HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

CHARLES UNIVERSITY FACULTY OF LAW

HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

Helena Hofmannová Karel Řepa (eds.)

PRAGUE 2025

This volume gathers ten best articles written by the students enrolled in the Master of Laws Programme at the Faculty of Law, Charles University, who attended the elective course “Human Rights in the European Constitutional Order” during the academic year 2023/2024.

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HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

prof. JUDr. Helena Hofmannová, Ph.D. Mgr. Karel Řepa, Ph.D. (eds.)

Prague 2025

List of Authors: Daniel Baumruk Georgia Hejduková

Antonín Pelikán Sára Eva Rujbr Helena Šmolková

Ondřej Kabelka Tomáš Kaňka

Marek Švajda

Václav Lipš

Jan Zindr

Markéta Macáková

Reviewers: JUDr. Lukáš Lev Červinka, Ph.D.

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR Hu man rights in the European constitutional order / Helena Hofmannová, Karel Řepa (eds.). – Prague : Univerzita Karlova, Právnická fakulta, ediční středisko v nakladatelství Eva Rozkotová, 2025. – 1 online zdroj České a anglická resumé Obsahuje bibliografie a bibliografické odkazy ISBN 978-80-7630-053-8 (Univerzita Karlova, Právnická fakulta ; online ; pdf) * 342 * 342.7 * 341.231.14 * (4) * (079)371.27 * (082) * (0.034.2:08) – ústavní právo – země Evropské unie – ochrana lidských práv – země Evropské unie – studentské práce – sborníky – elektronické knihy 342 – Ústavní právo. Správní právo [16]

Written as a part of the Easmus+ Jean Monnet Module, No. 101126703, Human Rights in the European Constitutional Order (HRECO).

© Univerzita Karlova, Právnická fakulta, 2025 Vydala Univerzita Karlova, Právnická fakulta, ediční středisko v nakladatelství Eva Rozkotová, Na Ptačí skále 547, 266 01 Beroun

ISBN 978-80-7630-053-8 (online)

TABLE OF CONTENTS

Foreword

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The European Project Was Always about Human Rights Georgia Hejduková A Delicate Balance: How to Solve Conflicts of Individualistic and Communitarian Dignity Václav Lipš and Marek Švajda Charter of Fundamental Rights of the EU: A Landmark or the Peak in Human Rights Protection? Markéta Macáková Evaluating the Draft revised Agreement on the Accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms in light of the Opinion 2/13 of the CJEU Tomáš Kaňka The Legal Fiction of Non-Entry in the Context of the New Pact on Migration and Asylum Helena Šmolková Protection of Environmental Migrants under Art. 15 of the Qualification Directive in the Light of the Decision of the UN Human Rights Committee in the Teitiota case 75 Ondřej Kabelka Impact of the Newly Revised Single Permit Directive on Non-EU citizens’ Working Rights in the EU and Czech Republic 94 Daniel Baumruk Chavez-Vilchez and Enhanced Notions of Citizenship 107 Antonín Pelikán Internal Mechanisms of the European Union in the Area of Protecting LGBTQ+ Rights 124 Sára Eva Rujbr Beyond Limits: Protection of Right to a Fair Trial via Article 19 TEU: Polish Cases 148 Jan Zindr 7 21 33 50 63

Anotace

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FOREWORD This volume gathers ten best articles written by students enrolled in the Master of Laws Programme at the Faculty of Law, Charles University, who attended the elective course “Human Rights in the European Constitutional Order” during the academic year 2023/2024. Over two semesters the class explored the layered architecture of fundamental rights protection in Europe: primary law values and competences, the Charter, the Court of Justice’s evolving jurisprudence, the Union’s relationship with the Council of Europe, and a range of human rights principles such as the principle of human dignity and equality, especially as they apply to vulnerable groups. The course welcomed several notable international scholars, including Christopher McCrudden, Moritz Jesse, Darinka Piqani, and Saša Gajin. Students were asked to select a concrete problem, trace its constitutional foundations, evaluate the relevant secondary legislation and case law, and offer a critical appraisal. The articles cover a range of topics related to the protection of human rights in European constitutional order. To speak with a single narrative voice, the articles are arranged around the image of a traveller moving through Europe’s legal landscape. The sequence traces “a right-holder’s journey”. It opens with the Union’s founding promise and closes with the last judicial refuge. Between those poles each chapter marks a stage on the road – from the ideals of integration, across perilous borders, through work, family life and equality, to the courthouse where rights are finally vindicated. In a time when countless people risk everything to reach the EU and see it as a haven of legality and dignity, this organising thread feels especially apt. The opening essay places our traveller at the Union’s symbolic point of departure. Retracing debates from the Schuman Declaration to Lisbon, Georgia Hejduková demonstrates that human rights rhetoric was not a late adornment but a silent engine of integration. Having boarded the European vessel, the traveller encounters competing notions of dignity. This contribution by Václav Lipš and Marek Švajda dissects landmark judgments to uncover two rival conceptions of human dignity and proposes criteria for mediating them. Next the reader arrives at the Charter checkpoint. The article by Markéta Macáková examines whether the EU’s Charter is merely a symbolic declaration or a practical legal instrument. It traces the Charter’s evolution, evaluates its real-world impact – especially through CJEU case-law – and discusses unresolved challenges. Even a well equipped Charter cannot function in isolation. In subsequent article Tomáš Kaňka tracks the external safety belt the Union still seeks by analysing the new version of draft EU accession to ECHR agreement to see where it meets Luxembourg’s demands and where new frictions lurk. The journey reaches its most precarious moment: the border. Helena Šmolková critiques the EU’s 2024 New Pact on Migration and Asylum for embedding a “legal fiction of non-entry”, under which migrants physically present at external borders are

