Security and the Transformation of the EU Public Order

2013 ◽  
Vol 14 (10) ◽  
pp. 2057-2073 ◽  
Author(s):  
Matej Avbelj
Keyword(s):  
Fundamental Rights ◽  
Public Order ◽  
Political Rights ◽  
The European Union ◽  
Fundamental Freedoms ◽  
Fundamental Value ◽  
The Right ◽  
The Impact ◽  
The Relationship ◽  
The Eu

The purpose of this paper is to illustrate the changing character of the European Union (“EU”) public order under the impact of security concerns. The EU public order has long been characterized by a tension between a more market-oriented, neo-liberal Union and a more socio-political Union. The former would be driven by the EU's four fundamental freedoms, whereas the latter would be achieved and safeguarded through the language and practice of fundamental rights. As other scholarly contributions to the issue have demonstrated, the relationship between fundamental freedoms and fundamental rights is anything but settled. It continues to be subject to many, sometimes potent, legal and political controversies. However, while the EU public order is still in pursuit of the right balance between economic freedoms and socio-political rights, it also has to reckon with another fundamental value: The value of security.

The Democratic Costs of Constitutionalization— The European Case

2017 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
At Risk ◽  
Economic Integration ◽  
Fundamental Rights ◽  
European Law ◽  
European Court ◽  
Political Implications ◽  
The Impact ◽  
The Relationship ◽  
The Eu

This chapter examines the democratic costs of constitutionalization by focusing on the European case. It first considers the interdependence of democracy and constitutionalism before discussing how constitutionalization can put democracy at risk. It then explores the tension between democracy and fundamental rights, the constitutionalization of the European treaties, and the European Court of Justice’s (ECJ) two separate judgments regarding the relationship between European law and national law. It also assesses the impact of the ECJ’s jurisprudence on democracy, especially in the area of economic integration. The chapter argues that the legitimacy problem the EU faces is caused in part by over-constitutionalization and that the remedy to this problem is re-politicization of decisions with significant political implications.

Instrument of Mobilization or a Bridge towards Understanding? Religion and Values in the Reform Process of the European Union

2009 ◽  
Vol 2 (3) ◽  
pp. 257-284 ◽  
Author(s):  
Christof Mandry
Keyword(s):  
European Union ◽  
Political Identity ◽  
Fundamental Question ◽  
Fundamental Rights ◽  
The Self ◽  
Reform Process ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu

AbstractThe self-understanding of the Europeans has been profoundly put into question since 1989, and during the EU reform process, 'Europe' was confronted by the task of describing itself anew. In this context, the debate about the significance of the religious patrimony took on a key position in the discourse. The broad public discussions of the preambles to the European Charter of Fundamental Rights and the Treaty establishing a Constitution for the European Union (ECT) indicate that the relationship between religion and political remains a controversial issue. The article argues that the 'preamble disputes' are part and parcel of the European Union's quest for a political identity and that the outcome of the identity debate—the self-description as a 'community of values'—deals in a specific way with this fundamental question.

scholarly journals The right to paid annual leave as an EU fundamental social right. Comment on Bauer et al.: Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn, EU:C:2018:871

2019 ◽  
Vol 26 (3) ◽  
pp. 441-448
Author(s):  
Maria Antonia Panascì
Keyword(s):  
European Union ◽  
Case Note ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Right ◽  
The Relationship ◽  
Horizontal Direct Effect

This case note examines the judgment of Court of Justice of the European Union delivered in Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn on 6 November 2018. It engages with the noteworthy aspects of the ruling, such as the horizontal direct effect of the Charter of Fundamental Rights of the European Union (the Charter), the relationship between primary and secondary law in the European Union legal order and the scope of application of the Charter.

scholarly journals Whose Autonomy is it Anyway? Freedom of Contract, the Right to Work and the General Principles of EU Law

2019 ◽  
Vol 49 (3) ◽  
pp. 285-317
Author(s):  
Niall O’Connor
Keyword(s):  
Fundamental Rights ◽  
Eu Law ◽  
Freedom Of Contract ◽  
Legal Studies ◽  
Right To Work ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
The Relationship ◽  
The Eu

Abstract Just how significant is the freedom of contract found in Article 16 of the EU Charter of Fundamental Rights for the regulation of the employment relationship? For the first half of its existence, few could have foreseen that Article 16 would soon be at the centre of debates surrounding the place of business freedoms within EU employment law. This has changed in the wake of a number of controversial decisions in which the Court of Justice of the EU relied on Article 16 to undermine the effectiveness of employee-protective legislation. The article begins by setting out the nature of freedom of contract in EU law and its effects in the employment context. This is followed by a consideration of the relationship between the general principles and the Charter. Critical Legal Studies is relied on to show that existing arguments as to the use of Article 16 as a radical tool in the employment context have been both exaggerated and underplayed. Finally, potential counterweights to freedom of contract are examined, notably the right to work as both a general principle and Charter right.

scholarly journals The Road Not Taken – the CJEU Sheds Light on the Role of Fundamental Rights in the European Copyright Framework – a Case Note on the Pelham, Spiegel Online and Funke Medien Decisions

2019 ◽  
Vol 50 (9) ◽  
pp. 1176-1190 ◽  
Author(s):  
Thom Snijders ◽  
Stijn van Deursen
Keyword(s):  
Great Majority ◽  
Fundamental Rights ◽  
The European Union ◽  
The Road ◽  
Eu Member States ◽  
European Court ◽  
Exceptions And Limitations ◽  
The Relationship ◽  
The Eu

