scholarly journals National Security and Retention of Telecommunications Data in Light of Recent Case Law of the European Courts

2021 ◽  
pp. 1-29
Author(s):  
Marcin Rojszczak
Keyword(s):  
National Security ◽  
Gold Standard ◽  
Case Law ◽  
Legal Order ◽  
Fundamental Rights ◽  
Recent Case ◽  
Data Retention ◽  
Court Of Justice ◽  
General Obligation ◽  
The Eu

The Court of Justice is once again clarifying the limits of the application of data retention laws – General obligation to retain data exceeds the limits of what is strictly necessary within a democratic society – The national security exception does not preclude a judicial assessment of the legitimacy of its application – The existence of a genuine and specific threat as a premise for the use of untargeted data retention measures – The possibility of searching for the gold standard of data retention based on algorithmic processing – Different perceptions of the Court of Justice position by the referring courts – The Conseil d'État’s position distorts the idea of the protection of fundamental rights that is enshrined in the EU legal order

scholarly journals Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature

2019 ◽  
Vol 12 (2) ◽  
pp. 35-62
Author(s):  
Matteo Bonelli
Keyword(s):  
Case Law ◽  
Legal Order ◽  
Lisbon Treaty ◽  
Recent Case ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Protection ◽  
The Eu

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.

Article 51 of the EU Charter of Fundamental Rights from the Perspective of the National Judge

2021 ◽  
Vol 13 (4) ◽  
pp. 53-85
Author(s):  
Petr Mádr
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
National Courts ◽  
Track Record ◽  
Court Of Justice ◽  
Relevant Case ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Eu ◽  
Academic Debate

This article contributes to the growing scholarship on the national application of the EU Charter of Fundamental Rights ('the Charter') by assessing what challenges national courts face when dealing with Article 51 of the Charter, which sets out the Charter's material scope of application. In keeping with this aim, the relevant case law of the Court of Justice of the EU (CJEU) – with its general formulas, abstract guidance and implementation categories – is discussed strictly from the perspective of the national judge. The article then presents the findings of a thorough study of the case law of the Czech Supreme Administrative Court (SAC) and evaluates this Court's track record when assessing the Charter's applicability. National empirical data of that kind can provide valuable input into the CJEU-centred academic debate on the Charter's scope of application.

The Rebirth of the EU’s Charter of Fundamental Rights

2011 ◽  
Vol 13 ◽  
pp. 283-309
Author(s):  
Steve Peers
Keyword(s):  
Human Rights ◽  
Active Role ◽  
Legal Order ◽  
Fundamental Rights ◽  
Treaty Of Lisbon ◽  
Court Of Justice ◽  
Legal Effect ◽  
Charter Of Fundamental Rights ◽  
The Eu

AbstractSince the conferral of binding legal effect on the EU’s Charter of Fundamental Rights with the entry into force of the Treaty of Lisbon, the Court of Justice has taken an active role in developing the Charter as the leading source of human rights rules in the EU legal order. While the Court has begun to clarify some important points relating to the Charter, a number of significant issues still need to be addressed.

scholarly journals The ‘Territory of the Union’ in EU Citizenship Law: Charting a Route from Parallel to Integrated Narratives

2019 ◽  
Author(s):  
Niamh Nic Shuibhne
Keyword(s):  
Case Law ◽  
Legal Order ◽  
Eu Law ◽  
Member States ◽  
Court Of Justice ◽  
Union Citizenship ◽  
Union Territory ◽  
The Eu

Abstract This paper examines the growing significance of the ‘territory of the Union’ in EU citizenship law and asks what it reveals about Union citizenship in the wider system of the EU legal order. In doing so, it builds on scholarship constructing the idea of ‘personhood’ in EU law by adding a complementary dimension of ‘place-hood’. The analysis is premised on territory as a place within—but also beyond—which particular legal qualities are both produced by and reflect shared objectives or values. In that respect, the paper offers a comprehensive ‘map’ of Union territory as a legal construct, with the aim of uncovering what kind of legal place the territory of the Union constitutes as well as the extent to which it is dis-connectable from the territories of the Member States. It also considers how Union territory relates to what lies ‘outside’. It will be shown that different narratives of Union territory have materialized in the case law of the Court of Justice. However, it is argued that these segregated lines of reasoning should be integrated, both to reflect and to progress a composite understanding of Union territory as a place in which concerns for Union citizens, for Member States, and for the system underpinning the EU legal order are more consistently acknowledged and more openly weighed.

