scholarly journals Judicial Review of Administrative Action at National Level under the EU Charter of Fundamental Rights and General Principles of EU Law

2020 ◽  
Vol 18 (1) ◽  
pp. 25-49
Author(s):  
Mihaela Vrabie
Keyword(s):  
Judicial Review ◽  
National Level ◽  
Fundamental Rights ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Charter Of Fundamental Rights ◽  
The Impact ◽  
Eu Fundamental Rights ◽  
The Eu

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.  

Application of the EU CFR by National Courts in Purely Domestic Cases

2017 ◽  
Author(s):  
András Jakab
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Left Behind ◽  
National Courts ◽  
Domestic Courts ◽  
Local Courts ◽  
Domestic Level ◽  
The Eu

This chapter argues that the most promising way to conceptualize the values of European constitutionalism in a judicially enforceable manner is through a creative reinterpretation of Article 51(1) EU CFR. It asserts that in order to create a fully fledged value community which benefits all its citizens equally, the CFR should become fully applicable in every case in its own right—even in purely domestic cases in domestic courts and even in the absence of a systemic failure of fundamental rights protection at the domestic level. This would mean that judicial review would be introduced across Europe via the supremacy of EU law. This judicial review would be decentralized in the sense that local courts could exercise it, but its unified application would be ensured by the preliminary procedure. The EU could thus become a ‘community of fundamental rights’ with nobody left behind.

scholarly journals National Security Concerns as an Exception to EU Standards on Data Protection

2021 ◽  
Vol 4 (2) ◽  
pp. 86-91
Author(s):  
Araceli Turmo
Keyword(s):  
National Level ◽  
Significant Risk ◽  
Personal Data ◽  
Fundamental Rights ◽  
Public Security ◽  
Eu Law ◽  
National Courts ◽  
Conflicting Interests ◽  
Security Concerns ◽  
The Eu

Discussions on the appropriate fundamental rights standards in the EU and the need to take into account conflicting interests are increasingly being reframed as debates on the conflict between the primacy of EU law and the constitutional standards of the Member States. One example of this reframing is the French administrative supreme court’s decision following the ECJ judgment in La Quadrature du Net. The Conseil ruled that the EU standards set in that judgment must be reviewed, at the national level, with regard to a national understanding of security concerns and the requirements of the fight against terrorism. Thus, constitutional requirements related to public security may be relied upon to argue for a lower standard of protection of personal data than those which the ECJ requires. As this decision shows, the ability of corporations and Governments to rely on litigation before national courts to challenge the standard of protection set at the EU level creates a significant risk, not only for the uniformity of EU law, but also for the protection of the rights of individuals. 

scholarly journals Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten

2018 ◽  
Vol 28 ◽  
pp. 9-16
Author(s):  
Ivo Pilving
Keyword(s):  
National Level ◽  
National Court ◽  
Fundamental Rights ◽  
Parallel Analysis ◽  
Constitutional Rights ◽  
Eu Law ◽  
National Courts ◽  
Decisive Importance ◽  
Charter Of Fundamental Rights ◽  
National Constitution

Pursuant to its Article 51 (1), the EU Charter of Fundamental Rights covers the implementation of EU law. Since 2014, the Estonian Supreme Court has applied the assumption that the Charter, in principle, does not preclude parallel applicability of national-level fundamental rights in areas subject to EU law, although the primacy, unity, and effectiveness of EU law must not be compromised thereby. The Member State's margin of appreciation should not be considered a precondition for the relevance of national fundamental rights. Even mandatory norms of EU law, which inevitably require certain national measures (e.g., permission to use a piece of music for sampling as in CJEU case C-476/17: Pelham), do not exclude the applicability of constitutional rights (here, the composer's copyright), though these can justify their restriction. Hence, the relevant piece of EU legislation itself must be valid. The CJEU should follow the principle of constitutional plurality in dialogue with national courts when examining the validity of EU norms restricting national fundamental rights. A parallel analysis of the national constitution and Charter by the competent national court would assist the CJEU in issuing a preliminary ruling. The most favourable standard of the fundamental rights in sense of the Article 53 should not be determined on merely abstract terms. Instead, the results of parallel analysis in light of the pending case should be of decisive importance. One conclusion presented is that in cases of multipolar conflict, there remains the possibility that a even fundamental right of one person that is derived from a national constitution can sometimes justify infringement on the charter-based right of another if there is no secondary legal balance of legal positions. In addition, exceptional situations might exist wherein fundamental principles of national constitutions may be granted precedence over the effectiveness of EU law.

scholarly journals New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a turn to a Multi-layered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization

2017 ◽  
Vol 18 (3) ◽  
pp. 721-770 ◽  
Author(s):  
Jule Mulder
Keyword(s):  
National Level ◽  
Comparative Law ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
National Courts ◽  
Culturally Informed ◽  
Harmonization Process ◽  
Legal Harmonization ◽  
The Eu

