scholarly journals Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States?

2020 ◽  
pp. 1-22
Author(s):  
Aida TORRES PÉREZ
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Scope Of Application ◽  
Judicial Protection ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.

scholarly journals Hungary and the Indirect Protection of EU Fundamental Rights and the Rule of Law

2013 ◽  
Vol 14 (10) ◽  
pp. 1959-1979 ◽  
Author(s):  
Mark Dawson ◽  
Elise Muir
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Central Place ◽  
Fundamental Rights ◽  
The European Union ◽  
Far Right ◽  
The Rule Of Law ◽  
Fundamental Values ◽  
Eu Fundamental Rights ◽  
The Eu

According to Article 2 of the Treaty on European Union, the European Union is a political and economic union founded on a respect for fundamental rights and the rule of law, referred to hereafter as EU fundamental values. The central place of this commitment in the EU Treaties suggests a founding assumption: That the EU is a Union of states who themselves see human rights and the rule of law as irrevocable parts of their political and legal order. Reminiscent of the entry of Jorg Haider's far-right Freedom Party into the Austrian government in 2000, the events of 2012 have done much to shake that assumption; questioning both how interwoven the rule of law tradition is across the present-day EU, and the role the EU ought to play in policing potential violations of fundamental rights carried out via the constitutional frameworks of its Member States. Much attention in this field, much like the focus of this paper, has been placed on events in one state in particular: Hungary.

A Hard Law Approach to States Systemic Violations of Article 2 of the Treaty of the European Union

2020 ◽  
pp. 363-380 ◽  
Author(s):  
Miguel Poiares Maduro ◽  
Benedita Menezes Queiroz
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
National Level ◽  
Legal Order ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
The Eu

The rule of law is under threat in the European Union. Systemic violations of fundamental rights are affecting the rule of law, democracy, and judicial independence in some Member States and consequently the EU legal order. The level of interdependence between the Member States and the EU legal order is such that systemic violations of those principles in the Member States end up impacting on EU compliance with the same principles. Article 7 TEU did not prove, however, to be the most effective tool to face these problems due to its political nature. The EU’s intervention in the form of infringement actions to safeguard the rule of law at the national level may be a suitable action to address some these serious violations of fundamental rights. Despite of the earlier hesitation to take a bolder action in this regard, the EU Commission, after the Court of Justice’s recent decisions in Associação Sindical dos Juízes Portuguese and LM, brought infringement proceedings against Poland challenging this country reforms that put into question the independence of its judiciary. The Court established its power of judicial review over the rule of law in the Member States in C-619/18 Commission v Poland. Ultimately, this decision highlighted the role of EU law in safeguarding the rule of law in its Member States, but more importantly in safeguarding the rule of law in the EU legal order as a whole.

scholarly journals The Rule of Law Framework in the European Union: Its Rationale, Origins, Role and International Ramifications

2021 ◽  
pp. 305-331
Author(s):  
Artur Nowak-Far
Keyword(s):  
European Union ◽  
Human Rights ◽  
Rule Of Law ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
International Legal Order ◽  
High Level ◽  
The Eu

AbstractAt present, the European rule of law enforcement framework under Article 7 TEU (RLF) is vulnerable to unguaranteed, discretionary influences of the Member States. This vulnerability arises from its procedural format which requires high thresholds in decision-making with the effect that this procedure is prone to be terminated by the EU Member States likely to be scrutinized under it, if only they collude. Yet, the Framework may prove effective to correct serious breaches against human rights (in the context of ineffective rule of law standards). The European Commission is bound to pursue the RLF effectiveness for the sake of achieving relative uniformity of application of EU law (at large), and making the European Union a credible actor and co-creator of international legal order. The RLF is an important tool for the maintenance of relative stability of human rights and the rule of law in the EU despite natural divergence propensity resulting from the procedural autonomy of the EU Member States. By achieving this stability, the EU achieves significant political weight in international dialogue concerning human rights and the rule of law and preserves a high level of its global credibility in this context. Thus, RLF increases the EU’s effectiveness in promoting the European model of their identification and enforcement.

European Union Rights and Values in Human Health

2019 ◽  
pp. 16-51
Author(s):  
Anniek de Ruijter
Keyword(s):  
Public Health ◽  
European Union ◽  
National Policy ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Eu Fundamental Rights ◽  
The Eu

This book looks at the impact of the expanding power of the EU in terms of fundamental rights and values. The current chapter lays down the framework for this analysis. Law did not always have a central role to play in the context of medicine and health. The role of law grew after the Second Word War and the Nuremberg Doctors Trials (1947), in which preventing the repetition of atrocities that were committed in the name of medicine became a guidepost for future law regarding patients’ rights and bioethics. In the period after the War, across the EU Member States, health law developed as a legal discipline in which a balance was struck in medicine and public health between law, bioethics, and fundamental rights. The role of EU fundamental rights protections in the context of public health and health care developed in relation with the growth of multilevel governance and litigation (national, international, Council of Europe, and European Union). For the analysis here, this chapter develops an EU rights and values framework that goes beyond the strictly legal and allows for a ‘normative language’ that takes into consideration fundamental rights as an expression of important shared values in the context of the European Union. The perspective of EU fundamental rights and values can demonstrate possible tensions caused by EU health policy: implications in terms of fundamental rights can show how highly sensitive national policy issues may be affected by the Member States’ participation in EU policymaking activities.

scholarly journals 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?

