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1
Milios, Georgios. "A Re-examination of the Family Reunification Directive in the post-Lisbon Fundamental Rights Scene." ICL Journal 12, no. 1 (April 25, 2018): 85–114. http://dx.doi.org/10.1515/icl-2017-0083.
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Abstract The article examines the issue of compatibility of the Family Reunification Directive with the important changes that the adoption of the Lisbon Treaty brought to the field of fundamental rights in the EU especially considering the fact that the Charter of Fundamental Rights of the EU gained the same legal value as the treaties. The article examines all possible scenarios that may derive from Art 52 (3) of the Charter and the problems or issues that each of them may entail for the immigrants’ right to family life in the EU. This examination reveals that certain aspects of the provisions of the Family Reunification Directive are not compatible with Art 8 of the European Convention on Human Rights, and proposes that the EU should, in any event, provide more extensive protection than the one provided for by the Convention. The article proposes a reunification model which may be more compatible with the post-Lisbon fundamental rights scene.
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Kornezov, Alexander. "THE RIGHT TO VOTE AS AN EU FUNDAMENTAL RIGHT AND THE EXPANDING SCOPE OF APPLICATION OF THE EU CHARTER OF FUNDAMENTAL RIGHTS." Cambridge Law Journal 75, no. 1 (March 2016): 24–27. http://dx.doi.org/10.1017/s0008197316000167.
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IS the right to vote in European Parliament elections a matter for EU law? Until recently, the answer to this query seemed to be a clear “no”. Indeed, while Article 223(1) of the TFEU does confer on the European Union the competence to lay down a uniform procedure for the election of Members of the European Parliament (“MEPs”), this competence has not been exercised so far. Consequently, Article 8 of the Act concerning the election of the MEPs by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom (OJ 1976 L 278 p. 1, henceforth “the 1976 Act”), provides that the “electoral procedure shall be governed in each Member State by its national provisions”. Apart from the general principles of “direct universal suffrage in a free and secret ballot” and of non-discrimination on the ground of nationality, enshrined respectively in Article 14(3) of the TEU, Article 1(3) of the 1976 Act, and Article 20(2)(b) of the TFEU, there is nothing in EU law that governs specifically the eligibility to vote in EP elections.
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Gotthardt, Michael. "Effective enforcement of EU labour law: A comparative example." European Labour Law Journal 11, no. 4 (March 4, 2020): 403–12. http://dx.doi.org/10.1177/2031952520905385.
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The article looks at the outcome of the two legal proceedings in the Schüth and IR cases. In both cases employees of the Catholic Church – a choirmaster and organist in a Catholic parish and a trained physician working as Head of the Internal Medicine Department of a Catholic hospital - were dismissed because of the violation of the Basic Regulations on Employment Relationships in the Service of the Church. In the Schüth case Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life, had been violated. In the IR case the Charter of Fundamental Rights of the European Union and the Directive establishing a general framework for equal treatment in employment and occupation were applicable. The dismissal in IR was held to be unequal treatment in employment. But the outcome of both cases was very different. We find that Union law and in particular Article 47 of the Charter of Fundamental Rights of the European Union makes all the difference. In the Schüth case, the employment relationship was terminated and the claimant’s only consolation was a claim for damages from the State. In the IR case, on the other hand, the termination was declared invalid and the employment relationship continued, i.e. the head physician did not lose his job. The comparison of the cases demonstrates that European law, backed by Article 47 of the Charter of Fundamental Rights of the European Union, has not only permeated procedural law, it has also led to an increase in judicial reviews of substantive law which in the application of Union law is a far cry from a mere plausibility review.
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Bakker, Constantijn. "Protection of human rights within the EU during the pandemic of Covid-19." Gdańskie Studia Prawnicze 1, no. 53 (March 15, 2022): 189–99. http://dx.doi.org/10.26881/gsp.2022.1.12.
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The paper deals with protection of human rights within the European Union during the Covid-19 pandemic. The purpose of the article is to show the importance of the EU Charter of Fundamental Rights with regard to Covid-19 related restrictions. Simultaneously, the scope of the application of the public health clause in the context of Covid-19 restrictions is examined. Moreover, the impact of protection of public health, as a fundamental right in itself, is reviewed. The analysis shows that the health protection guarantee laid down in art. 8 ECHR and art. 35 EU Charter implies an obligation on States to take certain (restrictive) measures with a view to protecting people during a pandemic. This obligation includes (compulsory) vaccination programs. However, severe (financial) punishments will certainly be considered disproportionate.
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De Bellis, Maurizia. "Multi-level Administration, Inspections and Fundamental Rights: Is Judicial Protection Full and Effective?" German Law Journal 22, no. 3 (May 2021): 416–40. http://dx.doi.org/10.1017/glj.2021.14.
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AbstractIn the last decades, an increasing number of EU institutions and agencies have been given the power to conduct administrative inspections. While the legal literature has traditionally focused on the Commission’s inspection powers in competition proceedings, the European Anti-Fraud Office (OLAF), the European Central Bank (ECB), the European Securities and Markets Authority (ESMA), the European Aviation Safety Agency (EASA), and the European Fisheries Control Agency (EFCA) are also entrusted with such powers. The Commission has also been granted inspection powers in the field of Food Safety. Inspection powers can have a crucial impact on the fundamental right of the inviolability of the home, recognized by the Court of Justice as a general principle of EU law, and protected under Article 8 of the European Convention of Human Rights (ECHR) and Article 7 of the EU Charter of Fundamental Rights (ECFR). This Article argues that the current remedies do not fulfill all the criteria set forth by the Strasbourg Court for ex post judicial control vis-à vis inspections to be full and effective, in particular when these powers are used in the context of composite procedures, and suggests remedies to improve the system of review, in order to effectively protect fundamental rights.
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Brkan, Maja. "The Essence of the Fundamental Rights to Privacy and Data Protection: Finding the Way Through the Maze of the CJEU’s Constitutional Reasoning." German Law Journal 20, no. 6 (September 2019): 864–83. http://dx.doi.org/10.1017/glj.2019.66.
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AbstractIn the constitutional shaping of the concept of essence of fundamental rights, the case law of the Court of Justice of the EU (“CJEU” or “the Court”) in the field of privacy and data protection plays a crucial role. The Court’s interpretation of this notion had a considerable impact not only jon perception of the essence in other fields of law, but also on the constitutional doctrine more generally. This Article focuses on specificities of the notion of essence of fundamental rights to privacy and the protection of personal data from Articles 7 and 8 of the Charter of Fundamental Rights of the EU. After a general analysis, situating this notion into the framework of multi-level protection of fundamental rights in Europe, the Article addresses further interpretative challenges relating to the essence in the Court’s case law. At the core of the analysis are the Schrems and Digital Rights Ireland cases, where the CJEU developed, for the first time, the modalities of the breach of essence of fundamental rights to privacy and data protection and laid down constitutional foundations for interpretation of this notion. Further jurisprudence, including the Tele2 Sverige and Opinion 1/15 cases, is analyzed as an example of fine-tuning of the CJEU’s approach towards the normative understanding of this concept. Against this backdrop, the Article elaborates on the importance of insights in the fields of privacy and data protection for the general constitutional understanding of the concept of essence and proposes a generalized method for determination of infringement of essence in fundamental rights jurisprudence.
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Roots, Lehte. "The LGBTI Rights in European Union – Do Survivals get Pension?" Athens Journal of Law 8, no. 2 (March 31, 2022): 107–22. http://dx.doi.org/10.30958/ajl.8-2-1.
