A Tale of Two Cities: Fundamental Rights Protection in Strasbourg and Luxembourg

AbstractThis article tackles questions relating to the interrelationship between the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, as well as the roles of the two European courts charged with their interpretation and application, by way of two case studies. The cases chosen address two very different issues—surrogacy and the right to privacy and family life on the one hand, and religious freedom and the wearing of religious symbols in the workplace on the other. On the surrogacy issue the article refers to an Irish Supreme Court case as well as case law from the Strasbourg and Luxembourg courts to illustrate how limits to the jurisdiction of the two European courts is, or is not, clearly articulated and the legal tools used when addressing sensitive legal questions of this nature. As regards the wearing of religious symbols in the workplace, the article concentrates on cases originating in the United Kingdom and France which have been examined by the Strasbourg court and highlights the similarities and differences between that case law and recent judgments of the Luxembourg court, called on, for the first time, to tackle questions of discrimination on grounds of religion with reference to EU anti-discrimination directives and the provisions of the Charter on both equality and religious freedom.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

Studia Prawnicze / The Legal Studies ◽

10.37232/sp.2014.4.2 ◽

2014 ◽

pp. 33-48

Author(s):

Przemysław Florjanowicz-Błachut

Keyword(s):

European Union ◽

Human Rights ◽

Due Process ◽

Case Law ◽

Fair Trial ◽

Fundamental Rights ◽

European Convention ◽

European Court ◽

Judicial Reasoning ◽

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

The Right to Healthcare in the Common European Asylum System

European Journal of Migration and Law ◽

10.1163/15718166-12340026 ◽

2018 ◽

Vol 20 (2) ◽

pp. 135-156

Author(s):

Marco Inglese

Keyword(s):

European Union ◽

Fundamental Rights ◽

European Convention ◽

Undocumented Migrants ◽

The European Union ◽

Common European Asylum System ◽

The Common ◽

Interpretative Approach ◽

Abstract This article seeks to ascertain the role of healthcare in the Common European Asylum System (CEAS). The article is structured as follows. First, it outlines the international conceptualisation of healthcare in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC) before delving into the European Convention on Human Rights (ECHR). Second, focusing on the European Union (EU), it analyses the role of Article 35 of the Charter of Fundamental Rights of the European Union (the Charter) in order to verify its impact on the development of the CEAS. Third, and in conclusion, it will argue that the identification of the role of healthcare in the CEAS should be understood in light of the Charter’s scope of application. This interpretative approach will be beneficial for asylum seekers and undocumented migrants, as well as for the Member States (MSs).

Living wages in international and European law

Transfer European Review of Labour and Research ◽

10.1177/1024258919873831 ◽

2019 ◽

Vol 25 (3) ◽

pp. 285-299 ◽

Cited By ~ 2

Author(s):

Reingard Zimmer

Keyword(s):

Case Law ◽

Subject Area ◽

Fundamental Rights ◽

Living Wage ◽

Average Wage ◽

European Law ◽

The European Union ◽

Living Wages ◽

A number of countries worldwide provide for a statutory minimum wage. Generally speaking, however, it is not a living wage, although the right to a living wage is guaranteed in a variety of agreements under both international and European law. The Council of Europe’s European Social Charter (ESC), for example, codifies a living wage and, according to the case-law of its supervisory body, the level of 60 per cent of the net average wage is to be taken as the basis for appropriate remuneration. This article argues that the Charter of Fundamental Rights of the European Union also incorporates the right to a living wage, which should be at least 60 per cent of the net average wage. The Charter is legally binding for EU institutions, agencies and other bodies. Member States are bound only to the extent that the material scope of the relevant EU laws has been opened, which is the case when EU law is implemented or when obligations arising out of specific Union legislation are required for the relevant subject area, as will be explained in the article. In purely national situations nevertheless, values laid down in international law have to be observed when interpreting national laws.

Who is Entitled to the Right to Respect for Family Life Under the European Union Law?

