scholarly journals Is there a public interest in knowing what is going on in society? A comparative study of the European Courts

2019 ◽  
Vol 26 (5) ◽  
pp. 691-712
Author(s):  
Maija Dahlberg ◽  
Daniel Wyatt
Keyword(s):  
European Union ◽  
Public Interest ◽  
Fundamental Rights ◽  
The European Union ◽  
Official Document ◽  
The Public ◽  
European Court ◽  
Fundamental Reason ◽  
The Right ◽  
Right Of Access

Both of the European courts, namely the European Court of Human Rights and the Court of Justice of the European Union, have well-established case law on the public’s right of access to official documents. The core of the right is the same in both of the courts’ jurisdictions but the interpretations concerning the breadth of the right are very different. One fundamental reason for the public’s right of access to information being understood differently by each of these courts is their divergent approaches to the assessment of the public interest associated with an individual’s request for information. While the ECtHR openly evaluates the public interest or interests involved in the disclosure of an official document, the CJEU gives this factor little or no weight. In this article, our main argument is that CJEU should follow the ECtHR’s interpretation of the public interest in order to give the right of access to documents the same scope in both legal regimes and, in doing so, fulfil the requirements stemming from Article 52(3) of the Charter of Fundamental Rights of the European Union.

Access to Justice in Environmental Matters: Recent Developments

2012 ◽  
Vol 14 (2) ◽  
pp. 179-185
Author(s):  
Charles Poncelet
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Access To Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Recent Developments ◽  
The Right ◽  
Right Of Access

Abstract The right of access to justice in environmental matters constitutes one of the three pillars enshrined by the Århus Convention to which the European Union is a Party. This article will examine a recent judgment of the European Court of Justice. Indeed, the latter appears to play an important role in the implementation of this procedural right.

Implementation of Good Governance Principles on the European Level

2019 ◽  
pp. 243-262
Author(s):  
Henk Addink
Keyword(s):  
European Union ◽  
Good Governance ◽  
Fundamental Rights ◽  
The European Union ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Right To Good Administration ◽  
Administrative Proceedings ◽  
The Right ◽  
Council Of Ministers

In this chapter the focus is on the implementation of the principles of good governance by the European Union administrative institutions and the controlling institutions like the European Court of Justice and the European Ombudsman. The Treaty of Lisbon contains rules and obligations in respect of the implementation of these principles. The principle of transparency has found its expression in article 1 paragraph 2 TFEU. The principles of political participation are embodied in article 11 TEU. The right of access to documents of the Union’s institutions is a fundamental rule in article 15 TFEU. Furthermore, according to article 16 paragraph 8 TEU, the European Council of ministers must meet in public when acting as a legislator. These Treaty principles are complemented by the Charter of Fundamental Rights of the European Union which has entered into force with the final ratification of the Lisbon Treaty and its chapter on citizen’s rights like the right to good administration in article 41. In search for a better quality of administrative proceedings, a code on good administrative practise, a soft law instrument based on the logic of best practise has ultimately been adopted.

Los derechos y deberes de las personas vecinas de un municipio de Euskadi

2017 ◽  
pp. 503-554
Author(s):  
Vicenç AGUADO I CUDOLÀ
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
General Interest ◽  
The European Union ◽  
State Legislation ◽  
Municipal Management ◽  
Charter Of Fundamental Rights ◽  
Complete Catalogue ◽  
The Right ◽  
Right Of Access

