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1
Adams-Prassl, Jeremias. "Article 47 CFR and the effective enforcement of EU labour law: Teeth for paper tigers?" European Labour Law Journal 11, no. 4 (February 20, 2020): 391–402. http://dx.doi.org/10.1177/2031952520905383.
Повний текст джерелаАнотація:
‘Social rights’, the late Professor Sir Bob Hepple warned in 2007 ‘are like paper tigers, fierce in appearance but missing in tooth and claw.’ This note sets out to explore the potential of the right to an effective remedy in Article 47 of the European Union’s Charter of Fundamental Rights (‘CFR’) in equipping the Union’s social acquis with credible remedies. Article 47 CFR is one of the most-litigated and important Articles in the Charter. At the same time, however, it has received surprisingly little attention in the context of EU employment law. Discussion is structured as follows: section one explores the rise of the principle of effectiveness, from the early case law of the Court of Justice to the Charter’s entry into force in 2009. Section two sketches the powerful potential of Article 47 CFR, highlighting its utility both in tackling domestic obstacles to effective enforcement, and expanding the horizontal applicability of EU employment law. Section three briefly highlights some of the limitations litigants might encounter, including a general emphasis on broad regulatory discretion for Member States, and the difficult of crafting (positive) duties out of (negative) restraints. A brief concluding section turns to EU law more broadly, as well as the European Convention of Human Rights, for inspirations guiding the potential future development of Article 47 CFR.
2
Sanger, Andrew. "STATE IMMUNITY AND THE RIGHT OF ACCESS TO A COURT UNDER THE EU CHARTER OF FUNDAMENTAL RIGHTS." International and Comparative Law Quarterly 65, no. 1 (January 2016): 213–28. http://dx.doi.org/10.1017/s0020589315000524.
Повний текст джерелаАнотація:
AbstractThis article examines the application of the right of access to a court as guaranteed by Article 47 of the EU Charter of Fundamental Rights in cases involving State immunity. First, it considers the scope of the right of access to a court under the Charter, including its relationship with Article 6(1) of the European Convention on Human Rights, and the ways in which the Charter is given effect within UK law. Second, the article critically examines the Court of Appeal’s application of both Article 6(1) ECHR and Article 47 of the EU Charter in Benkharbouche v Sudan, a case brought by domestic service staff of foreign embassies based in London against Sudan and Libya respectively. It argues that the Court’s statement that the right of access to a court is not engaged in immunity cases because the court has no jurisdiction to exercise – an analysis which relies on Lord Millett’s reasoning in Holland v Lampen-Wolfe and the dicta of Lords Bingham and Hoffmann in Jones v Saudi Arabia – is erroneousness: the right of access to a court is always engaged in immunity cases because immunity does not deprive the courts of jurisdiction ab initio. The article also argues that contrary to the Court’s reasoning on Article 47 of the EU Charter, the right of access to a court does not need to have horizontal effect in a private between private parties: the right is always enforced against the forum State; it has indirect, not horizontal, effect.
3
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.
Повний текст джерелаАнотація:
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.
4
Lacchi, Clelia. "Multilevel judicial protection in the EU and preliminary references." Common Market Law Review 53, Issue 3 (June 1, 2016): 679–707. http://dx.doi.org/10.54648/cola2016061.
Повний текст джерелаАнотація:
The article offers a threefold perspective on preliminary references to the ECJ, through an analysis of the case law of the ECJ itself, of (some) constitutional courts and of the ECtHR. Although in the latter two cases, a close connection is made between preliminary references and the right to effective judicial protection, in the EU legal order they are conceived as a “dialogue between judges”. The article looks at their role in light of recent case law concerning this procedure as well as Article 47 of the Charter and Article 19(1)(2) TEU. It aims to identify whether and to what extent preliminary references may be covered by the right to effective judicial protection under EU law. It argues that the preliminary reference procedure may be linked more closely to individuals’ rights if analysed in light of Article 47 of the Charter. Accordingly, some proposals for a more “protection-oriented” system are presented.
5
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.
Повний текст джерелаАнотація:
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
6
Jarukaitis, Irmantas. "The European Union as a Community of Values: the Importance of the Dialogue between the Court of Justice of the European Union and National Courts." Teisė 131 (August 29, 2024): 23–43. http://dx.doi.org/10.15388/teise.2024.131.2.
Повний текст джерелаАнотація:
The article deals with the gradual development of the EU as a community of values and the role of the CJEU and national courts in upholding and developing these values. The analysis of judicial practice reveals the crucial role performed by national courts and the CJEU in protecting the fundamental rights and the principle of the rule of law both at the EU and national levels. On the one hand, „upstream“, national courts act as guardians of the fundamental values at the EU level by referring questions to the CJEU concerning the interpretation of the Charter and the legality of the secondary EU legislation vis-à-vis the Charter, thus contributing to the functioning of a decentralised constitutional control of EU legislation and stabilising the EU level of governance. On the other hand, “downstream”, recent developments of the CJEU jurisprudence interpreting Article 19 of the Treaty on the European Union confirm the thesis that the CJEU treats national courts as European courts that are cornerstones of the decentralised EU judicial system. The CJEU practice shows that differently from Article 47 of the Charter, Article 19 of the TEU is perceived not as providing protection of individual rights but rather as a systemic and permanent guarantee of judicial independence as a part of a fundamental value of the Union, thus aiming at stabilisation of national judicial systems and assuring the effectiveness of protection of the rights stemming from EU law at the national level.
7
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.
Повний текст джерелаАнотація:
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.
8
Engel, Annegret, and Xavier Groussot. "Digitalisation in EU Competition Law and the Swedish Principle of Transparency." Nordic Journal of European Law 7, no. 2 (July 8, 2024): 1–6. http://dx.doi.org/10.36969/njel.v7i2.26352.
Повний текст джерелаАнотація:
The procedural and institutional rights granted by the EU Charter of Fundamental Rights have an important impact at national level in the application and interpretation of competition law by national courts and national authorities. In Sweden, the situation is particularly fascinating since the principle of openness – which affords a maximum standard of human right protection – may conflict with the procedural and institutional rights of the Charter, i.e. Articles 41, 47 and 53 of the Charter. The application of the Charter by the public procurement authority is also of interest here. Arguably, the principle of openness as defined by Swedish law should be respected in light of the procedural and institutional rights granted by the EU Charter.
