scholarly journals Freedoms or Rights? A Court Deciding While Comfortably Numb

2020 ◽  
Vol 3 (2) ◽  
pp. 58-81
Author(s):  
Lydia Kriki
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Freedom Of Movement ◽  
The Road ◽  
Economic Significance ◽  
Digital Era ◽  
Convincing Case ◽  
One Step ◽  
Treaty Of Rome

EU was quite a lot valiant back in 1957, when the Treaty of Rome established the dogma of free movement, paving the road for what was considered to be an economic integration. The dogma was founded on the principle of freedom relating to goods; and the subsequent EU Treaties strengthened the freedom of movement for services, persons and capital. However, they were not all the freedoms equally developed. For many years, it seemed that the European Union gave a fairly obvious advantage to the economic significance instead of focalizing on its people and the parameters of their needs. Subsequently, striking a balance between fundamental freedoms and fundamental rights has become a frequent exercise for the CJEU ever since, as well as a difficult puzzle. Bearing in mind that the digital era brings new challenges for both the circulation of commodities and the preservation of rights, the puzzle gets more and more complex: a tug-of-war between the tech-giants and our information privacy. By using the proportionality principle as its most effective weapon, the CJEU has built a convincing case-law, one step at time. However, does it really find the appropriate balance, or the conundrum is more complex than it seems? The present paper attempts to answer this question.

1. The origins of the European Union and EU law

2017 ◽  
Author(s):  
Elspeth Berry ◽  
Matthew J. Homewood ◽  
Barbara Bogusz
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
The European Union ◽  
Single European Act ◽  
Charter Of Fundamental Rights ◽  
History Of ◽  
Complete Series ◽  
Explanatory Text ◽  
Treaty Of Rome ◽  
The Eu

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the history of the European Union. It covers the historical rationale for the EU; the aims of the EU; the four stages of economic integration; economic and political difficulties; expansion of membership; institutional developments; legal developments; closer European integration; the Treaty of Rome (1957), the Single European Act (1986); the Treaty on European Union (1992); the Treaty of Amsterdam (1997); the Charter of Fundamental Rights; the Treaty of Nice (2001); the Treaty of Lisbon (2007); and the potential process for and impact of ‘Brexit’.

Living wages in international and European law

2019 ◽  
Vol 25 (3) ◽  
pp. 285-299 ◽  
Author(s):  
Reingard Zimmer
Keyword(s):  
Case Law ◽  
Subject Area ◽  
Fundamental Rights ◽  
Living Wage ◽  
Average Wage ◽  
European Law ◽  
The European Union ◽  
Living Wages ◽  
Charter Of Fundamental Rights ◽  
The Right

A number of countries worldwide provide for a statutory minimum wage. Generally speaking, however, it is not a living wage, although the right to a living wage is guaranteed in a variety of agreements under both international and European law. The Council of Europe’s European Social Charter (ESC), for example, codifies a living wage and, according to the case-law of its supervisory body, the level of 60 per cent of the net average wage is to be taken as the basis for appropriate remuneration. This article argues that the Charter of Fundamental Rights of the European Union also incorporates the right to a living wage, which should be at least 60 per cent of the net average wage. The Charter is legally binding for EU institutions, agencies and other bodies. Member States are bound only to the extent that the material scope of the relevant EU laws has been opened, which is the case when EU law is implemented or when obligations arising out of specific Union legislation are required for the relevant subject area, as will be explained in the article. In purely national situations nevertheless, values laid down in international law have to be observed when interpreting national laws.

