A Thundering Silence: Environmental Rights in the Dialogue between the EU Court of Justice and the European Court of Human Rights

This article explores whether a potential accession of the European Union to the European Convention on Human Rights, offers a more effective method of protection for ‘environmental human rights’: those rights whose enjoyment is allegedly affected by environmental challenges. The European Court of Human Rights has decided on claims of alleged violations of human rights by both environmental degradation and the enforcement of environmental protection policies implementing EU environmental law. On the other hand, the capacity of the Court of Justice of the European Union to decide on human rights issues has been repeatedly challenged, while the inability of the Court to protect procedural (environmental) rights when it came to NGOs, allows for challenging the capacity of the Court of Justice of the European Union to protect substantive (environmental) rights as well. Will an accession mean that applicants will be able to bring claims for alleged violations, caused by the enforcement of EU generated environmental protection policies, against the EU Institutions rather than the enforcing State? This article follows the relevant developments towards the accession, and consequently seeks to determine how the day after the accession will look for the protection of human rights affected by environmental challenges.

Download Full-text

Court of Justice of the eu Rules Collective and Inaccessible Electrical Metres Discriminate against Roma: chez Razpredelenie Bulgaria ad v. Komisia za zashtita ot diskriminatsia (C-83/14)

European Journal of Migration and Law ◽

10.1163/15718166-12342092 ◽

2016 ◽

Vol 18 (1) ◽

pp. 112-125 ◽

Cited By ~ 1

Author(s):

Claude Cahn

Keyword(s):

Human Rights ◽

Racial Discrimination ◽

Significant Contribution ◽

Ethnic Origin ◽

Court Of Justice ◽

European Court ◽

Indirect Discrimination ◽

Current Article ◽

The Eu

The judgment of 16 July 2015 is ecj’s first substantive ruling in a case concerning racial discrimination against Roma. This is noteworthy, given the centrality of Roma to the jurisprudence of the European Court of Human Rights in the area of discrimination (on the European Court of Human Rights, Roma and racial discrimination, see C. Cahn (2015), ‘Triple Helix: The Jurisprudence of the European Court of Human Rights, Roma and Racial Discrimination’, in: Claude Cahn, Human Rights, State Sovereignty and Medical Ethics, Leiden: Brill Nijhoff, pp. 106–148.). The ecj ruling in the chez case is important for a number of reasons, including for recognizing that the ban on discrimination by association applies also to cases of indirect discrimination. Its most significant contribution however is its reflections on the role of stigma in driving discrimination based on racial or ethnic origin. Also of note is its rejection of a number of approaches used in national law – in Bulgaria and elsewhere – as incompatible with European Union anti-discrimination law. The judgment is among the most important ecj rulings to date on discrimination. The current article discusses some of the noteworthy aspects of the case.

Download Full-text

Case Report on C-411/10, N.S. and C-493/10, M.E. and Others, 21 December 2011

European Journal of Migration and Law ◽

10.1163/157181612x642385 ◽

2012 ◽

Vol 14 (2) ◽

pp. 223-238 ◽

Cited By ~ 2

Author(s):

Sophie Lieven

Keyword(s):

Human Rights ◽

Case Report ◽

European Court Of Justice ◽

Member States ◽

Court Of Justice ◽

European Court ◽

Common European Asylum System ◽

Protection Of Human Rights ◽

The Common ◽

The Eu

Abstract The European Court of Justice clarified through this judgment the way in which the overloading of a Member States’ asylum system affects the EU arrangements for determining the Member State responsible for asylum applications lodged in the EU and thereby drastically reduced the possibility granted to Member States to transfer asylum applicants. The Member States now have an obligation to verify that no serious risk of violation of the Charter rights of the applicant exits in the receiving country before being allowed to transfer the person. The practical consequences of this ruling are still uncertain but further cooperation between Member States should be able to enhance the level of protection of human rights within the Common European Asylum System.

