scholarly journals The Horizontal Effect of the Charter: Towards an Understanding of Horizontality as a Structural Constitutional Principle

2020 ◽  
pp. 1-25
Author(s):  
Eleni FRANTZIOU
Keyword(s):  
Direct Effect ◽  
Case Law ◽  
Fundamental Rights ◽  
Structural Principle ◽  
Constitutional Principle ◽  
Eu Fundamental Rights

Abstract This article analyses the main debates over the application of the Charter to disputes between private parties and assesses the ways in which the case law over the last ten years has responded to them. The article goes on to propose an alternative schema, whereby horizontality can be understood as a structural principle of EU fundamental rights adjudication on its own terms, rather than as an extension of the direct effect doctrine. It is argued that a self-standing principle of horizontality with equally valuable—yet operationally distinct—direct, indirect, and state-mediated manifestations, could respond more coherently to the conceptual, procedural, and remedial challenges displayed in the case law.

scholarly journals The Horizontal Effects of Charter Rights Given Expression to in EU Legislation, from Mangold to Bauer

2019 ◽  
Vol 12 (2) ◽  
pp. 185-215
Author(s):  
Elise Muir
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Special Issue ◽  
Max Planck ◽  
Eu Legislation ◽  
Scope Of Application ◽  
Effective Remedy ◽  
The Right ◽  
The Relationship ◽  
Eu Fundamental Rights

This paper investigates the relationship between legislative provisions and fundamental rights by analyzing the Egenberger, IR, Bauer, Max-Planck and Cresco cases. This paper understands these cases as an invitation to reflect on whether, and if so, to what extent, EU fundamental rights' legislation, read in conjunction with the Charter, could have an impact on the scope of application, substance and/or legal effects of the Charter. This paper argues that the Court of Justice's recent case law can be understood as allowing for EU legislative guidance on fundamental rights to interact in an upward process with the rights enshrined in norms with the same rank as EU primary law. This paper sheds light on the constitutional implications of the overlaps between legislation and constitutional norms on fundamental norms while other contributions in this special issue address effectiveness and the right to an effective remedy in a broader sense.

scholarly journals Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the Court of Justice

2015 ◽  
Vol 11 (2) ◽  
pp. 321-356 ◽  
Author(s):  
Jasper Krommendijk
Keyword(s):  
Direct Effect ◽  
Judicial Review ◽  
Case Law ◽  
Fundamental Rights ◽  
Historical Background ◽  
Social Rights ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Eu

Historical background of the inclusion of social rights in the Charter of Fundamental Rights – Distinction between rights and principles – Similarities between the conditions for direct effect and the criteria for distinguishing between Charter rights and principles – Implications of this distinction for the possibilities of judicial review – Reluctance of the ECJ to explicitly deal with the distinction until Glatzel, as illustrated by its earlier judgments in Dominguez and AMS.

Disagreement—Commonality—Autonomy: EU Fundamental Rights in the Internal Market

2013 ◽  
Vol 15 ◽  
pp. 1-26 ◽  
Author(s):  
Daniel Augenstein
Keyword(s):  
Economic Integration ◽  
Case Law ◽  
Internal Market ◽  
Legal Order ◽  
Fundamental Rights ◽  
Legal Space ◽  
Weak Claim ◽  
The Relationship ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

scholarly journals Fundamental rights in the reasoning of Judge Cunha Rodrigues

2014 ◽  
pp. 45-52
Author(s):  
José Manuel Cabrita Vieira e Cunha
Keyword(s):  
Direct Effect ◽  
Case Law ◽  
Fundamental Rights ◽  
Common Market ◽  
The Political ◽  
Single Currency ◽  
Court Of Justice ◽  
Current Prevalence ◽  
Union Citizenship ◽  
The Relationship

Based on the writings of Judge Cunha Rodrigues, the author finds that due to the current prevalence of the case law of the Court of Justice on fundamental rights, the primordial establishment of the principles of primacy and direct effect. He draws attention to the functionalist consequences of the case law of the Court of Justice regarding the relationship between the Union and the Member States and the birth of the concept of Union citizenship, contributing to overcome what had once only aspired to be the construction of a common market. Finally, he notes the Union deadlock after the creation of the single currency, divided between developing the political project and the intergovernmental retreat, supported by national electorates.

Disagreement—Commonality—Autonomy: EU Fundamental Rights in the Internal Market

2013 ◽  
Vol 15 ◽  
pp. 1-26 ◽  
Author(s):  
Daniel Augenstein
Keyword(s):  
Economic Integration ◽  
Case Law ◽  
Internal Market ◽  
Legal Order ◽  
Fundamental Rights ◽  
Legal Space ◽  
Weak Claim ◽  
The Relationship ◽  
Eu Fundamental Rights ◽  
The Eu

AbstractThe contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

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

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 Right

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 EU Fundamental Rights Landscape after Opinion 2/13

2016 ◽  
Author(s):  
Johan Callewaert ◽  
Marc Joseph Bossuyt ◽  
Emmanuelle Bribosia ◽  
Christophe Hillion ◽  
Martin Kuijer ◽  
...  
Keyword(s):  
Fundamental Rights ◽  
Eu Fundamental Rights ◽  
The Eu

The Domestication of the Convention on the Rights of Persons with Disabilities

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
Direct Effect ◽  
Legal Status ◽  
Case Law ◽  
Legal Systems ◽  
Persons With Disabilities ◽  
International Treaty ◽  
Four Dimensions ◽  
Relevant Case ◽  
Similarities And Differences ◽  
Domestic Law

This chapter reflects on jurisdiction-specific approaches to the domestication of the Convention on the Rights of Persons with Disabilities (CRPD), considering in particular the domestic legal status of the CRPD and the relevance of that legal status for case law. The chapter explores four dimensions of the CRPD’s legal status: direct effect; indirect interpretative effect (where the CRPD influences the interpretation given to domestic law); use of the CRPD because of commitments to another international treaty; and absence of domestic legal status. With the exception of the first category, all dimensions can potentially present themselves in legal systems which tend towards the monist approach as well as in those which tend towards the dualist approach. The chapter discusses examples of relevant case law and reflects on similarities and differences emerging from a comparison of that case law.

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