EU Law Autonomy versus European Fundamental Rights Protection—On Opinion 2/13 on EU Accession to the ECHR

2015 ◽  
Vol 15 (3) ◽  
pp. 485-521 ◽  
Author(s):  
Louise Halleskov Storgaard
Keyword(s):  
Fundamental Rights ◽  
Eu Law ◽  
Eu Accession ◽  
Rights Protection

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.

The Legislative Embedding of the Governance of EU Equality Law

2018 ◽  
pp. 144-200
Author(s):  
Elise Muir
Keyword(s):  
State Level ◽  
Fundamental Rights ◽  
Eu Law ◽  
Political Debate ◽  
Rights Protection ◽  
Governance Tools ◽  
Eu Policies ◽  
The Given ◽  
Eu Fundamental Rights ◽  
Domestic Level

Earlier chapters have warned against relying too heavily on a constitutional narrative to address the protection of fundamental rights in the EU. This indeed risks hindering political debate on fundamental rights at the European level. Chapter 5 sheds light on how certain features of EU law can in contrast be usefully exploited to support political debate and the development of a fundamental rights culture at the domestic level. One of the great added values of EU intervention in the field of fundamental rights protection lies in the procedural safeguards and governance tools available under EU law: they are remarkably advanced and sophisticated for a supranational organization seeking to combat fundamental rights violations. EU equality law and policy can in that sense be treated as a laboratory for the governance of fundamental rights steered at supranational level. Specialized watchdogs, such as equality bodies, may play a particularly interesting role. Furthermore, understanding specific EU policies as being intended to promote a fundamental right opens a vast area for comparative research across the given sectors of EU fundamental rights law, leading to a better grasp of how best to enhance the governance of these rights beyond state level. By way of experiment, this chapter explores the potential for legislative and jurisprudential cross-fertilization of the notion of independent fundamental rights guardians, such as equality bodies and data protection authorities, at the domestic level.

Application of the EU CFR by National Courts in Purely Domestic Cases

2017 ◽  
Author(s):  
András Jakab
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Left Behind ◽  
National Courts ◽  
Domestic Courts ◽  
Local Courts ◽  
Domestic Level ◽  
The Eu

This chapter argues that the most promising way to conceptualize the values of European constitutionalism in a judicially enforceable manner is through a creative reinterpretation of Article 51(1) EU CFR. It asserts that in order to create a fully fledged value community which benefits all its citizens equally, the CFR should become fully applicable in every case in its own right—even in purely domestic cases in domestic courts and even in the absence of a systemic failure of fundamental rights protection at the domestic level. This would mean that judicial review would be introduced across Europe via the supremacy of EU law. This judicial review would be decentralized in the sense that local courts could exercise it, but its unified application would be ensured by the preliminary procedure. The EU could thus become a ‘community of fundamental rights’ with nobody left behind.

Fundamental Rights in European Union Policy-making: The Effects and Advantages of Institutional Diversity

2020 ◽  
Vol 20 (1) ◽  
pp. 50-73
Author(s):  
Mark Dawson
Keyword(s):  
European Union ◽  
Political Process ◽  
Fundamental Rights ◽  
Legislative Process ◽  
Eu Law ◽  
Institutional Diversity ◽  
European Union Policy ◽  
Rights Protection ◽  
Positive Effects ◽  
Institutional Politics

ABSTRACT This article investigates how the European Union’s political process affects the level of rights protection afforded by European Union (EU) law. It does so in two steps, firstly by analysing how institutional politics plays an important role in the evolution of the EU fundamental rights framework and secondly by demonstrating empirically how legislative interaction affects the level of protection provided by three important EU legislative acts. As the article will demonstrate, this interaction tends to result in the overall level of rights protection being increased. Analysing this finding, the article uses institutionalist theory to argue that the EU’s political process carries certain positive effects: the diversity of the legislative process (both within and between institutions) makes the explicit overlooking of rights-based concerns difficult. These findings carry implications for the increasing tendency to channel EU law and policy outside of the ‘ordinary’ legislative process.