LABURPENA: Euskal Autonomia Erkidegoko Toki Erakundeei buruzko Legeak auzotarren eskubideen eta betebeharren katalogo propioa jasotzen du, Estatuko toki araubidearen oinarrien legediak ezarritakoak osatzen duena. Katalogo horrek auzotarraren estatutuaren zenbait alderdi eguneratzen ditu XXI. mendeko euskal gizartera eta legegintzaren aurrerapentzat hartu behar da. Bere ezaugarriak direla-eta, eskubide batzuk ez zaizkie mugatzen udalerri bateko auzotarrei; aitzitik, herritar guztiei zabaltzen zaizkie. Azpimarratu behar diren berritasunen artean, parte-hartzearen kontzeptu zabalagoa azpimarra dezakegu. Parte-hartze hori ez da mugatzen udal kudeaketa hutsera eta tokiko politika publikoei dagokie. Halaber, azpimarra daiteke diskriminazio anizkoitzaren kontzeptua sartzeak estaldura hobea ahalbidetzen duela diskriminazio mota horien aurka borrokatzeko. Zerbitzu publikoak eskuratzeko eskubidean ere interes orokorreko zerbitzuen kontzeptua eransten da, Europar Batasuneko Oinarrizko Eskubideen Gutunaren ildo beretik. Halaber, Estatukoa baino katalogo osoagoa nabarmendu behar da, gizarte arduratsuago baterantz aurrera egiten ahalbidetuko duena. Sakon litezkeen alderdien artean, aldiz, eskubide eta betebehar horiek betetzea bermatu eta ziurtatzeko mekanismoak ezartzea legoke. Edonola ere, erreferentziazko lege aitzindaria da eremu horretan. RESUMEN: La Ley de Instituciones Locales de Euskadi incorpora un catálogo propio de derechos y deberes de los vecinos que complementa los establecidos por la legislación estatal básica de régimen local. Este catálogo supone la actualización de determinados aspectos del estatuto del vecino a la sociedad vasca del siglo XXI que debe valorarse como un avance legislativo. Por sus características propias, algunos de los derechos no se limitan a los vecinos del municipio sino que se extienden a la ciudadanía en general. Entre las novedades a resaltar podemos mencionar una concepción más amplia de la participación, que no se limita a la mera gestión municipal, sino que se refiere a las políticas públicas locales. Puede subrayarse, además, la incorporación de la noción de discriminación múltiple que permite una mejor cobertura para luchar contra este tipo de discriminaciones. En el derecho de acceso a los servicios públicos también se añade la noción de servicios de interés general en la línea de la Carta de Derechos Fundamentales de la Unión Europea. También debe destacarse un catálogo más completo que el estatal de los deberes que permita avanzar hacia una sociedad más responsable. Como aspectos que, en cambio, podrían profundizarse estaría el establecimiento de mecanismos de garantía y aseguramiento del cumplimiento de estos derechos y deberes. En cualquier caso, en este ámbito se trata de una ley pionera y de referencia. ABSTRACT: The Act of Local Entities in Euskadi incorporates its own catalogue of rights and duties of neighbours that supplements those established by the Basic State legislation on local regime. This catalogue means an update of some specific aspects of the statute for the neighbourhood in Basque society in XXI century which as to be assessed as a legislative advance. Because of their characteristics, some of the rights are not confined to the municipality neighbours and cover citizenship in general. Among the novelties to be highlighted, we may mention a broader concept of participation which does not confine itself in the mere municipal management but that refers to the local public policies. It is worth noting besides that the incorporation of the idea of multiple discrimination allows a better coverage for fighting against these discriminations. In the right of access to public services it is also added the notion of general interest services in the context of the Charter of Fundamental Rights of the European Union. It must also be highlighted a more complete catalogue of duties of that of the State that may lead to a more responsible society. As aspects that in contrast may be enhanced could be the establishment of mechanisms of guarantee and assurance of the fulfilling of those rights and duties. In any case, this act is in this area pioonering and baseline.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

scholarly journals The Principle of Sustainable Development as the Basis for Weighing the Public Interest and Individual Interest in the Scope of the Cultural Heritage Protection Law in the European Union

2021 ◽  
Vol 13 (7) ◽  
pp. 3985
Author(s):  
Adam Kozień
Keyword(s):  
European Union ◽  
Sustainable Development ◽  
Cultural Heritage ◽  
Public Interest ◽  
Legal Protection ◽  
Individual Interest ◽  
The European Union ◽  
European Union Law ◽  
Environmental Aspect ◽  
The Public

The concept of sustainable development is widely used, especially in social, environmental and economic aspects. The principle of sustainable development was derived from the concept of sustainable development, which appears in legal terms at the international, EU, national and local levels. Today, the value of cultural heritage that should be legally protected is indicated. A problematic issue may be the clash in this respect of the public interest related to the protection of heritage with the individual interest, expressed, e.g., in the ownership of cultural heritage designates. During the research, scientific methods that are used in legal sciences were used: theoretical–legal, formal–dogmatic, historical–legal methods, as well as the method of criticism of the literature, and legal inferences were also used. The analyses were carried out on the basis of the interdisciplinary literature on the subject, as well as international, EU and national legal acts—sources of the generally applicable law. Research has shown that the interdisciplinary principle of sustainable development, especially from the perspective of the social and auxiliary environmental aspect, may be the basis for weighing public and individual interests in the area of legal protection of cultural heritage in the European Union. It was also indicated that it is possible in the situation of treating the principle of sustainable development in terms of Dworkin’s “policies” and allows its application not only at the level of European Union law (primary and secondary), but also at the national legal orders of the European Union Member States.

Within the Public-Private Divide. Right to Housing and Consumer Law in Recent European Private Law Trends

Global Jurist ◽  
2018 ◽  
Vol 19 (2) ◽  
Author(s):  
Rocco Alessio Albanese
Keyword(s):  
Fundamental Rights ◽  
Private Law ◽  
The European Union ◽  
The Public ◽  
Consumer Law ◽  
Charter Of Fundamental Rights ◽  
Recent Trends ◽  
New Perspective ◽  
The Right ◽  
Protection Of Right

Abstract This paper intends to discuss some major European legal issues by building on the critique of a certain narrow relevance of human basic needs, according to traditional Western legal conceptions of the subject as well as of the public-private divide. In particular it aims at verifying the potentiality of consumer law for rethinking the right to housing, within recent trends of European Private Law, by adopting a remedial approach. For this reason the paper analyzes three well-known cases decided by the Court of Justice of the European Union (CJEU) – namely Aziz, Sanchez Morcillo and Kušionová – as examples of this meaningful trend. Through the combination of the fairness test over contractual terms with the criteria of effectiveness and proportionality, a broader protection of right to housing is recognised even in horizontal private relationships. Art. 7 of the EU Charter of Fundamental Rights (CFREU) could represent the constitutional reference for this new perspective. The paper also intends to show how the relevance of the basic need for housing is traced to debtor's families. CJEU's interpretative itinerary seems to start from a fairness test about contractual terms, but eventually comes to give protection to subjective situations that are even out of the domain of the contract.

