scholarly journals Fundamental rights in the reasoning of Judge Cunha Rodrigues

2014 ◽  
pp. 45-52
Author(s):  
José Manuel Cabrita Vieira e Cunha
Keyword(s):  
Direct Effect ◽  
Case Law ◽  
Fundamental Rights ◽  
Common Market ◽  
The Political ◽  
Single Currency ◽  
Court Of Justice ◽  
Current Prevalence ◽  
Union Citizenship ◽  
The Relationship

Based on the writings of Judge Cunha Rodrigues, the author finds that due to the current prevalence of the case law of the Court of Justice on fundamental rights, the primordial establishment of the principles of primacy and direct effect. He draws attention to the functionalist consequences of the case law of the Court of Justice regarding the relationship between the Union and the Member States and the birth of the concept of Union citizenship, contributing to overcome what had once only aspired to be the construction of a common market. Finally, he notes the Union deadlock after the creation of the single currency, divided between developing the political project and the intergovernmental retreat, supported by national electorates.

The Limits of Free Circulation; The Torfaen Borough Council Case

1990 ◽  
Vol 3 (1) ◽  
pp. 57-63 ◽  
Author(s):  
Marc van der woude
Keyword(s):  
Free Trade ◽  
Direct Effect ◽  
Case Law ◽  
Common Market ◽  
Trade Liberalisation ◽  
Economic Activities ◽  
Court Of Justice ◽  
Borough Council ◽  
The Common ◽  
Broad Interpretation

The energetic implementation of the 1992 programme should not be allowed to put the contribution of the Court of Justice to the establishment of the Common Market in the shade. Its case law on the direct effect of Treaty provisions concerning the free circulation of persons, services and goods enables European workers and business-men to fight effectively against protectionism in the EEC Member States. The Court gives, moreover, a very broad interpretation to the prohibitions contained in these provisions and, reciprocally, a very restrictive interpretation to their exceptions. This approach leads to the removal of nearly every obstacle to free trade. Liberalisation has its limits however. Certain economic activities require regulation, even if it has restrictive effects.

Freedom to conduct a business and EU labour law

2018 ◽  
Vol 14 (1) ◽  
pp. 172-190 ◽  
Author(s):  
Stefano Giubboni
Keyword(s):  
Case Law ◽  
Alternative Interpretation ◽  
Fundamental Rights ◽  
Labour Law ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu ◽  
Social Europe

Critical-contextual analysis of case law of the European Court of Justice on employers’ contractual freedom – Fundamental right to be immunised against the alleged disproportional protection enjoyed by employees – Progressive ideological overthrow of the original constitutional assumptions of the founding treaties – Prominent example of ‘displacement of social Europe’ – Court of Justice’s case law on the relationship between freedom to conduct a business and labour law – Neoliberal understanding of the freedom of enterprise – Alternative interpretation of Article 16 of the EU Charter of 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.

scholarly journals Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the Court of Justice

2015 ◽  
Vol 11 (2) ◽  
pp. 321-356 ◽  
Author(s):  
Jasper Krommendijk
Keyword(s):  
Direct Effect ◽  
Judicial Review ◽  
Case Law ◽  
Fundamental Rights ◽  
Historical Background ◽  
Social Rights ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Eu

Historical background of the inclusion of social rights in the Charter of Fundamental Rights – Distinction between rights and principles – Similarities between the conditions for direct effect and the criteria for distinguishing between Charter rights and principles – Implications of this distinction for the possibilities of judicial review – Reluctance of the ECJ to explicitly deal with the distinction until Glatzel, as illustrated by its earlier judgments in Dominguez and AMS.

Akrich: A Clear Delimitation without Limits

2005 ◽  
Vol 12 (3) ◽  
pp. 241-252 ◽  
Author(s):  
Christophe Schiltz
Keyword(s):  
Member State ◽  
Case Law ◽  
Fundamental Rights ◽  
Free Movement ◽  
Reverse Discrimination ◽  
Citizenship Rights ◽  
Rights Protection ◽  
Union Citizenship ◽  
Relationship Of ◽  
The Relationship

In Akrich, the Court operated a clear delimitation of competences between Member State and Community level while at the same time protecting the fundamental rights of Union citizens, even in the absence of a deterrence to the exercise of their free movement rights. It is argued that it thereby contributes to the strengthening of Union citizenship rights. The article analyzes the relationship of the decision with existing case law, its impact on the fundamental rights protection in the Union and on reverse discrimination, as well as the implications for Member State competences. In conclusion, it will be argued that Akrich should be seen as a welcome development in the field of citizenship. It is however tainted by legal uncertainty surrounding its scope, which will have to be lifted in order for the decision to be an effective tool in the citizenship box.