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The rights and discrimination of LGBTI people is constantly changing in the time and space. The approach to this specific group of people depends from the values and morality that is prevailing in the leading political parties of the state. All humans are equal and the first article of Universal Declaration of Human Rights states that „all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. This basic universal value seems to be forgotten in case of giving rights to LGBTI people. European case law has also fixed the superiority of the EU in this matter and some cases of the CJEU will be discussed to give an example of the power of interpretation of law. It shows how limiting one right (survival’s pension) will change also the power balance in same-sex partnership. This article will explore and analyse the legal, political approaches to LGBTI rights in European Union using the examples of Estonia and Poland. Keywords: Partnership; Same sex union; Charter of Fundamental Rights; Discrimination; LGBT; Human rights: Family rights; Survival’s pension
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Scarcello, Orlando. "The Randstad Case: Melki Reloaded? The Fundamental Right to Effective Judicial Protection as Battleground for Judicial Supremacy in European Law." Nordic Journal of European Law 4, no. 1 (August 26, 2021): 53–68. http://dx.doi.org/10.36969/njel.v4i1.23445.
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This paper will examine the recent preliminary reference to the European Court of Justice issued by the Italian Court of Cassation in the Randstad case, aimed at rearranging the internal constitutional separation between ordinary and administrative courts (article 111(8) of the Constitution). I will first provide some context on both the relations between Italian and EU courts (2.1) and on the confrontation between the Court of Cassation and the Constitutional Court in interpreting article 111 (2.2). I will then specifically examine the referring order to the Court of Justice of the EU (3), focusing on the role of general clauses of EU law as articles 4(3) and 19 TEU and 47 of the Charter in it. Finally, I will consider the instrumental use of EU law made by the Cassation to overcome an unpleasant constitutional arrangement. This aligns Randstad with previous cases such as Melki or A v. B and may foster constitutional conflict in the future.
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Versaci, Giuseppe. "Personal Data and Contract Law: Challenges and Concerns about the Economic Exploitation of the Right to Data Protection." European Review of Contract Law 14, no. 4 (November 29, 2018): 374–92. http://dx.doi.org/10.1515/ercl-2018-1022.
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Abstract The so-called ‘free’ digital business models – users are not requested to pay a price, but to disclose personal data – are a very common reality. To tackle this phenomenon, the European Commission’s proposal of Directive on contracts for the supply of digital content used the concept of personal data as counter-performance. This stance proved to be quite problematic. It has been opposed by the European Data Protection Supervisor (EDPS) arguing that it should not be possible to subject the fundamental right to data protection to a commercial transaction. This article dwells upon the economic exploitability of the right to data protection, showing that Article 8 of the EU Charter of fundamental rights and the related case law of the CJEU do not justify the concerns raised by the EDPS. This seems to be confirmed by the fact that the legal traditions of the EU Member States recognize that personality rights can be the object of a contract, although they limit to a certain extent the private autonomy of the parties. Thus, the commodification of personal data – like the commodification of other incorporeal attributes of personality – is not banned. Rather, there is now a policy issue about how to handle the risk of personalized discrimination and the problem of inequality of bargaining power in digital business models based on personal data. In this respect, political decisions should not be too affected by conceptual barriers between data protection law and contract law. In line with this position, the author argues that the economic exploitation of the right to data protection should not be considered a waiver of the same right.
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Van Meerten, Hans, and Philip Bennett. "Bauer and Beyond: The Changing Interpretation of Article 8 of Directive 2008/94/EC and Its Impact on EU Member State (and UK) Pension Protection Arrangements on Employer Insolvency." European Review of Private Law 30, Issue 4 (September 1, 2022): 541–80. http://dx.doi.org/10.54648/erpl2022028.
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In this article, the interpretation of the Court of Justice of the European Union (ECJ) of Article 8 of Directive 2008/94/EC (protecting employee pension rights on employer insolvency) (‘Art. 8’) over the last 14 years is reviewed. In six cases the ECJ has ruled on the correct transposition of Article 8: Robins, Hogan, Webb-Sämann, Hampshire, Bauer and TMD. Initially the ECJ decided that Article 8 required a 50% minimum level of protection of the value of pensions. This raised a lot of further questions. More recently it decided, in Bauer, to add a further underpin based on the Eurostat at-risk-of-poverty threshold. The Bauer decision, in the authors’ view, makes two possible errors, discussed in this article, which might create legal uncertainty as to how the additional underpin can, in practice, be administered. The Bauer underpin was unforeseeable and suggests possible (excessive) judicial activism. Our review of the Article 8 ECJ case law identifies continuing gaps in compliance in the UK (the lack of protection for unfunded pension schemes) and in the Netherlands (if an employer has agreed to provide additional funding to make good benefit shortfalls). In contrast, we identify that Article 8 does not require the protection of early retirement benefits (or invalidity benefits) in contrast to the ECJ decision in Beckmann. We discuss the use, in an English case (Hughes), of an age discrimination argument to remove a compensation cap in the UK Pension Protection Fund (PPF) for those below normal pension age using Article 21 of the EU Charter of Fundamental Rights and Article 14 of the European Convention on Human Rights. Our review may help identify potential areas of noncompliance with the transposition of Article 8 in other Member States.
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Maryniv, Ivanna, and Andriy Kotenko. "The European ombudsman as a body for the protection of the rights of individuals and legal entities in the European Union." Law and innovations, no. 1 (33) (April 5, 2021): 55–61. http://dx.doi.org/10.37772/2518-1718-2021-1(33)-8.
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Formulation of the problem. Today, the EU faces new challenges due to the globalization policy pursued by most EU member states, migration and the global pandemic - COVID-19. In the new conditions, the protection of human rights acquires a fundamentally new meaning. Therefore, the question of the role of the EU Ombudsman in the process of protection of individual rights and control over the activities of bodies is very relevant. By choosing the path of European integration and committing itself under the Association Agreement to adapt a number of areas in line with the acquis communautaire, Ukraine should also focus on the experience of the European Ombudsman. Since taking office as the Ukrainian Parliamentary Commissioner for Human Rights in 1998, it will not be an exaggeration to state that there are a number of problems in overseeing the proper activities of the authorities in respecting human and civil rights and freedoms. That is why, given the shortcomings and the chosen vector of development, the experience of the European Ombudsman is of great importance for Ukraine in order to improve the activities of the Ukrainian Parliament’s Commissioner for Human Rights. Target of research is to examine the role of the EU Ombudsman in the process of investigating good governance in the EU institutional mechanism. Article’s main body. The article is devoted to the study of the legal status of the European Ombudsman as a body that must investigate improper bodies of the activities of institutions, agencies to ensure the restoration of violated rights guaranteed by the Charter of Fundamental Rights of the European Union. The analysis of the practice of the European Ombudsman in the official annual reports, as well as the development strategy is carried out. With the help of EU legislation research and conducting of the legal analysis of the Ombudsman’s annual reports, strategic development documents and enquiries, opened by the Ombudsman in the last decade, the complexity of the European ombudsman’s contribution to the implementation of the sustainable development principle within EU’s supranational legal framework. Conclusions. After analyzing the development of Ombudsman’s legal status and the results of his enquiries, conducted in the last decade, a conclusion has been made, that the European ombudsman considerably influences all the institutional system of the EU. His initiatives have far-reaching consequences which might have caused their effect on the whole legal framework of the EU, in case if the European ombudsman had been given some more legal powers. Though, having only recommendation mechanisms in possession, this body influences the governing system of the EU largely, causing positive changes, meeting the leading principles of the functioning of the EU.
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Lazzerini, Nicole, and Elena Carpanelli. "PNR: Passenger Name Record, Problems Not Resolved? The EU PNR Conundrum After Opinion 1/15 of the CJEU." Air and Space Law 42, Issue 4/5 (September 1, 2017): 377–402. http://dx.doi.org/10.54648/aila2017027.
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The long-standing debate concerning the transfer, processing and retention by national law enforcement authorities of Passenger Name Record (PNR) data has regained momentum with the adoption of Directive 2016/681/EU, which lays down a PNR regime operating within the EU, and, above all, with the delivery, on 26 July 2017, of the CJEU’s negative Opinion on the new envisaged EU-Canada PNR agreement. The Court’s finding that several provisions of the draft agreement do not comply with Articles 7 and 8 of the EU Charter of Fundamental Rights, on the protection of private life and personal data, inevitably raises doubts concerning the fate of the EU PNR bilateral agreements already in force (namely, with Australia and the United States) and of the PNR Directive. At the same time, this evolving scenario has immediate and very practical implications for air-carriers operating between the EU and third States, which may find themselves trapped by conflicting obligations due to the complex interplay between EU data protection laws, the EU PNR regime, and third States’ PNR legislation. Far from being limited to the EU legal order, the recent developments may exert an effect on foreign airlines’ operations to and from the EU and condition future negotiations between the EU and third countries.
