Menci & Garlsson Real Estate SA and Others v. Commissione Nazionale per le Società e la Borsa (Consob) & Joined Cases Di Puma v. Consob and Consob v. Zecca (CJEU)

2018 ◽  
Vol 57 (4) ◽  
pp. 583-615
Author(s):  
Anita Clifford
Keyword(s):  
European Union ◽  
Real Estate ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Enforcement Action ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
Grand Chamber ◽  
Administrative Proceedings

On March 20, 2018, the Grand Chamber of the Court of Justice of the European Union delivered a trio of judgments that substantially clarify the application of the ne bis in idem principle where both criminal and administrative proceedings are pursued. Both the Charter of Fundamental Rights of the European Union (the Charter) and the European Convention on Human Rights (ECHR) recognize the principle, but it will be more familiar to common law practitioners as the protection against double jeopardy. Increasingly, dual investigations are common in cases where the underlying activity is essentially financial crime, but tender areas continue to be information sharing and the risk of duplicate punishment where both investigations end in enforcement action. Concerning four cases, Case C-524/15 Menci, Case C-537/16 Garlsson Real Estate and Others, and joined Cases C-596/16 Di Puma and C-597/16 Zecca, each of the judgments addresses preliminary questions referred by the Italian courts; they are significant because they emphasize that ne bis in idem will not serve as a bar to a dual response. The interest in protecting the financial markets justifies limits to the principle but great care must be taken to coordinate the approaches and identify whether a further criminal sanction is masquerading as an administrative penalty.

Briefly Noted

2020 ◽  
Vol 59 (2) ◽  
pp. 333-336
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Sufficient Evidence ◽  
The European Union ◽  
Arrest Warrant ◽  
Framework Decision ◽  
Charter Of Fundamental Rights ◽  
Material Conditions ◽  
Grand Chamber

On October 15, 2019, a Grand Chamber of the Court of Justice of the European Union (CJEU) issued its judgment in case C-128/18 Dumitru-Tudor Dorobantu, a case concerning the interpretation of Article 4 of the Charter of Fundamental Rights of the European Union and Council Framework Decision 2002/584/JHA of June 13, 2002, on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of February 26, 2009. Article 4 of the Charter provides for the prohibition of torture and inhuman or degrading treatment or punishment and, under Article. Article 4 of the Charter is to have the same meaning and scope as Article 3 of the European Convention on Human Rights. The case involved the issuance of an arrest warrant for Mr. Dorobantu by a Romanian judicial authority to German authorities, as Mr. Dorobantu resided in Hamburg. Prior to executing the warrant, the German court referred a number of questions to the CJEU for a preliminary ruling concerning material conditions of detention and how to assess whether such conditions comply with EU fundamental rights guarantees. The CJEU ruled effectively that requested judicial authorities must suspend execution of an arrest warrant until they have been provided with sufficient evidence to demonstrate whether or not the fundamental rights of the person in question are in actual danger of being infringed.

scholarly journals eGovernment as an element of the right to good administration

2018 ◽  
Vol 331 ◽  
pp. 29-39
Author(s):  
Justyna Matusiak ◽  
Marcin Princ
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
The European Union ◽  
European Union Law ◽  
Reasonable Time ◽  
Charter Of Fundamental Rights ◽  
Right To Good Administration ◽  
Administrative Proceedings ◽  
The Right ◽  
Procedural Rights

The right to good administration constitutes an established principle of European Union law, which includes the procedural rights of stakeholders in administrative proceedings, the result of which may affect their interests. Article 41 of the European Union Charter of Fundamental Rights states that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. When it comes to reasonable time of handling the case one can ask if eGovernment solutions are the guarantee of such a right. eGovernment understood as the use of all kinds of electronic means of communication, in particular, however, the Internet, improves services provided by the state to its citizens. The usage of IT technology in public administration allows it to perform its activities in a more efficient way. This improvement applies not only to the communication between parties but also to the quality of citizens’ life. To sum up, one can ask the question if the European right to good administration can be understood as the right to eGovernment solutions and if so, to what extent. Which services and technical solutions should be guaranteed as ones ensuring challenges of good administration?

Fundamental Rights Protection between Strasbourg and Luxembourg

2018 ◽  
Author(s):  
Katalin Ligeti
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
Individual Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Grand Chamber

Since long before the entry into force of the Charter of Fundamental Rights of the European Union (CFREU), the two highest courts in Europe, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have sought to develop their respective jurisprudence in such a way as to ensure a strong protection of individual rights, whilst avoiding clashes between the decisions taken in Luxembourg and Strasbourg. An important statement in this regard is provided by the Bosphorus judgment, in which the Grand Chamber of the ECtHR recognised the existence of a presumption of equivalent protection of fundamental rights under EU law. The presumption is rebuttable, but expresses the trustful attitude (and a certain degree of deference) of Strasbourg towards the ability of EU law (and of the CJEU) to protect Convention rights.

6. General principles of law

2017 ◽  
Author(s):  
Lorna Woods ◽  
Philippa Watson ◽  
Marios Costa
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
General Principles Of Law ◽  
Relationship Of ◽  
The Relationship

This chapter examines the development of the general principles by the Court of Justice (CJ) to support the protection of human rights in the European Union (EU) law. It analyses the relationship of the general principles derived from the CJ’s jurisprudence to the European Convention on Human Rights (ECHR), and the European Charter of Fundamental Rights (EUCFR). It discusses the possible accession of the EU to the ECHR and the implications of Opinion 2/13. It suggests that although the protection of human rights has been more visible since the Lisbon Treaty and there are now more avenues to such protection, it is debatable whether the scope and level of protection has increased.

Effective enforcement of EU labour law: A comparative example

2020 ◽  
Vol 11 (4) ◽  
pp. 403-412
Author(s):  
Michael Gotthardt
Keyword(s):  
European Union ◽  
Catholic Church ◽  
Fundamental Rights ◽  
Employment Relationship ◽  
Equal Treatment ◽  
European Convention ◽  
The European Union ◽  
Unequal Treatment ◽  
Procedural Law ◽  
Charter Of Fundamental Rights

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.

The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma

2018 ◽  
Vol 11 (2) ◽  
pp. 55-84
Author(s):  
Max Vetzo
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Market Abuse ◽  
The Past ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem

The cases of Menci (C-524/15), Garlsson (C-537/16) and Di Puma (C-596/16 and C-597/16) deal with the duplication of criminal and punitive administrative proceedings for the same conduct in the area of VAT and market abuse. The Court of Justice of the European Union (CJEU) held that this duplication of proceedings constitutes a limitation of the ne bis in idem principle of Article 50 of the Charter of Fundamental Rights (Charter). This infringement is only justified if the requirements of the limitation clause of Article 52(1) of the Charter are met. The judgments were highly anticipated as they constitute the response of the CJEU to the judgment in A and B v Norway delivered by the European Court of Human Rights (ECtHR), in which the ECtHR lowered the level of protection afforded by the ne bis in idem principle of Article 4 of Protocol No. 7 to the European Convention of Human Rights (A4P7 ECHR). While there are differences between the approaches taken by both courts, it appears that the reasoning of the CJEU in the judgments largely mirrors that of the ECtHR in A and B v Norway. This article frames the judgments in terms of the dialogue between the CJEU and ECtHR on the ne bis in idem principle. It does so chronologically, by focusing on the past, present and future of the ne bis in idem dialogue between both European courts.

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