Spelling It Out−Convergence and Divergence in the Judicial Dialogue between cjeu and ECtHR

2019 ◽  
Vol 88 (3) ◽  
pp. 429-458
Author(s):  
Amalie Frese ◽  
Henrik Palmer Olsen
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
The Other ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Content Search ◽  
Convergence And Divergence ◽  
The Relationship ◽  
The Eu

In this article we investigate the relationship between the Court of Justice of the European Union and the European Court of Human Rights as it manifests in explicit cross-references between the two Courts’ jurisprudence. The analysis detects cross-references, how they are used and indications of converge or divergence in the jurisprudence through their explicit citations and references. Our dataset consists of the entire corpus of judgments from both Courts from 2009 (when the EU Charter on Fundamental Rights came into force and until the end of 2016. On the basis of a content search for references to the other Court in both corpora we detect all their cross-references. We find that 1) the Courts’ use each other’s case law surprisingly little, but when they do, it is 2) primarily within the legal domains of criminal justice and immigration policies, and 3) displaying convergence towards the jurisprudence of the other Court.

Article 51 of the EU Charter of Fundamental Rights from the Perspective of the National Judge

2021 ◽  
Vol 13 (4) ◽  
pp. 53-85
Author(s):  
Petr Mádr
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
National Courts ◽  
Track Record ◽  
Court Of Justice ◽  
Relevant Case ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Eu ◽  
Academic Debate

This article contributes to the growing scholarship on the national application of the EU Charter of Fundamental Rights ('the Charter') by assessing what challenges national courts face when dealing with Article 51 of the Charter, which sets out the Charter's material scope of application. In keeping with this aim, the relevant case law of the Court of Justice of the EU (CJEU) – with its general formulas, abstract guidance and implementation categories – is discussed strictly from the perspective of the national judge. The article then presents the findings of a thorough study of the case law of the Czech Supreme Administrative Court (SAC) and evaluates this Court's track record when assessing the Charter's applicability. National empirical data of that kind can provide valuable input into the CJEU-centred academic debate on the Charter's scope of application.

scholarly journals The Horizontal Effects of Charter Rights Given Expression to in EU Legislation, from Mangold to Bauer

2019 ◽  
Vol 12 (2) ◽  
pp. 185-215
Author(s):  
Elise Muir
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Special Issue ◽  
Max Planck ◽  
Eu Legislation ◽  
Scope Of Application ◽  
Effective Remedy ◽  
The Right ◽  
The Relationship ◽  
Eu Fundamental Rights

This paper investigates the relationship between legislative provisions and fundamental rights by analyzing the Egenberger, IR, Bauer, Max-Planck and Cresco cases. This paper understands these cases as an invitation to reflect on whether, and if so, to what extent, EU fundamental rights' legislation, read in conjunction with the Charter, could have an impact on the scope of application, substance and/or legal effects of the Charter. This paper argues that the Court of Justice's recent case law can be understood as allowing for EU legislative guidance on fundamental rights to interact in an upward process with the rights enshrined in norms with the same rank as EU primary law. This paper sheds light on the constitutional implications of the overlaps between legislation and constitutional norms on fundamental norms while other contributions in this special issue address effectiveness and the right to an effective remedy in a broader sense.

scholarly journals EU Law’s Half-Hearted Protection of Religious Minorities Minority Specific Rights and Freedom of Religion for All

Religions ◽  
2021 ◽  
Vol 12 (10) ◽  
pp. 830
Author(s):  
Kristin Henrard
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Freedom Of Religion ◽  
Human Beings ◽  
Special Issue ◽  
Religious Minorities ◽  
Definition Of ◽  
Special Rights ◽  
The Relationship ◽  
The Eu

This article begins with some reflections on the definition of religious minorities, their needs and rights and how this relates to the discussion about the need for minority specific rights in addition to general fundamental rights as rights for all human beings irrespective of particular identity features. Secondly, an overall account of the ambiguous relationship between religious minorities and fundamental rights is presented. The third and most extensive section zooms in on the EU and religious minorities, starting with an account of the EU’s general approach towards minorities and then turning to the protection of fundamental rights of religious minorities in/through the EU legal order. First, the EU’s engagement with minority specific rights and the extent to which these norms have been attentive to religious themes will be discussed. Second, the CJEU’s case law concerning freedom of religion and the prohibition of dis-crimination as general human rights is analysed. The conclusion then turns to the overall perspective and discusses whether the EU’s protection of religious minorities’ fundamental rights can be considered ‘half-hearted’ and, if so, to what extent. This in turn allows us to return to the overall focus of the Special Issue, namely the relationship between the freedom of religion for all and special rights for religious minorities.

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