Human rights restrictions during the COVID-19 pandemic in Poland and Russia. Legal and comparative aspects

2021 ◽  
Vol 2(24) ◽  
pp. 323-340
Author(s):  
Marta Pietras-Eichberger
Keyword(s):  
Public Health ◽  
European Union ◽  
Human Rights ◽  
Public Interest ◽  
The European Union ◽  
Human Rights Law ◽  
The Public ◽  
Safety And Health ◽  
Research Problems ◽  
The Impact

The study analyzed selected issues related to the scope of human rights and freedoms during the COVID-19 pandemic in Poland and Russia. The author wanted to compare the regulations issued by a Member State of the European Union and a country outside the European Union, often using undemocratic methods of exercising power. The work focuses on research problems related to the principles of protection, the confrontation of individual interests with the public interest, and the impact of the regimes introduced during the COVID-19 pandemic on human rights law in both countries. The thesis of the study is that in the event of a threat to public health, analogous restrictions on human rights are introduced both in an undemocratic country and in a country belonging to international structures identifying with democratic values. The state of the COVID-19 pandemic has exposed, and in some area even contributed to the creation of mechanisms reserved for crisis situations, posing a direct and real threat to public safety and health.

The Right to Healthcare in the Common European Asylum System

2018 ◽  
Vol 20 (2) ◽  
pp. 135-156
Author(s):  
Marco Inglese
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Undocumented Migrants ◽  
The European Union ◽  
Common European Asylum System ◽  
The Common ◽  
Interpretative Approach ◽  
The Right

Abstract This article seeks to ascertain the role of healthcare in the Common European Asylum System (CEAS). The article is structured as follows. First, it outlines the international conceptualisation of healthcare in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC) before delving into the European Convention on Human Rights (ECHR). Second, focusing on the European Union (EU), it analyses the role of Article 35 of the Charter of Fundamental Rights of the European Union (the Charter) in order to verify its impact on the development of the CEAS. Third, and in conclusion, it will argue that the identification of the role of healthcare in the CEAS should be understood in light of the Charter’s scope of application. This interpretative approach will be beneficial for asylum seekers and undocumented migrants, as well as for the Member States (MSs).

scholarly journals Application of Brussels II bis regulation in exercising the right of access to a child by extended family members

2021 ◽  
Vol 60 (90) ◽  
pp. 189-205
Author(s):  
Radmila Dragišić
Keyword(s):  
European Union ◽  
International Law ◽  
Hague Convention ◽  
Private International Law ◽  
The European Union ◽  
Parental Responsibility ◽  
The Hague ◽  
The Right ◽  
The Hague Convention ◽  
Right Of Access

In this paper, the author explores the sources of European Union Law that regulate one segment of parental responsibility - the right of access to a child. The focal point of research is the transition from the conventional (interstate) regulation of judicial cooperation in marital disputes and parental responsibility issues to the regulation enacted by the European Union institutions, with specific reference to the Brussels II bis Regulation. First, the author briefly points out to its relationship with other relevant international law sources regulating this subject matter: the Hague Convention on the Civil Aspects of International Child Abduction; the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in the Field of Parental Responsibility and Measures for the Protection of Children; and other international sources of law. Then, the author examines in more detail its relationship with the Brussels II bis recast Regulation, which will be applicable as of 1 August 2022. In addition, the paper includes an analysis of the first case in which the Court of Justice of the European Union (CJEU) decided on the application of the Brussels II bis Regulation, at the request of granparents to exercise the right of access to the child. On the issue of determining the competent court which has jurisdiction to decide on how this right shall be exercised, the CJEU had to decide whether the competent court is determined on the basis of the Brussels II bis Regulation or on the basis of national Private International Law rules. This paper is useful for the professional and scientific community because it deals (inter alia) with the issue of justification of adopting a special source of law at the EU level, which would regulate the issue of mutual enforcement of court decisions on the right of access to the child. This legal solution was proposed by the Republic of France, primarily guided by the fundamental right of the child to have contact with both parents.

scholarly journals The right to peaceful enjoyment of property and the security measure of the forfeiture of cash in the jurisprudence of the Serbian Constitutional Court: Certain uncertainty

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Public Interest ◽  
Cash Transfer ◽  
Constitutional Court ◽  
The Public ◽  
Cross Border ◽  
Security Measure ◽  
European Court ◽  
The Right

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.

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