Novel Freedoms

Arts Sciences Religion & Beliefs

Article 13 – Freedom of the arts and sciences

The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

The Article has no direct equivalent in the European Convention on Human Rights. The ECHR has indicated that those who create perform distribute or exhibit works of art, contribute to the exchange of ideas and opinions which are essential for a democratic society. It has been defined as the creation performance distribution or exhibition of works of art.

It appears the protection extends not just to the work of art but to its production publication and dissemination. In the context of the European Convention on Human Rights, works which are offensive shocking and disturbing may enjoy protection. Those in public life such as politicians must have a broader tolerance for criticism.

As with the European Convention on Human Rights restrictions are permitted, where there is a legitimate interest, and it is they go no more than necessary. Justifiable restraints are likely to be those permissible under the European Convention on human rights in accordance with Article 52 (3).

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Academic freedom is a form of freedom of expression. Is not limited to those in academic teaching and potentially extends to everybody engaging in the arts of scientific research.

Article 14 – Right to education

1. Everyone has the right to education and to have access to vocational and continuing training.

2. This right includes the possibility to receive free compulsory education.

3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.

Article 14 recognises the right to education and access to vocational and continuing training It recognises the freedom to found educational establishments with due respect for democratic principles. It protects the right of parents to ensure the educational teaching of their children in conformity with their religious philosophical pedagogical convictions in accordance with national law.

The right is based on Article 2 Protocol 1 European Convention on Human Rights but is broader than it. The limitations permissible in respect of the right under Article 2 Protocol 1 are applied by Article 52 (3)

Scope of Right

Education denotes the entire process whereby in any society adults endeavour to transmit their beliefs culture and other values to children. The right to education embraces primary second-level and higher education. The EU has competence in certain areas of higher and technical education.

The right to have access to education is subject to the relevant rules and regulations establishing the educational system. States must ensure that persons have access to effective education and official recognition of studies completed. It appears that the state may be obliged to take positive steps to support pupils with disadvantages such as ethnic minorities lacking the necessary language skills for the country concerned.

The right to found educational establishments must be exercised in accordance with basic democratic principles of equality tolerance and pluralism.

Parents have the broad right to have their children educated in accordance with their beliefs and convictions. However, states are not obliged to provide or subsidise a particular type or level of education.

They are entitled to teaching and educational content that is objective critical, pluralistic and is not designed to indoctrinate.  The right enjoyed by parents is also by children. There is a right to be educated.

Conduct Business in EU

Article 15 – Freedom to choose an occupation and right to engage in work.

1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.

2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State

3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.

Article 16 – Freedom to conduct a business.

The freedom to conduct a business in accordance with Union law and national laws and practices is recognised.

Article 15 gives everyone the right to engage in work and pursue a freely chosen or accepted occupation. Every citizen of the European Union has the freedom to seek employment and exercise the right of establishment to provide services in any other EU state. Nationals of third countries who are authorised to work in the territories of EU states are entitled to working conditions equivalent to those of nationals of the EU.

Article 15 reflects the fundamental EU freedoms of movement, long since recognised by the EU Treaties. It covers employment and self-employment as well as undertaking business. It covers cross-border business.

The right of workers is not a right to undertake a particular job or a right to require the state to provide a job. There is an obligation of states not to interfere with a personal choice of occupation beyond that justifiably required below.

Businesses which are regulated in the public interest are subject to the rules of those businesses and professions. Those rules must apply in a predictable transparent and fair way.

Article 16 provides the freedom to conduct business. This includes self-employment or conducting a business though a company. This reflects the fundamental EU free movement principles. It includes the right to trade and do business in accordance with the economic technical and financial resources available to it as well as the laws of the state. The right accrues to individuals, businesses and companies.

Article 17 – Right to property

1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.

2. Intellectual property shall be protected.

Article 17 protects the rights of property. In common with many other charter rights, it has been long since been recognised as a general principle of EU law. It operates in conjunction with articles 15/16 but is wider than them. It supports economic freedoms to work and do business throughout the European Union. Property extends to all types of property and possessions including intellectual property.

Article 17 is based directly on Article 1 Protocol 1 of the European Convention on Human Rights.

“1.  Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

2.  The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A person who is deprived of a property right is entitled to fair compensation within a reasonable time.

In common with the position under the Constitution, the use of property may be regulated in the public interest the public interest. Example are laws made in relation to planning permission rent controls inheritance licensing and so on. The measures must balance the general interest and the property right concerned.

Article 18 – Right to asylum

The right to asylum shall be guaranteed with due respect for the rules of the Geneva.

Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).

Article 18 of the Charter gives effect to the guarantees in the 1951 Refugee Convention and its Protocol. Asylum includes the right to reside in the state the long-term protection of the state which may be granted to a refugee. Refoulement is the sending back of a person to a territory where his life and freedom would be threatened on account of his race religion nationality membership of a particular social group or political opinion. The rights of asylum and refoulement are guaranteed by the Convention and are usually assessed together.

Non-refoulement and can even apply between EU member states.

The EU Qualification Directive provides for subsidiary protection. This will apply to where a person does not qualify as a refugee but would face a real risk of suffering serious harm if returned to his member state.

Protocols 22 and 2122 limit the participation of Ireland in the areas of freedom security and justice. Ireland has opted out of certain elements of the rules on immigration and has remained part of the Common Travel Area with the United Kingdom.

Article 19 – Protection in the event of removal, expulsion or extradition

1. Collective expulsions are prohibited.

2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. Article 13 affirms that arts and scientific research shall be free of constraints. Academic freedom shall be respected.

Article 19 of the Charter is based on Article 4 protocol of the e European Convention on Human Rights. Article 52 (3) provides that it is to be given the same meaning and scope.

Article 19 prohibits collective expulsions. No one may be removed expelled or extradited to a stage where there is a serious risk that he or she will be subject to the death penalty torture or other inhuman or degrading treatment or punishment.

There is developed ECHR case law on collective expulsions. It applies to any measure requiring nonnationals as a group to leave the country except where such measures are taken on the basis of a reasonable and objective examination of a particular case of each non-national member of the group.

The ECHR requires that the individual circumstances of each of those concerned have be genuinely and individually taken into account. They must have the opportunity to put their arguments in relation to expulsion on an individual basis.

The provisions can apply to persons who are refugees or in the state or and being pushed back from entering the state or its territorial seas.

Article 19 (2) incorporates the European Court of human rights provisions in relation to extradition and deportation to places where the person concerned may be subject to the death penalty or to torture or degrading and inhuman conditions.