9
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.
Повний текст джерелаАнотація:
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.
10
Bakó, Beáta. "Judges Sitting on the Warsaw-Budapest Express Train: The Independence of Polish and Hungarian Judges Before the CJEU." European Public Law 26, Issue 3 (December 1, 2020): 587–614. http://dx.doi.org/10.54648/euro2020057.
Повний текст джерелаАнотація:
This article is a contribution to the vital discussions about the rule of law in the EU, focusing on a specific and crucial element of the rule of law: judicial independence. Recently, the CJEU started to use Article 19 (1) of Treaty on European Union and Article 47 of the EU Charter of Fundamental Rights as a basis for enforcing judicial independence in the Member States in cases which do not contain any explicit cross-border elements. This is how some provisions of the heavily criticized reform of the Polish judiciary have already been declared as contrary to EU law by the CJEU. However, it is not only Poland where judges face difficulties. The main subject of this article is a Hungarian case: a preliminary reference issued by a Hungarian judge questioning his own independence. Judicial independence is not primarily threatened by explicit legal provisions but by the fact that the former head of the judiciary administration regularly misused her competence to invalidate judicial applications over several years. This article analyses the Hungarian preliminary reference and its chances in light of the CJEU’s recent, respective case law, especially the preliminary ruling concerning the Polish National Council of the Judiciary, the KRS (Krajowa Rada Sądownictwa) and the Disciplinary Chamber of the Supreme Court (joined cases C 585/18, C 624/18 and C 625/18). Hungary, Poland, European Court of Justice, Article 19 (1) TEU, Article 47 EU Charter of Fundamental Rights, judicial independence, judicial councils, disciplinary chamber, right to an effective remedy, preliminary reference, infringement procedure, rule of law, C-564/19, joined cases C 585/18, C 624/18 and C 625/18
11
Cornelisse, Galina. "EU Boots on the Ground and Effective Judicial Protection against Frontex’s Operational Powers in Return: Lessons from Case T‑600/21." European Journal of Migration and Law 26, no. 3 (August 13, 2024): 356–80. http://dx.doi.org/10.1163/15718166-12340184.
Повний текст джерелаАнотація:
Abstract This article comments on Case T-600/21 to highlight the serious shortcomings in direct actions before EU courts against allegations of fundamental rights violations by Frontex. It contributes to existing scholarship on legal accountability failings with regard to operational activities by Frontex for two reasons. First, the contribution argues that Frontex’s operational competences in the area of return are clearly circumscribed, not only by the Regulation on the European Border and Coast Guard and the Charter of Fundamental Rights of the EU, but also by crucial substantive and procedural safeguards contained in the Return Directive. Secondly, the article proposes a number of changes to current remedies against executive action of Frontex, in particular with regard to evidentiary requirements and the qualification of the EU conduct amenable to review. It argues that Article 47 of Charter, as interpreted by the Court of Justice itself, puts that same court under a clear and unequivocal obligation to adapt its own procedures accordingly in order to protect the very core of the right to effective judicial protection, namely access to courts.
12
Widdershoven, Rob. "National Procedural Autonomy and General EU Law Limits." Review of European Administrative Law 12, no. 2 (December 31, 2019): 5–34. http://dx.doi.org/10.7590/187479819x15840066091222.
Повний текст джерелаАнотація:
This article examines the recent approach of the European Court of Justice of the EU towards the applicability of procedural national law in cases falling within the scope of Union law. It argues that the Court increasingly assesses such rules within the framework of the principle of effective judicial protection, as bindingly codified in Article 47 of the Charter of Fundamental Right of the EU since December 2009. This test is gradually replacing the rather deferential test on the Rewe principles of equivalence and effectiveness and implies a further limitation of procedural autonomy of the Member States. The reason for the shift seems to be the necessity to coordinate the Court's case law on Article 47 CFR with the case law of the European Court of Human Rights on Article 6 ECHR, because this coordination requires the application of a similar standard by both European Courts. As a result, the importance of, in particular, the Rewe principle of effectiveness, has already decreased to a considerable extent and might decrease further in future. Nevertheless, it is not to be expected that this standard will be abolished completely. First, because it may provide an adequate standard for assessing procedural issues that are not related to effective judicial protection or Article 47 CFR. Secondly, because incidentally it may be used by the Court for modifying national procedural law with a view to the effective application of substantive EU rules.
13
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.
Повний текст джерелаАнотація:
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.
14
Steinborn, Sławomir. "The Concept of an Effective Remedy Under Article 47 of the Charter in Context of the European Investigation Order." European Criminal Law Review 14, no. 2 (2024): 135–47. http://dx.doi.org/10.5771/2193-5505-2024-2-135.
Повний текст джерелаАнотація:
The paper focuses on the concept of effective remedy guaranteed in Art. 47 of the Charter. After a brief critical analysis of the judgment of the Court of Justice in Gavanozov II case, it is considered what features a remedy should have in relation to an EIO and investigative measures in order to be assessed effective. Attention was drawn to the need of taking into account, in particular, the degree of interference with fundamental rights of an individual and seeking a balance between the striving to ensure the effectiveness of EU judicial cooperation in criminal matters and the fight against crime on the one hand and the protection of individual rights on the other.
15
Marinova, Gergana. "Judgement of the Court of Justice of the EU in Case C-282/20 and the Intermediate Stage of the Bulgarian Criminal Procedure Code." De Jure 13, no. 2 (December 21, 2022): 219–26. http://dx.doi.org/10.54664/clrq3142.
Повний текст джерелаАнотація:
The article discusses the judgement of the Court of Justice of the EU in case C-282/20 and the relevant Bulgarian legislation. It comes to the conclusion that the defendant’s right to information, as provided for in Art. 6(3) of Directive 2012/13 and in Art. 47 of the EU Charter of Fundamental Rights, is guaranteed in the Bulgarian Criminal Procedure Code, though in one case it has to be applied by analogy. Hence, it is not necessary for the principle of consistent interpretation of national law to be applied.
16
Roer-Eide, Haakon, and Mariolina Eliantonio. "The Meaning of Regulatory Act Explained: Are There Any Significant Improvements for the Standing of Non-Privileged Applicants in Annulment Actions?" German Law Journal 14, no. 9 (September 1, 2013): 1851–65. http://dx.doi.org/10.1017/s2071832200002522.