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deemed to have never entered EU territory. Suppose the traveller persuades authorities that flight was compelled by climate driven harm. Ondřej Kabelka assesses how well EU subsidiary-protection law shields people displaced by climate change. By contrasting CJEU case-law with the UN Human Rights Committee’s more expansive reasoning, he shows that the CJEU’s narrow reading of “serious harm” and intent-based non refoulement leaves environmental migrants largely unprotected. Once status is granted, economic integration follows. Daniel Baumruk examines the revised Single Permit Directive, which enhances the rights of third-country national workers by e.g. improving equal treatment and access to information. Years pass; our protagonist forms a family and looks to secure the derived rights of children and third country parents. Antonín Pelikán revisits Ruiz Zambrano line jurisprudence, teasing out a range of unresolved dilemmas and demonstrating how Chavez Vilchez both clarified and complicated them. Life in the EU also means full participation without discrimination. Sára Eva Rujbr explores legal and institutional architecture of the EU in context of protecting LGBTQ+. It shows that meaningful progress demands both deeper legislative harmonisation and stronger, more accessible enforcement channels, or the EU’s commitment to LGBTQ+ may remain rather symbolic. The final destination is the courthouse itself. By analysing Miasto Łowicz, Commission v Poland and the CJEU’s repurposing of Article 19 TEU, Jan Zindr demonstrates how systemic rule of law decay can jeopardise every individual guarantee previously mapped. Acknowledgment is extended to the students of the 2023/2024 cohort for their intellectual curiosity, and to the visiting experts whose generous engagement and insights enriched the academic dialogue. Gratitude is further expressed to the European Union for its commitment to supporting the teaching and critical analysis of its institutional functioning through the Jean Monnet Module Erasmus+ Programme. Mgr. Karel Řepa, Ph.D.

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THE EUROPEAN PROJECT WAS ALWAYS ABOUT HUMAN RIGHTS Georgia Hejduková

Abstract Challenging the conventional view that European integration began as a purely economic venture, this article argues that humanrights concerns were embedded in every formative stage of the “European Project”. Through textual and historical analysis of the Schuman Declaration (1950), the ECSC Treaty (1951), the abortive European Political Community negotiations, and the EEC Treaty of Rome (1957), the study shows that conflict prevention, solidarity, and nondiscrimination – core human rights objectives – guided both rhetoric and treaty drafting. Although the early treaties lacked an explicit rights catalogue, provisions on peace, rising living standards, and equal treatment reveal a latent rights agenda later activated by the Court of Justice in cases such as Stauder, Internationale Handelsgesellschaft and Defrenne . The article concludes that the EU’s progressive rights architecture is not a post Lisbon add on but the fruition of ideals present from the outset; in this sense, the European project “was always about human rights”. Introduction European integration plays a fundamental role in our day-to-day lives. It affects the food we eat, the electricity we consume, the public transport we use, and the money we make. It is believed that the European Union came to represent the prosperity and interconnectedness of the world we all live in today. It is a union built not only on the foundations of the common market but also on respect for fundamental rights, the rule of law, and the recognition of diversity within its nearly half a billion inhabitants. 1 However, when we think about the European Union, we tend to focus on practical benefits such as the single market, the common European currency, the rise in the gross domestic product of states that joined the EU2, and the shared benefits of individuals such as freedom of movement without border controls. Even when we 1 European Commission. 484 million as of 2024 according to the European Commission [online]. 2024 [cit. 2024-04-05]. Available at: https://european-union.europa.eu/principles-countries-history/key facts-and-figures/life-eu_en. 2 CAMPOS, Nauro F., CORICELLI, Fabrizio, and MORETTI, Luigi. Economic Growth and Political Integration: Estimating the Benefits from Membership in the European Union Using the Synthetic Counterfactuals Method [online]. Rochester, NY: SSRN Scholarly Paper, May 3, 2014 [cit. 2024-04-05]. Available at: https://doi.org/10.2139/ssrn.2432446.

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talk about the history of European integration, we mainly think about the economic benefits of such integration; the exchange of critical manufacturing materials was, in fact, in the name of the first European Project. 3 The EU founding agreements at the time of their first signing in 1950 themselves did not have a comprehensive catalogue of human rights. 4 The fact that the EU adopted a comprehensive Charter of Fundamental Human Rights in 2000 is telling. 5 Moreover, only the Treaty of Lisbon recognises the need for the EU to become a party to the European Convention on Human Rights and Fundamental Freedoms, which clearly shows a progressive trend in human rights becoming more vital to the European Union. 6 The research question of this article is what role the concept of fundamental rights played in drafting and negotiating the founding multilateral treaties that eventually led to the formation of the European economic community. The article first examines the initial ideas and theories that led to the founding of the European Project from different perspectives. Then, it moves on to the Schuman Declaration, regarded as the most influential document on the European idea. It also discusses the strategic decisions involving the European community of Coal and Steel, the failed attempt at setting up the European political community, and the Treaty on the EEC. This article hopes to contribute to the debate on the history of human rights protection in the European Union by critically examining the content of these documents and discussions around their negotiation. This article should bring additional perspective to the table. The perspective broadly expands upon the ideas of Gráinne de Búrca, written in her article The Road Not Taken: The EU as a Global Human Rights Actor. 1. Outlining the Idea of a Joint European Project There are various perspectives to be examined when looking at the origins of the ideas for European integration. In World Order, Henry Kissinger describes Europe as rising from the ashes of the tragedy of the Second World War. 7 Indeed, the central drive of European integration was the experience of the Second World War. However, there are other perspectives to be considered, for example, the influence of the United States on the outcome of negotiations for the new Europe. 8 There is also the idea 4 EUROPEAN COAL AND STEEL COMMUNITY. Treaty of Paris. [online]. 1951. [cit. 2024-04-05]. Available at: https://eur-lex.europa.eu. 5 EUROPEAN UNION. Charter of Fundamental Rights of the European Union. In Official Journal of the European Union [online]. 2012, C 326 [cit. 2024-04-05]. Available at: https://eur-lex.europa.eu/legal content/EN/TXT/?uri=CELEX:12012P/TXT. 6 EUROPEAN UNION. Treaty on European Union . In Official Journal of the European Union , C 202, 7 June 2016, Art. 6(2). 7 KISSINGER, Henry A. World Order: Reflections on the Character of Nations and the Course of History. London: Penguin Books, 2015. ISBN 978-0-14-197900-7. 8 BEREND, Ivan T. The History of European Integration. London: Routledge, 2016, pp. 7–56. 3 European coal and steel community.

