scholarly journals From the pandemic to the recovery: a legal analysi

2021 ◽  
Vol 69 (2) ◽  
pp. 185-227
Author(s):  
Biancamaria Raganelli ◽  
Pierre de Gioia Carabellese
Keyword(s):  
Conflicts Of Interest ◽  
Fundamental Rights ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Scientific Debate ◽  
Court Of Justice ◽  
European Court ◽  
Fundamental Rights And Freedoms ◽  
The Relationship

The Covid pandemic has raised various legal issues, fueling the scientific debate on the relationship between fundamental rights and freedoms in the global emergency context. Moreover, a case law has started developing within the different jurisdictions. Additionally, constitutional Courts, in different countries, have ruled over potential conflicts of interest among central powers and local ones, and even some decisa of the Court of Justice of the European Union have started “blossoming” in this area. Against the backdrop of this analysis, the paper discusses the main legal problems sparked off by the declaration of the state of emergency, with a focus on the main EU jurisdictions and with glimpses of non-EU countries. The aim of this is to discuss the balance between fundamental rights and liberties in decisa in different legal systems, as well as the interpretation given to principles of proportionality of the public health measures, adequacy, precaution and loyal collaboration and the relationship between freedom and limits to public power. Bearing this in mind, the purpose of the work is to demonstrate that, first and foremost, in Europe there is room for both a formal and a substantial recognition of common rights and liberties in terms of interpretation and application of constitutional traditions, shared by the different Member States. The relevant adherence to these principles is guaranteed by the European Court of Justice. Second, the recovery after the pandemic is an open challenge. An important opportunity for Europe and its Member States is materialising, and this is to take a step forward on the bumpy path toward a European Political Union capable of strengthening a structure weakened by several earthquakes. A path and a project still plenty of pitfalls that needs to regroup around a central core increasing unification among European peoples (art. 1 TEU), which has never meant to be an alternative to national identity. Received: 24.11.2021Accepted: 13.12.2021

Countering Anti-Constitutional Argument: The Reasons for the European Court of Justice’s Decision in Kadi and Al Barakaat

2009 ◽  
Vol 11 ◽  
pp. 15-51 ◽  
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
International Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Constitutional Courts ◽  
Public International Law ◽  
European Court ◽  
Un Security Council ◽  
Failure To Protect ◽  
Ec Law ◽  
The Relationship

AbstractThis chapter examines the recent decision by the European Court of Justice in Kadi and Al Barakaat International Foundation. It is a response to criticism that the ECJ’s judgment, in providing for the review of EC measures implementing UN Security Council resolutions, undermines the authority of public international law. Instead of committing itself to international law and institutions at all cost, the ECJ concerns itself with the constitutional repercussions from national constitutional courts (in the case of failure to protect fundamental rights). Important as the relationship between EC law and international law is, there is a clear sense that the ECJ is responsible to, and will ultimately be held to account by, the courts and constitutions of the Member States of the European Union.

Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared

2013 ◽  
Vol 15 ◽  
pp. 383-415 ◽  
Author(s):  
Christopher McCrudden
Keyword(s):  
European Union ◽  
Human Rights ◽  
Normative Theory ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship

AbstractThis chapter examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

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.

The European Court of Justice and Citizenship of the European Union: New Developments Towards a Truly Fundamental Status

ICL Journal ◽  
2011 ◽  
Vol 5 (4) ◽  
Author(s):  
Michaela Hailbronner ◽  
Sara Iglesias Sánchez
Keyword(s):  
Fundamental Rights ◽  
European Court Of Justice ◽  
The European Union ◽  
New Developments ◽  
Court Of Justice ◽  
European Court ◽  
New Development ◽  
The Status ◽  
The Relationship ◽  
Eu Fundamental Rights

AbstractIn two recent, revolutionary decisions, - Janko Rottmann C-135/08 and Ruiz Zambrano C-34/09 - the European Court of Justice has firmly emancipated the status of citizenship of the Union from the “cross-border” requirement and has inaugurated a new area for the protection of rights closely linked to the core of sovereignty of States, - nationality and residence. This Article examines these two judgments and argues that they take the construction of citizenship towards a federal status. The “genuine enjoyment of the substance of citizenship rights” has emerged as a new legal category that is capable of providing a uniform and general protection and entails the affirmation of a core of rights of a supranational nature. This new development raises questions as to whether the ECJ's expansionist reading of citizenship constitutes a legitimate exercise of judicial power and as to what will be the relationship between citizenship and EU fundamental rights. We conclude by exploring the potential of the judgments analyzed in terms of placing Union citizenship at the center of the emergence of a constitutional patriotism in Europe.

Decision 22/2016. (XII. 5.) AB on the Interpretation of Article E)(2) of the Fundamental Law

2017 ◽  
Vol 111 (2) ◽  
pp. 468-475 ◽  
Author(s):  
Ágoston Mohay ◽  
Norbert Tóth
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court ◽  
Fundamental Law

In a case of first impression, the Constitutional Court of Hungary (CCH or Court) ruled on November 30, 2016 that, in exceptional cases, it is competent to consider whether Hungary's obligations to the European Union (EU) violate fundamental individual rights (including human dignity) or Hungarian sovereignty as protected by the Hungarian Constitution. The decision places Hungary squarely within the growing group of EU member states whose constitutional courts have decided that, despite the decisions of the European Court of Justice regarding the primacy of EU law, EU member states are not compelled to violate their domestic constitutional obligations in carrying out their shared EU commitments.