Повний текст джерелаАнотація:
The right to an effective legal remedy is a generally accepted principle of modern legal systems and is enshrined in national constitutions as well as international treaties, such as the European Convention on Human Rights and Fundamental Freedoms. On the European Union (hereinafter EU) level, the right to an effective remedy is laid down in Article 47 of the Charter of Fundamental Rights of the European Union.
17
Bonelli, Matteo. "Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature." Review of European Administrative Law 12, no. 2 (December 31, 2019): 35–62. http://dx.doi.org/10.7590/187479819x15840066091240.
Повний текст джерелаАнотація:
Effective judicial protection emerged as a EU law principle in the 1980s, operating alongside the Rewe principles of equivalence and effectiveness as a standard to assess national procedures for the enforcement of EU law. This article argues that the codification of effective judicial protection in Article 19 TEU and 47 of the Charter, operated by the Lisbon Treaty, has stimulated an evolution of the principle, which is evident in the recent case law of the Court of Justice. Today, effective judicial protection operates not only as a procedural principle, but also as a more substantive and structural one, and has generally acquired broader constitutional relevance. This evolution has crucial effects on the EU legal order: most importantly, it affects the division of competences between Member States and the EU, and between the Court of Justice and national courts.
18
Engel, Annegret. "Only Fair? The Right To A Fair Trial Challenged In Case C-420/20 HN (Procès d’un Accusé Éloigné du Territoire)." Nordic Journal of European Law 6, no. 1 (February 27, 2023): 93–99. http://dx.doi.org/10.36969/njel.v6i1.25083.
Повний текст джерелаАнотація:
The right to a fair trial forms an integral part of the rule of law in the EU and is enshrined in Article 47 of the EU Charter of Fundamental Rights. It provides that 'Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.' Everyone shall have the possibility of being advised, defended and represented. Further details, particularly on the right to be present as an essential element of the right to a fair trial, can be found in EU secondary legislation, such as Directive 2016/343.This came under scrutiny in the course of the criminal proceedings against HN.
19
Barents, René. "EU procedural law and effective legal protection." Common Market Law Review 51, Issue 5 (October 1, 2014): 1437–61. http://dx.doi.org/10.54648/cola2014112.
Повний текст джерелаАнотація:
The procedures in direct actions before the three courts of the European Union are governed by strict rules, laid down in the Statute of the CJEU and the Rules of Procedure of the CJ, the GC and the CST, on the subject-matter of the dispute, the forms of order sought and the pleas supporting the action. In this article the system of pleas and its consequences for the function of the Union judicature and the position of the parties in the proceedings before the Union Courts are examined. Due to this system, EU procedural law is featured by a rather strong orientation towards objective legality review. The central question is this contribution is whether the proceedings in direct actions are still fully appropriate in the light of the fundamental right to an effective remedy and to a fair trial as required by Article 47 Charter of Fundamental Rights.
20
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.
Повний текст джерелаАнотація:
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.
21
Eliantonio, Mariolina. "The relationship between EU secondary rules and the principles of effectiveness and effective judicial protection in environmental matters: towards a new dawn for the 'language of rights'?" Review of European Administrative Law 12, no. 2 (December 31, 2019): 95–116. http://dx.doi.org/10.7590/187479819x15840066091349.
Повний текст джерелаАнотація:
Environmental policy is an area which has been quite heavily proceduralised and is a rather peculiar example of 'multi-level proceduralisation' because of the presence of the Aarhus Convention. This paper explores the relevant procedural provisions taken in the field of environmental law and in particular in implementation of the Aarhus Convention, and examines the case law which has involved these provisions. This case law is specifically discussed as concerns the way in which the Court of Justice deals with the interaction between the relevant secondary rules and the general principles of effectiveness and effective judicial protection, as well as Article 47 of the Charter of Fundamental Rights concerning the right to an effective remedy. It is shown that it is difficult to distill a consistent approach on the part of the Court with regards to this interaction, and that much depends on the specifics of the case and the question posed by the referring court. However, with the latest case law, despite the apparent lack of underlying rights which would be able to trigger the applicability of the Charter of Fundamental Rights, the Court of Justice seems to be moving towards a heavier involvement of Article 47 of the Charter and, consequently, of a 'language of rights', which increasingly plays a pivotal role in boosting the effectiveness of the Aarhus Convention.
22
Parewyck, Janvier. "'Schrems II' Judgment C-311/18: Application of Charter Rights to Data Protection and Effective Remedy Beyond Eu Borders - A State of Play and a Critical Reflection Two Years Later." Review of European Administrative Law 16, no. 1 (May 9, 2023): 87–102. http://dx.doi.org/10.7590/187479823x16800083010365.
Повний текст джерелаАнотація:
In its Schrems II judgment,1 the Grand Chamber of the Court ruled that the United States law and practices, notably bulk-interception programmes, were not providing a level of protection of personal data essentially equivalent to the protection conferred by the EU Charter of Fundamental Rights and, therefore, invalidated the Privacy Shield for violating Articles 7 and 8 of the Charter. Since, in addition, there is no effective remedy available to data subjects protected by the GDPR, the Court held that the Privacy Shield also violated Article 47 of the Charter. The Court, nevertheless, left the standard data protection clauses as one of the transfer tools available to data exporters, with the understanding that it is up to the data exporter to implement the additional safeguards necessary to compensate for any shortcomings in the third country and achieve an essentially equivalent level of protection. While the judgment provides, to some extent, clear guidance on the application of EU law and maps out a coherent regime as to how data can be transferred, this article reflects on some aspects that remain problematic in practice, both for data exporters in general and for the original complainant in the Schrems litigation in particular.2The 'risk-based approach' and its recognition are discussed, revealing that ultimately the law, and the Court's judgment, do not seem to allow for certainty in this matter and require the stakeholders to take a position in their respective situations, choosing between a strict or stretched interpretation.
23
Kochańska, Paulina. "The requirement for effective judicial protection as a part of the Rule of Law in European Union law." Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne 35 (June 10, 2021): 51–67. http://dx.doi.org/10.19195/1733-5779.35.4.