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of the United States of Europe, 9 considered by one of the key leaders of the time, Winston Churchill. 10 The idea that European integration could rest on preventing the next war through cooperation is elaborated not only by a handful of European states people such as Churchill 11 or De Gaulle 12 but also by an essential argument in literature about European integration. It is only natural for the population of Europe to seek to prevent another destructive war since the efforts after WWI did not work. One of the ways was the idea of European federalism, as elaborated by Lipgens. 13 The fact that one of the ultimate goals of the European Project was to prevent war makes it a human rights project in itself because the war is ultimately the place where human rights are violated, as we saw in WWII Nazi Germany. 14 This is further elaborated in the Schuman declaration. 15 However, the larger goal of economic cooperation16 which would prevent nation-states from acting in their self-interest, was likely the leading cause, with supportive arguments for war prevention. 2. Schuman Declaration The proposal of 9 May 1950 is regarded as the document that started the European integration process. 17 Although the original plan was based on a task to integrate West Germany into Western Europe 18 , it is clear that Schumann went far beyond that task. With the help of a French diplomat and the General Commissioner 9 DOWARD, Jamie. The “United States of Europe” Speech That Winston Churchill So Nearly Made. In The Guardian [online]. May 10, 2020 [cit. 2024-04-05]. Available at: https://www.theguardian.com/uk news/2020/may/10/the-united-states-of-europe-speech-that-winston-churchill-so-nearly-made. 10 CHURCHILL, Winston. Let Europe Arise! Transcription of a speech delivered at the University of Zurich, September 19, 1946. 11 ROITIÑO, David Ramiro, and CHOCHIA, Archil. Winston Churchill and the European Union. In Baltic Journal of Law & Politics [online]. 2015, Vol. 8, No. 1, pp. 61–63 [cit. 2024-04-15]. Available at: https://doi.org/10.1515/bjlp-2015-0011. 12 RAMIRO TROITIÑO, David, MARTÍN DE LA GUARDIA, Ricardo, and PÉREZ SÁNCHEZ, Guillermo A. The European Union and Its Political Leaders: Understanding the Integration Process. In Springer International Publishing AG [online]. 2022, pp. 195–200 [cit. 2024-04-08]. Available at: https://link.springer.com/book/10.1007/978-3-030-96662-1. 13 DEDMAN, Martin. The Origins & Development of the European Union 1945-2008: A History of European Integration. In Routledge [online] [cit. 2024-04-08]. Available at: https://doi. org/10.4324/9780203873618. 14 STAHEL, David, and KAY, Alex J. Mass Violence in Nazi-Occupied Europe . In Indiana University Press [online]. 2018 [cit. 2024-04-08]. Available at: https://doi.org/10.2307/j.ctv3znw3v. 15 Schuman Declaration , Preamble. 16 SPOLAORE, Enrico. What is European Integration Really About? A Political Guide for Economists. In The Journal of Economic Perspectives [online]. Vol. 27, No. 3, 2013 pp. 125–144 [cit. 2024-04-08]. Available at: https://doi.org/10.1257/jep.27.3.125. 17 This is why the 9th of May is celebrated in Europe as Europe Day. 18 FONTAINE, Pascal. Europe – a Fresh Start: The Schuman Declaration 1950-90 [online]. In OPOCE, pp. 9–10 [cit. 2024-04-08]. Available at: https://aei.pitt.edu/5877/1/5877.pdf.

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for modernisation 19 Jean Monet, they crafted together with a few of their colleagues almost in secrecy and with little cooperation with other involved parties the declaration. 20 It is only immediately before the announcement that they reach out to German Chancellor Konrad Adenauer for endorsement. 21 The foundational goal of the Schuman Declaration is stated at the beginning of the preamble: “World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it” . This brings us to the idea of conflict prevention as one of the fundamental goals of the upcoming European Project. Furthermore, because this is the first sentence of the declaration, this goal is of the utmost importance to the newborn European community. Nevertheless, it is not just World peace that is the goal of the community. The declaration further states that the creation of what is about to be the EEC serves “the aim of contributing to raising living standards and promoting peaceful achievements”. Therefore, the aim concerns war prevention and living standards. It is significant because the increase in living standards fulfills various goals in the Universal Declaration of Human Rights in articles 22–30. 22 The further declaration elaborates on the “improvement of the living conditions of workers working in coal and steel industries”. This is another clear mark that the declaration concerned the well-being of people who work in this unified market, fulfilling Article 23 of the Universal Declaration of Human Rights. In the Schuman declaration, the scope of the European Project would focus on fulfilling human rights goals such as raising living standards or improving the living conditions of workers. Here, there was hardly a consensus on the materiality and concrete obligations the contracting parties would provide, which can be seen not only in the lack of concrete policies of the EEC in its foundation days but also in the general lack of consensus on the content of the Universal Declaration of Human Rights as a non-binding document with the eventual split of the binding instruments into two separate multilateral treaties International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, latter with significantly slower accession of the UN member states. 23 However, it could also be argued that not just these individual human rights are protected but also the general protection of human rights, such as the right to personal autonomy and the right to life, to prevent conflict. Since this is the foundational document, the origins of the European Project are, to a certain extent, based on the protection of certain human rights.