Teisė ◽

10.15388/teise.2019.110.2 ◽

2019 ◽

Vol 110 ◽

pp. 24-45

Author(s):

Ingrida Danėlienė

Keyword(s):

European Union ◽

Human Rights ◽

Family Life ◽

National Level ◽

Fundamental Rights ◽

European Convention ◽

The European Union ◽

European Union Law ◽

The Republic ◽

[full article, abstract in English; abstract in Lithuanian] The article investigates the right to respect for family life, established by Article 7 of the Charter of Fundamental Rights of the European Union, as applied and interpreted in conjunction with the right to marry and the right to found a family, laid down in Article 9 of the Charter. The standard of protection set by European Union law regarding these rights is identified by taking into account the standard of protection of the relevant rights established by the European Convention on Human Rights and the established case law of the European Court of Human Rights. Topical issues relating to the consolidation of these individual rights at the national level in the Republic of Lithuania are also addressed in the article. In doing so, an emphasis is laid on the content of the concepts of “family” and “family life” under supranational and national law.

Prawo do naturalnego i godnego umierania

Studia Iuridica Lublinensia ◽

10.17951/sil.2020.29.4.221-232 ◽

2020 ◽

Vol 29 (4) ◽

pp. 221

Author(s):

Krzysztof Orzeszyna

Keyword(s):

Human Rights ◽

Human Life ◽

Case Law ◽

European Convention ◽

Artificial Nutrition ◽

Artificial Nutrition And Hydration ◽

The Right To Privacy ◽

Judicial Practice ◽

European Court ◽

<p>The article addresses the issue of the right to natural and dignified dying in the case-law of the European Court of Human Rights. The right to life enshrined in Article 2 of the European Convention on Human Rights is currently balanced in judicial practice with the right to privacy. The right to effectively demand inflicting death is usually located in the sphere of autonomous human decisions. However, not only is the construction of such a right contrary to the principle of dignity of every person, but it would erode the guarantees vested in any terminally-ill person. The analysis of Strasbourg’s case-law setting a common standard for the ECHR Member States does not make it possible to assume the existence of the right to death as a subjective right of an individual. In the area of the protection of human life, States are obliged to take positive action. That relatively established case-law was clearly modified in the case <em>Lambert and others v. France</em>, as the Court crossed the red line in favour of passive euthanasia, accepting the vague French procedural rules recognizing artificial nutrition and hydration of the patient as a form of therapy that may be discontinued.</p>

The Impact of the EU Charter of Fundamental Rights on Anti-Discrimination Law: More a Whimper than a Bang?

Cambridge yearbook of European legal studies ◽

10.1017/cel.2018.11 ◽

2018 ◽

Vol 20 ◽

pp. 32-60 ◽

Cited By ~ 4

Author(s):

Angela WARD

Keyword(s):

Case Law ◽

Ethnic Origin ◽

Fundamental Rights ◽

Equal Treatment ◽

European Convention ◽

The European Union ◽

Council Directive ◽

The Impact ◽

The Relationship

AbstractThis article explores the influence of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union in the development of EU equal treatment law, with emphasis on forms of discrimination precluded by Council Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. The author contends that although Articles 20 and 21 are primary measure of EU law, their impact in the development of case law elaborated pursuant to the Directives is relatively muted. This may have stunted the development of jurisprudence on the relationship between Articles 20 and 21 of the Charter, and rules contained in Title VI of the Charter governing its interpretation and application, such as Article 52(3) on the relationship between the Charter and the European Convention on Human Rights, and Article 52(1) on justified limitations. The author forewarns against the emergence of incoherence in the case law in this context, and with respect to the role of Articles 20 and 21 in disputes over the meaning of Directives 2000/43 and 2000/78 and calls for fuller reflection on Charter rules in disputes based on an allegation of discrimination.