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Kotlyarevskyy, Ya V., M. V. Siryk, and M. O. Diachenko. "PROSPECTIVE DIRECTIONS FOR IMPROVING THE REGULATION OF PERSONAL DATA PROTECTION IN UKRAINE." Economics and Law, no. 1 (May 10, 2022): 45–67. http://dx.doi.org/10.15407/econlaw.2022.01.045.
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The process of legislative settlement of issues related to the protection of personal data began in the European Union (EU) with the entry into force of Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals regarding the processing of personal data and on the free movement of such data (Directive). After adoption the Charter of Fundamental Rights of the European Union (2000), which Article 8 defined the protection of personal data as a human right, establishment of the sufficient principles in the Lisbon Treaty (2009), there were amended two key EU acts: the Treaty on EU and the Treaty establishing the European Community. As a result, everyone in the EU was guaranteed the right to protect their personal data. In 2016 the EU adopted Regulation 2016/679/EC of the European Parliament and of the Council on the protection of natural persons regarding the processing of personal data and on the free movement of such data (Regulation), which radically updated the methods of collecting and processing personal data, and not only in the EU. As a result, to comply with its requirements, both EU-based companies and those operating in the EU or working with consumers from the EU market were forced to update their privacy/personal data policies. In turn, in Ukraine, significant progress in the development of legal regulation of personal data protection occurred later. As of 2010, public relations regarding collection, storage, use and dissemination of information about a person were regulated by more than two dozen uncoordinated laws and secondary legislation. To specify and define the mechanisms for implementing the provisions of Article 32, Constitution of Ukraine, which proclaimed the right of a person to non–interference in its personal life and established a ban on the collection, storage, use and dissemination of confidential information about a person without its consent, the Verkhovna Rada of Ukraine in 2010 adopted the law of Ukraine “On Personal Data Protection”. Having played a vital role in the legislative codification of the rules for processing personal data, the law, like the Directive, failed to respond to technological changes and the processes caused by this in society, despite numerous amendments made by MPs. Since the Association Agreement between EU and Ukraine came into power, there is noticeable arising necessity to harmonize the Ukrainian legislative framework with EU, as though contexts of adoption of the Regulation and the Law are different, so are the ways of resolving personal protection issues in Ukraine and the EU. Therefore, it is necessary to establish the new legislative amendments, the degree of compliance of personal data protection standards in Ukraine with the relevant standards in the EU. In this paper, as an outcome of estimations of relevant international research, further analytical and comparative analyses, there are some proposals to future institutional features of such modernization, affecting such issues as: clarification regarding material effects in order to limit legal regulation and avoid excessive legal burden on individuals, as well as in some cases on state authorities; providing new definitions of concepts that are not yet available in domestic regulation; establishment of fundamental guidelines for the processing of personal data in accordance with international standards; fostering more sustainable standards for the processing of sensitive personal data; in-depth structuring the issue of processing personal data for a different purpose than the one for which they were collected; regulating the implementation of the rights of personal data subjects, in particular, the right to information, the right to access, the right to correct personal data, the right to be forgotten, the right to personal data mobility, the right to restrict the processing of personal data, the right to protection from automated decision-making, the right of the data subject to protection of their rights and compensation for damage; clarifications regarding the definitions of the duties and responsibilities of the personal data controllers and operator; sustainable regulations concerning the issue of cross-border transfer of personal data.
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Torkunova, E. A., and K. G. Zharinov. "Implementation of standards of the european convention on human rights regarding forced removal of aliens in the European Union law." Moscow Journal of International Law, no. 4 (December 31, 2020): 6–22. http://dx.doi.org/10.24833/0869-0049-2020-4-6-22.
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INTRODUCTION. The global migration crisis taking place in the world and especially within the European Union provokes debates regarding the necessity to change the current approaches to the regulation of migration issues. Thus, extensive work has been done in the recent years on the new future reform of the Area of Freedom, Security and Justice of the EU including the Common European Asylum System. Besides that, the Lisbon Treaty, which entered into force in 2009, provides that the European Union shall accede to the European Convention on Human Rights. Despite the failed attempt of accession in 2014 blocked by the Court of Justice of the EU, the European Union still must fulfill its obligation, which is bound to happen sooner or later. That is why the topic of the present article is of particular interest at the moment. However, it is important to clarify the understanding of certain terms used in the heading of the article. In particular, it should be noted that the term “aliens” in relation to the European Union legal order covers nationals of states that are not EU-members and do not apply the European Union law concerning migrants on other grounds (for example, due to the membership in the European Economic Area) and stateless persons as well. Further, the reader should take into account that the European Convention on Human Rights as an international treaty is not, strictly speaking, a source of EU law per se as the EU is not a party to the ECHR, at least so far. Therefore, the European Union is not directly obliged under international law to implement the ECHR. Nevertheless, the provisions of the Convention formed the basis for one of the most significant sources of the EU law – the so-called “general principles of the EU law”. Most of them were later codified in the Charter of Fundamental Rights of the European Union, which expressly stipulates that the meaning and scope of the Charter rights which correspond to rights guaranteed by the ECHR shall be the same as those laid down by the ECHR. It means that today the EU already shall comply with the Convention standards regardless of its non-accession to the ECHR as a collective party. Due to objective limits of the text volume the present article concentrates on implementation of the key substantive Convention guarantees concerning forced removal. Consequently, it does not cover the procedural standards laid down by Article 13 of the ECHR. Moreover, the research does not touch upon the general standards of Articles 3 and 8 of the Convention applied not only in the context of removals of aliens but also in other situations (e.g., regarding the conditions of detention). The aim of the present article is to evaluate the implementation of standards of the European Convention on Human Rights regarding forced removal of aliens in the European Union law and to suggest measures to ensure compliance with the Convention guarantees in case of detecting any problematic issues.MATERIALS AND METHODS. The research refers to the provisions of the European Convention on Human Rights, the primary and secondary EU law, the case-law of the ECtHR and the CJEU, the recent works of Russian and foreign scholars and also the Council of Europe handbooks. The methodological basis of the research consists of general scientific methods (analysis and synthesis, deduction and induction, classification, systematization, prediction) and special legal methods (comparative legal and formal-legal methods).RESEARCH RESULTS. Today the EU law thoroughly regulates such areas as granting international protection to third country nationals; determination of the member state responsible for examining an application for international protection lodged in one of the member states by an alien and his/her subsequent removal to this member state; removal of illegal immigrants to third countries and also the legal status of third country nationals who are family members of an EU citizen. The provisions of EU legal acts in this regard were formulated inter alia on the basis of the case-law of the ECtHR. Although the ECtHR has found violations of the Convention by the EU member states in a number of cases concerning the application of the EU law in the migration context (for example, within the framework of the Dublin system), all these violations were rather caused by exercising of discretionary powers by the member states than resulted from the content of the EU law itself. Moreover, the human rights-based approach used by the CJEU in the interpretation of certain potentially problematic legal acts (in particular, the Framework Decision on the European arrest warrant) contributed to the fact that the ECtHR has never come to a conclusion that the presumption of equivalent protection granted by the EU law (formulated in «Bosphorus Airways v. Ireland» in 2005) was rebutted in any cases regarding forced removal of aliens. Besides that, as of today in many aspects connected with migration the EU law provides broader protection that the Convention.DISCUSSION AND CONCLUSIONS. The standards of the European Convention on Human Rights regarding forced removal of aliens have been success-fully implemented in the European Union law despite certain originality of how the Convention guarantees are incorporated to the EU legal order in general. This is confirmed, among other things, by the fact that the ECtHR has never come to a conclusion that the presumption of equivalent protection granted by the EU law was rebutted in any cases regarding forced removal of aliens. However, the theoretical possibility of rebuttal of the said presumption in future cannot be excluded and the whole concept of such presumption has been occasionally criticized. The time will show whether the future EU legal acts (in particular, those adopted in the course of the ongoing reform of the Area of Freedom, Security and Justice in response to the escalation of the migration crisis) will fully comply with the European Convention on Human Rights.