19 Ibid, p. 10. 20 Ibid, pp. 11–12. 21 Ibid, p. 13. 22 UNITED NATIONS. Universal Declaration of Human Rights . Art. 22–30.

23 UNITED NATIONS. International Covenant on Civil and Political Rights [online]. United Nations Treaty Collection [cit. 2024-06-15]. Available at: https://treaties.un.org/doc/treaties/1976/03/19760323%20 06-17%20am/ch_iv_04.pdf.

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3. European Coal and Steel Community The signing of the Schuman Declaration eventually led to the establishment of the European Coal and Steel Community (ECSC), founded by the Treaty of Paris, which was signed in 1951. It was the first significant attempt to establish a union between the six major countries west of the Iron Curtain. The organisation paved the way for the future of European integration, and it was a critical moment in European history. The Treaty contains no specific human rights provisions, but that does not mean that the Treaty would completely disregard the discussion conducted in the Schuman Declaration or the conversation about the purpose of European integration. It expands upon the promises made in the Schuman Declaration, especially in the Treaty’s preamble 24 , which outlines goals that not only expand upon the Schuman Declaration but also touch upon other matters that are essentially human rights-based. Let us start with the first sentence of the Treaty’s preamble, where the signatories state that “world peace may be safeguarded only by creative efforts equal to the dangers which menace it” 25 . This is not an obligation, but the signatories abide by the original goal. Further, the preamble speaks about common solidarity and the desire to raise living standards through increased production; this further confirms the commitment of the Schuman Declaration to fulfill its goals. It is regrettable that the Treaty itself was not more ambitious in this regard and did not venture past the focus on “peace” and “living standards”. It is hard to imagine that there would not be a European consensus among the nations on even the most basic declaratory principles since these same states signed the European Convention on Human Rights just a year earlier. 26 This particular fact means that there was an agreement among the states about the values that were just never explicitly written in the founding Treaty. An explanation of this phenomenon emerges after a review of the literature concerning the negotiation of the Paris Treaty. 27 Although there is no evidence of a discussion related to human rights, there was an extensive dispute between the contracting parties relating to the powers of the court that would adjudicate the matters of the Treaty; Germans specifically preferred a court that could rule on constitutional issues. Belgium and France opposed such broad authority of the court. 28 24 Preamble to the Paris Treaty. Treaty establishing the European Coal and Steel Community , Paris, April 18, 1951. 25 Ibid. 26 It has to be noted however, that even if all states signed the European Convention of Human rights in 1950, the ratification took a fair amount of time European convention on human rights signatories 27 SMEDT, Anne Boerger-De. Negotiating the Foundations of European Law, 1950–57: The Legal History of the Treaties of Paris and Rome. In Contemporary European History [online]. 2012, vol. 21, no. 3, pp. 339–356 [cit. 2024-04-15]. Available at: http://www.jstor.org/stable/23270668. 28 Ibid, 344.

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However, ultimately, in terms of the ESCS treaty, the discussion of the opinion that the court would ultimately fulfill the administrative role prevailed. 29 4. The Failure of the European Political Community In 1952, then-members of the ECSC further proposed creating an even more integrated community, which would combine the European Coal and Steel Community (ECSC) and European Defence Community (EDC) 30 This new entity was to be named the European Political Community (EPC) and composed of the original six signatories of the ECSC. The negotiations started in January 1953, led by an ad hoc assembly that was supposed to create the Treaty. It managed to create the outline after six months. 31 In the end, however, they failed to strike a treaty that would be acceptable to all the parties. 32 The independent body composed of lawyers set up by the Movement Europeén (CECE) 33 tasked with drafting the Treaty on the EPC, even raised the possibility of acceding to the European convention on human rights and fundamental freedoms. However, due to the failure of the EPC, this was never adopted 34 , and the discussion on the topic of accession to the European Convention continues in Europe to this day. 35 Regarding human rights, it ultimately was concluded to rely on the established European Convention on Human Rights as a source of human rights protection in the European community. 36 In the end, this turned out to be a risky decision since only in 1955 5 out of 6 member states of the EEC ratified the convention, and France only ratified it in 1974. 37 However, the eventual failure of the EDC brought an end to the debate about the EPC, and the European states took a more pragmatic approach 29 Ibid, 344. 30 DEDMAN, Martin. The Origins & Development of the European Union 1945–2008: A History of European Integration . London: Routledge [online] [cit. 2024-04-15]. Available at: https://doi. org/10.4324/9780203873618. 31 GRIFFITHS, Richard (2016 ). Thank you M. Monnet: essays on the history of European integration. In Leiden University Press , p. 118. ISBN: 9789400601079. 32 Ibid, p. 129. 33 DE BÚRCA, Gráinne. The Road Not Taken: The European Union as a Global Human Rights Actor. In The American Journal of International Law [online]. 2011, vol. 105, no. 4, pp. 654–655 [cit. 2024-04-15]. Available at: https://doi.org/10.5305/amerjintelaw.105.4.0649. 34 Ibid, pp. 663–64. 35 COURT OF JUSTICE OF THE EUROPEAN UNION. Opinion 2/13 of the Court (Plenary) of 18 December 2014. Opinion delivered pursuant to Article 218(11) TFEU on the compatibility of the European Union’s accession to the European Convention on Human Rights. 36 DE BÚRCA, Gráinne. The Road Not Taken: The European Union as a Global Human Rights Actor. In The American Journal of International Law [online]. 2011, vol. 105, no. 4, pp. 654–655 [cit. 2024-04-15]. Available at: https://doi.org/10.5305/amerjintelaw.105.4.0649. 37 COUNCIL OF EUROPE. List of signatories of the European Convention on Human Rights [online] [cit. 2024-04-19]. Available at: https://www.coe.int/en/web/conventions/full-list?module=signatures by-treaty&treatynum=005.

