite the serious deficiencies in the asylum procedure and in the reception conditions allegedly existing in that Member State. The Court held that, while under the Dublin Regulation another Member State had the right but not the obligation not to transfer an asylum seeker to Greece, such a transfer could not take place if the national court deciding on the matter came to the conclusion that ‘systemic deficiencies in the asylum procedure and in the reception conditions. . . amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment’ in Greece. This approach was in line with what the European Court of Human Rights had decided earlier the same year, in a case relating to Belgium cited by the Court of Justice in its judgment.
But what if in another case, the European Court of Human Rights came to the conclusion that even a less systemic problem in an EU Member State should have led another Member State to refuse transfer? Given the threshold established by the Court of Justice for an obligation not to transfer, such decisions emanating from Strasbourg could pose a serious problem for the functioning of the EU area of freedom, security and justice, based on mutual recognition and trust and the porosity of its internal borders. EU Member States are presumed to comply with the rules, and even if they do not, other Member States are not, as a general rule, empowered to stop abiding by the rules on the sole basis that another Member State in its view is failing in that respect.
A further example may serve to illustrate the point: In a recent case, the European Court of Human Rights held that an Italian court order for the return of a child wrongfully removed to Latvia amounted to a violation of Article 8 of the European Convention (respect for family life). The Human Rights Court did mention the Brussels II bis Regulation of the EU but seemed to pay as much attention to the Hague Convention on the Civil Aspects of International Child Abduction and held that ‘[a] child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable’. Under EU law, on the other hand, the Regulation prevails over the Hague Convention and there is by now a fairly extensive case law of the Court of Justice on the return of wrongfully removed children which accepts practically no discretion for the courts and authorities of an EU Member State when they are asked to enforce court orders emanating from other member States for the immediate return of the child.
The main problem in such situations is that for the European Court of Human Rights, EU Member States are like other Contracting Parties to the Convention, whereas for the EU legal order, and the Court of Justice as its constitutional watchdog, there is a marked difference between the internal and the external. For the Human Rights Court, Russia, Belgium and Luxembourg are all Contracting Parties with equal rights and obligations, whereas for the EU legal order Russia is a third State while Belgium and Luxembourg are integrated parts of a constitutional system.
True, the Bosphorus case law of the European Court of Human Rights establishes a presumption of legality if an EU Member State has simply applied EU law without being able to use any discretion. This case law is based on the consideration that the EU is not a Contracting Party to the European Convention on Human Rights while a Member State may be obliged by Union law to apply Union law directly (even in case it has not voted in favour or otherwise contributed to its adoption). In the case relating to the return of a wrongfully removed child referred to above, the European Court of Human Rights does not seem to have taken into account the fact that Italy was merely applying the Brussels II bis Regulation and notably the special procedures provided under that Regulation for the return of wrongfully removed children and thus did not consider the case under the Bosphorus doctrine.
Especially if the situation – including after an eventual accession of the EU to the European Convention – is considered not to fall under the Bosphorus doctrine there is an obvious risk that Strasbourg case law could (at least indirectly) interfere with EU rules based on mutual recognition and trust in an internal market and an area of freedom, security and justice ‘without internal frontiers’. Or could a possible future accession of the EU to the European Convention lead the European Court of Human Rights to recognise that the new Contracting Party (= the EU) should in these matters be seen as a whole, in the same way as the existing Contracting Parties? This would mean the application of a sort of disconnection clause, implying that for certain matters the internal EU relations would not be seen in the same light as the relations between the EU and third countries? Or could it even be possible to insert in the draft accession agreement still under discussion such a disconnection clause, known from the context of mixed agreements (agreements to which both the EU and some or all of its Member States are parties)?
These are questions which cannot receive a definitive answer for the time being and which, at any rate, go beyond the question of balancing EU fundamental rights, which has been the main subject of this modest contribution.
Линк към резюмето на български език: В ТЪРСЕНЕ НА БАЛАНС МЕЖДУ ОСНОВНИТЕ ПРАВА В ЕВРОПЕЙСКИЯ СЪЮЗ
* Doctor of Laws; Judge at the Court of Justice of the European Union (since 2002); former Armfelt Professor of Law of the Åbo Akademi University (Turku/Åbo, Finland); former Principal Legal Adviser at the European Commission and Deputy Director-General of the said Legal Service.