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Lock, Tobias. "Rights and principles in the EU Charter of Fundamental Rights." Common Market Law Review 56, Issue 5 (September 1, 2019): 1201–26. http://dx.doi.org/10.54648/cola2019100.
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This article analyses the distinction between rights and principles in the EU Charter of Fundamental Rights. On the basis of an analytical definition of Charter rights, it shows that Charter principles differ from Charter rights in nature: they are non-relational and not intersubjective; they contain mere duties without corresponding claim-rights. This has consequences for their justiciability, which the Charter itself limits. The article dismisses any suggestion that the characterization of a Charter provision as belonging to the realm of economic, social and cultural rights determines its nature as a principle. Instead, a more nuanced approach is advocated. It further argues that Charter principles are binding regardless of their implementation and that the latter only matters for their justiciability.
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Vrabie, Mihaela. "Judicial Review of Administrative Action at National Level under the EU Charter of Fundamental Rights and General Principles of EU Law." Central European Public Administration Review 18, no. 1 (April 23, 2020): 25–49. http://dx.doi.org/10.17573/cepar.2020.1.02.
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This article aims to determine when the national authorities have the obligation to comply with EU fundamental rights, in the framework of administrative procedures carried out in the EU Member States. It also aims to determine the legal remedies available at national level in the context of judicial review in case of violation, by the national authorities, of EU fundamental rights guaranteed by the Charter of Fundamental Rights of the EU or as general principles of EU law. To this end, this study explains the impact of the legally binding EU Charter on public administration of the Member States and the field of application of the EU Charter at national level. The article also deals with the distinction between EU fundamental rights as primary EU law guaranteed by the EU Charter and EU fundamental rights as general principles of EU law. With reference to the judicial remedies available to national courts, the study outlines the effects of EU law (primacy of EU law, direct effect, direct application) in relation to the EU fundamental rights and the measures that can be adopted by the national courts when the action of the national administrative authorities is not compatible with EU fundamental rights. Finally, the article presents the most important findings concerning judicial protection of EU fundamental rights at the national level, especially from the perspective of the right to an effective remedy and to a fair trial stipulated by Article 47 of the EU Charter.
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Bercusson, Brian. "The role of the EU Charter of Fundamental Rights in building a system of industrial relations at EU level." Transfer: European Review of Labour and Research 9, no. 2 (May 2003): 209–28. http://dx.doi.org/10.1177/102425890300900205.
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This article explores the potential contribution of the EU Charter of Fundamental Rights to building a system of industrial relations at EU level, in particular, by introducing fundamental trade union rights into the legal order of the European Union. The first part of the article describes the role of the EU Charter in the context of the history of European integration. The second part explores the legal prospects of the EU Charter as a political declaration and if it is incorporated into the Treaty. The role of the European Court of Justice in developing the fundamental trade union rights provided in the Charter is analysed and the potential scope of these rights in the context of an EU system of industrial relations is examined. The third part of the article explores the potential of the EU Charter to act as a catalyst by stimulating initiatives for measures implementing Charter rights which would support a system of industrial relations system at EU level. Two central issues are analysed. First, the scope of EU competences to create a system of industrial relations at EU level and, secondly, the institutional framework for such a system of industrial relations at EU level.
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Rosas, Allan. "Balancing Fundamental Rights in EU Law." Cambridge Yearbook of European Legal Studies 16 (2014): 347–60. http://dx.doi.org/10.1017/s1528887000002664.
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AbstractIt appears more and more often that cases brought before the European Court of Justice raise issues relating to two or more fundamental rights and the relation between them. In such situations, it is often necessary to establish a ‘balance’ between the fundamental rights concerned. In some cases, one of the rights involved is not a fundamental right in the strict sense but, for instance, an economic freedom (such as the free movement of goods) recognised under the basic EU Treaties. Another configuration may be a situation where, for instance, two of the fundamental rights which are at issue are to be found in the EU Charter of Fundamental Rights but only one of them appears in the European Convention on Human Rights. In such situations, one wonders what would be the relevance of Article 52(3) of the Charter of Fundamental Rights, which establishes a direct link between the Charter and the European Convention. The present contribution will look at the question of balancing of EU fundamental rights in general and also at more specific problems arising in this context, such as the two problems identified above.
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Scarcello, Orlando. "Preserving the ‘Essence’ of Fundamental Rights under Article 52(1) of the Charter: A Sisyphean Task?" European Constitutional Law Review 16, no. 4 (December 2020): 647–68. http://dx.doi.org/10.1017/s1574019620000395.
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Essence of fundamental rights – Article 52(1) of the Charter – Court of Justice of the EU – Methodology for determination of interference with essence – EU values – Proportionality – Balancing – Absolute and relative theory – Absolute rights – Interest theory of rights – Choice theory of rights – Hohfeld’s theory of rights – ‘Newtonian’ conception of rights – Case law on Article 52(1) of the Charter.
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Avtonomov, Alexei. "Activities of the European Ombudsman under the Charter of Fundamental Rights: Promoting Good Administration through Human Rights Compliance." Laws 10, no. 3 (June 22, 2021): 51. http://dx.doi.org/10.3390/laws10030051.
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The adoption of the Charter of Fundamental Rights has strengthened the position of the European Ombudsman, since the Charter contains an article specifically dedicated to the Ombudsman. At the same time, the Ombudsman, through her/his practice, contributes to the implementation in the everyday life of the provisions of the Charter and their further development. The consolidation and development of the provisions of the Charter by the European Ombudsman have proceeded especially rapidly since the Charter of Fundamental Rights received the status of a binding act. Due to the fact that the right to “good administration” contained in the Charter of Fundamental Rights has become one of the basic human rights in the EU since the Charter became legally binding, the competence of the European Ombudsman has acquired a new substantive and factual (functional) content, expanding her/his ability to positively influence the EU administration in the field of governance and respect for fundamental rights. This article examines, based on legal acts, statistical and other factual data, the interrelated issues (such as institutional and human dimensions of European integration) of ensuring the effectiveness of the Charter of Fundamental Rights through the activities of the European Ombudsman.
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Horubski, Krzysztof. "Wolność prowadzenia działalności gospodarczej w świetle art. 16 Karty praw podstawowych — wybrane problemy." Przegląd Prawa i Administracji 114 (August 10, 2018): 499–510. http://dx.doi.org/10.19195/0137-1134.114.32.
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FREEDOM TO CONDUCT A BUSINESS IN THE LIGHT OF ARTICLE 16 OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION — SELECTED ISSUESThe article deals with the signifi cance and legal character of the provision of Article 16 of the Charter of Fundamental Rights of the European Union. This article provides for the freedom to conduct a business. Therefore, the article presents a standpoint regarding the qualifi cations of the right to conduct business within the framework of the division of provisions of the Charter of Fundamental Rights into principles and fundamental rights rights or freedoms. In the article’s considerations, the right to conduct business activity under art. 16 of the Charter is recognized as a fundamental right. The article also draws attention to the signifi cant deficiencies in the protection of economic freedom in EU law, in particular when it concerns the introduction of restrictions on this freedom in EU derivative law. Finally, comments are also made regarding the basic aspects of the subjective and objective scope of the right to conduct business.
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Lenaerts, Koen. "Exploring the Limits of the EU Charter of Fundamental Rights." European Constitutional Law Review 8, no. 3 (October 2012): 375–403. http://dx.doi.org/10.1017/s1574019612000260.
