scholarly journals Fundamental Rights as the Cornerstone of Schengen

2021 ◽  
Vol 23 (4) ◽  
pp. 508-534
Author(s):  
Tineke Strik

Abstract Although the Schengen Border Code (SBC) explicitly obliges Member States to apply the Schengen rules in full compliance with the fundamental rights, Member States’ adherence to this obligation can be questioned in light of recurrent and reliable reports about fundamental rights violations at the EU’s external borders. This contribution will examine why, apart from the deficiencies in the SCHE-VAL mechanism, the current response towards fundamental rights violations at the border is ineffective. First, it will analyse the legal framework, including the implementing rules, to see if additional guidance is needed. Second, the enforcement mechanisms will be examined: how are violations being addressed at the national level, and how does the EU Commission perceive and fulfills its role regarding enforcement of compliance? As the Commission has often referred to the monitoring mechanism as proposed in the draft Screening Regulation, the contribution will examine to what extent this New Pact file will help to resolve the current impunity. Finally, the article will analyse the role of Frontex regarding human rights violations by Member States. What is their responsibility, how do they perform it, and who is enforcing compliance by Frontex?

2018 ◽  
Vol 19 (1) ◽  
pp. 235-260
Author(s):  
Fabrizio Cafaggi

Abstract This Article examines consumer law enforcement in the EU. It shows how the effectiveness of collective and individual redress is intrinsically linked to the interplay between administrative and judicial enforcement and alternative dispute resolution (ADR). It addresses the trends and the contradictions of EU enforcement policies and their impact on national systems by looking at the role of general principles and fundamental rights, in particular Article 47 of the European Charter of Fundamental Rights (CFR). It concludes with policy recommendations concerning how the various consumer enforcement mechanisms should be coordinated at the EU and national level to ensure comprehensive and effective protection in compliance with fundamental rights.


Author(s):  
Miguel Poiares Maduro ◽  
Benedita Menezes Queiroz

The rule of law is under threat in the European Union. Systemic violations of fundamental rights are affecting the rule of law, democracy, and judicial independence in some Member States and consequently the EU legal order. The level of interdependence between the Member States and the EU legal order is such that systemic violations of those principles in the Member States end up impacting on EU compliance with the same principles. Article 7 TEU did not prove, however, to be the most effective tool to face these problems due to its political nature. The EU’s intervention in the form of infringement actions to safeguard the rule of law at the national level may be a suitable action to address some these serious violations of fundamental rights. Despite of the earlier hesitation to take a bolder action in this regard, the EU Commission, after the Court of Justice’s recent decisions in Associação Sindical dos Juízes Portuguese and LM, brought infringement proceedings against Poland challenging this country reforms that put into question the independence of its judiciary. The Court established its power of judicial review over the rule of law in the Member States in C-619/18 Commission v Poland. Ultimately, this decision highlighted the role of EU law in safeguarding the rule of law in its Member States, but more importantly in safeguarding the rule of law in the EU legal order as a whole.


