scholarly journals ‘Unchartered’ waters: fundamental rights, Brexit and the (re)constitution of the employment law hierarchy of norms

2020 ◽  
pp. 203195252091106
Author(s):  
Niall O’Connor
Keyword(s):  
Employment Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Strong Basis ◽  
The United Kingdom ◽  
Domestic Legislation ◽  
Charter Of Fundamental Rights ◽  
Employment Rights ◽  
Key Terms

The decision of the British people to leave the European Union (EU) raises foundational questions for many legal fields. The effects are especially likely to be felt within domestic employment law, which now has a strong basis in EU law. Of particular concern is the removal of the nascent EU fundamental employment rights influence over domestic legislation. Employment lawyers have long relied on fundamental rights as a means of preserving the autonomy of their subject from general private law. One manifestation of this turn to fundamental rights concepts has been the ‘constitutionalisation’ of employment rights. EU law, notably the Charter of Fundamental Rights, has become a key underpinning of this constitutionalisation process. This article considers the effects of the constitutionalisation in the United Kingdom employment sphere of some of the rights found in the Charter’s Solidarity Title, through its role in the emergence of a hierarchy of sources or ‘norms’ in the employment field. In order to address the question of the Charter’s influence on the hierarchy of sources in the employment context, three interrelated processes are examined. The article begins by exploring the ‘constitutionalisation’ process, by setting out the nature of the Charter and the effects of its employment rights on the hierarchy of sources. This is followed by a consideration of the ‘deconstitutionalisation’ process brought about by Brexit, before finally examining whether a potential ‘reconstitutionalisation’ process might be underway by looking at key terms of the EU (Withdrawal) Act 2018 and the potential to replicate the Charter in domestic law.

Fundamental Rights Protection between Strasbourg and Luxembourg

2018 ◽  
Author(s):  
Katalin Ligeti
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
Individual Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Grand Chamber

Since long before the entry into force of the Charter of Fundamental Rights of the European Union (CFREU), the two highest courts in Europe, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have sought to develop their respective jurisprudence in such a way as to ensure a strong protection of individual rights, whilst avoiding clashes between the decisions taken in Luxembourg and Strasbourg. An important statement in this regard is provided by the Bosphorus judgment, in which the Grand Chamber of the ECtHR recognised the existence of a presumption of equivalent protection of fundamental rights under EU law. The presumption is rebuttable, but expresses the trustful attitude (and a certain degree of deference) of Strasbourg towards the ability of EU law (and of the CJEU) to protect Convention rights.

THE RIGHT TO VOTE AS AN EU FUNDAMENTAL RIGHT AND THE EXPANDING SCOPE OF APPLICATION OF THE EU CHARTER OF FUNDAMENTAL RIGHTS

2016 ◽  
Vol 75 (1) ◽  
pp. 24-27 ◽  
Author(s):  
Alexander Kornezov
Keyword(s):  
European Parliament ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Council Decision ◽  
Universal Suffrage ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
Right To Vote ◽  
The Right

IS the right to vote in European Parliament elections a matter for EU law? Until recently, the answer to this query seemed to be a clear “no”. Indeed, while Article 223(1) of the TFEU does confer on the European Union the competence to lay down a uniform procedure for the election of Members of the European Parliament (“MEPs”), this competence has not been exercised so far. Consequently, Article 8 of the Act concerning the election of the MEPs by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom (OJ 1976 L 278 p. 1, henceforth “the 1976 Act”), provides that the “electoral procedure shall be governed in each Member State by its national provisions”. Apart from the general principles of “direct universal suffrage in a free and secret ballot” and of non-discrimination on the ground of nationality, enshrined respectively in Article 14(3) of the TEU, Article 1(3) of the 1976 Act, and Article 20(2)(b) of the TFEU, there is nothing in EU law that governs specifically the eligibility to vote in EP elections.