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to European integration in the form of EURATOM and EEC, set up in 1957 in Rome. 38 To achieve to community following the EDC debacle it was concluded to exclude any topics that were not explicitly mentioned in the Treaty. 39 This new approach is ultimately what shaped the European integration in coming decades. 5. European Economic Community The Treaty of Rome, signed in 1957, plays a central role regarding human rights because it creates the fundamental part of the current European Union law but was suspensively adjudicated by the Court of Justice. The Treaty of Rome contains both declaratory and substantial human rights obligations. At first glance, it might not seem like it; however, upon closer inspection of the specific provision, it can be concluded that there is a solid foundation for future EEC human rights obligations and provisions. There are concrete mentions of the protection of fundamental rights in the preamble, similar to the previous treaties mentioned earlier; what is, however, much more interesting is that here, there is a handful of substantial provisions in the Treaty regarding concrete human rights obligations. The evidence of this aim of the European Union not being “just another declaratory statement” can be found in the early case law. At first, the court was not in favour of recognising the value of human rights protection, as demonstrated in cases such as Stork v High Authority 40 , the Court of Justice disregarded the protection of fundamental rights in favour of uniformity. The court did this by ruling that their jurisdiction to judicial review of decisions done by the High Authority from the perspective of founding treaties, not constitutional law of member states and, therefore, its fundamental rights provisions. 41 These were provisions the treaty lacked. 42 It continued with this doctrine in the cases of Geitling 43 v The High Authority , when the court rejected the idea that the human rights complaint would be relevant. 44 38 DE BÚRCA, Gráinne. The Road Not Taken: The European Union as a Global Human Rights Actor. In The American Journal of International Law [online]. 2011, vol. 105, no. 4, pp. 666–667 [cit. 2024-04-19]. Available at: https://doi.org/10.5305/amerjintelaw.105.4.0649. 39 Ibid. 40 COURT OF JUSTICE OF THE EUROPEAN UNION. Judgment of the Court of 4 February 1959, Friedrich Stork & Cie v High Authority of the European Coal and Steel Community , Case 1 C-1/58, EU:C:1959:4. 41 Ibid, p. 26. 42 MARCOUX Jr., Laurent. The Concept of Fundamental Rights in European Economic Community Law. In Georgia Journal of International and Comparative Law [online]. 1983, vol. 13, no. 3, p. 685 [cit. 2024 04-19]. Available at: https://digitalcommons.law.uga.edu/gjicl/vol13/iss3/3. 43 European Court of Justice. Judgment of the Court of 15 July 1960, Präsident Ruhrkohlen-Verkaufsgesellschaft mbH, Geitling Ruhrkohlen-Verkaufsgesellschaft mbH, Mausegatt Ruhrkohlen-Verkaufsgesellschaft mbH and I. Nold KG v High Authority of the European Coal and Steel Community , Joined Cases C-36/59, C-37/59, C-38/59 and C-40/59, EU:C:1960:36. 44 DE BÚRCA, Gráinne. The Evolution of EU Human Rights Law. In Oxford University Press [online]. 2021, pp. 476–478 [cit. 2024-04-20]. Available at: https://doi.org/10.1093/oso/9780192846556.003.0015.

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The page however starts to turn in Stauder 45 and Internationale Handelgesellschaft 46 where the CJEU establishes the protection of fundamental rights as one of the general principles of EU law. The most significant is the Treaty’s commitment to the prohibition of discrimination. The principle of non-discrimination was and continues to be one of the fundamental values of the Treaty. 47 and it is to this date one of the core values of the European Union and its legal system. Even in its beginning, it presents the most apparent evidence of a human rights-based European union because, in the context of the original Treaty, this presents not just a proclamation but also a material contribution to its member states’ human rights-based legal order. Initially, it is primarily focused on the grounds of nationality of member states as an extension of freedom of movement. It is the first step in expanding to other areas of discrimination. The EEC Treaty itself even explicitly mentions these. For example, in Article 119, an explicit prohibition should ensure that women receive equal pay as men for equal work. Although few contemporary scholars imagined it at the time, this provision would later pave the way for the eventual regulation of not only gender based discrimination but also domestic violence. 48 However, this contribution is still significant as it tries to erase differences between various nationalities of the community and the potential benefits it brings. Significantly, the governments of the community have to treat citizens of the community and their citizens as equals and give them the potential benefits they would only want to give their citizens, which presents a fantastic opportunity for people from countries with lower GDP per capita, like Italy, to seek jobs and education in the Netherlands, which contributes to their development and enriches them both materially and spiritually. It also sets up a solid foundation for further anti-discrimination protections of the EU; this was expanded upon in the case of Defrenne v Sabena , which was concerning the reference for a preliminary ruling from the Belgian court concerning the flight attendant, who was seeking equal pay for work as his male colleague. 49 The importance of the prohibition of discrimination was also evident from the first cases of the Court of Justice of the EU concerned with discrimination based on 45 Judgment of the Court of 12 November 1969, Erich Stauder v City of Ulm – Sozialamt, C-29/69, EU:C:1969:57. 46 European Court of Justice. Judgment of the Court of 17 December 1970, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel , C-11/70, EU:C:1970:114. 47 DE BÚRCA, Gráinne. The Evolution of EU Human Rights Law. In Oxford University Press [online]. 2021, pp. 476–478 [cit. 2024-04-25]. Available at: https://doi.org/10.1093/oso/9780192846556.003.0015. 48 BELAVUSAU, Uladzislau, and HENRARD, Kristin. A Bird’s Eye View on EU Anti-Discrimination Law: The Impact of the 2000 Equality Directives. In German Law Journal [online]. July 2019, vol. 20, no. 5, p. 618 [cit. 2024-04-25]. Available at: https://doi.org/10.1017/glj.2019.53. 49 European Court of Justice. Judgment of the Court of 8 April 1976, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena , C-43/75, EU:C:1976:56.