Author(s):  
Juan Fernando Lopez Aguilar

Como una de las consecuencias de la prolongada crisis de la UE que arrancó con la Gran Recesión desatada en 2009 —la más profunda y severa de la construcción europea a lo largo de su historia—, tanto el conjunto de la UE como sus EE.MM han visto crecer la preocupación sobre el deterioro democrático y los retrocesos en materia de protección de derechos. Desde la entrada en vigor del Tratado de Lisboa y la Carta de Derechos Fundamentales de la UE, diciembre de 2009, las instituciones europeas han diseñado y desarrollado estrategias para reforzar el examen de los niveles de respeto a los valores fundacionales y principios constitucionales comunes consagrados en el art.2 TUE («criterios de Copenague). Y para desarrollar instrumentos de prevención, control y corrección de retrocesos democráticos y en materia de derechos en eventuales reformas constitucionales y legales en los EE.MM. Los casos de Hungría y Polonia resultan paradigmáticos, en la medida en que han suscitado respuestas extraordinarias: entre ellas, la activación de mecanismos extrajudiciales (el «Mecanismo Estructurado del Estado de Derecho»); la incoación de acciones por incumplimiento del Derecho europeo por parte de la Comisión (art.258 TFUE); una serie Resoluciones del PE solicitando de la Comisión y el Consejo la activación de lo dispuesto en el art.7 TUE.; y, en el caso polaco, importantes decisiones jurisdiccionales del TJ. Este trabajo examina los recientes desarrollos en materia de Rule of Law y la extensión del instrumento actualmente disponible hacia un Mecanismo amplio de Estado de Derecho, democracia y derechos fundamentales. Este Mecanismo comprende —en un nuevo Policy Cycle— el escrutinio general, periódico y regular de la legislación de los EE.MM, apuntándose sanciones extrajudiciales previas a las de «botón nuclear» (de terminación improbable) del art.7 TUE: asi, la de vincular el acceso a Fondos europeos y presupuestarios de la UE al pleno respeto del Derecho y los derechos fundamentales. El artículo se centra singularmente en el examen a Polonia. Se completa el estudio con una exposición de las últimas decisiones del TJ en relación con las reformas judiciales llevadas a cabo por la mayoría absoluta del ultraconservador partido en el Gobierno polaco (Pis). Concluye con reflexiones sobre la necesidad de profundizar el carácter vinculante de la integración en un orden regido por el Derecho, en una singular experiencia de ciudadanía abierta a círculos concéntricos (constitucionalismo multinivel) frente a lecturas regresivas de la «identidad nacional».As one of the consequences of the protracted EU crisis aroused by the 2009 Great Recession —the deepest and the longest ever throughout the European process—, both the EU and its Member States have witnessed a growing concern about democratic backsliding and fundamental rights backlashes. Since both the Lisbon Treaty and the ECFR entered into force (December 2009, the EU Institutions have developed new strategies to reinforce and strengthen their ability to test Member States Law making standards as to their due respect to common constitutional values and principles, enshrined in art. 2 TEU («Copenhagen Criteria»). By doing that, they have unfolded as well new instruments to prevent, control and correct potential risk of backward steps at the Member States National level, be it via constitutional or via legal reforms. Hungary and Poland are paramount cases, in as much as they have called for: extrajudicial actions (Rule of Law Mechanism); infringement procedures by the Commission (art.258 TFEU), and EP Resolutions calling both the Commission and the Council to initiate art.7 TEU. This Paper examines recent developments in the sphere of Rule of Law, in view of extending its scope to a new Policy Cycle on Rule of Law, Democracy and Fundamental Rights, encompassing overall and regular scrutiny of all of the Member States by means of objective indicators, as a way to overcome the limits (and unlikely outcome) of the so-called «nuclear option» of art. 7 TEU. It builds on the proposal of linking access to EU Funds and budgetary benefits with full compliance with Rule of Law, Democracy and Rights EU standards. This Article focuses mainly on Poland. It adds to an overview and assessment of the latest ECJ rulings on Polish Judicial reforms led by the far conservative ruling Party (PiS), deemed to be incompatible with EU Law. It ends with conclusive remarks on the need on the need of making progress in the European path to multilayer constitutionalism and binding European Law above «national identity».


2019 ◽  
pp. 16-51
Author(s):  
Anniek de Ruijter

This book looks at the impact of the expanding power of the EU in terms of fundamental rights and values. The current chapter lays down the framework for this analysis. Law did not always have a central role to play in the context of medicine and health. The role of law grew after the Second Word War and the Nuremberg Doctors Trials (1947), in which preventing the repetition of atrocities that were committed in the name of medicine became a guidepost for future law regarding patients’ rights and bioethics. In the period after the War, across the EU Member States, health law developed as a legal discipline in which a balance was struck in medicine and public health between law, bioethics, and fundamental rights. The role of EU fundamental rights protections in the context of public health and health care developed in relation with the growth of multilevel governance and litigation (national, international, Council of Europe, and European Union). For the analysis here, this chapter develops an EU rights and values framework that goes beyond the strictly legal and allows for a ‘normative language’ that takes into consideration fundamental rights as an expression of important shared values in the context of the European Union. The perspective of EU fundamental rights and values can demonstrate possible tensions caused by EU health policy: implications in terms of fundamental rights can show how highly sensitive national policy issues may be affected by the Member States’ participation in EU policymaking activities.


Author(s):  
Chiara Altafin ◽  
Karin Lukas ◽  
Manfred Nowak

The chapter presents and assesses the various normative layers—domestic, European, regional, international—on which the European Union’s (EU’s) commitment to human rights is built. It analyses the interaction of EU primary law, general principles of law derived from constitutional traditions of Member States, and international human rights law, including relevant regional instruments such as the European Convention on Human Rights, the European Social Charter, and the Istanbul Convention. It is contended that, despite an impressive and pioneering normative framework on human rights, the EU currently faces a number of challenges that call for a strong stance on human rights realisation in all areas of its competence and influence. Enduring deficiencies in the relevant normative framework include the absence of a fully fledged EU competence to legislate in the area of human rights protection and the application of ‘double standards’ in the EU’s approach to human rights internally and externally, leading to a deep divide between internal and external policies guided by starkly different logics. Further areas of concern include the difficulties of the Charter of Fundamental Rights implementation in view of EU institutions and Member States’ competencies, which have become particularly apparent in the EU’s response to the Eurozone crisis and the arising tensions between EU and Member States’ austerity measures, as well as the uneven nature of the EU and Member States’ human rights obligations with regard to the international legal framework, leading to gaps and overlaps.


