Challenges to EU Legality in the Field of Asylum and Migration Law

2021 ◽  
pp. 48-70
Author(s):  
Evelien Brouwer
Keyword(s):  
Legal Protection ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Recent Developments ◽  
And Migration ◽  
The One ◽  
The Right ◽  
Judicial Protection ◽  
Migration Law ◽  
The Eu

‘EU legality’ in EU migration and asylum laws can be considered as a double-edged sword. This chapter describes how, on the one hand, the CJEU, by the mere application of general principles of EU law, offered in its case-law important criteria strengthening the rights and legal protection of third-country nationals while, on the other hand, more recent developments show that the EU legislator, but also the CJEU, almost artificially excludes migration laws or decisions from the legal framework of the EU. It will be argued that developments of ‘re-nationalization’, the application of mutual trust, and the externalization of EU asylum and migration policies, challenge the applicability of general principles of EU legality, including the protection of fundamental rights and the right to effective judicial protection.

EU Sanctions

2021 ◽  
pp. 177-229
Author(s):  
Jan Wouters ◽  
Frank Hoffmeister ◽  
Geert De Baere ◽  
Thomas Ramopoulos
Keyword(s):  
Case Law ◽  
Essential Elements ◽  
Fundamental Rights ◽  
Property A ◽  
The Right ◽  
Judicial Protection ◽  
Restrictive Measures ◽  
Procedural Rights ◽  
Large Corpus ◽  
The Eu

This chapter provides an overview of the sanctions that are available to the EU in the conduct of its foreign policy. First, it focuses on EU restrictive measures or sanctions analysing the applicable provisions and procedure for their adoption under the EU Treaties before making a systematic presentation of the different regimes adopted by the Union and their link to UN sanctions. The chapter also delves into the large corpus of case law on the compliance of sanctions with fundamental rights, in particular procedural rights, such as the rights of defence and the right to effective judicial protection, and substantive rights, such as the right to carry out an economic activity and right to property. A section is also dedicated to the constantly developing case law on actions for damages from sanctions. Sanctions adopted by the Union within the framework of cooperation and association agreements for the violation of certain essential elements of these agreements are also analysed. Lastly, a discussion of the specific case of the blocking statute, an autonomous measure adopted to counter extraterritorial effects of legislation and actions of third states, which was recently updated, forms part of this chapter.

OSTVARIVANjE PRAVA NA KOLEKTIVNO PREGOVARANjE U REPUBLICI SRBIJI

2021 ◽  
pp. 99-112
Author(s):  
Bojan Urdarević ◽  
Keyword(s):  
Collective Bargaining ◽  
Working Conditions ◽  
Legal Framework ◽  
Academic Community ◽  
Fundamental Rights ◽  
Freedom Of Association ◽  
Conflicting Interests ◽  
Collective Negotiations ◽  
The One ◽  
The Right

Freedom of association and the right to collective bargaining are fundamental rights of workers and a means of achieving a balance between the interests of workers and employers. Through collective bargaining, the parties in the collective negotiations identify common but also mutually conflicting interests and come to a common agreement. In this sense, collective bargaining can be a means of achieving a balance between, on the one hand, employers' desire for greater flexibility at work and on the other hand, the desire of employees to adapt their obligations and needs. It is important to note that the success of collective bargaining depends largely on the economic, institutional, political and legal framework in which collective negotiations between unions and employers take place. For this reason, the level of development of collective bargaining and social dialogue is different from state to state. Today, the right to collective bargaining has become widely recognized in the academic community as a key instrument for regulating working conditions and relations between employers and workers in a way that ensures fairer distribution of funds, improves working conditions and preserves the dignity of workers,but also institutionalizes industrial conflicts.

Artificial Intelligence (AI) at Schengen Borders: Automated Processing, Algorithmic Profiling and Facial Recognition in the Era of Techno-Solutionism

2021 ◽  
Vol 23 (4) ◽  
pp. 457-484
Author(s):  
Niovi Vavoula
Keyword(s):  
Artificial Intelligence ◽  
Information Systems ◽  
Facial Recognition ◽  
Personal Data ◽  
Legal Framework ◽  
Private Life ◽  
Fundamental Rights ◽  
Legal Analysis ◽  
The Right ◽  
The Eu

Abstract Since the past three decades, an elaborate legal framework on the operation of EU-Schengen information systems has been developed, whereby in the near future a series of personal data concerning almost all third-country nationals (TCN s) with an administrative or criminal law link with the EU/Schengen area will be monitored through at least one information system. This article provides a legal analysis on the embedment of Artificial Intelligence (AI) tools at the EU level in information systems for TCN s and critically examines the fundamental rights concerns that ensue from the use AI to manage and control migration. It discusses automated risk assessment and algorithmic profiling used to examine applications for travel authorisations and Schengen visas, the shift towards the processing of facial images of TCN s and the creation of future-proof information systems that anticipate the use of facial recognition technology. The contribution understands information systems as enabling the datafication of mobility and as security tools in an era whereby a foreigner is risky by default. It is argued that a violation of the right to respect for private life is merely the gateway for a series of other fundamental rights which are impacted, such as non-discrimination and right to effective remedies.