Повний текст джерелаАнотація:
This article aims to present the importance of ensuring effective judicial protection in the Member States of the European Union. Within the scope of the study, the substance and content of the rule of law were studied, with particular emphasis of court independence, an important part of the effective judicial protection principle (article 19 TEU and article 47 Charter of Fundamental Rights). The perspective was captured in general, directing the considerations directly towards the principle of effective judicial protection. The legal analysis was carried out in the light of the recent case-law of the Court of Justice of the European Union, and enriched by the analysis of the EU law doctrine.
24
Reneman, Marcelle. "Expulsion of EU Citizens on the Basis of Secret Information: Article 47 of the EU Charter on Fundamental Rights Requires Disclosure of the Essence of the Case." Review of European Administrative Law 7, no. 1 (June 1, 2014): 69–79. http://dx.doi.org/10.7590/187479814x14005849344739.
Повний текст джерела
25
Lord Lloyd-Jones. "FORTY YEARS ON: STATE IMMUNITY AND THE STATE IMMUNITY ACT 1978." International and Comparative Law Quarterly 68, no. 2 (April 2019): 247–69. http://dx.doi.org/10.1017/s0020589319000125.
Повний текст джерелаАнотація:
AbstractThis article addresses some of the changes in international law and foreign relations law which have impinged on the operation of the State Immunity Act 1978 in the first 40 years of its operation and some of the ways in which it has been supplemented by judicial decisions. It addresses, in particular, the initial need for legislation in this field, the circumstances in which agents of a State may be entitled to immunity, the relationship between State immunity in domestic law and Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights, the relationship of State immunity and rules of jus cogens, and the respective scope of State immunity and principles of non-justiciability.
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Papp, Mónika. "Matteo Bonelli – Mariolina Eliantonio – Guilia Gentile (szerk.): Article 47 of the EU Charter and Effective Judicial Protection, Volume 1 (Hart Publishing, 2022) 299." Állam-és Jogtudomány 64, no. 3 (2023): 83–86. http://dx.doi.org/10.51783/ajt.2023.3.07.
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Kosta, Eleni, and Irene Kamara. "The Right to an Effective Remedy In International Data Transfers of Electronic Evidence: Past Lessons and Future Outlook." Review of European Administrative Law 16, no. 1 (May 9, 2023): 57–82. http://dx.doi.org/10.7590/187479823x16800083010356.
Повний текст джерелаАнотація:
Cross-border and international collaboration of authorities is often a necessity, involving inter alia the exchange of good practices, tools, human resources, but also information, including personal data. Cross-border access to data is essential in the context of electronic evidence in criminal investigations and proceedings, as more than half of all criminal investigations involve a cross-border request to obtain e-evidence. From a fundamental rights perspective, a common denominator in transborder exchanges of data -irrespective of whether they take place for commercial or for criminal purposes- is that the right to effective remedy of the individuals concerned shall be safeguarded, a right protected under Article 47 of the Charter of Fundamental Rights and Freedoms of the European Union. Taking into account this context, this paper provides a comprehensive analysis and assessment of the right on effective remedies for EU citizens in international data transfers of electronic evidence and discusses the future of the right to effective remedies in transatlantic transfers of data in this context. The main argument of the paper is that the effective remedies for sharing electronic evidence outside the EU territory are not sufficiently guaranteed by the existing applicable rules, due to the piecemeal approach followed in the EU.
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Grądzka, Ilona, and Edyta Krzysztofik. "Standards for Review of the Concept of a “National Court” in EU Law." Studia Iuridica Lublinensia 32, no. 5 (December 31, 2023): 143–61. http://dx.doi.org/10.17951/sil.2023.32.5.143-161.
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The aim of the article is to demonstrate the evolutionary approach of the Court of Justice to the criteria for review of the concept of a court within the meaning of EU law. It has been shown that there are three basic standards used by the Court in this area. The first one is an examination of the premises developed as part of the procedure of a question referred to for a preliminary ruling, which includes functional and systemic premises. The second one is based on Article 47 of the Charter of Fundamental Rights of the European Union, which specifies three premises: independence, impartiality and establishment of a court by statute. The third standard of control indicated by the Court of Justice in the judgment in case C-64/16 is of a different nature. It has been applied to reforms of the justice system in the Member States and is based on the combined interpretation of three provisions: Article 2, Article 4 (2) and Article 19 (1) of the Treaty on European Union. The indicated standard was the cause of a lively discussion initiated by the constitutional tribunals of the Member States (the case of Poland and Romania). In principle, they do not question the right of the Court of Justice to review the concept of a court under the first and second standard. However, in relation to the reforms of the justice system, they emphasize their own competence, which is granted to them by their national constitutions. It should be noted that the fundamental problem that appears in the jurisprudence of both the Polish Constitutional Tribunal and the Court of Justice is the protection of primacy of the constitution and irrefutability of the judgments of constitutional tribunals by the Court of Justice.
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Inghelram, Jan F. H. "Judicial review of investigative acts of the European anti-fraud office (OLAF): A search for a balance." Common Market Law Review 49, Issue 2 (April 1, 2012): 601–27. http://dx.doi.org/10.54648/cola2012021.
Повний текст джерелаАнотація:
Considering OLAF's far-reaching investigation powers, the article deals with the question what role judicial review can or should play in effectively protecting the fundamental rights of persons under investigation by OLAF. The article gives an overview of the different kinds of judicial review which are relevant in this respect, including interim relief. It also includes considerations on the possible contribution of the fundamental right to an effective remedy (Art. 47 of the Charter of Fundamental Rights of the EU) to the debate on judicial review of OLAF investigative acts. The article focuses in particular on the case law on the inadmissibility of actions for annulment against OLAF investigative acts. This case law is based on the view that such acts do not to bring about a distinct change in the legal position of the applicant. In the article, it is proposed that an action for annulment could be considered admissible against an OLAF investigative act if such an act is shown to have deprived the applicant of the effective exercise, or of the benefit, of a fundamental right, thus opening a review limited to examining the compatibility of that specific act with fundamental rights.
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Furramani, Emanuela. "Transfer of Personal Data to Third Countries and the “Equivalent Level” of Protection According to the European Court of Justice." European Journal of Formal Sciences and Engineering 6, no. 1 (April 1, 2023): 1–12. http://dx.doi.org/10.2478/ejfe-2023-0001.