This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States. In the first part, the article evaluates existing comparative law methods and their suitability to identify legal and cultural factors that influence the judicial reception of EU harmonized law on a national level. Using EU non-discrimination law as a case study, it questions to what extent traditional methods are suitable to explain differences in the national judicial reception of EU harmonized law, despite the exclusive competence of the Court of Justice of the European Union to interpret EU law. In doing so, it considers the potential of critical comparative law for the development of a deeper understanding of the national courts' reception of EU harmonized law as a key part of the broader legal harmonization process. In the second part, the article develops an original multi-layered culturally informed method to compare EU harmonized law. The proposal goes beyond the existing methods of comparative law by including critical aspects and stressing the relevance of embedding a general normative framework in any comparative critique. It challenges comparatists to reach deeply into national cultural spheres and to identify key influences on the application of EU rules and EU-national legal ‘hybrids’. The method creates room for multi-layered narratives of comparison aimed at gaining a deeper understanding of the national legal and non-legal cultural background that can hinder or facilitate harmonization processes. This enriched comparative critique can offer new insights into the process of legal harmonization in the EU, particularly by focusing on the point of application rather than the previous phases of creation of EU law and its reception by Member States.

12. Limiting Powers

2021 ◽  
pp. 451-496
Author(s):  
Robert Schütze
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Bill Of Rights ◽  
The European Union ◽  
Member States ◽  
National Courts ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
Eu Fundamental Rights

This chapter investigates each of the European Union’s three bills of rights and the constitutional principles that govern them. It starts with the discovery of an ‘unwritten’ bill of rights in the form of general principles of European law. The chapter then moves to an analysis of the Union’s ‘written’ bill of rights: the EU Charter of Fundamental Rights, which was adopted to codify already existing human rights in the Union legal order. It also considers the formal relationship between the European Union and the European Convention on Human Rights. Finally, the chapter explores the relationship between EU fundamental rights and the Member States. Despite being primarily addressed to the Union, EU fundamental rights can, in some situations, also bind the Member States (and even their nationals). National courts may thus sometimes be obliged to review the legality of national law in the light of EU fundamental rights.

The Competences of the Union

2018 ◽  
Author(s):  
Theodore Konstadinides
Keyword(s):  
Fundamental Rights ◽  
Active Part ◽  
Eu Law ◽  
Legal Systems ◽  
Member States ◽  
Rights Protection ◽  
Salient Features ◽  
The Impact ◽  
Vertical Level ◽  
The Eu

The object of this chapter is to examine the way in which competences are designed and delineated in EU law at the vertical level between the EU and the Member States and discuss their salient features. Over the years, EU competences have expanded, although not as meteorically as one may think. To alleviate concerns among Member States about the impact of EU competence enlargement upon national legal systems, a number of principles were designed to limit the powers of the EU. Having said that, there is hardly today an area of regulation in which the EU does not play an active part—from trade and energy to sport and fundamental rights protection.

scholarly journals The Impact of EU Law on Private Law - some thoughts on the impact of the non-discrimination principle on private autonomy

2013 ◽  
Vol 13 (1) ◽  
Author(s):  
Norbert Reich
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Private Law ◽  
Eu Law ◽  
Freedom Of Contract ◽  
Consumer Law ◽  
Charter Of Fundamental Rights ◽  
Private Autonomy ◽  
The Impact ◽  
The Eu

The paper discusses a new dimension of EU law, namely its impact on private law based on the principle of non-discrimination, thus deliberately going beyond concepts of autonomy and freedom of contract as recognised in all Member States and by the EU itself. Article 21 of the EU Charter of Fundamental Rights has �constitutionalised� this principle which originally found recognition in several EU directives on employment and consumer law analysed in this paper with a special regard to the growing case-law of the Court of Justice of the EU (ECJ).

12. Limiting Powers

2021 ◽  
pp. 451-496
Author(s):  
Robert Schütze
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Bill Of Rights ◽  
The European Union ◽  
Member States ◽  
National Courts ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
Eu Fundamental Rights

This chapter investigates each of the European Union's three bills of rights and the constitutional principles that govern them. It starts with the discovery of an ‘unwritten’ bill of rights in the form of general principles of European law. The chapter then moves to an analysis of the Union's ‘written’ bill of rights: the EU Charter of Fundamental Rights, which was adopted to codify already existing human rights in the Union legal order. It also considers the formal relationship between the European Union and the European Convention on Human Rights. Finally, the chapter explores the relationship between EU fundamental rights and the Member States. Despite being primarily addressed to the Union, EU fundamental rights can, in some situations, also bind the Member States (and even their nationals). National courts may thus sometimes be obliged to review the legality of national law in the light of EU fundamental rights.

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