Effectiveness of EU law and protection of fundamental rights

2018 ◽  
Vol 9 (1) ◽  
pp. 24-30 ◽  
Author(s):  
Rosaria Sicurella
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Eu Law ◽  
Critical View ◽  
Court Of Justice ◽  
European Court ◽  
Significant Step ◽  
Principle Of Legality

The decision of the Court of Justice in the M.A.S. and M.B. case marks a very significant step forward in the Taricco saga. It clearly shows the intention of the European Court to tone down the confrontation with the Italian Constitutional Court, while at the same time maintaining the most relevant achievement of the decision in the Taricco case, that is to say the fact to consider Article 325 TFEU as having direct effect. The author expresses quite a critical view on the solution adopted by the ECJ which finally results in a sort of “flexibilization” of the principle of legality at EU level in order to meet some of the claims by the Italian Constitutional Court. In the author's opinion, such a solution risks to undermine the overall coherence and soundness of the protection of fundamental rights at EU level, although it can appear at a first glance to boost the legality principle. A better solution could have been to develop a different reasoning relying on rights in the Charter other that the nullum crimen principle, and avoid to touch at the well-established scope of this principle as established in Article 49 Charter and also in Article 7 of the European Convention on Human Rights.

The Accession of the European Union to the European Convention on Human Rights Four Years after Opinion 2/13: Should We Lose Hope?

2019 ◽  
Vol 9 (2) ◽  
pp. 222-250
Author(s):  
Anna Francesca Masiero
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
Principle Of Legality

The accession of the European Union to the European Convention on Human Rights is an issue frequently addressed by (not only internationalist) legal scholars, who stress that it would allow for an optimisation of the level of protection of fundamental rights in the European legal area. After reviewing the historical stages of accession, this paper focuses on the second opinion of the Court of Justice regarding it (Opinion 2/13 of 2014). Therein, accession is presented as an unattainable goal, probably because of the refusal of the Court of Justice to submit to the other European court, the Strasbourg Court of Human Rights. Subsequently, the paper reviews the possible effects of accession on the current legal scenario with special attention to the Italian legal system. Finally, it aims at figuring out how accession could affect criminal matters: in particular, by means of an example concerning the principle of legality, the purpose is to demonstrate how accession could lead to an improvement of the criminal guarantees of the European legal area.

scholarly journals Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights

2020 ◽  
Vol 9 (1) ◽  
pp. 5-23
Author(s):  
Marija Daka
Keyword(s):  
European Union ◽  
Human Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Complex Approach

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.

scholarly journals La tutela judicial de los derechos fundamentales en el ámbito de aplicación nacional del derecho de la Unión Europea : recientes acotaciones del Tribunal de Justicia y del Tribunal ConstitucionalEspañol = The judicial protection of fundamental rights in the sphere of the national application of EU law : recent remarks by the Court of Justice and by the Spanish Constitutional Court

2013 ◽  
pp. 391
Author(s):  
Juan Ignacio Ugartemendia Eceizabarrena
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
National Standards ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
El Sistema ◽  
Judicial Protection ◽  
The Eu

Este artículo es un estudio relativo a la tutela judicial de los Derechos Fundamentales cuando se aplica Derecho de la Unión en el ámbito interno, y a cuáles son los principales problemas con los que se topa el Juez nacional que aplica el Derecho de la Unión al llevar a cabo dicha función protectora. El trabajo, dicho de forma más concreta, se centra en el examen de una serie de recientes y decisivas resoluciones jurisdiccionales, dictadas tanto por parte del Tribunal de Justicia de la Unión Europea como por parte del Tribunal Constitucional Español, que analizan problemas y señalan soluciones relativas a esas cuestiones, además de mostrar cuál es la evolución y el estado de la situación al respecto. Se trata de resoluciones que abordan cuestiones de fondo, como, por ejemplo: ¿hasta qué punto es posible utilizar estándares nacionales de protección de los Derechos Fundamentales en situaciones conectadas con el Derecho de la Unión o con su aplicación, en lugar de utilizar el sistema de protección de los Derechos Fundamentales de la Unión Europea? Y asimismo, resoluciones que atienden a cuestiones de dimensión más procesal como la de dirimir hasta qué punto tiene autonomía el Juez nacional a la hora de plantear una petición prejudicial (se entiende a la hora de tutelar derechos reconocidos por normas de la Unión) en relación a las normas procesales nacionales.This article deals with the judicial protection of fundamental rights when EU Law is applied at national level and the main problems national judges have to deal with when applying EU Law as protectors of rights. More precisely, the work is focused on the examination of some recent and decisive judicial decisions, both by the European Court of Justice and by the Spanish Constitutional Court which analyze the problems and address the solutions to those questions besides showing the evolution and current situation in that regard. They are decisions that deal with the merits as for example to which extent it might be possible to use national standards of protection of fundamental rights in situations connected to EU Law or to its application instead of using the system of protection of EU human rights. Likewise, they are decisions which handle with more procedural questions as for example to what extent national judges are autonomous to file a preliminary question (it is understood that when it comes time to protect rights acknowledged by the EU) relative to national procedural rules.