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Abstract The focus of this study is the transfer of personal data to third countries or international organizations according to EU Regulation No. 679/2016 (GDPR) on the protection of personal data. The primary goal of this Regulation concerning data transfer to third countries is to ensure that the subject’s rights and freedoms are safeguarded at the same level as provided by GDPR. According to GDPR, before any transfer to a third country or international organization, it must first be ascertained whether the European Commission has established that a third country ensures an adequate level of protection. Regarding personal data protection in the third state, the Court of Justice of the European Union has intervened on different occasions. In the last decision, in 2020, the Court declared invalid the European Commission’s Decision No. 2016/1250 on the adequacy of the protection provided by the EU-US Privacy Shield (CJEU, Schrems II, 2020, July 16) because it does not provide effective and enforceable rights for personal data subjects in cases of interference. According to the Court of Justice of the European Union, the US does not guarantee an “essentially equivalent” level of protection to that provided by the European Union under Article 45(1) GDPR, read in conjunction with Articles 7, 8, and 47 of the European Union’s Charter of Fundamental Rights, which guarantee respect for private and family life, personal data protection, and the right to effective judicial protection.
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Drake, Sara. "Article 47 of the EU Charter and Effective Judicial Protection, Volume 1: The Court of Justice’s Perspective, by Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile. (Oxford: Hart Publishing, 2022)." Common Market Law Review 61, Issue 4 (August 1, 2024): 1145–48. http://dx.doi.org/10.54648/cola2024073.
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Andersson, Helene. "The Legal Professional Privilege in Competition Law Cases – A Key Element in Protecting the Proper Administration of Justice." Nordic Journal of European Law 7, no. 2 (July 8, 2024): 21–33. http://dx.doi.org/10.36969/njel.v7i2.26397.
Повний текст джерелаАнотація:
The legal professional privilege is an important principle underpinning the EU judicial system as it ensures the proper administration of justice, procedural efficiency and protects fundamental rights such as a client’s defence rights and the right to privacy enshrined in Articles 47 and 7 of the Charter. In competition cases, the European Commission has relied on an old ruling from the Court of Justice of the European Union (the ECJ), and only acknowledged one of these aims – the protection of the client’s defence rights. While the ECJ has recently received the chance to align the EU standard to that of the ECHR by broadening the scope of protection, the Commission appears unwilling to abandon its previous stance. It is important that the Commission shoulders the responsibility to ensure a procedure that is fair, and which acknowledges the basic principles underpinning a society governed by the rule of law. The current approach breathes life into questions on the legitimacy of its actions and the appropriateness of letting it take on the roles of enforcer, prosecutor and judge in competition cases, where companies not only risk having to pay fines of up to ten percent of their annual turnover, but now also appear to have to face the threat of divestitures should the Commission find that they are infringing the EU competition rules.
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Poretti, Paula. "Sudska zaštita prava potrošača ." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 39, no. 1 (2018): 535–70. http://dx.doi.org/10.30925/zpfsr.39.1.18.
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<span>At EU level, discussions on the future direction of development of consumer protection policy revolve around the open question of efficiency of mechanisms for protection and realisation of consumer rights in national legal systems of EU Member States. Measures and activities of the EU legislator resulted in ‘competing’ mechanisms, which objectively creates a need for examination of the extent to which their functions overlap as well as if it is possible to detect the (most) appropriate way for protection of consumer rights. The analysis in the paper starts from the presumption that the consumer protection policy was developed within the measures aimed at integration of the Single Market and harmonization of consumer laws, on the one side and the recognized need of consumer protection as a social and political goal, on the other side. In this sense, the main point discussed in the paper is whether the recent development in the field of consumer protection, including the recent judgments of the European court could be interpreted as a reflection of the notion that the efficient judicial protection of (individual) consumer rights is (yet) again a priority at EU level. In the first part of the paper the development and application of mechanisms which represent a certain kind of alternative to the judicial consumer protection will be presented. In the second part of the paper, we will consider if the all the more present focus on judicial protection of consumer rights at EU level is an indication of a ‘successful experiment which resulted in unexpected outcome’. The required argumentation will be provided through monitoring of the trend of ‘proceduralization’ or ‘europeanisation’ of the national consumer law in the jurisprudence of the European court. The effect of Article 47 EU Charter of Fundamental Rights and its requirement of efficient protection of procedural rights of individuals before national courts of EU Member States will be analysed in detail. At the same time, the recent activities of the European Commission directed at court proceedings before national courts and removal of barriers in their work in the field of consumer protection will be taken into account.</span>
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Kosińska, Anna Magdalena. "The Role of the CJEU in the Strengthening of the Participation of Third-Country Nationals in the Academic Life in the EU – Analysis of the Ruling of the CJEU in Case M.A. v Consul of the Republic of Poland in N." Studia Prawnicze KUL, no. 4 (December 16, 2021): 91–106. http://dx.doi.org/10.31743/sp.12894.
Повний текст джерелаАнотація:
The analyzed ruling is the first judgement which the Court of Justice passed in order to provide interpretationfor the new Student Directive (2016/801 of 11 May 2016 on the conditions of entry and residence ofthird-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemesor educational projects and au pairing). Due to its judiciary activism, the Court was able to find a connectionbetween the case pending before a national court and EU law in the case of M.A. In the end, the Court finallydecided that in the case at issue, regarding the rights of a foreign national to apply for a residence permit for thepurpose of enrolling in second-cycle studies programme in Poland, the procedure of applying for a long-stay visaon the grounds of national law must be safeguarded by the guarantees under Article 47 of the Charter of FundamentalRights. The guarantees apply to the actual states in which EU law is applicable – in this case the “StudentDirective.” It seems that the ruling in the case of M.A. will play a crucial role in facilitating students’ – TCNs’ – entryinto the territory of the Republic of Poland, while the Polish legislator, in all probability, will be obliged to changethe provisions of the national law in such a way as to make it possible for future students to access a full array oflegal remedies against the negative decisions of consuls.
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YAVARI, Asadollah, and Saeedeh MAZINANIAN. "Privacy in Cyberspace: Islamic Republic of Iran Perspective." Journal of Advanced Research in Law and Economics 11, no. 1 (March 31, 2020): 208. http://dx.doi.org/10.14505//jarle.v11.1(47).25.