 Case 26/62 Van Gend en Loos  ECR 1 (where the Court held that provisions of the then Treaty establishing the European Economic Community may have direct effect, in other words can be directly invoked by private parties before courts and authorities) and Case 6/64 Costa v ENEL  ECR 585 (which established the primacy of Community law over national law).
 P. Pescatore, ‘Les droits de l’homme et l’intégration européenne’, (1968) 4 Cahiers de droit européen 629. See also A Rosas, ‘The European Court of Justice and Fundamental Rights: Yet Another Case of Judicial Activism?’, in C Baudenbacher and H Bull (eds), European Integration Through Interaction of Legal Regimes (Universitetsforlaget, Oslo, 2007), p. 33.
 Case 29/69 Stauder  ECR 419.
 See, in particular, Case 11/70 Internationale Handelsgesellschaft  ECR 1125; Case 4/73 Nold  ECR 491.
 See the preamble of the Single European Act of 1987 and Art F of the TEU (later to become Art 6 TEU), established by the Treaty of Maastricht of 1992.
 Since the 1970s, the ECJ has referred to provisions of the European Convention as an authoritative guideline for determining the content of fundamental rights as general principles of Community law. The Court later determined that the European Convention enjoys ‘special significance’ and has also also cited individual judgments of the European Court of Human Rights in its case law. See generally A Rosas, ‘Fundamental Rights in the Case-Law of the Luxembourg and Strasbourg Courts’, in C Baudenbacher et al (eds), The EFTA Court: Ten Years On (Hart Publishing, Oxford, 2005) 163.
 See, eg A Rosas and L Armati, EU Constitutional Law: An Introduction, 2nd rev edn (Oxford, Hart Publishing, 2012, forthcoming) 170-171. See further n 62 below.
 These explanations were originally prepared under the authority of the Praesidium of the Convention which drafted the Charter of 2000. They were later updated under the responsibility of the Praesidium of the Europan Convention which drafted the abortive Treaty establishing a Constitution for Europe, which was signed in October 2004 but never entered into force,  OJ C310/1. The explanations have been published as an annex to the Charter as adapted in  OJ C303/717.
 Art 51(1) of the Charter. See also A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2010) 147-151; Rosas and Armati, n 7 above, 164-168.
 On these sources see A. Rosas ‘International Human Rights Instruments in the Case-Law of the European Court of Justice’, in Law in the Changing Europe: Liber Amicorum Pranas Kūris (Mykolo Romerio Universitat, Vilnius, 2008), 363.
 Case C-112/00 Schmidberger  ECR I-5659, para 77.
 Ibid para 81.
 See, eg Rosas and Armati, n 9 above, 143-146.
 Rosas, n 6 above, at 167-168.
 Case C-36/02 Omega  ECR I-9609.
 See Arts 27 and 28 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States,  OJ L158/77, and corrigenda  OJ L229/35 and  OJ L197/34. For a recent example from case law see Case C-145/09 Tsakouridis, judgment of 23 November 2010 nyr.
 Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union (‘Viking Line’)  ECR I-10779.
 The Charter was proclaimed by the European Parliament, the Council and the Commission in December 2000,  OJ C364/1.
 Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union, n 17 above, paras 44-46.
 Ibid para 77.
 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission  ECR I-6351.
 Rosas and Armati, n 9 above, 42-44.
 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission, n 21 above, para 304.
 Rosas and Armati, n 9 above, 44, with references to divergent opinions put forward in the literature.
 On the relation between property rights and other human rights see, eg A Rosas, ‘Property Rights’ in A Rosas and J Helgesen (eds), The Strength of Diversity: Human Rights and Pluralist Democracy (Dordrecht, Martinus Nijhoff Publishers, 1992) 133.
 Joined Cases C-92/09 and C-93/09 Volker and Schecke, judgment of 9 November 2010 nyr.
 See, eg Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council  ECR I-4723, paras 34 and 46; Case C-28/08 P Commission v Bavarian Lager  ECR I-6055, para 54; Joined Cases C-92/09 and C-93/09 Volker and Schecke, n 26 above, para 68.
 Joined Cases C-92/09 and C-93/09 Volker and Schecke, n 26 above, para 48.
 Ibid para 77. See also paras 83 and 85-86.