scholarly journals Data eetention in CJEU Case Law

2020 ◽  
Vol 54 (4) ◽  
pp. 1231-1252
Author(s):  
Tatjana Bugarski ◽  
Milana Pisarić
Keyword(s):  
Personal Data ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Data Retention ◽  
Electronic Communications ◽  
Member States ◽  
Court Of Justice ◽  
Fundamental Rights And Freedoms ◽  
The Right

Possession of accurate, complete and reliable relevant data on electronic communications traffic and timely access of authorized competent state bodies to such data is without a doubt a useful tool in the fight against modern forms of crime. For that reason, it is justified to establish an obligation for providers of electronic communications services to keep certain data on communications for a certain period of time in the realization of which they mediate and to hand over that data at the request of authorized state bodies, in order to use them for legitimate purposes. For this reason, the Data Retention Directive was adopted in 2006, which Member States were required to transpose into national law. However, data retention poses a risk to basic human rights and freedoms, if the regulation establishing this obligation does so without respecting the essence of these rights and freedoms, especially the right to privacy and rights related to the processing of personal data, for which reason the Court of Justice of the European Union declared the Directive invalid is 2014. Despite this decision, Member States continue to regulate the obligation to retain data in their national regulations. In this regard, the question of compliance of these regulations with the fundamental rights and freedoms and principles of the Union is raised. The subject of the paper is the analysis of the case law of the Court of Justice of the EU on this issue after the annulment of the Data Retention Directive.

Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared

2013 ◽  
Vol 15 ◽  
pp. 383-415 ◽  
Author(s):  
Christopher McCrudden
Keyword(s):  
European Union ◽  
Human Rights ◽  
Normative Theory ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship

Abstract This chapter examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

scholarly journals ¿Es real el diálogo entre tribunales? Cuestión prejudicial y control de constitucionalidad por vulneración de derechos y libertades fundamentales

2017 ◽  
pp. 529
Author(s):  
Encarnación Roca Trías ◽  
Susana García Couso
Keyword(s):  
Fundamental Rights ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
National Constitution

Es de sobra conocida la tensión existente entre los Tribunales Constitucionales de los Estados miembros y el Tribunal de Justicia de la Unión Europea a raíz del planteamiento de cuestiones prejudiciales ante el TJUE en supuestos en los que, aunque el asunto se plantee como una cuestión interpretativa del derecho de la Unión, comprende, además, un problema de derechos fundamentales susceptibles de ser controlados, también, constitucionalmente. Ambos procedimientos terminan con una decisión de compatibilidad con los derechos fundamentales. Este artículo pretende hacer una reflexión acerca de los problemas que suscita el hecho de que dos Tribunales —TJUE y TC— competentes en materia de protección de derechos fundamentales, y, al mismo tiempo, interpretadores de un mismo ordenamiento jurídico, puedan emitir juicios paralelos sobre una misma norma que ha sido sometida a su control y con parámetros diferentes de control: la Carta de Derechos Fundamentales de la Unión Europea y la Constitución.This paper purports to reflect on the complex issues that arise from the fact that both the European Court of Justice and the national constitutional court have the power to adjudicate on fundamental rights and that, therefore, on the basis of the application of different rules — the Charter of Fundamental Rights of the European Union and the national Constitution — they can occasionally arrive at different decisions. National courts are more and more aware of this dual avenue to challenge national regulations, through the preliminary reference to the ECJ and through the reference to the Constitutional Court of constitutional doubts with regard to national legislation. In consequence, national Constitutional Courts must accommodate into this new scenario.

Countering Anti-Constitutional Argument: The Reasons for the European Court of Justice’s Decision in Kadi and Al Barakaat

2009 ◽  
Vol 11 ◽  
pp. 15-51 ◽  
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
International Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Constitutional Courts ◽  
Public International Law ◽  
European Court ◽  
Un Security Council ◽  
Failure To Protect ◽  
Ec Law ◽  
The Relationship

AbstractThis chapter examines the recent decision by the European Court of Justice inKadi and Al Barakaat International Foundation. It is a response to criticism that the ECJ’s judgment, in providing for the review of EC measures implementing UN Security Council resolutions, undermines the authority of public international law. Instead of committing itself to international law and institutions at all cost, the ECJ concerns itself with the constitutional repercussions from national constitutional courts (in the case of failure to protect fundamental rights). Important as the relationship between EC law and international law is, there is a clear sense that the ECJ is responsible to, and will ultimately be held to account by, the courts and constitutions of the Member States of the European Union.

scholarly journals The Direct Applicability of SADC Community Law in South Africa and Zimbabwe: A Call for Supranationality and the Uniform Application of SADC Community Law

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Tshidi Phooko
Keyword(s):  
South Africa ◽  
International Law ◽  
Specific Reference ◽  
The European Union ◽  
East African ◽  
Member States ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship

The Southern African Development Community Tribunal (SADC Tribunal) became operational in 1992 and delivered several judgments against Zimbabwe. Some of those decisions are yet to be enforced. The attempt to enforce them contributed to the demise of the SADC Tribunal. The tension between community law and domestic law, international law and national law, and community law and international law is as old as the hills. The monist and dualist theories of international law assist in attempting to clarify the nature of the relationship between international law and municipal law. However, there is no guidance when it comes to community law and national law. This paper will explore on how SADC Community law can be applied uniformly by South Africa and Zimbabwe including all other SADC member states. This will be done through decided cases with specific reference to South Africa and Zimbabwe. In order to learn best practices from other jurisdictions, the paper will to the extent relevant, make reference to the East African Court of Justice, the European Union (EU) and the European Court of Justice (ECJ). The discourse will conclude by making a proposal for the adoption of a revised Protocol on the SADC Tribunal that will assist in clarifying the nature of the relationship between SADC Community law and national laws of SADC member states.

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