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nationality. For example, in the preliminary ruling in the case of Württembergische Milchverwertung-Südmilch AG v Salvatore Ugliola, the court of justice protected not just fair treatment of the members of the European community by helping the non german nationals who have to fulfill military service obligations to their country and have this period counted towards their employment within the meaning of german labour law. 50 Here the court makes a clear expectation that an individual should not be disadvantaged based on their nationality within the European communities. 51 Another significant contribution to the Treaty’s commitment concerns the democratic order of the community itself. 52 The need for a democratic order in the community, with the possibility of future European elections, contributes to the right to political participation. Although it does not guarantee the quality of democracy in the member states, the EEC and, eventually, the EU will move in that direction. However, it needs to be said that the few substantial provisions are in no way a replacement for a more comprehensive catalogue of human rights, and even when the Court of Justice had the power to extend these provisions through interpretation, it is only in the later cases that the court does so. 53 Even though the EEC was undoubtedly created to protect individuals’ rights, this protection was limited to the scope provided by the treaties, which unfortunately did not provide adequate guarantees. Conclusion In this article, we sought to answer the question of what role the concept of fundamental rights played in drafting and negotiating the founding multilateral treaties that eventually led to the formation of the European economic community. The findings suggest that it played a role in forming the European Project. Even though they were not the primary driver of European integration, some human rights goals, like preventing war and uniting the continent, were at the beginning of the discussions, and the Shuman Declaration contains some crucial human rights goals. In the proposal for the EPC, there was even a discussion on a human rights catalogue; however, the discussions around EEC and later the debates about human rights aspects of the European Union were non-existent. However, some of the ideas from the Schuman declaration, most notably the early anti-discrimination legislation, make it to the definitive version of the EEC treaty and is even at the very beginning 50 European Court of Justice. Judgment of the Court of 15 October 1969, Württembergische Milchverwertung Südmilch AG v Salvatore Ugliola , C-15/69, EU:C:1969:54. 51 Ibid, pp. 5–6. 52 Provisions of Part 5 of the EEC Treaty. 53 MARCOUX Jr., Laurent. The Concept of Fundamental Rights in European Economic Community Law. In Georgia Journal of International and Comparative Law [online]. 1983, vol. 13, no. 3, p. 685 [cit. 2024 04-29]. Available at: https://digitalcommons.law.uga.edu/gjicl/vol13/iss3/3.

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one of the fundamental values of the European Union, which is evident not only from the number of cases in this matter but also early secondary legislation. The progressive narrative of human rights protection in the EU is valid, supported by strong arguments. However, the fact that from the very beginning of the idea of a joint European Project through its negation based on European politics, the Schuman declaration, and the EPC, the human rights aspect was always present, and at no point by any of the community members was it objected in full. It supports the ultimate conclusion that the EU was always about human rights, even when it did not explicitly mention the catalogue of them in the founding treaties. The EU never went against the values of protecting human rights, and in 1990, it started its own human rights documents and bodies. It is not easy to evaluate whether the decision was the right one. On the one hand, there is a certain degree of sympathy for the need to limit the scope of the treaties to the minimum, especially since we are elaborating on treaties creating one of the first modern international organisations. The treaties are already exhaustively challenging to negotiate. There is a possibility that the attempt to include human rights in the provision and even the potential accession to the ECHR system would vastly prolong these negotiations and potentially prevent the formation of the EEC. On the contrary , these obstacles are purely theoretical since the matter was only adequately discussed after the failure of the EPC in the 1950s. If these matters had been brought up, the provision, even symbolic ones, could have been passed without a legion of issues. After all, most states already agreed to the ECHR system and its human rights obligations, and there is no evidence that it would be an issue if it were part of the EEC. However, even when human rights were not explicitly mentioned, that does not mean that in the debates about the future of the EEC, human rights would still need to be addressed. By the time the EEC was established, all member states (with the exception of France) had already joined the ECHR. As Gráinne de Búrca has argued, the silence of the founding treaties likely reflected an implicit recognition of the Council of Europe’s role in safeguarding human rights in Europe. 54 The founding documents anticipated further amendments to the treaties. 55 Regardless of the opinion on this matter, it would be hard to justify that the European Project (first European Community on Coal and Steel, then European Economic Community, and now European Union) was ever not about human rights because if we consider the fact that one of the supporting ideas at the beginning was the idea of prevention of the future armed endeavours between the European nations 54 DE BÚRCA, Gráinne. The Road Not Taken: The European Union as a Global Human Rights Actor. In The American Journal of International Law [online]. 2011, vol. 105, no. 4, p. 669 [cit. 2024-06-15]. Available at: https://doi.org/10.5305/amerjintelaw.105.4.0649. 55 Ibid, p. 670.

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and the ideas of human rights and never explicitly rejected the idea of human rights. It merely postponed the specific implementations of human rights commitment and outsourced the (although not explicitly) human rights protection mechanism to the Council of Europe. It leaves little doubt that the “foundations of an ever-closer union among the peoples of Europe” were laid not only on the foundations of the Charter of the United Nations but also on the foundations of the protection of fundamental rights and freedoms.