Повний текст джерелаАнотація:
Privacy is one of the cornerstones of the realization of human rights in a democratic system and is defined as a realm of everyone's life, is not accessible to others. Thus, privacy in cyberspace has a similar definition. Since privacy and data protection have different definitions for business owners, governments, and the general public, unlike other areas of law, which have well-established legal concepts, norms, and principles, privacy and data protection is an area of law that is not currently consolidated. The right to privacy, therefore, falls into two normative frameworks: preventing violation of the privacy of others, and training and guidance on secrecy. Data protection and privacy are not limited to one legal area. Data protection and privacy laws include areas of intellectual property, competition, and part of cybercrime. Since the level of individuals' privacy is determined by the national laws of each country or political entities such as the European Court of Human Rights (ECtHR) and the European Court of Justice, through the EU's General Data Protection Regulations applicable since 2018, the European Union (EU) has set criteria that will have a major impact on data protection and privacy laws in other countries. Furthermore, as privacy is one of the strongest recommendations of Islam, the law of cybercrime (2009), the law of freedom to access to information (2010), the charter of citizens' rights (2016) is supported in the positive laws of the Islamic Republic of Iran as well as in the constitution. The most important question in this article is what is the scope of privacy in cyberspace and to what extent do laws and regulations support it? Therefore, this descriptive-analytical study analyzes the concept of privacy and the scope of its right in the laws and regulations of the Islamic Republic of Iran and the challenges that the right of privacy faces.
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Gärditz, Klaus Ferdinand. "Effektiver Verwaltungsrechtsschutz im Zeichen von Migration und Europäisierung." Die Verwaltung 52, no. 2 (April 1, 2019): 259–96. http://dx.doi.org/10.3790/verw.52.2.259.
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The report surveys the development of administrative procedural law und jurisprudence between 2014 and 2019, in particular, under the auspices of the overarching mandate to grant effective judicial review. Pursuant to Article 19(4) of the Basic Law, effective judicial review is constitutionally guaranteed, but enfolds its practical effects within the intricate framework of Administrative Court Procedure Code and the inhomogeneous body of substantive administrative law. Additionally, European Union law and its own guarantee of effective remedies (Article 47 EU Charter of Fundamental Rights) bears influence on the administrative procedural law. The European Court of Justice seeks to give shape to partly vague European common standards of judicial review and its institutional settings. The so-called refugee burdened the administrative courts, as the number of asylum cases greatly increased by hundreds of thousands since 2016. The courts struggled to secure sufficient review of asylum decisions handed down by the federal administration under great strain, which diminished the quality and reliability of the administrative procedure and its fact findings. In the wake of the refugee crisis, the dormant provision enabling the administration to execute instant deportation orders has been tested against the guarantee of effective judicial protection. Another reference area that illustrates a shift within administrative procedural law is the complicatedly fabricated environmental law and its special provisions, which guarantee access to a court and effective review of administrative decisions (or omissions) that can affect the environment.
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Pohoretskyi, M. A., and Ye I. Lysachenko. "ADMISSIBILITY OF EVIDENCE IN THE CRIMINAL PROCEDURE LAW OF THE EUROPEAN UNION AND ITS IMPACT ON CRIMINAL JUSTICE IN UKRAINE." Herald of criminal justice, no. 3-4 (2022): 20–34. http://dx.doi.org/10.17721/2413-5372.2022.3-4/20-34.
Повний текст джерелаАнотація:
The article is devoted to the study of admissibility of evidence in the criminal procedural law of the European Union and its impact on criminal justice in Ukraine. Authors analyze the legislative regulation and scientific approaches to determining the admissibility of evidence in European countries. The article establishes that there is no unity among the EU member states in determining the legal nature of the admissibility of evidence in criminal proceedings, namely: there are legal systems that strictly filter the information admitted to the trial (the so-called «controlled systems»), and legal systems that leave it to the discretion of the judge to assess the expediency of ignoring illegal evidence («free evidence systems»). Beyond this general distinction, evidence laws vary considerably among countries. As well as the rules of obtaining and admissibility of different types of evidence (witness testimony, interception of telephone conversations, etc.). Authors emphasize that with the increasing volume and importance of cross-border investigations in the European Union, ensuring the admissibility of evidence obtained in another Member State becomes crucial for both effective law enforcement and the protection of fundamental rights. National prosecuting authorities often investigate crimes in which part of the evidence is located abroad (a witness is abroad, the crime was committed by passing through a foreign territory, the offender crossed the border, or the crime was committed in a digital environment, etc.) In accordance with Article 6 of the European Convention on Human Rights (ECHR) and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, it is necessary to ensure that evidence obtained during cross-border investigations does not lead to its illegal or unfair use. It is concluded that the implementation of international standards, the study of the judicial practice of the European Union and the results of the work of scientists will contribute to the updating of the criminal procedural legislation of Ukraine, but it is important to take into account the national peculiarities of criminal proceedings
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Medina Guerrero, Manuel. "Derecho a la vivienda y desahucios: la protección del deudor hipotecario en la jurisprudencia del TJUE." Teoría y Realidad Constitucional, no. 36 (July 1, 2015): 261. http://dx.doi.org/10.5944/trc.36.2015.16068.
Повний текст джерелаАнотація:
En los últimos años ha sido objeto de un amplio debate la configuración del procedimiento de ejecución hipotecaria, en el que se ha puesto el acento en sus deficiencias en una situación de crisis tan profunda como la que estaban padeciendo las familias en España. Especialmente, recibió severas críticas porque tradicionalmente ha restringido las posibilidades que tiene el deudor de oponerse a la ejecución. Y sin embargo, el Tribunal Constitucional, en repetidas ocasiones, había declarado la constitucionalidad del sistema procesal hipotecario, incluyendo la limitación de los motivos de oposición. En este contexto, el papel del TJUE ha sido determinante para que se procediera a la modificación del marco normativo interno al objeto de acomodarlo al derecho europeo (Directiva 93/137/CEE sobre las cláusulas abusivas en los contratos celebrados con consumidores). Con todo, la circunstancia de que la solución proviniera del derecho europeo en materia de protección de consumidores no debe eclipsar la circunstancia de que el principio de eficacia, que constituye el eje central de la argumentación del TJUE, no es sino expresión del derecho a la tutela judicial efectiva consagrado en el art. 47 de la Carta de Derechos Fundamentales de la Unión Europea.In the last years, the issue of mortgage enforcement proceedings in Spain has been the subject of an extensive debate drawing attention to the deficiencies of such procedure in a situation of severe crisis like the one Spanish households were experiencing. Particularly, it was highly criticized because there has been traditionally quite restricted possibilities of opposition for the defendant. However, the system of mortgage enforcement, including the limitation of grounds of objection, had been repeatedly declared in conformity with the Constitution by the Constitutional Court. In this context, the role of the Court of Justice of the EU has been crucially important in fine-tuning the national legal provisions in light of the European legal instruments (Directive 93/13/ EEC on unfair terms in consumer contracts). Nonetheless, the fact that the solution found in EU law emanates from the sphere of consumer protection law should not overshadow the fact that the principle of effectiveness is the main element at the basis of the reasoning of the Court, which in an expression of the principle of effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.
