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1
Bonelli, Matteo, Mariolina Eliantonio y Giulia Gentile, eds. Article 47 of the EU Charter and Effective Judicial Protection, Volume 2. Hart Publishing, 2023. http://dx.doi.org/10.5040/9781509948024.
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This ambitious, innovative project examines the principle of effective judicial protection in EU law over two volumes. The principle of effective judicial protection is a cornerstone of the EU’s judicial system and is re-affirmed in Article 47 of the Charter of Fundamental Rights of the European Union. Since the 1980s the Court of Justice has used this principle to shape EU and national procedural rules; more recently, the principle has acquired a central role in the EU constitutional structure. In this second volume, an expert team explores how national courts have applied Article 47 and the principle of effective judicial protection. Through a comparative analysis, the book assesses the level of convergence (or divergence) of the national approaches. The questionnaire methodology allows for an accurate charting of national courts’ application of the EU provisions at the domestic level. Given the wide application of Article 47, the volume will provide a comprehensive analysis of the national case law to EU constitutional scholars, comparative lawyers and civil servants both at the national and EU level.
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Article 47 of the EU Charter and Effective Judicial Protection, Volume 2: The National Courts' Perspectives. Bloomsbury Publishing Plc, 2023.
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Eliantonio, Mariolina, Matteo Bonelli y Giulia Gentile. Article 47 of the EU Charter and Effective Judicial Protection : Volume 1: The Court of Justice's Perspective. Bloomsbury Publishing Plc, 2022.
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Craig, Paul y Gráinne de Búrca. 8. The Application of EU Law:. Oxford University Press, 2015. http://dx.doi.org/10.1093/he/9780198714927.003.0008.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter examines the application of EU law by national courts and the way in which the CJEU controls national remedies for breach of EU law. Article 19 of the Treaty on European Union contains a new clause added by the Lisbon Treaty, which specifies that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Article 47 of the Charter of Fundamental Rights provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. However, beyond these broad new provisions, EU law does not lay down any general scheme of substantive or procedural law governing remedies for its enforcement. The European Court of Justice has responded to the lack of a harmonized system of EU remedies by requiring national courts, in certain cases, to make available a particular type of remedy (e.g., restitution or interim relief), regardless of whether this would be available under national law.
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Kellerbauer, Manuel, Marcus Klamert y Jonathan Tomkin, eds. The EU Treaties and the Charter of Fundamental Rights. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198794561.001.0001.
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This Commentary provides an article-by-article summary of the TEU, the TFEU, and the Charter of Fundamental Rights, offering a quick reference to the provisions of the Treaties and how they are interpreted and applied in practice. Written by a team of contributors drawn from the Legal Service of the European Commission and academia, the Commentary offers expert guidance to practitioners and academics seeking fast access to the Treaties and current practice. The Commentary follows a set structure, offering a short overview of the Article, the Article text itself, a key references list including essential case law and legislation, and a structured commentary on the Article itself. The editors and contributors combine experience in practice with a strong academic background and have published widely on a variety of EU law subjects.
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Kellerbauer, Manuel, Marcus Klamert y Jonathan Tomkin, eds. The EU Treaties and Charter of Fundamental Rights: A Commentary. 2a ed. Oxford University Press, 2024. http://dx.doi.org/10.1093/law/9780198913689.001.0001.
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Abstract The second edition of this book provides an article-by-article summary of the Treaty on European Union, the Treaty on the Functioning of the European Union, and the Charter of Fundamental Rights, to reflect the latest developments in the law since publication of the first edition. It offers a quick reference to the provisions of the treaties, how they are interpreted and applied in practice, and to the most important legal instruments enacted on their basis. The book considers key developments in all areas of EU law, including the debates and requirements around the rule of law, legal decisions in relation to the Covid-19 pandemic, climate change measures such as the European Green Deal, as well as recent changes to the Common Agricultural Policy. It also includes significant court rulings on freedom, security and justice, migration and asylum, as well as issues relating to freedom of movement and Brexit. The new edition outlines the Digital Markets Act, a major piece of legislation adopted in 2022 and contains significant updates on EU competition law in the light of new Regulations and Guidelines. It offers expert guidance to practitioners and academics seeking fast access to the Treaties, secondary law, and current practice. The book follows a set structure, offering a short overview of the Article, the Article text itself, a key references list including essential case law and legislation, followed by a structured commentary on the Article.