 Ibid paras 86 and 88.
 Case C-92/12 PPU Health Service Executive v S.C. and A.C., judgment of 26 April 2012 nyr, paras 110-113.
 Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000,  OJ L338/1.
 Case C-92/12 PPU Health Service Executive v S.C. and A.C., n 31 above, para 113.
 See, generally A Rosas, ‘Counter-Terrorism and the Rule of Law: Issues of Judicial Control’ in AM Salinas de Frías, KLH Samuel and ND White (eds), Counter-Terrorism: International Law and Practice (Oxford, Oxford University Press, 2012) 83.
 See, eg Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission, n 21 above, para 342; Case C-27/09 P France v People’s Mojahedin Organization of Iran, judgment of 21 December 2011 nyr para 67.
 Cf the case law relating to Art 9 of the International Covenant on Civil and Political Rights, M Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd rev edn (Kehl, NP Engel Publisher, 2005) 213-215. In Delgado Paéz v Colombia, No 195/1985, Decision of 12 July 1990, the Human Rights Committee held that, in order to ensure the right to security of person, States have a duty to take reasonable and appropriate measures to protect all persons under their jurisdiction.
 In the European Convention on Human Rights, the right to the protection of personal data is ensured in the context of the right to respect for ‘private life’, see, eg P van Dijk et al (eds), Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerpen, Intersentia, 2006) 666 et seq.
 Case C-28/08 P Commission v Bavarian Lager , n 27 above.
 Ibid para 78.
 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data,  OJ L8/1; Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents,  L145/43.
 See, eg Case C-400/10 PPU McB, judgment of 5 October 2010 nyr, para 53. See also A Rosas and H Kaila, ‘L’application de la Charte des droits fondamentaux de l’Union européenne par la Cour de justice: Un premier bilan’ (2011) XVI Il Diritto dell’Unione Europea 1 at 22-23.
 See van Dijk et al, n 37 above, 333 et seq.
 See, eg HC Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (The Hague, Martinus Nijhoff Publishers, 1996).
 See at n 11 above.
 For an example see Art 28 of the Charter of Fundamental Rights relating to the right of collective bargaining and action and Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union, n 17 above, para 44.
 See notably Case C-28/08 P Commission v Bavarian Lager, n 27 above.
 See at n 24 above.
 Rosas, n 6 above, 170.
 See Rosas and Armati, n 9 above, 97-110.
 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States,  OJ L190/1.
 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national,  OJ L50/1.
 Joined Cases C-411/10 and C-439/10 NS and ME et al, judgment of 21 December 2011 nyr.
 Ibid para 94.
 Ibid para 88. See Case of MSS v Belgium and Greece, EurCHR, Application No 30696/09, judgment of 21 January 2011.
 Case of Šneersone and Kampanella, Eur.H.H.R., Application No 14737/09, judgment of 12 July 2011.
 Regulation 2201/2003, n 32 above.
 Case of Šneersone and Kampanella, n 55 above, para 85(vi).
 See Art 60 of the Regulation, n 32 above.
 See, eg Case c-195/08 PPU Rinau  ECR I-5271; Case C-297/09 PPU Deticek  ECR I-12193; Case C-211/10 PPU Povse  ECR I-6673; Case C-297/10 Purrucker II, judgment of 9 November 2010 nyr.
 Case of Bosphorus v Ireland, Eur.C.H.R., Application No 45036/98, judgment of 30 June 2005. See also Case Kokkelvisserij v Netherlands, Eur.C.H.R., Application No 13645/05, Decision of 20 January 2009.
 See Arts 40, 42-45 of the Regulation, n 32 above.
 See Arts 6(2) TEU, Art 218(8) TFEU and Protocol No 8 annexed to the TEU and the TFEU and relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms; Draft agreement on the accession of the European Union to the Convention for the Protection of Human rights and Fundamental Freedoms to be concluded between the EU and the Member States of the Council of Europe, Council of Europe doc CDDH-UE(2011)16 of 9 July 2011. This draft, however, has not met with unanimous approval of the EU Member States (see Art 218(8) TFEU) and at the time of writing, the question of EU accession is still open.
 See, eg M Cremona, ‘Disconnection clauses in EU Law and Practice’ in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited: The EU and Its Member States in the World (Oxford, Hart Publishing, 2010) 160.