Between Informal Dialogue and Official Criticism

2019 ◽  
Vol 21 (5) ◽  
pp. 409-420
Author(s):  
Anna Podolska
Keyword(s):  
European Union ◽  
Human Rights ◽  
Mutual Recognition ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

scholarly journals The Limits of Agencification in the European Union

2014 ◽  
Vol 15 (7) ◽  
pp. 1223-1255 ◽  
Author(s):  
Miroslava Scholten ◽  
Marloes van Rijsbergen
Keyword(s):  
European Union ◽  
Case Law ◽  
Lisbon Treaty ◽  
Democratic Legitimacy ◽  
The European Union ◽  
Member States ◽  
The Road ◽  
European Court ◽  
On The Road ◽  
The Eu

Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just releasedESMA-shortsellingcase. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice's lenient approach in theESMA-shortsellingcase is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps.

scholarly journals The Essence of the Fundamental Right to an Effective Remedy and to a Fair Trial in the Case-Law of the Court of Justice of the European Union: The Best Is Yet to Come?

2019 ◽  
Vol 20 (6) ◽  
pp. 884-903
Author(s):  
Kathleen Gutman
Keyword(s):  
European Union ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
The European Union ◽  
Rights Protection ◽  
To Come ◽  
Effective Remedy ◽  
Judicial Protection ◽  
The Eu

AbstractThis contribution examines the developing contours of the essence of the fundamental right to an effective remedy and to a fair trial in the light of salient case-law of the Court of Justice of the European Union. It is divided into three main parts. The first part provides an overview of the meaning of the essence of fundamental rights in EU law and the scope of the inquiry in relation to Article 47 of the Charter of the Fundamental Rights of the European Union (“the Charter”). The second part evaluates the essence of the fundamental right to an effective remedy and to a fair trial in connection with justified limitations that may be placed on its exercise as provided for in Article 52(1) of the Charter within the framework of the EU system of fundamental rights protection, which in turn implicates the relationship with the Court’s case-law on national procedural autonomy, equivalence, and effectiveness. The third part delves into the essence of the fundamental right to an effective remedy and to a fair trial within the framework of the EU system of judicial protection, as illustrated by the Court’s case-law in several areas, including standing for individuals in direct actions before the EU courts, judicial independence, and restrictive measures in the Common Foreign and Security Policy. Through this analysis, the author argues that, while much awaits further refinement, certain recent developments in the Court’s case–law indicate that the essence of the fundamental right to an effective remedy and to a fair trial can play a meaningful role in the EU system of fundamental rights protection and the EU system of judicial protection more broadly, and thus the best may be yet to come as that case-law progresses in the future.

scholarly journals La eficacia entre particulares de la Carta de Derechos Fundamentales de la Unión Europea a la luz de la jurisprudencia del Tribunal de Justicia

2017 ◽  
pp. 361
Author(s):  
Juan Ignacio Ugartemendia Eceizabarrena
Keyword(s):  
European Union ◽  
Binding Capacity ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Public Authorities ◽  
Member States ◽  
Knowing That ◽  
Charter Of Fundamental Rights

La finalidad principal de este trabajo es analizar la eficacia vinculante de la Carta de Derechos Fundamentales de la Unión Europea en las relaciones entre particulares. Una vez apuntada brevemente la capacidad vinculante de la misma en relación al poder público (eficacia vertical), sea de la Unión o de los Estados miembros (cuando aplican Derecho de la Unión), el artículo se centra en la descripción de las diversas posiciones y argumentos en torno a la eficacia inter privatos de la Carta, esto es, a su capacidad para vincular (directa o indirectamente) a los particulares (eficacia horizontal). Puestos a ello, estas líneas se adentran, asimismo, en señalar una de las principales cuestiones a las que se enfrenta en la actualidad la jurisprudencia del Tribunal de Justicia en esta materia. Esto es, si la conexión de un derecho de la Carta con una Directiva, o su concreción en la misma, viene a fortalecer su eficacia vinculante horizontal (sabiendo que, por definición, éstas carecen de tal eficacia en las relaciones entre particulares) o invocabilidad, una cuestión que se está planteando en relación con los derechos de igualdad (particularmente, con la no discriminación) y con los derechos de solidaridad de la Carta.The main purpose of this paper is to analyze the binding effectiveness of the Charter of Fundamental Rights of the European Union in relationships between individuals. After explaining briefly its binding capacity in relation to public authorities (vertical efficacy), either in the Union or in the Member States (when applying Union law), the article focuses on the description of the various positions and arguments about the inter privatos effectiveness of the Charter, that is, its ability to bind or constrain (directly or indirectly) individuals (horizontal effectiveness). In that respect, these lines also aim at one of the main issues the Court’s case-law is currently facing in this area: whether the connection of a Charter right with a Directive, or its realization in it, strengthens its horizontal binding effectiveness (knowing that, by definition, these rights lack of efficacy in the relationships between individuals), or its invocability, an issue that is being raised in relation to the Charter’s rights of equality (particularly, non-discrimination) and of solidarity.