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Foster, Nigel. Foster on EU Law. Oxford University Press, 2019. http://dx.doi.org/10.1093/he/9780198839804.001.0001.
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Foster on EU Law offers an account of the institutions and procedures of the EU legal system as well as focused analysis of key substantive areas including free movement of goods, free movement of persons, citizenship, and competition law including state aids. This clear two-part structure provides a solid foundation in the mechanisms and applications of EU law. The book considers the supremacy of EU law in relation to ordinary domestic law, member state constitutional law, and international law including UN Resolutions. It includes a consideration of EU law and the UK, including a consideration of the Brexit referendum result and its possible consequences; also of Germany and France, as well as a briefer look at a number of other member states. It also contains discussion of human rights, in particular the EU Charter of Fundamental Rights and the moves of the EU to accede to the ECHR. The material on remedies in Chapter 6 has been rearranged to aid presentation and understanding. It follows the further developments of Article 263 TFEU and has rearranged the material on the free movement of persons to take account of the judgments of the Court of Justice.
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Ausloos, Jef. The Right to Erasure in EU Data Protection Law. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198847977.001.0001.
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This book critically investigates the role of data subject rights in countering information and power asymmetries online. It aims at dissecting ‘data subject empowerment’ in the information society through the lens of the right to erasure (‘right to be forgotten’) in Article 17 of the General Data Protection Regulation (GDPR). In doing so, it provides an extensive analysis of the interaction between the GDPR and the fundamental right to data protection in Article 8 of the Charter of Fundamental Rights of the EU (Charter), how data subject rights affect fair balancing of fundamental rights, and what the practical challenges are to effective data subject rights. The book starts with exploring the data-driven asymmetries that characterize individuals’ relationship with tech giants. These commercial entities increasingly anticipate and govern how people interact with each other and the world around them, affecting core values such as individual autonomy, dignity, and freedom. The book explores how data protection law, and data subject rights in particular, enable resisting, breaking down or at the very least critically engaging with these asymmetric relationships. It concludes that despite substantial legal and practical hurdles, the GDPR’s right to erasure does play a meaningful role in furthering the fundamental right to data protection (Art 8 Charter) in the face of power asymmetries online.
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Moreno-Lax, Violeta. EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198701002.003.0008.
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This chapter identifies the content and scope of application of the EU prohibition of refoulement. Following the ‘cumulative standards’ approach, the analysis incorporates developments in international human rights law (IHRL) and international refugee law (IRL). Taking account of the prominent role of the ECHR and the Refugee Convention (CSR51) as sources of Article 19 CFR, these are the two main instruments taken in consideration. The scope of application of Articles 33 CSR51 and 3 ECHR will be identified in turns. Autonomous requirements of EU law will be determined by reference to the asylum acquis as interpreted by the CJEU. The main focus will be on the establishment of the territorial reach of EU non-refoulement. The idea that it may be territorially confined will be rejected. Drawing on the ‘Fransson paradigm’, a ‘functional’ understanding of the ‘implementation of EU law’ standard under Article 51 CFR will be put forward, as the decisive factor to determine applicability of Charter provisions. The implications of non-refoulement for the different measures of extraterritorial control considered in Part I will be delineated at the end.
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Moreno-Lax, Violeta. The EU Right to Asylum: An Individual Entitlement to (Access) International Protection. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198701002.003.0009.
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This chapter analyses the right to asylum enshrined in Article 18 CFR and its relevance in relation to access to international protection in the EU. It sets out the origins and evolution of the notion. The chapter shows the impact of the CSR51 and the ECHR on the classic understanding that the right of asylum is a matter exclusively belonging to the sovereign. The rights to leave any country and to seek asylum implicit in those instruments are assessed, together with the principle of proportionality and the limits it imposes on State discretion, and the intersection with the absolute prohibition of refoulement. The ‘right to gain effective access to the procedure for determining refugee status’ established by the Strasbourg Court as well as developments within the Common European Asylum System are also given attention. Comparisons are made with the approach adopted by the CJEU in the areas of free movement, legal/illegal migration, and EU citizenship. This serves as a basis for the clarification of the meaning of the right to (leave to seek) asylum inscribed in the Charter that Member States must ‘guarantee’ and its implications for mechanisms of ‘integrated border management’.