THE CONTRIBUTION OF THE EUROPEAN COURT OF JUSTICE TO THE AREA OF FREEDOM, SECURITY AND JUSTICE

2010 ◽  
Vol 59 (2) ◽  
pp. 255-301 ◽  
Author(s):  
Koen Lenaerts
Keyword(s):  
Fundamental Rights ◽  
Judicial Cooperation ◽  
Present Contribution ◽  
Treaty Of Lisbon ◽  
European Court ◽  
The One ◽  
Judicial Procedure ◽  
The Right ◽  
Criminal Matters ◽  
Judicial Protection

ABSTRACTThe aim of this article is to provide an overview of the European Court of Justice's (‘ECJ’) past and present contribution— both procedurally and substantively—to the Area of Freedom, Security and Justice. While it is too early to speculate what the ECJ's contribution to this area will be under the provisions of the Treaty of Lisbon, which entered into force on 1 December 2009, the latter's modifications to the ECJ's jurisdiction merit close attention. After describing how the procedural limitations that were imposed on the ECJ's jurisdiction by ex Title IV of Part Three of the EC Treaty and by ex Title VI of the old EU Treaty have been almost entirely eliminated by the Treaty of Lisbon, this article posits that not only does the latter Treaty improve significantly the judicial protection of private individuals, but it also facilitates the dialogue between the Union and the national judiciaries in the Area of Freedom, Security and Justice. Next, the article briefly explores the special ECJ procedures which may be followed in the Area of Freedom, Security and Justice in cases where time is of the essence. There, it is argued that, when having recourse to these procedures, the ECJ strives to strike the right balance between, on the one hand, swift judging and, on the other hand, the preservation of a qualitative and fair judicial procedure. As to substantive issues, drawing on examples from the fields of judicial cooperation in civil matters, asylum and judicial cooperation in criminal matters, it is argued that the ECJ's contribution to this area is largely grounded in the protection of fundamental rights. Finally, a brief conclusion supports the contention that the ECJ's contribution to the Area of Freedom, Security and Justice has favoured a ‘mutual borrowing’ of concepts and principles as between this area and other fields in relation to which the EU has competences, such as the internal market and competition. The Treaty of Lisbon having entered into force, an unprecedented level of coordination between different areas of EU law on both the procedural and substantive levels is to take place. Respect for fundamental rights will definitely be a unifying factor binding them all together.

scholarly journals WHO ethics guidance on TB care and migration: challenges to the implementation process

2020 ◽  
Vol 24 (5) ◽  
pp. 32-37
Author(s):  
V. Wild ◽  
M. Frick ◽  
J. Denholm
Keyword(s):  
United Arab Emirates ◽  
Migrant Worker ◽  
Implementation Process ◽  
Legal Principles ◽  
Show Evidence ◽  
Protection Of Human Rights ◽  
And Migration ◽  
The One ◽  
The Right ◽  
Migration Law

We summarise the current ethical guidance on tuberculosis (TB) care and migration, as set out in the WHO “Ethics Guidance for the Implementation of the End TB Strategy.” Among other aspects, the Ethics Guidance states that there should be firm legal principles in place that ensure the enforcement of migration law on the one hand and the protection of human rights, including the right to health, on the other are separated from one another. As a challenge to the Ethics Guidance and its implementation, we describe two cases, each of which typifies particular problems. Case one describes the experience of a migrant worker in the United Arab Emirates who is deported when mandatory medical exams show evidence of current or prior TB. Case two raises the issue of providing more than TB care, which may also be needed for holistic care. The paper concludes with our suggestions for ways in which we could make progress towards ethically optimal TB care for migrants.

scholarly journals Analysis of the Set, Meaning, Range and Frequency of Lodging the Reasons for Judicial Protection Request

2015 ◽  
Vol 13 (1) ◽  
pp. 93-118
Author(s):  
Tine Jurič
Keyword(s):  
Empirical Research ◽  
Fast Track ◽  
Legal Protection ◽  
Fundamental Rights ◽  
Legal Remedy ◽  
The Right ◽  
Judicial Protection ◽  
Made In