2019 ◽  
Vol 20 (6) ◽  
pp. 884-903
Author(s):  
Kathleen Gutman
Keyword(s):  
European Union ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
The European Union ◽  
Rights Protection ◽  
To Come ◽  
Effective Remedy ◽  
Judicial Protection ◽  
The Eu

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.

scholarly journals An approach to today’s EU constitutionality control – understanding this EU inter-jurisdictional phenomenon in light of effective judicial protection

2019 ◽  
Vol 3 (2) ◽  
pp. 104-124
Author(s):  
Joana Covelo de Abreu
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
Control Mechanisms ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
Court Of Justice ◽  
Constitutional Level ◽  
Judicial Protection ◽  
The Eu

Under today’s European constitutional demands, effective judicial protection sets the tone concerning potential jurisdictional instruments able to act as constitutionality control mechanisms. Inter-jurisdictionality stands for different and complementary jurisdictional systems living togetherin the same space and it aims to understand how their reflexive interactions can be maintained to promote effective judicial protection. Both the infringement procedure and the preliminary ruling act as constitutional controls. The first allows the Court of Justice of the European Union (CJEU) to evaluate the incompatibility of national solutions/omissions with EU law but, to meet its full effectiveness, widening legitimate parties needs to be considered as well. Also, validity preliminary rulings act as a constitutional control in proceedings relating to individuals – national judges should be aware of their referring obligations to the CJEU. There are voices amongst European academia that advocate a new constitutional procedure to promote fundamental rights’ protection. However, the main formulas highlighted rely on solutions tested on the national level which can compromise their efficacy. We perceive an inter-jurisdictional paradigm as the proper approach since it will allowthe promotion of effective judicial protection at a constitutional level as a new EU dogmatically thought phenomenon. This is to ensure judicial integration can be perceived as a reality, engaged in pursuing the future of the EU.

scholarly journals Values and objectives of the EU in light of Opinion 1/17: ‘Trade for all’, above all

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Ivana Damjanovic ◽  
Nicolas de Sadeleer
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
The Eu

In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).

scholarly journals Strengthening the founding values of the EU: The potential role of the Fundamental Rights Agency

European View ◽  
2019 ◽  
Vol 18 (1) ◽  
pp. 97-104
Author(s):  
Konstantinos Margaritis
Keyword(s):  
Rule Of Law ◽  
Potential Role ◽  
Maastricht Treaty ◽  
Fundamental Rights ◽  
Member States ◽  
The Rule Of Law ◽  
Political Consequences ◽  
The One ◽  
The Eu

The rule of law is one of the founding values of the EU, as indicated in Article 2 TEU. This provision recognises that the rule of law is a core value, inherent to liberal democracy, and one which characterised the Union and its member states long before the formal establishment of the EU by the Maastricht Treaty. However, several member states, most notably Poland and Hungary, seem to have placed this value in jeopardy, leading EU institutions to disagree on how to combat this problem and its political consequences. The aim of this article is to propose a solution that involves a rather neglected, yet certainly competent actor, the Fundamental Rights Agency. The outcome would be twofold: on the one hand, the rule of law would be vitally strengthened; on the other, the role of the Agency would be fortified in line with its scope.

scholarly journals An Old Procedure with new Solutions for the Rule of Law Crisis

2019 ◽  
Vol 2 (2) ◽  
pp. 1-19
Author(s):  
Franziska-Marie Laura Hilpert
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
The European Union ◽  
Enforcement Mechanism ◽  
The Rule Of Law ◽  
Strategic Approach ◽  
Small Things ◽  
The Eu

Suggested citation:  Franziska-Marie Laura Hilpert, 'An Old Procedure with new Solutions for the Rule of Law Crisis' (2019) 2(2) NJEL 1. While commentators for the past years, have highlighted that there is no effective enforcement mechanism after accession for the values of the European Union which are enshrined in Article 2 TEU, the Juncker Commission has announced in 2017 that it will be ‘bigger and more ambitious on big things, and smaller and more modest on small things’ thus applying a more strategic approach to enforcement in terms of handling infringements. This Article thus analyses two cases brought by the Juncker Commission after 2017 and on their bases seeks to show that the infringement procedure, when applied strategically, is and remains an effective enforcement mechanism even for the values enshrined in Article 2 TEU in the ‘rule of law crisis’. Thus, by way of analysis of the case C-619/18 Commission v Poland and its comparison with similar cases which have not been as effective, it is shown how the infringement procedure can prevent the enforcement of the most controversial provisions regarding the judiciary in Hungary and Poland and ensure the separation of powers, which is essential for the rule of law. Moreover, by comparison of the Commission’s request and the decision of the Court of Justice of the European Union in C-235/17 Commission v Hungary it is shown how the Charter could become a significant legal instrument in the Commissions infringement policy towards Member States that are undermining fundamental rights and the rule of law. This Article thereby aims to contribute to the discussion on how to effectively enforce the values of the EU enshrined in Article 2 TEU through an existing enforcement mechanism.

Nationales Verfassungsrecht in der Europäischen Union

2021 ◽  
Author(s):  
Claus Dieter Classen
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
The European Union ◽  
Basic Principles ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Head Of State ◽  
State Functions ◽  
The Eu

The book presents the constitutional systems of the 27 EU member states in an integrated form. Basic principles such as democracy and the rule of law, constitutionalismincluding constitutional jurisdiction, state organs (parliament, government, head of state) and state functions (legislation, administration, jurisdiction, foreign policy) are dealt with. Thus, common European basic principles are elaborated, but above all, the different manifestations of many constitutional principles are clarified. The book is aimed at all those who wish to inform themselves in a clear form about the constitutional systems of the EU member states on which the European Union is based.

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