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KORZH, I. "Human rights and corruption as manifestation of their violation." INFORMATION AND LAW, no. 4(47) (November 28, 2023): 27–39. http://dx.doi.org/10.37750/2616-6798.2023.4(47).291536.
Повний текст джерелаАнотація:
This article examines the state of implementation and compliance with generally recognized legal principles and norms of international law in the field of fundamental human rights
© Корж І.Ф., 2023
and freedoms in Ukraine. It is noted that human rights should be understood as the defining principles of a person’s legal status, which belong to them from birth, are natural and inalienable, without which a person cannot exist as a full-fledged social being, and therefore they are a necessary element of citizens, society and the rule of law. The concept of human rights is based on two basic values – human dignity and equality. Human rights are defined and formalized primarily by international law, which includes a number of basic international legal acts, such as: Universal Declaration of Human Rights; European Convention on the Protection of Human Rights and Fundamental Freedoms and its protocols; Charter of Fundamental Rights of the European Union. Ukraine, which noted its further development in the direction of integration into the EU, formalized the rights of its citizens in the Constitution adopted in 1996, which enshrines a whole series of both traditional and new guarantees of human and citizen rights and freedoms, which allow each citizen to choose the type of his behavior, to use economic and socio-political freedoms and social benefits both in personal and public interests. It is emphasized that the establishment of human rights in Ukraine as the highest social value is complicated by a number of factors, which is mainly determined by the low legal culture of both the general public and civil servants and is confirmed by the fact that for many years Ukraine occupied one of the first places among the member states of the Council of Europe by the number of cases of violation of citizens’ rights that were pending in the European Court. This indicates the existing problems in the state regarding legal education, legal awareness, legal culture, etc. of citizens who are primarily in public authorities, and which manifests itself in the manifestation of corruption, as legal nihilism of citizens. This becomes particularly cynical during the period of fighting against Russian aggression, as evidenced by numerous reports in the mass media. Such manifestations of corruption scandals in the Ministry of Defense of Ukraine, in civil-military administrations, in local self-government bodies, in other state bodies of the country testify to the presence of a deep political and legal crisis in the state administration bodies of the country, as a result of the lack of program documents on the implementation of state personnel policy, inactivity legal mechanisms to fight corruption. Even the Law of Ukraine “On De-Oligarchization” was subjected to devastating criticism not only from the Ukrainian public, but also from the “Western” community. Confirmation of the relevance and importance of the need to solve the problem of corruption in Ukraine is evidenced by the fact that our ally the USA put forward clear conditions for further support of Ukraine in its fight against aggression and aspiration to join the European Union. The future success of Ukraine depends on accelerating the pace of reforms that remain unimplemented and the immediate implementation of identified priority transformations in Ukraine.
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Kaminska, Nataliia, and Bohdan Ostudimov. "Judicial practice of solving energy disputes by international and national courts." Slovo of the National School of Judges of Ukraine, no. 2(47) (October 28, 2024): 105–17. https://doi.org/10.37566/2707-6849-2024-2(47)-9.
Повний текст джерелаАнотація:
The dynamics of modern socio-economic relations at different levels demonstrate the presence of conflicts, the resolution of which is considered effective and final in a judicial manner. Energy disputes arise both in domestic relations and international, mainly bilateral, as well as supranational ones. In connection with the aggression of the Russian Federation against Ukraine, we are observing their increase, as well as the terrible consequences of the destruction of energy infrastructure facilities, violations of human rights to energy security, energy services, etc. The article analyzes energy disputes at different levels, the experience of their resolution, in particular with the participation of international and national judicial bodies, generalization and identification of problems in this context, ways of solving them. Despite the active development of energy relations at various levels - from local, national, supranational and cross-border, regional to international, universal or global – the implementation of the provisions of international energy law, as well as the energy law and legislation of Ukraine and other countries, many problems of theoretical and practical are obvious character They relate to gaps and contradictions in international and national regulation, to a certain extent the discretion of authorized bodies (national regulators etc.), long and inconsistent reforms in the energy sector, corruption risks and manifestations, and are also caused by significant destruction of energy facilities infrastructure due to the full-scale invasion of the Russian Federation into Ukraine, etc. International law defines imperative norms and principles of cooperation in various spheres, special sectoral principles and other features of dispute resolution between states and other entities. At the same time, a number of questions arise regarding their effectiveness, timeliness, etc. There are also relevant institutional mechanisms, the most effective of which, as practice shows, are judicial ones. Therefore, cases and decisions of the UN International Court of Justice, the EU Court, and arbitration were analyzed. The practice of the UN IC is few in relation to the resolution of energy or related disputes, on the other hand, the precedent practice of the EU Court in this area is growing significantly, especially regarding the controversial issues of «green energy», climate and energy policy etc. Of scientific interest are the legal positions of the Supreme Court regarding disputes about debt collection for balancing services under natural gas transportation contracts; in the field of «green energy» (recovery of arrears by electricity producers according to the green tariff); disputes arising from violations of the rules for the use of electrical energy; according to calculations between subjects of the electric energy market using a special algorithm, tariff appeals, subsoil use, as well as legal positions of the Constitutional Court of Ukraine. In order to properly ensure and protect energy and other human rights, legal entities, increase the investment attractiveness of the country, in our opinion, changes and additions to legislation in this area, strict observance of established guarantees, restoration of energy infrastructure, ensuring energy security and independence of the Ukrainian state are on the way. fulfillment of international obligations in the energy sector, harmonization of national legislation with EU legislation. Among the promising areas of further scientific research and discussions, it is worth highlighting the expediency of creating energy courts at the international and supranational levels; monitoring of judicial practice in this field; research on the state of compliance by courts with the principles of unity and predictability of judicial practice; the state of fulfillment of international contractual obligations in the energy sector and ways to solve existing shortcomings; timely and appropriate response of law-making and control bodies to problems identified by judicial and other law enforcement practice. Key words: energy disputes, international judicial practice, arbitration, UN International Court of Justice, EU Court, Supreme Court.