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Bibliography Primary legal sources

COUNCIL OF EUROPE. List of signatories of the European Convention on Human Rights [online] [cit. 2024-04-19]. Available at: https://www.coe.int/en/web/ conventions/full-list?module=signatures-by-treaty&treatynum=005. EUROPEAN COMMISSION. 484 million as of 2024 according to European Commission [online]. 2024 [cit. 2024-04-05]. Available at: https://european-union. europa.eu/principles-countries-history/key-facts-and-figures/life-eu_en. EUROPEAN UNION. Treaty on European Union. In Official Journal of the European Union , C 202, 7 June 2016, Art. 6(2). EUROPEAN UNION. Charter of Fundamental Rights of the European Union. In Official Journal of the European Union [online]. 2012, C 326 [cit. 2024-04-05]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/ TXT. SCHUMAN DECLARATION, Preamble. UNITED NATIONS. Universal Declaration of Human Rights. UNITED NATIONS. International Covenant on Civil and Political Rights [online]. In United Nations Treaty Collection [cit. 2024-06-15]. Available at: https://treaties. un.org/doc/treaties/1976/03/19760323%2006-17%20am/ch_iv_04.pdf. Case-law COURT OF JUSTICE OF THE EUROPEAN UNION. Opinion 2/13 of the Court (Plenary) of 18 December 2014. COURT OF JUSTICE OF THE EUROPEAN UNION. Judgment of the Court of 15 July 1960, Präsident Ruhrkohlen-Verkaufsgesellschaft mbH v High Authority of the European Coal and Steel Community, Joined Cases C-36/59 et al., EU:C:1960:36. COURT OF JUSTICE OF THE EUROPEAN UNION. Judgment of the Court of 8 April 1976, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena, C-43/75, EU:C:1976:56. COURT OF JUSTICE OF THE EUROPEAN UNION. Judgment of the Court of 15 October 1969, Württembergische Milchverwertung-Südmilch AG v Salvatore

Ugliola, C-15/69, EU:C:1969:54. Academic articles and others

BELAVUSAU, Uladzislau, and HENRARD, Kristin. A Bird’s Eye View on EU Anti Discrimination Law: The Impact of the 2000 Equality Directives. In German Law

18

Journal [online]. July 2019, vol. 20, no. 5. [cit. 2024-04-25]. Available at: https://doi. org/10.1017/glj.2019.53. BEREND, Ivan T. The History of European Integration . London: Routledge, 2016. ISBN 9781138654914. CAMPOS, Nauro F., CORICELLI, Fabrizio, and MORETTI, Luigi. Economic Growth and Political Integration: Estimating the Benefits from Membership in the European Union Using the Synthetic Counterfactuals Method [online]. In SSRN Scholarly Paper, 2014 [cit. 2024-04-05]. Available at: https://doi.org/10.2139/ssrn.2432446. CHURCHILL, Winston. Let Europe Arise! Transcription of a speech delivered at the University of Zurich, September 19, 1946. DEDMAN, Martin. The Origins & Development of the European Union 1945–2008: A History of European Integration. In Routledge [online] 2009. [cit. 2024-04-08]. Available at: https://doi.org/10.4324/9780203873618. DE BÚRCA, Gráinne. The Evolution of EU Human Rights Law. In Oxford University Press [online]. 2021. [cit. 2024-04-20]. Available at: https://doi.org/10.1093/ oso/9780192846556.003.0015. DE BÚRCA, Gráinne. The Road Not Taken: The European Union as a Global Human Rights Actor. In The American Journal of International Law [online]. 2011, vol. 105, no. 4, pp. 654–655 [cit. 2024-04-15]. Available at: https://doi.org/10.5305/ amerjintelaw.105.4.0649. DOWARD, Jamie. The “United States of Europe” Speech That Winston Churchill So Nearly Made. In The Guardian [online]. May 10, 2020 [cit. 2024-04-05]. Available at: https://www.theguardian.com/uk-news/2020/may/10/the-united-states-of-europe speech-that-winston-churchill-so-nearly-made. FONTAINE, Pascal. Europe – a Fresh Start: The Schuman Declaration 1950–90. In OPOCE [online]. 1990. [cit. 2024-04-08]. Available at: https://aei.pitt.edu/5877 /1/5877.pdf. GRIFFITHS, Richard. Thank you M. Monnet: essays on the history of European integration . In Leiden University Press , 2016. ISBN: 9789400601079. KISSINGER, Henry A. World Order: Reflections on the Character of Nations and the Course of History. London: Penguin Books, 2015. ISBN 978-0-14-197900-7. MARCOUX Jr., Laurent. The Concept of Fundamental Rights in European Economic Community Law. In Georgia Journal of International and Comparative Law [online]. 1983, vol. 13, no. 3. [cit. 2024-04-29]. Available at: https://digitalcommons.law.uga. edu/gjicl/vol13/iss3/3. RAMIRO TROITIÑO, David, MARTÍN DE LA GUARDIA, Ricardo, and PÉREZ SÁNCHEZ, Guillermo A. The European Union and Its Political Leaders:

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Understanding the Integration Process. In Springer International Publishing AG [online]. 2022. [cit. 2024-04-08]. Available at: https://link.springer.com/book/10.1007/978 3-030-96662-1. ROITIÑO, David Ramiro, and CHOCHIA, Archil. Winston Churchill and the European Union. In Baltic Journal of Law & Politics [online]. 2015, vol. 8, no. 1. [cit. 2024-04-15]. Available at: https://doi.org/10.1515/bjlp-2015-0011. SMEDT, Anne Boerger-De. Negotiating the Foundations of European Law, 1950–57: The Legal History of the Treaties of Paris and Rome. Contemporary European History In Contemporary European History [online]. 2012, vol. 21, no. 3. [cit. 2024-04-15]. Available at: http://www.jstor.org/stable/23270668. SPOLAORE, Enrico. What is European Integration Really About? A Political Guide for Economists. In The Journal of Economic Perspectives [online]. Vol. 27, No. 3, 2013. [cit. 2024-04-08]. Available at: https://doi.org/10.1257/jep.27.3.125. STAHEL, David, and KAY, Alex J. Mass Violence in Nazi-Occupied Europe. In Indiana University Press [online]. 2018 [cit. 2024-04-08]. Available at: https://doi. org/10.2307/j.ctv3znw3v.