The right to a legal remedy is one of the fundamental rights, which must be provided to every party involved in the proceedings (criminal, administrative, civil) which decide on the party’s rights, obligations or legal benefits. In the field of misdemeanour law with regard to the fast track misdemeanour proceedings, the legislature refers to this remedy as the request for judicial protection. Its effectiveness at the level of the set of reasons and their frequency at lodging the request, with the aim of providing the best possible legal protection of offenders, is unexplored, and so an in-depth empirical, historical and normative research of the challenge against its lodging has been made, in particular of the range, meaning, scope and the frequency of the filing of the reasons challenging the lodging. The research established that the range of the challenging grounds for filing a request for judicial protection extends with the amendments to the Minor Offences Act and in this way provides a greater legal protection for offenders, and that most of them are filed due to a challenge on the grounds of erroneous and incomplete factual findings. This suggests that in this part of the fast track misdemeanour proceedings, most irregularities by misdemeanours authority are claimed. The results of empirical research utilizing the model of challenging the Police decisions regarding misdemeanours present the conduct of research, the methods used, as well as the baseline for a model of judicial protectionagainst the decisions of the Police regarding the Minor Offences Act de lege ferenda.

Accessing Asylum in Europe

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
Fundamental Rights ◽  
Admission Criteria ◽  
International Protection ◽  
Cross Border ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
Judicial Protection ◽  
Border Surveillance ◽  
Eu Fundamental Rights ◽  
The Eu

This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of pre-entry controls, carried out in the form of Schengen visas, carrier sanctions (with or without assistance from ILOs), and maritime interdiction, with the fundamental rights acquis of the EU, in particular the right to protection against refoulement, the right to asylum, and the rights to good administration and effective judicial protection enshrined in the Charter of Fundamental Rights. The conflictual assertion contained in Tampere and successor programmes that the Union shall remain ‘open’ to those seeking access to it in search of protection, but, at the same time, ‘counteract illegal immigration and cross-border crime’ provides the background to this research. The result has been an ambiguous regulation of access to EU territory for asylum purposes. Two sets of rules have developed simultaneously, which are difficult to reconcile: one set assimilates protection seekers to the generic category of ‘third-country nationals’ subject to Schengen admission criteria, with another set containing references to ‘special provisions’ applicable to exiles, leading to a situation where up to 90% of refugee arrivals occur through irregular (unsafe) channels, as smuggled or trafficked migrants. In these circumstances, elucidating the exact reach of EU international protection obligations and the articulation between EU border/pre-border norms and EU fundamental rights becomes essential. The monograph thus strives to determine the content of the specific responsibilities of the Member States in this context and establish their implications for the ‘integrated border management’ system the Union is committed to realise.

AI and Migration Management

2020 ◽  
pp. 768-787
Author(s):  
Petra Molnar
Keyword(s):  
Human Rights ◽  
New Technologies ◽  
Forced Migration ◽  
Fundamental Rights ◽  
International Human Rights Law ◽  
Privacy Rights ◽  
International Regulation ◽  
Development Technology ◽  
And Migration ◽  
The Right

This chapter focuses on how technologies used in the management of migration—such as automated decision-making in immigration and refugee applications and artificial intelligence (AI) lie detectors—impinge on human rights with little international regulation, arguing that this lack of regulation is deliberate, as states single out the migrant population as a viable testing ground for new technologies. Making migrants more trackable and intelligible justifies the use of more technology and data collection under the guide of national security, or even under tropes of humanitarianism and development. Technology is not inherently democratic, and human rights impacts are particularly important to consider in humanitarian and forced migration contexts. An international human rights law framework is particularly useful for codifying and recognizing potential harms, because technology and its development are inherently global and transnational. Ultimately, more oversight and issue specific accountability mechanisms are needed to safeguard fundamental rights of migrants, such as freedom from discrimination, privacy rights, and procedural justice safeguards, such as the right to a fair decision maker and the rights of appeal.

scholarly journals Company Changing Status and Its Linking to Competitiveness

2015 ◽  
Vol 53 (1) ◽  
pp. 1-17
Author(s):  
Dragana Radenković-Jocić ◽  
Ivan Barun
Keyword(s):  
Mergers And Acquisitions ◽  
Legal Framework ◽  
Decision Makers ◽  
Economic Activities ◽  
Economic Interests ◽  
Eu Legislation ◽  
The Republic ◽  
The Right ◽  
A Company ◽  
The Eu

Abstract The authors present the issues and challenges related to the changes in status of a company and its impact on competitiveness. Status changes of companies, mostly mergers and acquisitions of companies, are one of the ways in which capital owners and management direct economic activities with the aim of maximizing profits. In order to make the right and justified decision, in terms of achieving the economic interests of the company, it is essential to know the laws and regulations in this area. This paper should provide answers on various questions which will be presented to decision makers in every company, considering status changes. Bearing in mind that the question of status changes often associated with an international element, the authors will pay special attention on the EU legislation and current legal framework in the Republic of Serbia.

scholarly journals Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States?

2020 ◽  
pp. 1-22
Author(s):  
Aida TORRES PÉREZ
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Scope Of Application ◽  
Judicial Protection ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.

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