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Scope of application of Charter – What does ‘implementing Union law’ mean? – Application of v. derogation from EU law – Asylum cases, N.S. – Familiapress, Schmidberger, Viking – Implementing to include derogation – Annibaldi and Dereci – Interpretation of the Charter – ‘Provided for by law’ – The ‘essence’ of a right or freedom – Legitimate objectives and proportionality – Rights both in EU Treaties and in Charter: citizenship – Charter and ECHR – Constitutional Traditions, level of protection and deference – Article 53 not according to Solange, but like Omega and Sayn-Wittgenstein – Principles and Rights
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Kustra-Rogatka, Aleksandra, and Ondrej Hamuľák. "Keeping Safe Distance: Chapters from Randomised (Non)Application of the EU Charter of Fundamental Rights before Polish Constitutional Tribunal." Baltic Journal of European Studies 9, no. 4 (December 1, 2019): 72–107. http://dx.doi.org/10.1515/bjes-2019-0038.
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Abstract The question of the application and impact of the Charter of Fundamental Rights of the EU (‘Charter’) in quotidian practice of human rights protection and review is a strategic one. Given the predominantly decentralised effects of EU law and with the due account to the wide interpretation of the scope of the Charter’s application (Art. 51(1)) presented by the CJEU (C-617/10 Fransson), the national dimension of the application of the Charter forms the crucial issue for the functioning of the EU system of fundamental rights protection. The Charter itself has a big potential to influence the content, nature and mechanisms of the fundamental rights protection at the national level. The present paper focuses on this phenomena in connection to the case-law, opinions and workload of the Polish Constitutional Tribunal (‘TK’). It analyses the approach of TK towards the Charter in abstract manner as well as the (non)appearance of the Charter in the reasoning of the court in concrete cases. The article reports on the main cases and analyses the reasons of the aloof approach of the TK towards the EU human rights catalogue.
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Reuter, Alexander. "Systematically Flogging the Wrong: EU Corporate Fines Violate the Fundamental Rights of Shareholders – The European Commission as Revenant of the Persian Great King Xerxes." European Business Law Review 32, Issue 4 (August 1, 2021): 681–726. http://dx.doi.org/10.54648/eulr2021024.
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EU fines are imposed on companies, not managers. Economically, they hit the shareholders. Yet, the shareholders have typically not participated in the company’s wrongdoings, and corporate law often cuts-off shareholders from management. This article submits that the Commission’s corporate fines thus disproportionately restrict shareholders‘ rights under the EU Charter of Fundamental Rights: As corporate fines are manifestly unsuitable to reach their purpose, hit the wrong and hence do not „strike the right balance“, they are incompatible with the Charter. The increased significance of shares for citizens’ personal financial autonomy and old age provision resulting from the ECB’s low interest policy and the EU’s mushrooming fine amounts corroborate this finding. Corporate fines, deterrent, purpose of corporate fines, shares, shareholders, fundamental rights, proportionality, suitability, restriction of rights, EU Charter of Fundamental Rights
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Spaventa, Eleanor. "Should we harmonize fundamental rights in the EU? Some reflections about minimum standards and fundamental rights protection in the EU composite constitutional system." Common Market Law Review 55, Issue 4 (August 1, 2018): 997–1023. http://dx.doi.org/10.54648/cola2018091.
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This article takes the non-discrimination directives as an “excuse” to reflect on how we should deal with EU fundamental rights in the composite constitutional spaces of the European Union and its Member States. It starts by highlighting some of the problems with fundamental rights protection in the EU, to then look at the non-discrimination directives. It shows that even when there is a stronger fundamental rights claim by the EU, as there is when it has exercised fundamental rights legislative competence, it is very difficult to devise a coherent interpretative framework in the fundamental rights field. The article then relates this problem to the more general issue of applicability of the Charter to the discretion of Member States when implementing EU law; it advocates leaving a wider margin of appreciation to national authorities and treating the Charter, in those cases when the Treaty does not otherwise apply, as a minimum safety net.
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Pilving, Ivo. "Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten." Juridica International 28 (September 30, 2018): 9–16. http://dx.doi.org/10.12697/ji.2018.28.02.
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Pursuant to its Article 51 (1), the EU Charter of Fundamental Rights covers the implementation of EU law. Since 2014, the Estonian Supreme Court has applied the assumption that the Charter, in principle, does not preclude parallel applicability of national-level fundamental rights in areas subject to EU law, although the primacy, unity, and effectiveness of EU law must not be compromised thereby. The Member State's margin of appreciation should not be considered a precondition for the relevance of national fundamental rights. Even mandatory norms of EU law, which inevitably require certain national measures (e.g., permission to use a piece of music for sampling as in CJEU case C-476/17: Pelham), do not exclude the applicability of constitutional rights (here, the composer's copyright), though these can justify their restriction. Hence, the relevant piece of EU legislation itself must be valid. The CJEU should follow the principle of constitutional plurality in dialogue with national courts when examining the validity of EU norms restricting national fundamental rights. A parallel analysis of the national constitution and Charter by the competent national court would assist the CJEU in issuing a preliminary ruling. The most favourable standard of the fundamental rights in sense of the Article 53 should not be determined on merely abstract terms. Instead, the results of parallel analysis in light of the pending case should be of decisive importance. One conclusion presented is that in cases of multipolar conflict, there remains the possibility that a even fundamental right of one person that is derived from a national constitution can sometimes justify infringement on the charter-based right of another if there is no secondary legal balance of legal positions. In addition, exceptional situations might exist wherein fundamental principles of national constitutions may be granted precedence over the effectiveness of EU law.
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Pilving, Ivo. "Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten." Juridica International 28 (November 13, 2019): 9–16. http://dx.doi.org/10.12697/ji.2019.28.02.
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Pursuant to its Article 51 (1), the EU Charter of Fundamental Rights covers the implementation of EU law. Since 2014, the Estonian Supreme Court has applied the assumption that the Charter, in principle, does not preclude parallel applicability of national-level fundamental rights in areas subject to EU law, although the primacy, unity, and effectiveness of EU law must not be compromised thereby. The Member State's margin of appreciation should not be considered a precondition for the relevance of national fundamental rights. Even mandatory norms of EU law, which inevitably require certain national measures (e.g., permission to use a piece of music for sampling as in CJEU case C-476/17: Pelham), do not exclude the applicability of constitutional rights (here, the composer's copyright), though these can justify their restriction. Hence, the relevant piece of EU legislation itself must be valid. The CJEU should follow the principle of constitutional plurality in dialogue with national courts when examining the validity of EU norms restricting national fundamental rights. A parallel analysis of the national constitution and Charter by the competent national court would assist the CJEU in issuing a preliminary ruling. The most favourable standard of the fundamental rights in sense of the Article 53 should not be determined on merely abstract terms. Instead, the results of parallel analysis in light of the pending case should be of decisive importance. One conclusion presented is that in cases of multipolar conflict, there remains the possibility that a even fundamental right of one person that is derived from a national constitution can sometimes justify infringement on the charter-based right of another if there is no secondary legal balance of legal positions. In addition, exceptional situations might exist wherein fundamental principles of national constitutions may be granted precedence over the effectiveness of EU law.
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Tridimas, Takis. "Fundamental Rights, General Principles of EU Law, and the Charter." Cambridge Yearbook of European Legal Studies 16 (2014): 361–92. http://dx.doi.org/10.1017/s1528887000002676.
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AbstractThe purpose of this chapter is to explore selected aspects of the relationship between the general principles of EU law and the Charter of Fundamental Rights of the European Union. The chapter first looks at the expansion of fundamental rights in EU law and the importance of general principles by reference to three principles which have provided fruitful grounds for judicial activism: the right to judicial protection, the principle of non-discrimination, and the right to personal data. It then examines the sources of fundamental rights under Article 6 TEU and the relationship between Charter rights and general principles. Finally, it explores a pivotal issue in EU constitutional discourse, namely, the scope of application of the Charter and the general principles of law. The chapter concludes by observing that, far from declining in importance, the general principles of law continue to be an integral part of judicial methodology; that, following the introduction of the Charter, the CJEU applies a heightened level of judicial scrutiny; and that it favours a centralised approach opting for an autonomous interpretation of the Charter, granting it precedence over national constitutional norms, and understanding broadly its scope of application.