Conceptualising the right to data protection in an era of Big Data

Big Data & Society ◽

10.1177/2053951716686994 ◽

2017 ◽

Vol 4 (1) ◽

pp. 205395171668699 ◽

Cited By ~ 16

Author(s):

Yvonne McDermott

Keyword(s):

Big Data ◽

Data Protection ◽

Legal Order ◽

Fundamental Rights ◽

New Right ◽

The European Union ◽

The Right To Privacy ◽

The Right ◽

First Time

In 2009, with the enactment of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union entered into force. Under Article 8 of the Charter, for the first time, a stand-alone fundamental right to data protection was declared. The creation of this right, standing as a distinct right to the right to privacy, is undoubtedly significant, and it is unique to the European legal order, being absent from other international human rights instruments. This commentary examines the parameters of this new right to data protection, asking what are the principles underpinning the right. It argues that the right reflects some key values inherent in the European legal order, namely: privacy, transparency, autonomy and nondiscrimination. It also analyses some of the challenges in implementing this right in an era of ubiquitous veillance practices and Big Data.

School Bans on the Wearing of Religious Symbols: Examining the Implications of Recent Case Law from the UK

Religion and Human Rights ◽

10.1163/187103209x440182 ◽

2009 ◽

Vol 4 (1) ◽

pp. 7-24 ◽

Cited By ~ 1

Author(s):

Erica Howard

Keyword(s):

Human Rights ◽

Case Law ◽

European Convention ◽

Religious Symbols ◽

Article 9 ◽

European Court ◽

Religious Clothing ◽

Religious Dress ◽

The Uk ◽

AbstractThis article examines school bans on the wearing of religious symbols and starts with a discussion of the arguments for the imposition of a ban and the counter arguments against these. The question whether a ban on the wearing of religious clothing in schools is a violation of the right to manifest one's religion as guaranteed by Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is analyzed using the case law of the European Court of Human Rights and of the English courts in relation to such bans in education. The cases appear to suggest that such bans can be considered an interference with the right to manifest one's religion under Article 9(1), but that these bans can be justified under Article 9(2) in certain circumstances. Two important considerations in the decision of the courts are the way decisions to ban certain forms of religious dress are made and whether alternative ways of manifesting the religion are available.

The Relationship Between the EU Charter of Fundamental Rights and the European Convention on Human Rights: an Originalist Analysis

European Constitutional Law Review ◽

10.1017/s1574019615000255 ◽

2015 ◽

Vol 11 (3) ◽

pp. 482-511

Author(s):

Stephen Brittain

Keyword(s):

European Union ◽

Human Rights ◽

Case Law ◽

Fundamental Rights ◽

European Convention ◽

The European Union ◽

Court Of Justice ◽

European Court ◽

The Relationship

European Convention on Human Rights and the European Union Charter of Fundamental Rights: relationship – Teleological method of interpretation of the European Court of Justice: meaning, justifications, and criticisms – Originalist method of interpretation: meaning, justifications, and criticisms – Original meaning of Article 52(3) of the Charter: text, drafting history, case law – Conclusion: case law of European Court of Human Rights not strictly binding on the Court of Justice of the European Union.

A liberdade religiosa dos professores, na Alemanha - A proibição geral do uso do véu islâmico por professoras de escolas públicas, em especial

10.31012/978-65-5861-351-0 ◽

2021 ◽

Author(s):

Cássia Juliana de Souza Monteiro

Keyword(s):

Public Schools ◽

Religious Freedom ◽

Case Law ◽

Court Case ◽

Constitutional Court ◽

Basic Law ◽

German Constitutional Court ◽

The Difference ◽

The Right ◽

The Relationship

In this study, we used as a basis the examination of the German Constitutional Court case law of January 27th, 2015, in which the right of two Muslim employees at public schools to use hijab in the workplace was discussed. We cover the protection of religious freedom in Germany, as defined in art. 4th of the German Basic Law; the relevance of abstract risk and concrete risk in the rationale for an eventual restriction on the fundamental right to religious freedom; the difference and the application of “weighting” and “proportionality”, within the scope of the constitutional interpretation principle of “practical agreement”, where the legal assets to be protected must be coordinated with each other, so that each of them, individually, gain reality, being applied in the relationship “positive religious freedom v. negative religious freedom”; and we highlight the importance of the concept of “neutrality” adopted by States, where some of them are based on secularity and others on secularism.