Local law repercussions on EU extradition law

2017 ◽  
Vol 8 (2) ◽  
pp. 116-127 ◽  
Author(s):  
Rebecca Niblock ◽  
Anna Oehmichen
Keyword(s):  
European Union ◽  
Case Law ◽  
Fundamental Rights ◽  
Special Focus ◽  
Mutual Trust ◽  
The European Union ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Local Law

The present article examines the developments of extradition law in Europe, with a special focus on case law in England & Wales and Germany. It explores the effects that the case law of the European Court of Human Rights and the Court of Justice of the European Union has had on extradition law within Europe, and how the tensions between mutual trust and fundamental rights protection in this area have been addressed by the two jurisdictions.

scholarly journals Farewell to the EU Charter: Brexit and Fundamental Rights Protection

2021 ◽  
Vol 4 (1) ◽  
pp. 36-52
Author(s):  
Marco Galimberti
Keyword(s):  
European Union ◽  
Legal Status ◽  
Case Law ◽  
Fundamental Rights ◽  
Bill Of Rights ◽  
The European Union ◽  
Rights Protection ◽  
Charter Of Fundamental Rights ◽  
The Uk ◽  
The Eu

Twenty years after its drafting and more than one decade after its entry into force, the Charter of Fundamental Rights of the European Union has ceased to be part of British law as a consequence of Brexit. Looking into this issue raised by the UK withdrawal from the European Union, the essay sheds some light on the legal status and impact of the EU Bill of Rights in the British legal order. Against this background, the article detects a connection between the UK Supreme Court’s case law and the jurisprudence of the Court of Justice of the European Union on the direct effect of the Charter. From this perspective, the analysis highlights the implications of the UK departure from the Charter and disentanglement from the Luxembourg case law, thus arguing that they may weaken the standards of fundamental rights protection.

scholarly journals Of Legislative Waves and Case law: Effective Judicial Protection, Right to an Effective Remedy and Proceduralisation in the EU Asylum Policy

2019 ◽  
Vol 12 (2) ◽  
pp. 143-166
Author(s):  
Evangelia (Lilian) Tsourdi
Keyword(s):  
National Level ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Asylum Policy ◽  
Basic Set ◽  
Procedural Autonomy ◽  
Effective Remedy ◽  
Judicial Protection ◽  
The Eu

This article explores the multifaceted relationship between the principle of effective judicial protection, the fundamental right to an effective remedy, and secondary EU procedural rules in asylum. Proceduralisation has been an explicit goal of the EU asylum policy since its inception. It has materialised in three legislative waves. The first resulted in the creation of a basic set of procedural guarantees, alongside a plethora of exceptional procedures. The second resulted in modest improvements in terms of harmonisation, and adherence to fundamental rights, but saw exceptional procedural arrangements either retained or introduced. The third, forthcoming wave, aims at further harmonisation that risks, however, being heavily focused on the underlying goal of externalising protection to third countries. Case law of the Court of Justice of the European Union has further refined procedural guarantees shaping national procedural autonomy. Drawing from the Charter rights to good administration and to an effective remedy, the Court has not shied away from adducing additional procedural requirements. It has also clarified how the principle of effective judicial protection and the Charter right to an effective remedy relate to each other, finding that the latter reaffirms the principle of effective judicial protection and largely aligning their scope. The emerging procedural landscape is increasingly complex. The Court's nuanced assessments combined with a plethora of exceptional arrangements at national level led to convoluted standards that are increasingly difficult to put in practice.

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