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Galimberti, Marco. "Farewell to the EU Charter: Brexit and Fundamental Rights Protection." Nordic Journal of European Law 4, no. 1 (August 26, 2021): 36–52. http://dx.doi.org/10.36969/njel.v4i1.23400.
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Twenty years after its drafting and more than one decade after its entry into force, the Charter of Fundamental Rights of the European Union has ceased to be part of British law as a consequence of Brexit. Looking into this issue raised by the UK withdrawal from the European Union, the essay sheds some light on the legal status and impact of the EU Bill of Rights in the British legal order. Against this background, the article detects a connection between the UK Supreme Court’s case law and the jurisprudence of the Court of Justice of the European Union on the direct effect of the Charter. From this perspective, the analysis highlights the implications of the UK departure from the Charter and disentanglement from the Luxembourg case law, thus arguing that they may weaken the standards of fundamental rights protection.
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Morijn, John, and Dimitry Kochenov. "Strengthening the Charter’s Role in the Fight for the Rule of Law in the EU: The Cases of Judicial Independence and Party Financing." European Public Law 27, Issue 4 (December 1, 2021): 759–80. http://dx.doi.org/10.54648/euro2021037.
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This article discusses how the application the EU Charter of Fundamental Rights contributes to the fight for the rule of law in the EU. After outlining the connections between the two it focuses on two examples of how the Charter could and should play a more significant role in upholding the rule of law. As to Member State-level rule of law breakdowns, we demonstrate that the Charter has either been missing in the shadow of Article 19(1) of the Treaty on European Union or threatened to undermine the fight for the rule of law when the principle of judicial independence was reduced to Article 47 Charter standing alone. As to supranational level rule of law issues, where the Charter’s applicability under Article 51 CFR is uncontroversial, we show that it has nonetheless so far been applied to a problematically limited extent. This is particularly clear with regard to party-financing at EU-level. This file offers a case in point to show how taking the Charter seriously could make a significant difference in protecting the rule of law in the EU. Article 7 TEU, Charter of Fundamental Rights of the European Union, judicial independence, party financing, rule of law
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Eksteen, Riaan. "Diplomatic and Consular Protection with Special Reference to Article 46 of the EU Charter of Fundamental Rights." Laws 9, no. 4 (December 21, 2020): 32. http://dx.doi.org/10.3390/laws9040032.
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Central to EU law and policies is the protection of human rights. For the European Union (EU), these rights are sacrosanct. Over the years, more substance to the protection of fundamental rights emerged. The European Court of Justice (ECJ) is notably entrusted with the protection of human rights and has always deemed it imperative that fundamental rights must be protected within the scope of EU law. The Court has always relied on strong European traditions and values and is guided by the inalienable principle of the rule of law. In the human rights record of the EU, the Kadi cases occupy a special place. The scope of the application of Article 46 is limited, and the application of the Charter is still not used to its full potential, and too few citizens are even aware of it. The Commission intends to present a strategy that would improve the use and awareness of the Charter. By the middle of 2020, the UK’s withdrawal from the EU had become acrimonious. One issue that still begs the conclusion is the status of and protection available to EU citizens living in the UK beyond 31 December 2020. These basic rights of its citizens are not negotiable for the EU.
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Orator, Andreas. "The Decision of the AustrianVerfassungsgerichtshofon the EU Charter of Fundamental Rights: An Instrument of Leverage or Rearguard Action?" German Law Journal 16, no. 6 (December 2015): 1429–48. http://dx.doi.org/10.1017/s2071832200021209.
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In a landmark decision of 2012 on the relevance of the EU Charter of Fundamental Rights (CFR) in domestic constitutional adjudication, the AustrianVerfassungsgerichtshof(Constitutional Court) substantially extended the applicable yardstick, according to which the constitutionality of ordinary laws and administrative action may be assessed, to certain Charter rights. At the same time, theVerfassungsgerichtshofclaimed its active commitment to judicial dialogue with the Court of Justice of the European Union (CJEU) through the preliminary reference procedure pursuant to Article 267 TFEU to effectively protect Charter-based fundamental rights of individuals. Arguably, both the domestic and Union-wide ramifications of this “instant classic” case of a domestic constitutionalization of the Charter are substantial, delivering insight not least as to the transformative role of the Charter for domestic fundamental rights protection and the adaptations of domestic constitutional courts in such a changed environment.
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Muir, Elise. "The fundamental rights implications of EU legislation: Some constitutional challenges." Common Market Law Review 51, Issue 1 (February 1, 2014): 219–45. http://dx.doi.org/10.54648/cola2014008.
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The architecture of the EU system of protection of fundamental rights is uniquely complex. The web of Charter and Convention articles is closely interwoven with general principles of EU law,Treaty provisions as well as with rights enshrined in EU legislation. The latter have received limited attention to date. EU legislation increasingly directly or indirectly, explicitly or implicitly, sets fundamental rights standards or marks the presence of Union law - thereby allowing the European Court of Justice to do so. The variety of EU legislation with fundamental rights implications sheds light on the active dimension of EU fundamental rights policy and poses multiple challenges for the interaction between the European and domestic legal orders that are explored in this article).
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Brkan, Maja. "The Concept of Essence of Fundamental Rights in the EU Legal Order: Peeling the Onion to its Core." European Constitutional Law Review 14, no. 2 (May 17, 2018): 332–68. http://dx.doi.org/10.1017/s1574019618000159.
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Essence of fundamental rights – Article 52(1) of the Charter – Multi-level protection of fundamental rights in Europe – Sources of essence – European Court of Justice case law on ‘very substance’ of fundamental rights – Constitutional traditions common to the Member States – European Court of Human Rights – Court of Justice of the EU – Schrems – Principle of proportionality – Absolute theory – Relative theory – Classification of interferences with essence – Objective interference – Subjective interference – Absolute rights – EU methodology for determination of interference with essence
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Humblet, Florence, and Kabir Duggal. "If You Are Not Part of the Solution, You Are the Problem: Article 37 of the EU Charter as a Defence for Climate Change and Environmental Measures in Investor-State Arbitrations – Joint 2nd Prize Winner Essay competition 2020." European Investment Law and Arbitration Review Online 5, no. 1 (December 11, 2020): 265–95. http://dx.doi.org/10.1163/24689017_011.
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Climate change is severely impacting the survival of humankind on earth. In the European Union (EU), the Charter of Fundamental Rights (EU Charter) codifies environmental protection as part of the EU’s corpus of fundamental rights protection and states that “a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the EU and ensured in accordance with the principle of sustainable development”. By virtue of this article, the EU has elevated environmental protection to the level of constitutionality. Environmental concerns have played a critical role in investor-state arbitration. This article submits that Article 37 of the EU Charter might be a viable defence for Member States of the EU (Member States) that adopt climate change and environmental measures. Such defence would not consist of a jurisdictional challenge based on the Achmea decision but of a defence based on the applicable law which protects the notion of sustainable investment enshrined in the applicable international investment agreement. Article 37 of the EU Charter could, therefore, operate a powerful tool to foster environmental protection in investor-state disputes and, therefore, address one of the most widespread complaints in the backlash against investor-state arbitration.
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Frantziou, Eleni. "Constitutional Reasoning in the European Union and the Charter of Fundamental Rights: In Search of Public Justification." European Public Law 25, Issue 2 (June 1, 2019): 183–203. http://dx.doi.org/10.54648/euro2019013.