Download Full-text

Mechanizm współpozwania w świetle przystąpienia Unii Europejskiej do Konwencji o ochronie praw człowieka i podstawowych wolności

Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne ◽

10.19195/1733-5779.24.5 ◽

2018 ◽

Vol 24 ◽

pp. 63-75

Author(s):

Anna Moskal

Keyword(s):

European Union ◽

Human Rights ◽

Member State ◽

European Convention ◽

The European Union ◽

Joint Liability ◽

Court Of Justice ◽

European Court ◽

European System ◽

The Eu

The co-respondent mechanism in the view of accession of the European Union to the European Convention of Human RightsFor the past seventy years there have been discussions and activities on the accession of the European Union to the European Convention on Human Rights. The ratio of the Union’s accession to the Convention is a need to harmonize the European system of protection of individual rights. There are numerous problems and obstacles to achieve this goal created by the specific, supra-national character of the Union sui generis. It requires the introduction of unique mechanisms and procedures that would allow an international organization such as the EU to become a party to the Convention. One such procedure is provided in art. 3 of the draft agreement, the co-respondent mechanism of the European Union and the Member State in proceedings under the European Court of Human Rights. The purpose of the article is to present the allegations of the Court of Justice, assess their validity and indicate possible future solutions regarding the co-respondent mechanism. After analyzing the European Commission’s request for an opinion on the compliance of the draft agreement with community law, the CJEU considered the draft as incompatible with EU law and listed ten issues that prevented the Union from joining the Convention in the proposed form. Among them, as many as three points refer to the corresponding mechanism and concern in particular the decision on the validity of the conclusions of the Union or a Member State by the Strasbourg Court, accepting joint liability and deciding on the division of responsibility between the Union and the Member State. In the article dogmatic method was used in order to analyze three aforementioned points. Due to the provision of art. 218 par. 11 p. 2 TFEU, the Commission is bound by the opinion of the Court of Justice, and that the presented draft agreement cannot constitute an international agreement allowing for the accession of the Union to the Convention in the proposed form.

Download Full-text

The European Legal Order

10.1093/acprof:oso/9780198789505.003.0003 ◽

2017 ◽

Author(s):

Bernard Stirn

Keyword(s):

European Union ◽

Human Rights ◽

Legal Order ◽

European Convention ◽

The European Union ◽

Court Of Justice ◽

European Court ◽

Domestic Courts ◽

The Law ◽

The Eu

Chapter 3 shows that the confluence of the law of the European Union and of the European Convention on Human Rights is a European legal order worthy of the name. It outlines the law of the European Union after the Lisbon Treaty, setting out its principles and the ways in which competences are shared in the EU post Lisbon, between the European Council, the Council, the Commission, the European Parliament, and the Court of Justice of the European Union. The chapter further sets out the outline of the system of rules of the European Union. Then the chapter turns to the characteristics of what has been termed a Europe of human rights, and how the European Court of Human Rights (ECHR), in conjunction with domestic courts, police the law of the European Convention on Human Rights. Finally, the chapter brings together the law of the European Union and the ECHR.

Download Full-text

Composing Europe’s Fundamental Rights Area: A Case for Discursive Pluralism

Cambridge yearbook of European legal studies ◽

10.1017/cel.2015.8 ◽

2015 ◽

Vol 17 ◽

pp. 210-246

Author(s):

Louise HALLESKOV STORGAARD

Keyword(s):

Human Rights ◽

Case Law ◽

Fundamental Rights ◽

Eu Law ◽

Rights Protection ◽

Court Of Justice ◽

European Court ◽

Normative Basis ◽

The Relationship ◽

The Eu

AbstractThis article offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13 and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

Download Full-text

ASPECTS OF THE INTERACTION BETWEEN THE COURT OF JUSTICE B OF THE EUROPEAN UNION AND THE EUROPEAN COURT OF HUMAN THE EUROPEAN RIGHTS AFTER OPINION NO. 2/13

Law and World ◽

10.36475/14.1.9 ◽

2020 ◽

Vol 14 (1) ◽

pp. 96-116

Keyword(s):

European Union ◽

Human Rights ◽

European Convention ◽

The European Union ◽

Human Rights Protection ◽

Rights Protection ◽

Court Of Justice ◽

European Court ◽

The Relationship ◽

The Eu

The present article is dedicated to one of the most debatable aspects of human rights protection in the European Union (EU), specifically the question of whether the EU should accede to the European Convention on Human Rights (ECHR). This article analyzes the maintained deficit in the functioning of the European Union in terms of the important parameters of democracy as a result of the failed EU accession to the ECHR as well as the new reality created in the relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) after the negative Opinion no. 2/13 of the CJEU and the changes in the nature of the interaction between the two European courts in this changed situation.