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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.
Повний текст джерелаАнотація:
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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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.
Повний текст джерелаАнотація:
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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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.
Повний текст джерелаАнотація:
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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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 5, Issue 1 (January 1, 2020): 265–95. http://dx.doi.org/10.54648/eila2020011.
Повний текст джерелаАнотація:
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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Králová, Alžbeta. "Legal remedies in asylum and immigration law: the balance between effectiveness and procedural autonomy?" Central European Public Administration Review 16, no. 1 (June 1, 2018): 67–79. http://dx.doi.org/10.17573/cepar.v16i1.358.
Повний текст джерелаАнотація:
The paper tackles a widely discussed but still rather under-researched area of asylum and immigration law, more precisely its procedural aspects and its interactions within the public administration and administrative judiciary. It contributes to the debate about the Europeanization of public administration within the specific context of asylum and immigration law.The purpose of the paper is to examine the influence of European Union law on the legal regulation of administrative and judicial review of decisions rendered in asylum and immigration procedures.The research is based on an in-depth analysis of the dynamics of amendments and the motivation of national legislation while adopting new procedural rules in the above-mentioned areas on the case of the Czech Republic (based on the description and analysis of the legal regulation, explanatory memoranda and the case law, supplemented with certain comparative aspects). The procedural autonomy principle gets increasingly limited by other principles, namely the effectiveness principle and the principle of effective judicial protection. The paper therefore focuses on the margin of appreciation left to the national legislator: it determines whether the principle of procedural autonomy keeps the real relevancy while harmonising the asylum and immigration law and what is the influence of tensions between the aforementioned principles.The research shows that the legislator still maintains quite a wide degree of margin of appreciation in the administrative and judicial review of asylum and immigration decisions (apart from the visa procedures). However, a broadening of the interpretation of the effective judicial protection principle as provided by Article 47 of the Charter of Fundamental Rights of the EU decreases the scope of procedural autonomy and has the potential to influence not only individual legal remedy, but also the system of administrative or judicial remedies as such. Besides the overall findings related to the influence of European Union law on the review in asylum and immigration procedures, the article tackles numerous practical implications of amendments based in European Union law and practical challenges for the administrative and judicial review in concerned area of law.The paper provides a reaction to tensions coming from the need to find the balance between the obligation to provide an effective remedy and between the autonomy of Member States and their attempts to preserve national procedural traditions and specificities within the system of administrative and judicial review. It is original by its overall view on the problematic of remedies in asylum and immigration law and by a new perspective of interactions between national legislation and European Union law. Although the research is limited to the case study of the Czech Republic, certain aspects apply to other Member States with similarities within their system of administrative and judicial review.
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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.
Повний текст джерелаАнотація:
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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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.
Повний текст джерелаАнотація:
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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Wróbel, Izabela Małgorzata. "EXTREME MATERIAL POVERTY AS A NEGATIVE PREREQUISITE FOR THE TRANSFER OF AN APPLICANT FOR INTERNATIONAL PROTECTION TO THE COMPETENT MEMBER STATE AND FOR THE REJECTION OF AN APPLICATION FOR THE GRANT OF REFUGEE STATUS AS BEING INADMISSIBLE." Review of European and Comparative Law 37, no. 2 (January 27, 2020): 139–61. http://dx.doi.org/10.31743/recl.4817.
Повний текст джерелаАнотація:
The essential measures for a common European asylum system adopted by the EU institutions include the Regulation (EU) No 604/2013 and the Directive 2013/32/EU. These acts relate to the various stages of the functioning of the common European asylum system, however, there may be a risk of a violation of the fundamental rights of applicants as set out in the Charter of Fundamental Rights of the EU, including the prohibition of inhuman or degrading treatment (Article 4 of the Charter), at both stages. Such a risk may arise as a result of deficiencies in asylum systems of the Member States. If these deficiencies are to fall within the scope of Article 4 of the Charter, they must attain a particularly high level of severity, which depends on all the circumstances of the case. An example of attaining this particularly high level of severity is the situation of extreme material poverty. As acts of the EU asylum law do not contain the terms “particularly high level of severity” and “extreme material poverty” and all the more they do not define them, guidelines on how to interpret and apply Article 4 of the Charter in the context of the common European asylum system should be sought in the case law of the Court of Justice of the EU. Therefore, the aim of the article is to explore and attempt to generalise and develop the basis and the criteria indicated by the CJEU for assessing the actual nature of deficiencies in the asylum system of the Member State in question from the point of view of the prohibition laid down in Article 4 of the Charter, with particular emphasis on the criterion of a particularly high level of severity and the situation of extreme material poverty which meets this criterion.
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Gorjani, Gerta, and Blerina Muskaj. "Accession of the EU to the ECHR: A more developed fundamental rights low for the EU after the Lisbon Treaty?" Multidisciplinary Reviews 7, no. 7 (April 17, 2024): 2024150. http://dx.doi.org/10.31893/multirev.2024150.
Повний текст джерелаАнотація:
The Treaty of Lisbon introduced important changes in the protection of human rights in the EU, the most important of which lie in the changes in Article 6 of the Treaty on the European Union. These provisions indicate that the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law, and that the EU "shall accede" to the European Convention on Human Rights (ECHR). Since the entry into force of the Treaty of Lisbon, the Charter has been referred to on numerous occasions by the European Court of Justice and now acts as the main source of human rights in the EU. This article examines the import of this case law, some of which are ground-breaking and controversial, as well as how the higher profile for human rights under the Charter is likely to change the nature of the EU’s relationship with the ECHR. The article also examines the complex procedure for the EU’s accession to the ECHR, which is now underway, highlighting particularly significant aspects of this process. The article concludes with some general reflections about the status of human rights protection in the EU, suggesting that this has become one of the most significant areas of EU law that has had, and continues to have, a crucial impact on the EU’s relationships with its Member States, the EU and international law.
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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.
Повний текст джерелаАнотація:
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.