“Not Taking Rights Seriously”. Opting for the Primacy of eu Law over Broader Human Rights Protection

2015 ◽  
Vol 4 (2) ◽  
pp. 277-302
Author(s):  
Fisnik Korenica ◽  
Dren Doli
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
The Relationship

The European Union (eu) accession to the Convention for the Protection of Human Rights and Fundamental Freedoms (echr) has been a hot topic in the European legal discourse in this decade. Ruling on the compliance of the Draft Agreement on eu accession to the echr with the eu Treaties, the Court of Justice of the eu (cjeu) came up with a rather controversial Opinion. It ruled that the Draft Agreement is incompliant with the eu Treaties in several respects. One of the core concerns in Opinion 2/13 relates to the management of horizontal relationship between the eu Charter of Fundamental Rights (ChFR) and echr, namely Article 53 ChFR and Article 53 echr. The article examines the Opinion 2/13’s specific concerns on the relationship between Article 53 ChFR and Article 53 echr from a post-accession perspective. It starts by considering the question of the two 53s’ relationship from the eu-law autonomy viewpoint, indicating the main gaps that may present a danger to the latter. While questioning from a number of perspectives the plausibility of the cjeu’s arguments in relation to the two 53s, the article argues that the Court was both controversial and argued against itself when it drew harshly upon these concerns. The article also presents three options to address the cjeu’s requirements on this issue. The article concludes that the cjeu’s statements on the two 53s will seriously hurt the accession project, while critically limiting the possibility of Member States to provide broader protection.

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 The Common European Asylum System: Balancing Mutual Trust Against Fundamental Rights Protection

2020 ◽  
Vol 21 (6) ◽  
pp. 1180-1197
Author(s):  
Georgios Anagnostaras
Keyword(s):  
Member State ◽  
Asylum Seekers ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
Eu Law ◽  
International Protection ◽  
Rights Protection ◽  
The Core ◽  
Common European Asylum System ◽  
The Common

AbstractThe Common European Asylum System constitutes one of the principal areas in which the fundamental rights of individuals are essentially placed in competition with the core principle of mutual confidence and the need to preserve the effectiveness of EU law. That competitive relationship becomes particularly evident when applicants for international protection rely on alleged violations of their fundamental rights in order to contest their transfer to the Member State that is normally responsible for examining their asylum request according to the criteria of the Dublin III Regulation. The balancing process that needs to be carried out in this respect and the measure of the monitoring obligation that EU law imposes on the receiving Member State regarding the protection of the fundamental rights of asylum seekers are well exemplified by the preliminary ruling in Jawo. That case provides additional clarification regarding the circumstances in which the protection of fundamental rights may introduce exceptions to the principle of mutual trust. At the same time, it illustrates the inherent tensions that exist between the protection of fundamental rights and the application of the principle of mutual confidence.

The Competences of the Union

2018 ◽  
Author(s):  
Theodore Konstadinides
Keyword(s):  
Fundamental Rights ◽  
Active Part ◽  
Eu Law ◽  
Legal Systems ◽  
Member States ◽  
Rights Protection ◽  
Salient Features ◽  
The Impact ◽  
Vertical Level ◽  
The Eu

The object of this chapter is to examine the way in which competences are designed and delineated in EU law at the vertical level between the EU and the Member States and discuss their salient features. Over the years, EU competences have expanded, although not as meteorically as one may think. To alleviate concerns among Member States about the impact of EU competence enlargement upon national legal systems, a number of principles were designed to limit the powers of the EU. Having said that, there is hardly today an area of regulation in which the EU does not play an active part—from trade and energy to sport and fundamental rights protection.

9. Human rights in the EU

2017 ◽  
Author(s):  
Elspeth Berry ◽  
Matthew J. Homewood ◽  
Barbara Bogusz
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Eu Law ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Charter Of Fundamental Rights ◽  
History Of ◽  
Complete Series ◽  
Explanatory Text ◽  
The Eu

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter begins with a brief history of human rights protection in Europe, including the separate role of the Council of Europe and the ECHR, as well as that of the EU and EU law. It then discusses the development of human rights protection by the EU; the need for human rights protection against the EU and its Member States; the Charter of Fundamental Rights of the EU; the enforcement of human rights in EU law; and the possibility of EU accession to the ECHR.

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