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

AbstractWhile investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

Freedom to conduct a business and EU labour law

2018 ◽  
Vol 14 (1) ◽  
pp. 172-190 ◽  
Author(s):  
Stefano Giubboni
Keyword(s):  
Case Law ◽  
Alternative Interpretation ◽  
Fundamental Rights ◽  
Labour Law ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu ◽  
Social Europe

Critical-contextual analysis of case law of the European Court of Justice on employers’ contractual freedom – Fundamental right to be immunised against the alleged disproportional protection enjoyed by employees – Progressive ideological overthrow of the original constitutional assumptions of the founding treaties – Prominent example of ‘displacement of social Europe’ – Court of Justice’s case law on the relationship between freedom to conduct a business and labour law – Neoliberal understanding of the freedom of enterprise – Alternative interpretation of Article 16 of the EU Charter of Fundamental Rights

scholarly journals Connecting the Dots Backwards, What Did Ruiz Zambrano Mean for EU Citizenship and Fundamental Rights in EU Law?

2021 ◽  
Vol 23 (1) ◽  
pp. 48-67
Author(s):  
Hanneke van Eijken
Keyword(s):  
Public Health ◽  
National Level ◽  
Case Law ◽  
Fundamental Rights ◽  
Added Value ◽  
Court Of Justice ◽  
The Right ◽  
Connecting The Dots ◽  
Near Future ◽  
The Eu

Abstract What was the added value of the Ruiz Zambrano judgment of the Court of Justice of the EU for the development of EU citizenship? And how does that affect the national level? In this contribution the case of Ruiz Zambrano and the subsequent case law of the Court of Justice and the Dutch courts is assessed to reveal its impact on EU citizenship and the protection of fundamental rights. The contribution shows that Ruiz Zambrano could be called a revolution, in the sense that irrespective of the exercise of free movement, nationals of the Member States can invoke their status of being an EU citizen. That has consequences for family reunification, and the right to reside as a family in the EU. However, the line of case law is still very limited and can be restricted on grounds of public policy and security (and public health; so far there is no case law on restriction on public health and Article 20 TFEU, but in the context of Covid-19 that might be different in the near future). Moreover, the fundamental rights narrative in the cases on Article 20 TFEU became more prominent. However, the implementation of this line of case law lies at the national level and the Dutch case law on Article 20 TFEU is therefore analysed as an example.

scholarly journals "Procedural Guarantees for EU Citizens against Expulsion in the Light of Directive 2004/38/EC"

1970 ◽  
Vol 8 ◽  
Author(s):  
Julia Wojnowska-Radzińska
Keyword(s):  
National Security ◽  
Case Law ◽  
Public Order ◽  
State Security ◽  
Court Of Justice ◽  
Accessible Information ◽  
The Government ◽  
Scope Of Protection ◽  
Legal Procedures ◽  
The Eu

The present paper analyses the scope of protection of EU citizens against expulsion under Directive 2004/38/EC and in the case-law of the Court of Justice of the Eu-ropean Union. According to the provision of this Directive, an EU citizen threatened with expulsion must have access to relevant documents and accessible information on the legal procedures to be followed in his/her case. Even if the government claims that national security interests keep courts from disclosing the evidence to the EU citizen, it is obliged to submit any material or evidence capable of corroborating that the interests of national security or public order are at stake. The CJEU requires that the evidence has to be scrutinised by the adversarial proceedings. In particular, the EU citizen must be informed, in any event, of the essence of the grounds on which an expulsion decision is based, as the necessary protection of State security cannot have the effect of denying the person concerned of his/her right to be heard.

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