Leiden University. The university to discover. The impact of EU fundamental freedoms on diverging...
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Transcript of Leiden University. The university to discover. The impact of EU fundamental freedoms on diverging...
Leiden University. The university to discover.
The impact of EU fundamental freedoms on diverging fundamental rights standards;
a need for (European) regulation?
the Irish abortion tourism as a case study
Nelleke Koffeman LL.M 2010 Dubrovnik seminar
Leiden University. The university to discover.
Structure
Interactions between FR and FF
The Irish abortion tourism case study
Possible future free movement challenges to abortion laws
The interests of the relevant actors involved
Formulation of possible parameters for the research question
Leiden University. The university to discover.
Research question
(At what level) should situations in which diverging fundamental rights standards and fundamental freedoms interact, be regulated?
Leiden University. The university to discover.
Interaction one
Fundamental freedoms
Fundamental rights
…
Leiden University. The university to discover.
New forms of ‘tourism’
Abortion
Euthanasia
Procreative techniques
Import of prohibited books
Leiden University. The university to discover.
Interaction two
Fundamental freedoms
Fundamental rights
…
Leiden University. The university to discover.
Relation FR and FF
Classical case-law: FR as possible derogations to FF
More and more of equal ranking (e.g. Schmidberger)
FF as FR?
Will things change under Lisbon?
Leiden University. The university to discover.
Case study: Irish abortion tourism
Jan 1980 - Dec 2008: at least 137,618 Irish women to the UK
Also to and from other Member States
Leiden University. The university to discover.
ECJ – Grogan (1991)
Medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of the Treaty
Links between Irish student unions and UK abortion providers ‘too tenuous’
What was behind this?
How to interpret this?
Leiden University. The university to discover.
ECJ in Grogan
Why was the ECJ reluctant?
Tridimas (2006)
‘Member States may have felt that national policies reflecting basic philosophical and moral choices were unjustifiably being questioned in the name of economic freedoms.’
Leiden University. The university to discover.
Concrete consequences of abortion tourism
Rights to information and right to travel in Irish Constitution
Protocols to Maastricht and Lisbon Treaty
Leiden University. The university to discover.
Protocol 35 to the Lisbon Treaty
‘Nothing in the Treaties, or in the Treaty establishing the European Atomic Energy Community, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.’
Legal status?Art 51 TEU
Leiden University. The university to discover.
Possible future claims?
Restriction on freedom to provide services or freedom of establishment?
Not very likely, because (in the Irish case) Protocol 35 definition of ‘service’ in Grogan íf restriction, justification?
Suitable and necessary? Consistent and systematic?
Leiden University. The university to discover.
Possible future claims?
Konstantinides claim? AG Jacobs:
A Community citizen who exercises his freedom of movement is entitled to a certain standard of protection of his fundamental rights set by Community law, even if the host State does not guarantee that standard to its own nationals.
Not accepted by the Court
Abortion as Union right?
Leiden University. The university to discover.
ECtHR on abortion
No right to abortion recognised
Wide margin of appreciation
Prohibition on abortion information is violation Art 10 ECHR (Open Door, 1992)
If State allows for abortion, then also effective (Tysiac, 2007)
Leiden University. The university to discover.
ECtHR on abortion
Currently pendingA,B & C v. Ireland
Leiden University. The university to discover.
Possible future claims?
Compare Maduro in Centro Europa 7 Srl (2007)
Only serious and persistent violations of systemic nature qualify as violations of free movement.
As long as protection not gravely inadequate, ECJ only jurisdiction if within scope of EU law
Abortion tourism as one time movement – deterrent?
Leiden University. The university to discover.
The individual
Protection dependent upon residence
In the abortion tourism case Emotional burden Financial burden Practical burden Medical risks
Leiden University. The university to discover.
The State
‘sending’ state National identity National
sovereignty
‘receiving’ state overburdening
‘[..] profound moral values deeply embedded in the fabric of Irish society and arrived at through a wholly democratic process involving in all three referenda.’
Leiden University. The university to discover.
The Union
Objectives:
Optimal functioning of the internal market
Respecting national identities (Art 4(2) TFEU)
Leiden University. The university to discover.
Effects of the internal market
Case law encourages black/white choices in sensitive issues
States can ‘hide behind’ other States’ regimes
States can ‘export’ their regimes
Individuals have more options
Leiden University. The university to discover.
Research question
(At what level) should situations in which diverging fundamental rights standards and fundamental freedoms interact, be regulated?