2009 ◽  
Vol 58 (2) ◽  
pp. 379-409 ◽  
Author(s):  
Duncan Fairgrieve ◽  
Geraint Howells

AbstractCollective redress mechanisms for consumer claims seek both to allow legal systems to accommodate mass litigation without being overwhelmed and to enable litigation to be viable where individual claims would not be economic. The article maps a number of recent reforms and reform proposals relating to consumer collective redress at national level and comments on EU developments. It notes that there is insufficient recognition of the differences between schemes geared at managing mass litigation as opposed to those aimed at facilitating otherwise non-viable claims. There are however signs that a European style of collective redress procedure is developing, which emphasize the role of public authorities and consumer organizations as gatekeepers to collective redress. The EU is unlikely to be able to impose collective redress procedures on national civil procedures, but the EU could prompt Member States to reflect on the need for national reforms. There may be limited scope for an EU mechanism to address the problem of individually non-viable consumer claims. This would however have to address certain fundamental issues such as the opt-out mechanism, cy-près distribution and funding if consumer organizations are to be encouraged to bring such actions. At a legal doctrinal level, it is interesting to note the influence of comparative studies on policy development within Member States as well as at the EU level.


European View ◽  
2019 ◽  
Vol 18 (1) ◽  
pp. 97-104
Author(s):  
Konstantinos Margaritis

The rule of law is one of the founding values of the EU, as indicated in Article 2 TEU. This provision recognises that the rule of law is a core value, inherent to liberal democracy, and one which characterised the Union and its member states long before the formal establishment of the EU by the Maastricht Treaty. However, several member states, most notably Poland and Hungary, seem to have placed this value in jeopardy, leading EU institutions to disagree on how to combat this problem and its political consequences. The aim of this article is to propose a solution that involves a rather neglected, yet certainly competent actor, the Fundamental Rights Agency. The outcome would be twofold: on the one hand, the rule of law would be vitally strengthened; on the other, the role of the Agency would be fortified in line with its scope.


2016 ◽  
Vol 25 (1) ◽  
pp. 24-39 ◽  
Author(s):  
Edward L Figee ◽  
Jordy F Gosselt ◽  
Paul Linders ◽  
Menno DT De Jong

The role of regional authorities is undeniably increasing in Europe. Due to increasing regionalism efforts within European Union (EU) member states and to the fact that EU legislation is affecting subnational authorities more and more directly, these authorities are not only striving for influence in the national arena, but in the European arena as well. The primary task of a public affairs (PA) practitioner working for a regional government in the EU is placing regional interests on national and European political agendas. However, since regional PA is a rather young discipline, opposite to PA in the private sector and in national government, much is unknown about the way regional PA practitioners are operating in the national and European political arenas, and how these arenas are receiving the subnational PA practitioners. In this study, 41 Dutch PA practitioners and PA receivers were interviewed about their opinions on and experiences with regional PA in both arenas: What are the relevant characteristics of these arenas for regional PA activities, and how are regional PA practitioners managing arena characteristics? The results show that at the national level, it is a struggle to find recognition for regional issues, due to dominant high-profiled regions, centralisation tendencies at the national level and a more general non-subnational attitude. At the European level, regional issues are more welcome, but regional PA practitioners have to overcome the dominant national interests of member states.


2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Jörg Polakiewicz

The article addresses the institutional role of the EU in the Council of Europe, with particular emphasis on EU participation in Council of Europe treaties and EU accession to the ECHR. While recognising the joint effort to achieve greater unity in the region of Europe through respect for the shared core values of pluralist democracy, human rights and the rule of law, the concerns raised by non-Member States of the EU about the impact of EU law and policies on the Council of Europe’s standards are examined. It is argued that the Council of Europe and the EU have a shared responsibility for upholding the effectiveness of their respective frameworks and ensuring that any overlapping competences do not create conflict. This is particularly evident when it comes to the European system for the protection of fundamental rights, which is characterised by overlapping standards and procedures. The existing cooperation between the Council of Europe and the EU should be strengthened through a more rational, rules-based approach. In particular, it is suggested that the two systems should jointly agree on a series of basic principles on the treaty-making process, providing for horizontal application by the introduction of specific rules on, for example, voting and speaking rights of the EU, the sharing of reporting obligations between the EU and its Member States under Council of Europe monitoring mechanisms, and financial arrangements. The EU’s participation and financial contribution to monitoring follow-up should always be considered on a case-by-case basis, taking into account the specificities of each mechanism.


2020 ◽  
Vol 18 (1) ◽  
pp. 25-49
Author(s):  
Mihaela Vrabie

This article aims to determine when the national authorities have the obligation to comply with EU fundamental rights, in the framework of administrative procedures carried out in the EU Member States. It also aims to determine the legal remedies available at national level in the context of judicial review in case of violation, by the national authorities, of EU fundamental rights guaranteed by the Charter of Fundamental Rights of the EU or as general principles of EU law. To this end, this study explains the impact of the legally binding EU Charter on public administration of the Member States and the field of application of the EU Charter at national level. The article also deals with the distinction between EU fundamental rights as primary EU law guaranteed by the EU Charter and EU fundamental rights as general principles of EU law. With reference to the judicial remedies available to national courts, the study outlines the effects of EU law (primacy of EU law, direct effect, direct application) in relation to the EU fundamental rights and the measures that can be adopted by the national courts when the action of the national administrative authorities is not compatible with EU fundamental rights. Finally, the article presents the most important findings concerning judicial protection of EU fundamental rights at the national level, especially from the perspective of the right to an effective remedy and to a fair trial stipulated by Article 47 of the EU Charter.  


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