“Not Taking Rights Seriously”. Opting for the Primacy of eu Law over Broader Human Rights Protection

2015 ◽  
Vol 4 (2) ◽  
pp. 277-302
Author(s):  
Fisnik Korenica ◽  
Dren Doli
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
The Relationship

The European Union (eu) accession to the Convention for the Protection of Human Rights and Fundamental Freedoms (echr) has been a hot topic in the European legal discourse in this decade. Ruling on the compliance of the Draft Agreement on eu accession to the echr with the eu Treaties, the Court of Justice of the eu (cjeu) came up with a rather controversial Opinion. It ruled that the Draft Agreement is incompliant with the eu Treaties in several respects. One of the core concerns in Opinion 2/13 relates to the management of horizontal relationship between the eu Charter of Fundamental Rights (ChFR) and echr, namely Article 53 ChFR and Article 53 echr. The article examines the Opinion 2/13’s specific concerns on the relationship between Article 53 ChFR and Article 53 echr from a post-accession perspective. It starts by considering the question of the two 53s’ relationship from the eu-law autonomy viewpoint, indicating the main gaps that may present a danger to the latter. While questioning from a number of perspectives the plausibility of the cjeu’s arguments in relation to the two 53s, the article argues that the Court was both controversial and argued against itself when it drew harshly upon these concerns. The article also presents three options to address the cjeu’s requirements on this issue. The article concludes that the cjeu’s statements on the two 53s will seriously hurt the accession project, while critically limiting the possibility of Member States to provide broader protection.

scholarly journals Business Freedoms and Employment Rights in the European Union

2015 ◽  
Vol 17 ◽  
pp. 189-209 ◽  
Author(s):  
Jeremias PRASSL
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Working Time ◽  
The European Union ◽  
Future Challenges ◽  
Charter Of Fundamental Rights ◽  
Employment Rights

AbstractIn this article, I explore the substance and operation of Article 16 of the European Union’s Charter of Fundamental Rights, which recognises ‘the freedom to conduct a business’, in order to determine the extent to which the constitutionalisation of commercial interests as fundamental rights could pose a threat to the Union’s worker-protective acquis. Having surveyed three important Directives which regulate employees’ rights in transfers of undertakings, collective redundancies, and the organisation of working time, I argue that future challenges based on Article 16 CFR are unlikely to succeed: even in situations where the Directives limit employers’ economic freedoms, such interference is justified and proportionate.

Twenty years later: Application of the Charter of Fundamental Rights of the European Union as an Anthropocentric and Innovative Document

2021 ◽  
Vol 23 (129) ◽  
pp. 23
Author(s):  
Angelo VIGLIANISI FERRARO ◽  
Goran Ilik
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Legal Obligation ◽  
Eu Law ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
Fundamental Rights And Freedoms ◽  
The Guardian ◽  
The Eu

The paper analyzes the legal content and scope of the norms of the Charter of Fundamental Rights of the EU and their meaning and application as a para-constitutional document of anthropocentric and innovative nature in the last twenty years. Special attention is paid to the place and role of the CJEU as a judicial body in charge of implementing and harmonizing EU law. The article also deals with the possibility of direct application of the norms of the Charter, both vertically and horizontally. In addition, the paper cites the CJEU case law to confirm the thesis that it must undertake a moral and legal obligation in order to impose itself not only as a creator of legal doctrines but also as the guardian of the fundamental rights and freedoms of the EU.

9. Fundamental rights in the EU

2020 ◽  
pp. 240-268
Author(s):  
Sylvia de Mars
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
Council Of Europe ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Human Rights Act ◽  
The Eu

This chapter traces the development of EU law-based fundamental rights, from early Court of Justice of the European Union (CJEU) case law up to the Charter of Fundamental Rights. It considers the EU's relationship with the Council of Europe, focusing on how the CJEU and the European Court of Human Rights (ECtHR) attempt to avoid conflicting interpretations of overlapping rights, and whether the EU can in fact sign up to the European Convention on Human Rights (ECHR). It is important to remember that the ECtHR and the ECHR are not part of EU law. The ECHR is an international human rights treaty administered by the Council of Europe. It is applied and interpreted by the ECtHR, and is transcribed into UK law in the form of the Human Rights Act 1998. The EU, meanwhile, has the Charter of Fundamental Rights as its human rights ‘treaty’. The chapter then looks at the relationship between the CJEU and the ECtHR, and examines post-Brexit fundamental rights.