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Hustinx, Peter. EU Data Protection Law: The Review of Directive 95/46/EC and the General Data Protection Regulation. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198807216.003.0005.
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This chapter looks at the origins and the current state of EU data protection law, and highlights the context of the ongoing review of Directive 95/46/EC as its key instrument, as well as the main lines of the proposed General Data Protection Regulation which will replace the Directive in the near future. The analysis shows a gradual development along two lines: one aiming at stronger rights in order to provide more effective protection, and one ensuring more consistent application of those rights across the EU. It also demonstrates the increasing impact of the Charter of Fundamental Rights, both in the case law of the Court of Justice and in the review of the legal framework. At the same time, it is argued that a lack of awareness of the difference in character between Articles 7 and 8 of the Charter could prevent Article 8 from reaching its full potential.
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Grosse Ruse-Khan, Henning. The Protection of Intellectual Property in International Human Rights Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780199663392.003.0008.
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This chapter examines the human rights system and the way it deals with human creations and innovations that are the traditional core subject matter of intellectual property (IP) rights. It begins by reviewing the scope for protection under Article 27 (2) Universal Declaration of Human Rights (UDHR) and Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The chapter moves on to the protection of property in human rights law, especially on the regional, European level. It examines how IP can be protected as property under the European Convention of Human Rights (ECHR) and under the EU Charter of Fundamental Rights (EU Charter). Finally, the chapter looks at some of the overlaps with international IP rules and the conflict norms in the human rights system to address such overlaps.
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Bellamy, Richard. The Challenge of European Union. Editado por John S. Dryzek, Bonnie Honig y Anne Phillips. Oxford University Press, 2009. http://dx.doi.org/10.1093/oxfordhb/9780199548439.003.0013.
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This article examines the political challenges of the European Union (EU). It explains that political theorists and scientists alike have viewed European integration as a laboratory for exploring how far the nation state, and the forms of domestic and international politics to which it gave rise, has been affected by the various processes associated with globalization. It discusses the Charter of Rights and Constitutional Treaty of the EU and suggests that the EU can be plausibly characterized as an intergovernmental organization of an advanced kind, a nascent federation of states, and a new form of post-national and post-state entity.
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Craig, Paul y Gráinne de Búrca. 24. Equal Treatment and Non-Discrimination. Oxford University Press, 2015. http://dx.doi.org/10.1093/he/9780198714927.003.0024.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses EU anti-discrimination law, which, over the past decade and a half, has expanded significantly to cover a wide range of grounds and contexts. In addition to requiring equal treatment for women and men, the Treaty provides legislative competence to combat discrimination on a range of grounds. The Charter of Fundamental Rights, which has a chapter devoted to equality, has been incorporated into the EU Treaties. Article 21 of the Charter prohibits discrimination on any ground. Articles 8 and 10 of the Treaty on the Functioning of the European Union (TFEU) contain horizontal clauses requiring the EU to promote equality between men and women, and to combat discrimination based on certain grounds, namely sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation in all of its policies and activities.
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Moreno-Lax, Violeta. Remedies, Procedural Guarantees (and the Unavoidability of Admission to Territory). Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198701002.003.0010.
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The rights to asylum and to protection against refoulement, as per Chapters 8-9, entail both substantive and procedural components. This chapter scrutinizes the remedies and procedural safeguards attached to them, paying particular attention to the most relevant international provisions of refugee law and human rights protection. Article 16 CSR51; Articles 14(1), 2(3) and 7 ICCPR; Article 3 CAT; as well as Articles 6 and 13 ECHR are all scrutinized with the purpose of determining the content of the right to effective judicial protection in Article 47 CFR. On the basis of the ‘cumulative standards’ approach, it is concluded that fair trial and effective remedy guarantees are applicable in the context of pre-border controls, including the right to a hearing in person and to an appeal ‘with automatic suspensive effect’. In light of this, it is argued that inherent in a claim to international protection or in a plea of non-refoulement is an entitlement to provisional admission to the territory of the intercepting Member State for the purpose of such procedures as may be necessary to guarantee the effectiveness of the rights that protection seekers derive from EU law.
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Raimondi, Guido. Introductory Note. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190923846.003.0027.
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This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.