Abstract On 29 July 2019, the Court of Justice of the European Union delivered its judgments in three eagerly awaited cases, Pelham, Spiegel Online and Funke Medien, which all relate to the relationship between copyright and (other) fundamental rights. Specifically, an issue arising in these cases is whether the EU copyright acquis allows for fundamental rights to be invoked as an autonomous ground for limiting a copyright, outside of the mechanisms incorporated in the Copyright Directive for that purpose. In its judgments, the Court rejects this possibility and instead locates the role for fundamental rights in the interpretation and implementation of the exceptions and limitations of the Directive. We argue that – while this may render satisfactory results in the great majority of cases – in exceptional cases the CJEU’s approach towards balancing copyrights and fundamental rights could be at odds with the approach of the European Court of Human Rights, which might reduce the legal certainty sought after by the CJEU. Lastly, we consider the implications of that potential tension for the judicial authorities and other actors within the domestic legal orders of the EU Member States.

scholarly journals The Contributions Of CJEU In The Name Of The Principle Of Balancing – A Test Of The Role Of The Court?

2015 ◽  
Vol 21 (2) ◽  
pp. 472-478
Author(s):  
Gina Orga-Dumitriu
Keyword(s):  
Freedom Of Expression ◽  
Personal Data ◽  
Private Life ◽  
Fundamental Rights ◽  
Eu Law ◽  
Effective Protection ◽  
Fundamental Freedoms ◽  
The Right ◽  
The Eu

Abstract From the traditional functions of the general principles of the EU law – of interpretation, completion of the gaps and legality control, the principle of balancing seems to meet the most the exigencies of the first of these. The limits of the role of CJEU are certainly put to the test when it is called to settle conflicts between fundamental rights/fundamental freedoms. The trends formulated in Schmidberger (on the conflict between the free circulation of the commodities and the freedom of expression) or Promusicae (on the conflict between the right to the effective protection of the intellectual property and the right to the respect of the private life and the protection of the personal data) are more than illustrative. The doctrine assessments of the action of this principle reflect three fields in which the applicability thereof tends to reserve to the Court a role that is susceptible of creating controversies on its traditional extension. According to the authorized voice of Professor Norbert Reich, the balancing in the jurisprudence on the abusive clauses, the balancing for the avoidance of excessive protection and the balancing in social conflicts (making visible an aggravation of the conflict between fundamental rights and fundamental freedoms) are concerned.

CITIZENSHIP OF THE EUROPEAN UNION

2013 ◽  
Vol 62 (2) ◽  
pp. 492-501
Author(s):  
Adam Cygan
Keyword(s):  
Fundamental Principle ◽  
Prima Facie ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
European Court ◽  
International Obligations ◽  
Council Regulation ◽  
The Relationship ◽  
The Eu

The relationship between EU law and international law has, again, recently occupied the European Court of Justice with respect to the compatibility of the EU Treaty with international obligations. It will be recalled that in the Kadi judgment1 the Court examined whether adoption of a UN Resolution in the form of a Council Regulation2 which, prima facie, restricted the fundamental rights of Kadi was congruent with principles of EU law. In Kadi, the Court, adopting a constitutionalist position with regard to the protection of fundamental rights, held that protecting the applicant's fundamental rights under the Treaty was a priority which could not be diminished, even when the EU was implementing a UN Resolution into EU law. Thus, in Kadi, the Court concluded that providing clear fundamental rights safeguards through judicial review of the Regulation was a fundamental principle of EU law. To this extent, the Court was only prepared to accept compliance with internal obligations if they were harmonious with principles of fundamental rights norms, as understood through the case law of the Court.

9. Fundamental rights in the European Union

2020 ◽  
pp. 243-282
Author(s):  
Eleanor Spaventa
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Historical Background ◽  
European Convention ◽  
The European Union ◽  
Rights Protection ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu

This chapter examines fundamental rights in the EU. It begins by analysing the historical background and the development of the case law on fundamental rights. It then examines the main Treaty provisions relating to fundamental rights protection, before turning to the Charter of Fundamental Rights of the EU. Finally, it looks at the relationship between the EU and the European Convention on Human Rights (ECHR), including the extent to which the European Court of Human Rights agrees to scrutinize EU acts. It also considers the plan for the EU to accede to the ECHR.

scholarly journals Impartiality in the EU Asylum Procedure

2018 ◽  
Vol 20 (3) ◽  
pp. 338-356
Author(s):  
Pieter van Reenen
Keyword(s):  
Code Of Conduct ◽  
Fundamental Rights ◽  
The European Union ◽  
European Court ◽  
Common European Asylum System ◽  
Definition Of ◽  
Right To Good Administration ◽  
The Individual ◽  
The Right ◽  
The Eu

Abstract The Asylum Procedures Directive stipulates that asylum applications are examined ‘impartially’ by the national authorities. This paper explores the meaning of the term impartiality in administrative settings in EU asylum law focussing on three levels: the Common European Asylum System, the administrative organisational level and the level of the individual immigration officer. CEAS does not provide for a definition of impartiality. The article connects impartiality to the right to good administration as in the Charter of Fundamental Rights of the EU. It includes jurisprudence of the Court of Justice of the European Union and the European Court of Human Rights as well as the approach of the EU Ombudsman and EASO in its scope. These sources provide more concrete aspects of impartiality. The article is finalized with recommendations for a code of conduct.

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

2018 ◽  
Vol 20 ◽  
pp. 32-60 ◽  
Author(s):  
Angela WARD
Keyword(s):  
Case Law ◽  
Ethnic Origin ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
European Convention ◽  
The European Union ◽  
Council Directive ◽  
Charter Of Fundamental Rights ◽  
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.

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