Judicial Review of Economic Policy: The EU Courts

2020 ◽  
pp. 204-244
Author(s):  
Menelaos Markakis
Keyword(s):  
Economic Policy ◽  
Fundamental Rights ◽  
Ripple Effect ◽  
Eu Law ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
Almost All ◽  
The Eu

This chapter seeks to unpack access to EU courts in the area of EMU, the emphasis being on the challenges facing austerity-hit litigants wishing to put their substantive case before the Court of Justice of the European Union (CJEU). The discussion will proceed as follows. First, it will be shown that aggrieved individuals might not always be able to locate a formally binding EU law measure which could form the basis of a direct or indirect challenge before the EU courts. Second, it will be seen that the judicial doors to an Article 263 TFEU challenge (action for annulment) are, nevertheless, firmly shut as most private persons will not be able to overcome the admissibility hurdles of direct and individual concern. Third, almost all Article 267 TFEU challenges (preliminary reference) have so far been declared inadmissible, which begs the question as to the legal quality of the bailout terms and its ripple effect on the scope of application of the EU Charter of Fundamental Rights. Fourth, though aggrieved individuals could in principle bring an Article 340 TFEU action for damages before the EU courts, litigants are likely to face an uphill struggle in trying to convince the CJEU that the relevant requirements for liability of the EU institutions for damages for breach of EU law were met. The final section of this chapter will focus on the scope of application of the EU Charter, which has formed the basis of many (unsuccessful, thus far) challenges to austerity measures.

Briefly Noted

2021 ◽  
Vol 60 (3) ◽  
pp. 528-529
Keyword(s):  
European Union ◽  
Prime Minister ◽  
Selection Process ◽  
National Court ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Background Checks ◽  
Judicial Appointments ◽  
Charter Of Fundamental Rights

On Tuesday, April 20, the Court of Justice of the European Union (CJEU) ruled in Case C-896/19, Repubblika v. Il-Prim Ministru that Malta's system for appointing judges did not contradict EU law. As reported by JURIST, the ruling went before the national court when Repubblika, an association created to promote the rule of law in Malta, had challenged the procedure, which was provided by the Constitution of Malta. The process in the Maltese Constitution stated that judiciary members are appointed by the president acting under the advisement of the prime minister. However, appointees must satisfy certain conditions and are subject to background checks or other examinations by the Judicial Appointments Committee, whose purpose is to assess candidates and provide feedback to the prime minister. The national court brought this to the CJEU to decide whether this system was constitutional under EU law, specifically under Article 19(1) of the Treaty on European Union, in light of Article 47 of the EU Charter of Fundamental Rights, which states that member states must provide conditions for a fair, independent, and impartial trial to ensure true justice. The court reached the conclusion that this practice was not prohibited by EU law because, in order to guarantee conditions of judicial independence and impartiality, procedures must exist to ensure that appointees are free from influence from the legislature and/or executive with regard to judiciary proceedings. The Court found that power of the prime minister to submit a candidate that was not suggested by the Judicial Appointments Committee was not contrary to EU law because of various safeguarding measures included in the Constitution. The Court held: “Inasmuch as the Prime Minister exercises that power only in quite exceptional circumstances and adheres to strict and effective compliance with that obligation to state reasons, that power is not such as to give rise to legitimate doubts concerning the independence of the candidates selected” (para. 71). Therefore, the Court concluded that the national provisions at issue do not give rise to any legitimate uncertainties, or doubts of independence, regarding the chosen judiciary candidates.

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