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This article argues that the CJEU’s use of the EU Charter of Fundamental Rights in situations falling within the scope of EU law needs to be supplemented by clearer constitutional reasoning about the role of fundamental rights in the public order of the European Union. The article demonstrates, through an analysis of the Charter’s drafting context, that the primary function of this instrument is to highlight the centrality of a set of public goods in the EU, rather than merely to add to the number of individual rights to whichEU law gives rise. It is then argued that, in order for this function to be fulfilled, an interpretation of fundamental rights is required that both acknowledges their constitutional value as distinct from other sources of rights protection in the Union and offers adequate reasons for the application of the Charter standard. The idea of public justification provides a suitable starting point, particularly in situations of conflict with national laws, because it would give rise to a much-needed judicial debate about what the best standard of fundamental rights protection would be for the Union. However, such an interpretation of the Charter is currently lacking from the case law which, instead, utilizes problematic forms of constitutional and quasi-constitutional discourse, through continued reliance on a conception of rights as tools of enforcement of EU law, which it had advanced in its earlier case law.While this type of reasoning was well suited to the idea of theEUas a social market economy, it structurally precludes the re-imagination of rights as collectively authored claims about good government under the Charter framework.
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van Zeben, Josephine. "The Role of the EU Charter of Fundamental Rights in Climate Litigation." German Law Journal 22, no. 8 (December 2021): 1499–510. http://dx.doi.org/10.1017/glj.2021.78.
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AbstractClimate litigation has become a permanent fixture in the climate law and policy landscape. Across jurisdictions, climate litigation takes different shapes, with actions based on administrative, civil, or criminal law. An increasing number of cases incorporate human rights, leading to courts inter alia imposing more onerous mitigation obligations on governments and private actors in light of human rights provisions. Several landmark cases in this domain have come from European jurisdictions and have been argued with reference to both the European Convention on Human Rights (ECHR) and the European Union’s Charter of Fundamental Rights. An analysis of case law from the European Member States shows that the emerging picture is one of the Charter playing a secondary role to the ECHR. Based on this jurisprudential analysis, this article reflects on the future role of the Charter in climate litigation, and by extension, in shaping environmental human rights.
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Sicurella, Rosaria. "Effectiveness of EU law and protection of fundamental rights." New Journal of European Criminal Law 9, no. 1 (March 2018): 24–30. http://dx.doi.org/10.1177/2032284418761066.
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The decision of the Court of Justice in the M.A.S. and M.B. case marks a very significant step forward in the Taricco saga. It clearly shows the intention of the European Court to tone down the confrontation with the Italian Constitutional Court, while at the same time maintaining the most relevant achievement of the decision in the Taricco case, that is to say the fact to consider Article 325 TFEU as having direct effect. The author expresses quite a critical view on the solution adopted by the ECJ which finally results in a sort of “flexibilization” of the principle of legality at EU level in order to meet some of the claims by the Italian Constitutional Court. In the author's opinion, such a solution risks to undermine the overall coherence and soundness of the protection of fundamental rights at EU level, although it can appear at a first glance to boost the legality principle. A better solution could have been to develop a different reasoning relying on rights in the Charter other that the nullum crimen principle, and avoid to touch at the well-established scope of this principle as established in Article 49 Charter and also in Article 7 of the European Convention on Human Rights.
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Jaś-Nowopolska, Magdalena, and Daniel Mengeler. "The Federal Constitutional Court Decisions: „The Right to be Forgotten I” and „The Right to be Forgotten II” – The Expectation of Increased Cooperation with the Concurrent Need to Maintain Independence." Studia Prawa Publicznego, no. 2 (30) (June 15, 2020): 69–88. http://dx.doi.org/10.14746/spp.2020.2.30.3.
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The article discusses the decisions “Right to be forgotten I” and “Right to be forgotten II” of 6 November 2019 by the Federal Constitutional Court, which redefine the relationship of cooperation between the Federal Constitutional Court and the European Court of Justice in the area of fundamental rights. The Court has decided for the first time that where EU fundamental rights take precedence over German fundamental rights, the Court itself can directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. In the first part, the article presents the previous system, including the precedence of application of EU law and its exceptions (ultra-vires review; identity review), as well as the controversial question of the interpretation of Article 51 (1) of the Charter of Fundamental Rights, which is decisive for the applicability of the fundamental rights under the Charter. The focus is on the constitutional background of the German Basic Law for the protection of fundamental rights in the European multi-level system. Against this background, the second part of the article presents the facts and reasons for the decisions “Right to be forgotten I” and “Right to be forgotten II”. This is followed by an analysis of the consequences of these decisions for the protection of fundamental rights and cooperation between the European Court of Justice and the Federal Constitutional Court. In particular, the way in which fundamental EU rights can now be enforced before the Federal Constitutional Court is described in greater detail. The concluding part provides an overview of the open questions, risks and opportunities of this approach. Here the article illustrates the significant impact of the two decisions on dogmatic and procedural matters.
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Rabinovici, Itai. "The Right to Be Heard in the Charter of Fundamental Rights of the European Union." European Public Law 18, Issue 1 (March 1, 2012): 149–73. http://dx.doi.org/10.54648/euro2012007.
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The right to be heard is the cornerstone of procedural guarantees for citizens in the administrative procedure. After forty years of case-by-case development by the EU courts, the entry into force of the Treaty of Lisbon, and with it, Article 41(2)(1) of the Charter of Fundamental Rights of the EU (hereinafter 'the Charter'), has introduced into the EU legal system a single binding abstract statement of the right to be heard to be the benchmark for the interpretation and application of the right. This article argues that Article 41(2)(1), more than adding to coherency, runs the risk of adding to the confusion. It is shown that the translation of the Article to the various official languages created in effect two statements of the law with significant differences in the scope of application of the right. This article identifies the formulation that was originally envisaged by the drafters of the Charter but shows that in the years that have passed between its drafting and its entry into force the EU courts have developed further the right to be heard and the law as it stands today cannot be easily settled with the language of Article 41(2)(1).This article concludes by offering an interpretive solution to the problem.
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Snell, Jukka. "Fundamental Rights Review of National Measures: Nothing New under the Charter?" European Public Law 21, Issue 2 (May 1, 2015): 285–308. http://dx.doi.org/10.54648/euro2015015.
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The case law under the Charter on the use of EU fundamental rights to scrutinize national measures represents a continuation of the earlier jurisprudence. The wording of Article 51(1) Charter of Fundamental Rights has not resulted in a general rollback of EU fundamental rights. However, the Charter has focused attention on the issue, has resulted in important new guidance and some streamlining of the case law, and will make it hard for the Court to push the jurisprudence further. The normative justification for the Wachauf type cases can be readily found and has been convincingly articulated by the Court. This does not mean that it will be easy to decide whether the connection between the EU rules and the national measure is sufficient to count as implementation, but the Court has helpfully distilled factors to be taken into account. By contrast, the normative justification for ERT type cases is more difficult to establish. This case law represents a far-going interference with national legal systems. The standard explanation, that since derogations are creatures of Union law, EU fundamental rights must apply, fails to convince. The Court is expressing its distrust of national systems of fundamental rights protection. Unfortunately the distrust may be warranted, and the political system of the EU may not be well equipped to correct matters. The case law can be defended as a judicial remedy for the failure of the political, but needs to be applied with care.
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Gutman, Kathleen. "The Essence of the Fundamental Right to an Effective Remedy and to a Fair Trial in the Case-Law of the Court of Justice of the European Union: The Best Is Yet to Come?" German Law Journal 20, no. 6 (September 2019): 884–903. http://dx.doi.org/10.1017/glj.2019.67.
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AbstractThis contribution examines the developing contours of the essence of the fundamental right to an effective remedy and to a fair trial in the light of salient case-law of the Court of Justice of the European Union. It is divided into three main parts. The first part provides an overview of the meaning of the essence of fundamental rights in EU law and the scope of the inquiry in relation to Article 47 of the Charter of the Fundamental Rights of the European Union (“the Charter”). The second part evaluates the essence of the fundamental right to an effective remedy and to a fair trial in connection with justified limitations that may be placed on its exercise as provided for in Article 52(1) of the Charter within the framework of the EU system of fundamental rights protection, which in turn implicates the relationship with the Court’s case-law on national procedural autonomy, equivalence, and effectiveness. The third part delves into the essence of the fundamental right to an effective remedy and to a fair trial within the framework of the EU system of judicial protection, as illustrated by the Court’s case-law in several areas, including standing for individuals in direct actions before the EU courts, judicial independence, and restrictive measures in the Common Foreign and Security Policy. Through this analysis, the author argues that, while much awaits further refinement, certain recent developments in the Court’s case–law indicate that the essence of the fundamental right to an effective remedy and to a fair trial can play a meaningful role in the EU system of fundamental rights protection and the EU system of judicial protection more broadly, and thus the best may be yet to come as that case-law progresses in the future.