Disclosure: During the making of this paper a grammatical tool Grammarly was used. During making of an abstract there was limited use of ChatGPT. ChatGPT only worked with the content originally made by the author.

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A DELICATE BALANCE: HOW TO SOLVE CONFLICTS OF INDIVIDUALISTIC AND COMMUNITARIAN DIGNITY Václav Lipš and Marek Švajda Annotation The traditional adjudication of human dignity conflicts fails to provide adequate reasoning in cases where dignity confronts dignity. The balancing formula is the most effective methodological approach to resolving these complex conflicts. We build upon Klatt and Meister’s framework of applying the balancing formula to these cases and weighing dignity against dignity. Our key modification is that courts should explicitly establish and justify different abstract weights of dignity, reflecting the distinction between individual and communitarian aspects. This refinement will fulfil the essence of the proportionality test – the right to justification. Introduction 1 When we heard about Wackenheim v. France 2 ( hereafter “Wackenheim” ) and C-36/02, Omega 3 ( hereafter “Omega” ) cases as examples of decisions resting on the absoluteness of human dignity, we were intrigued. Can decisions in complex cases like these rest almost entirely on the concept of human dignity as an absolute fundamental right or value that trumps all other arguments because nothing can be weighed against it? We believe that they cannot. 1 We would like to thank Karel Řepa and Helena Hofmannová for their advice, comments, and support in making this paper possible. A special thank you goes to Tomáš Koref for his insightful feedback and tremendous help. The present paper was created under the Specific University Research (SVV) project of Charles University No. 260 622, “Technological Progress and Social Changes as Challenges for Research on Fundamental Questions of Law”. AI tools were used to assist with the preparation of parts of this paper. We employed Elicit to identify and review relevant literature, ChatGPT to create concise summaries of the cases discussed and Grammarly for proofreading. All interpretations, conclusions, and opinions expressed in this paper are solely our own. 2 International covenant on civil and political rights, Wackenheim v. France, Comm. 854/1999 , U.N. Doc. A/57/40 [online]. Vol. II, at 179 (HRC 2002) [cit. 2024-07-04]. Available at: https://juris.ohchr. org/casedetails/1010/en-US. 3 Court of Justice of the European Union. C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [online]. Judgement of 14 October 2004 [cit. 2024-07-04]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62002CJ0036.

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Based on how doctrine explains that dignity can be viewed as communitarian and individualistic, we were inspired to try and connect this approach to the proportionality test and weigh the different aspects of dignity against each other. We were not the first to ask questions about the so-called dignity–dignity problem. Klatt and Meister have created an algorithm 4 to solve such cases based on Alexy’s theory of principles. While this approach can solve dignity–dignity conflicts, we believe it can be improved by assigning different weights to each dignity and adding justification for the weight. This will then ultimately fulfil the purpose of the proportionality test, which is to provide adequate justification. 1. Individualistic and Communitarian Dignity In this chapter, we shortly explain the two main aspects of dignity: individualistic dignity and communitarian dignity. Individualistic Dignity As the name suggests, individual dignity focuses more on the individual from a libertarian point of view. 5 This is clearly present in the approach of certain constitutional courts like the Hungarian Constitutional Court. It is essential to recognise that these differences come from the philosophies used by these courts, oftentimes greatly influenced by historical events. Such can be argued with the Hungarian constitutional court, as McCrudden states, “person is envisaged as someone considered in isolation and fighting against the state to protect her rights ”. 6 This approach does not focus on relationships and interactions between people and solely adheres to the dichotomy of a person and the state. Moreover, it not only doesn’t recognise these relationships but has the opposite effect: “ Instead, human dignity surrounds the individual in a sort of protective sphere, and thus isolates individuals from each other ”. 7 Finally, the historical effect is also present. What is interesting in the case of Hungary is the post-communist push for individuality and autonomy, which is much more aggressive than in other post-communist countries. 8 All these countries indeed experienced policies which pushed capitalism and individualism; however, 4 KLATT, M. – MEISTER, M. The Constitutional Structure of Proportionality. In: Oxford University Press [online]. July 2012, p. 39 [cit. 2024-07-04]. Available at: https://www. researchgate.net/publication/315767984_The_Constitutional_Structure_of_Proportionality. 5 KARIKÓ, S. Some Aspects of Respect and Dignity of Individual On the Europeanism as Values-system: Moral and Individual. In: Education, Society and Human Studies [online]. 2022, Vol. 3, Iss. 4, p. 9 [cit. 2024-07-04]. Available at: https://www.researchgate.net/publication/365619293_Some_Aspects_of_ Respect_and_Dignity_of_Individual_On_the_Europeanism_as_Values-system_Moral_and_Individual. 6 MCCRUDDEN, C. Human Dignity and Judicial Interpretation of Human Rights. In: European Journal of International Law [online]. Vol. 19, Iss. 4, p. 700 [cit. 2024-07-12]. Available at: https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1281979. 7 Ibid. p. 700. 8 Ibid. pp. 700–701.

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