scholarly journals The ECJ and the ECtHR: The Future Relationship between the Two European Courts

2009 ◽  
Vol 8 (3) ◽  
pp. 375-398 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Lisbon Treaty ◽  
International Agreement ◽  
Minimum Standard ◽  
Exclusive Jurisdiction ◽  
The Future ◽  
Charter Of Fundamental Rights ◽  
The Eu

AbstractThe current relationship between the two European courts has been discussed in some great detail while the future of that relationship has been widely neglected. This is somewhat surprising as the entry into force of the Lisbon Treaty and with it of the EU Charter of Fundamental Rights as well as the EU's succession to the ECHR are probably going to take place before too long. The article first examines Article 52(3) of the Charter, which prescribes that the ECHR be the minimum standard of human rights in the EU. It is argued that Article 52 (3) does not entail a reference to the ECtHR's case law so that the ECJ will not be bound by that case law. After an accession of the EU to the ECHR, it is likely that both courts will assert that they have exclusive jurisdiction over the ECHR in inter-state cases, which creates a jurisdictional conflict for which a solution must be found. In addition, the article explores whether after an accession, the Bosphorus case law will have a future and whether the dictum found in Opinion 1/91 will be applicable, according to which the ECJ is bound by the decisions of courts created by an international agreement to which the EC is a party.

A Re-examination of the Family Reunification Directive in the post-Lisbon Fundamental Rights Scene

ICL Journal ◽  
2018 ◽  
Vol 12 (1) ◽  
pp. 85-114
Author(s):  
Georgios Milios
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Family Reunification ◽  
Fundamental Rights ◽  
Lisbon Treaty ◽  
European Convention ◽  
The Family ◽  
Charter Of Fundamental Rights ◽  
The One ◽  
The Eu

Abstract The article examines the issue of compatibility of the Family Reunification Directive with the important changes that the adoption of the Lisbon Treaty brought to the field of fundamental rights in the EU especially considering the fact that the Charter of Fundamental Rights of the EU gained the same legal value as the treaties. The article examines all possible scenarios that may derive from Art 52 (3) of the Charter and the problems or issues that each of them may entail for the immigrants’ right to family life in the EU. This examination reveals that certain aspects of the provisions of the Family Reunification Directive are not compatible with Art 8 of the European Convention on Human Rights, and proposes that the EU should, in any event, provide more extensive protection than the one provided for by the Convention. The article proposes a reunification model which may be more compatible with the post-Lisbon fundamental rights scene.

scholarly journals Keeping Safe Distance: Chapters from Randomised (Non)Application of the EU Charter of Fundamental Rights before Polish Constitutional Tribunal

2019 ◽  
Vol 9 (4) ◽  
pp. 72-107
Author(s):  
Aleksandra Kustra-Rogatka ◽  
Ondrej Hamuľák
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
Fundamental Rights ◽  
Crucial Issue ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Charter Of Fundamental Rights ◽  
Constitutional Tribunal ◽  
The Eu

Abstract The question of the application and impact of the Charter of Fundamental Rights of the EU (‘Charter’) in quotidian practice of human rights protection and review is a strategic one. Given the predominantly decentralised effects of EU law and with the due account to the wide interpretation of the scope of the Charter’s application (Art. 51(1)) presented by the CJEU (C-617/10 Fransson), the national dimension of the application of the Charter forms the crucial issue for the functioning of the EU system of fundamental rights protection. The Charter itself has a big potential to influence the content, nature and mechanisms of the fundamental rights protection at the national level. The present paper focuses on this phenomena in connection to the case-law, opinions and workload of the Polish Constitutional Tribunal (‘TK’). It analyses the approach of TK towards the Charter in abstract manner as well as the (non)appearance of the Charter in the reasoning of the court in concrete cases. The article reports on the main cases and analyses the reasons of the aloof approach of the TK towards the EU human rights catalogue.

The Protection of Intellectual Property in International Human Rights Law

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Fundamental Rights ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Cultural Rights ◽  
Core Subject ◽  
Charter Of Fundamental Rights ◽  
The Eu

This chapter examines the human rights system and the way it deals with human creations and innovations that are the traditional core subject matter of intellectual property (IP) rights. It begins by reviewing the scope for protection under Article 27 (2) Universal Declaration of Human Rights (UDHR) and Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The chapter moves on to the protection of property in human rights law, especially on the regional, European level. It examines how IP can be protected as property under the European Convention of Human Rights (ECHR) and under the EU Charter of Fundamental Rights (EU Charter). Finally, the chapter looks at some of the overlaps with international IP rules and the conflict norms in the human rights system to address such overlaps.

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 EU Treaties and the Charter of Fundamental Rights

2019 ◽  
Keyword(s):  
Current Practice ◽  
Case Law ◽  
Fundamental Rights ◽  
Legal Service ◽  
Eu Law ◽  
Charter Of Fundamental Rights ◽  
Rights Offering ◽  
Law And Legislation ◽  
Fast Access ◽  
The Eu

This Commentary provides an article-by-article summary of the TEU, the TFEU, and the Charter of Fundamental Rights, offering a quick reference to the provisions of the Treaties and how they are interpreted and applied in practice. Written by a team of contributors drawn from the Legal Service of the European Commission and academia, the Commentary offers expert guidance to practitioners and academics seeking fast access to the Treaties and current practice. The Commentary follows a set structure, offering a short overview of the Article, the Article text itself, a key references list including essential case law and legislation, and a structured commentary on the Article itself. The editors and contributors combine experience in practice with a strong academic background and have published widely on a variety of EU law subjects.

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.

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

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