The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma

2018 ◽  
Vol 11 (2) ◽  
pp. 55-84
Author(s):  
Max Vetzo
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Market Abuse ◽  
The Past ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem

The cases of Menci (C-524/15), Garlsson (C-537/16) and Di Puma (C-596/16 and C-597/16) deal with the duplication of criminal and punitive administrative proceedings for the same conduct in the area of VAT and market abuse. The Court of Justice of the European Union (CJEU) held that this duplication of proceedings constitutes a limitation of the ne bis in idem principle of Article 50 of the Charter of Fundamental Rights (Charter). This infringement is only justified if the requirements of the limitation clause of Article 52(1) of the Charter are met. The judgments were highly anticipated as they constitute the response of the CJEU to the judgment in A and B v Norway delivered by the European Court of Human Rights (ECtHR), in which the ECtHR lowered the level of protection afforded by the ne bis in idem principle of Article 4 of Protocol No. 7 to the European Convention of Human Rights (A4P7 ECHR). While there are differences between the approaches taken by both courts, it appears that the reasoning of the CJEU in the judgments largely mirrors that of the ECtHR in A and B v Norway. This article frames the judgments in terms of the dialogue between the CJEU and ECtHR on the ne bis in idem principle. It does so chronologically, by focusing on the past, present and future of the ne bis in idem dialogue between both European courts.

9 Article 13 EC: Mere Rhetoric or a Harbinger of Change?

1998 ◽  
Vol 1 ◽  
pp. 175-197
Author(s):  
Lisa Waddington
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
European Convention ◽  
Social Rights ◽  
The European Union ◽  
Advisory Committees ◽  
Court Of Justice ◽  
European Court

Since the signing of the Treaty on European Union in Maastricht in 1992, calls have gradually been increasing for a greater recognition of, and firmer foundation for, fundamental (social) rights within the European Union. These calls naturally became louder following the Opinion of the European Court of Justice excluding the possibility of EC accession to the European Convention of Human Rights and during the lead up to the Amsterdam Intergovernmental Conference. Academics, independent EU Advisory Committees, groups representing the interests of EU citizens and residents and the European Parliament lamented the almost complete absence of fundamental social rights in the Treaty, and called for an ambitious revision of the Treaty. To a large extent these calls went unheard in Amsterdam, and the new Treaty does not incorporate a comprehensive list of social fundamental rights.

Composing Europe’s Fundamental Rights Area: A Case for Discursive Pluralism

2015 ◽  
Vol 17 ◽  
pp. 210-246
Author(s):  
Louise HALLESKOV STORGAARD
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Normative Basis ◽  
The Relationship ◽  
The Eu

AbstractThis article offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13 and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

The Relationship Between the EU Charter of Fundamental Rights and the European Convention on Human Rights: an Originalist Analysis

2015 ◽  
Vol 11 (3) ◽  
pp. 482-511
Author(s):  
Stephen Brittain
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship

European Convention on Human Rights and the European Union Charter of Fundamental Rights: relationship – Teleological method of interpretation of the European Court of Justice: meaning, justifications, and criticisms – Originalist method of interpretation: meaning, justifications, and criticisms – Original meaning of Article 52(3) of the Charter: text, drafting history, case law – Conclusion: case law of European Court of Human Rights not strictly binding on the Court of Justice of the European Union.

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.

Grant v. South-West Trains: Some Comparative Observations

1999 ◽  
Vol 2 ◽  
pp. 125-148
Author(s):  
Nicholas Bamforth
Keyword(s):  
Human Rights ◽  
Sex Discrimination ◽  
County Council ◽  
Fundamental Rights ◽  
European Convention ◽  
Community Law ◽  
Court Of Justice ◽  
South West ◽  
European Court ◽  
Opposite Sex

In Grant v. South-West Trains, the European Court of Justice ruled that an employer’s refusal to grant an employee concessionary travel for her samesex partner on the company’s trains—when such a concession was readily available to employees with opposite-sex partners—did not constitute sex discrimination contrary to Article 141 of the EC Treaty. From the standpoint of Community law, the Grant decision has been criticised from a number of angles: for example, it has been suggested that the decision contains an ungenerous approach to the Community law principles of respect for fundamental rights and equality, that it is inconsistent with the Court’s earlier decision in P v. S and Cornwall County Council, and that—given the weight attached by the Court of Justice to European Convention on Human Rights case law—it has been undermined by the later decision of the European Court of Human Rights in Smith v. United Kingdom.

KILLING TWO BIRDS WITH ONE STONE? THE COURT OF JUSTICE'S OPINION ON THE EU'S ACCESSION TO THE ECHR

2015 ◽  
Vol 74 (2) ◽  
pp. 185-188 ◽  
Author(s):  
Eva Nanopoulos
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Political Agenda ◽  
Eu Law ◽  
Member States ◽  
Eu Member States ◽  
European Court ◽  
The Eu

ACCESSION to the European Convention on Human Rights (ECHR) has long been on the EU's political agenda. The EU's membership of the ECHR is not only seen as symbolically significant, but is also aimed at filling an important gap in the enforceability of human rights across Europe. At present, the EU cannot be brought before the European Court of Human Rights (ECtHR) and, while all EU Member States are parties to the ECHR, as long as the EU protects fundamental rights to a standard equivalent to that required under the ECHR, Member States cannot be held responsible for alleged violations of the Convention resulting from EU law either (Bosphorus v Ireland (2006) 42 E.H.R.R. 1).

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