Download Full-text

THE ROLE AND SIGNIFICANCE OF JUDICIAL PRECEDENT IN THE SYSTEM OF SOURCES OF LAW

Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies ◽

10.17721/1728-2195/2021/4.119-9 ◽

2021 ◽

pp. 50-53

Author(s):

N. Mialovytska ◽

◽

N. Zlatina ◽

Keyword(s):

Human Rights ◽

Case Law ◽

Special Significance ◽

Checks And Balances ◽

Legal Norms ◽

Court Of Justice ◽

European Court ◽

Protection Of Human Rights ◽

Rule Making ◽

The Eu

The article explores the concepts of sources of law and their main types. The source of law means the way of external influence of legal norms, which certifies their binding nature. The concepts and place of judicial precedent in the system of sources of law are defined. It is noted that judicial precedent should be understood as a court decision rendered in a particular case and entered into force, and which is the basis for resolving similar cases by other bodies. As part of the integration process in Europe, two important judicial bodies have been formed – the European Court of Human Rights (hereinafter – the ECtHR) and the Court of Justice. Each of these courts plays an important role in the rule-making process within its competence. The ECtHR's function is not limited to dealing with specific complaints. Its decisions also provide a comprehensive interpretation of the main provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. As a result, they acquire a special significance that is precedent-setting. Therefore, the application of the case law of the ECtHR is considered as a source of law. It is also noted that EU courts play a role in the development of the rule-making process within the EU. They interpret the main provisions of the founding treaties and other regulations and formulate autonomous concepts and concepts that complement and clarify the provisions of regulations and implement new fundamentally important for the development of integration law provisions. Recognition of judicial precedent as a source of law means that judicial bodies perform not only a jurisdictional function (resolving conflicts on the basis of law), but also law-making. This function increases the role and importance of the judiciary in the mechanism of checks and balances of abuse of state power.

Download Full-text

Mechanism to protect human rights from illegal activities of FRONTEX within the EU

Problems of Legality ◽

10.21564/2414-990x.154.239086 ◽

2021 ◽

Author(s):

А. O. Hnitii

Keyword(s):

Human Rights ◽

Causal Link ◽

Fundamental Rights ◽

Complex Nature ◽

Court Of Justice ◽

European Court ◽

Illegal Activities ◽

Operational Activities ◽

Effective Remedy ◽

The Eu

The article is devoted to the study of mechanisms to protection human rights from illegal activities of FRONTEX within the EU. The author notes that with the adoption of Regulation 2019/1896 the mandate of the Agency was significantly expanded, including by giving its staff executive powers. At the same time, the Agency has negative and positive human rights obligations, which stipulate that FRONTEX staff must not only refrain from committing violations, but also take all possible measures to ensure the fundamental rights of each participant in joint operations. However, the complex nature and lack of transparency in the Agency's operational activities increase the risk of serious incidents. In view of this, an important guarantee of respect for fundamental rights is the development of effective protection mechanisms. The article analyzes the grounds and procedure for appealing to the European Ombudsman, the European Court of Justice, as well as the use by victims of a complaint mechanism within the Agency. Attention is drawn to the shortcomings of out-of-court mechanisms for the protection of human rights, primarily due to the recommendatory nature of the conclusions adopted as a result of complaints. The functioning of the internal mechanism for consideration of individual complaints by the Agency is positively assessed, but attention is also paid to the need to increase its autonomy and develop an appellate procedure for appealing decisions. It is concluded that the most effective remedy within the EU for victims of misconduct as a result of FRONTEX's unlawful act is the Court of Justice. The use of this mechanism requires a more careful collection of evidence to prove the causal link between unlawful act and harmful consequences, which is a difficult task for migrants who have been victims of violations.

Download Full-text