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Cafaggi, Fabrizio. "Towards Collaborative Governance of European Remedial and Procedural Law?" Theoretical Inquiries in Law 19, no. 1 (February 13, 2018): 235–60. http://dx.doi.org/10.1515/til-2018-0008.
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Abstract This Article examines consumer law enforcement in the EU. It shows how the effectiveness of collective and individual redress is intrinsically linked to the interplay between administrative and judicial enforcement and alternative dispute resolution (ADR). It addresses the trends and the contradictions of EU enforcement policies and their impact on national systems by looking at the role of general principles and fundamental rights, in particular Article 47 of the European Charter of Fundamental Rights (CFR). It concludes with policy recommendations concerning how the various consumer enforcement mechanisms should be coordinated at the EU and national level to ensure comprehensive and effective protection in compliance with fundamental rights.
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Lenaerts, Koen. "Limits on Limitations: The Essence of Fundamental Rights in the EU." German Law Journal 20, no. 6 (September 2019): 779–93. http://dx.doi.org/10.1017/glj.2019.62.
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AbstractThe concept of the essence of a fundamental right—set out in Article 52(1) of the Charter of Fundamental Rights of the European Union (the “Charter”)—operates as a constant reminder that our core values as Europeans are absolute. In other words, they are not up for balancing. As the seminal judgment of the Court of Justice of the European Union (the “CJEU”) in Schrems shows, where a measure imposes a limitation on the exercise of a fundamental right that is so intense and so comprehensive that it calls into question that right as such, that measure is incompatible with the Charter, as it deprives the right at issue of its essence. This is so without the need for a balancing exercise of competing interests, because a measure that compromises the very essence of a fundamental right is automatically disproportionate. Therefore, the present contribution supports the contention that in order for the concept of essence to function in a constitutionally meaningful way, both EU and national courts should apply the “respect-for-the-essence test” before undertaking a proportionality assessment.
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Sadeleer, Nicolas de. "Enforcing EUCHR Principles and Fundamental Rights in Environmental Cases." Nordic Journal of International Law 81, no. 1 (2012): 39–74. http://dx.doi.org/10.1163/157181011x618758.
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So far, EU treaty law does not encapsulate any individually justiciable rights to a clean environment or to health. The article explores whether individuals can rely on the environmental duties embodied in the European Union Charter of Human Rights (EUCHR), and the European Convention on Human Rights (ECHR) in cases falling within the scope of EU environmental law. Moreover, it takes a close examination of the case law of both the Court of Justice of the European Union and the European Court of Human Rights regarding the standing of individuals whose environment is impaired.
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Ippolito, Francesca. "Migration and Asylum Cases before the Court of Justice of the European Union: Putting the Eu Charter of Fundamental Rights to Test?" European Journal of Migration and Law 17, no. 1 (March 16, 2015): 1–38. http://dx.doi.org/10.1163/15718166-12342070.
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This article explores the various guarantees embedded in the eu Charter of Fundamental Rights for eu citizens and third country nationals, following the extension of the Court’s jurisdiction by the Lisbon Treaty in the area of freedom, security and justice. In particular, it highlights the potential and limits to the impact of the Charter in immigration or asylum cases before the cjeu.
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Búrca, Gráinne de. "The Road not Taken: The European Union as a Global Human Rights Actor." American Journal of International Law 105, no. 4 (October 2011): 649–93. http://dx.doi.org/10.5305/amerjintelaw.105.4.0649.
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For many, the enactment of the European Union’s Treaty of Lisbon, with its range of significant human rights provisions, marks the EU’s coming of age as a human rights actor. The Lisbon Treaty inaugurated the legally binding character of the EU Charter of Fundamental Rights (EU Charter), enshrined a commitment to accede to the European Convention on Human Rights (ECHR), and, in Article 2 of the Treaty on European Union (TEU), identified human rights as a foundational value. These changes have already drawn comment as developments that “will change the face of the Union fundamentally,” that take the protection of rights in the EU “to a new level,” and that indicate that “the arguments for improving the status of human rights in EU law… have finally been heard. There is general agreement, in other words, that the EU has reached the high point of its engagement with human rights.
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de Vries, Sybe. "Protecting Fundamental (Social) Rights through the Lens of the EU Single Market: The Quest for a More Holistic Approach." International Journal of Comparative Labour Law and Industrial Relations 32, Issue 2 (June 1, 2016): 203–29. http://dx.doi.org/10.54648/ijcl2016011.
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In this article, four trajectories will be followed with a view to further developing the linkages that exist between the EU Single Market and fundamental (social) rights and to examining to what extent the EU Single Market, apart from putting constraints on the realization of social rights, offers the chances to enhance and even strengthen the social face of the EU. The question is whether the current approach to EU free movement law by the EU Institutions and most notably the Court of Justice of the European Union (CJEU) could benefit the protection of fundamental social rights. The article also examines the potential impact of the EU Charter and the changes brought about by the Lisbon Treaty, strengthening the social face of the EU.
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Mádr, Petr. "Article 51 of the EU Charter of Fundamental Rights from the Perspective of the National Judge." Review of European Administrative Law 13, no. 4 (January 21, 2021): 53–85. http://dx.doi.org/10.7590/187479820x16098444161677.
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This article contributes to the growing scholarship on the national application of the EU Charter of Fundamental Rights ('the Charter') by assessing what challenges national courts face when dealing with Article 51 of the Charter, which sets out the Charter's material scope of application. In keeping with this aim, the relevant case law of the Court of Justice of the EU (CJEU) – with its general formulas, abstract guidance and implementation categories – is discussed strictly from the perspective of the national judge. The article then presents the findings of a thorough study of the case law of the Czech Supreme Administrative Court (SAC) and evaluates this Court's track record when assessing the Charter's applicability. National empirical data of that kind can provide valuable input into the CJEU-centred academic debate on the Charter's scope of application.
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Olsson, Petra Herzfeld. "Possible Shielding Effects of Article 27 on Workers Rights to Information and Consultation in the EU Charter of Fundamental Rights." International Journal of Comparative Labour Law and Industrial Relations 32, Issue 2 (June 1, 2016): 251–73. http://dx.doi.org/10.54648/ijcl2016013.
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A number of EU directives as well as Article 27 in the EU Charter of Fundamental Rights (CFR) deal with workers’ rights to information and consultation in the undertaking. In this article, the added value of including such rights in the EU CFR is discussed. For this purpose, three issues relevant for the interpretation of Article 27 will be addressed. First, to what extent is the rights/principles distinction in the CFR relevant for the legal implications of Article 27 CFR? Second, what conclusions can be drawn from the wording of the Article? Third, what is the impact of the context, or rather to what extent should the development and recognition of rights to information and consultation within other parts of EU law and in the Revised European Social Charter (RESC), affect the interpretation of Article 27 CFR? Two hypothetical situations are examined to establish whether any added value can be detected. The first considers the extent to which Article 27 can act as a shield against attempts by the EU legislator to restrict rights to information and consultation in the existing secondary EU legislation. The second investigates to what extent Article 27 can act as a shield against attempts to restrict national legislation on information and consultation with the support of, for example, Article 16 CFR on Freedom to conduct a business. It is argued that the content of Article 21 RESC should be taken into account when the content of Article 27 is invoked, and that the legality of the restrictions discussed in the hypothetical situations depends on whether they will pass the justification test provided in Article 52.1 CFR. When applying those suggestions, it seems that Article 27 can play a significant role in safeguarding worker’s rights to information and consultation within the EU.