Effektiver Verwaltungsrechtsschutz im Zeichen von Migration und Europäisierung

2019 ◽  
Vol 52 (2) ◽  
pp. 259-296
Author(s):  
Klaus Ferdinand Gärditz
Keyword(s):  
Judicial Review ◽  
Environmental Law ◽  
Fundamental Rights ◽  
European Union Law ◽  
Institutional Settings ◽  
Procedural Law ◽  
Basic Law ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Judicial Protection

The report surveys the development of administrative procedural law und jurisprudence between 2014 and 2019, in particular, under the auspices of the overarching mandate to grant effective judicial review. Pursuant to Article 19(4) of the Basic Law, effective judicial review is constitutionally guaranteed, but enfolds its practical effects within the intricate framework of Administrative Court Procedure Code and the inhomogeneous body of substantive administrative law. Additionally, European Union law and its own guarantee of effective remedies (Article 47 EU Charter of Fundamental Rights) bears influence on the administrative procedural law. The European Court of Justice seeks to give shape to partly vague European common standards of judicial review and its institutional settings. The so-called refugee burdened the administrative courts, as the number of asylum cases greatly increased by hundreds of thousands since 2016. The courts struggled to secure sufficient review of asylum decisions handed down by the federal administration under great strain, which diminished the quality and reliability of the administrative procedure and its fact findings. In the wake of the refugee crisis, the dormant provision enabling the administration to execute instant deportation orders has been tested against the guarantee of effective judicial protection. Another reference area that illustrates a shift within administrative procedural law is the complicatedly fabricated environmental law and its special provisions, which guarantee access to a court and effective review of administrative decisions (or omissions) that can affect the environment.

Die Unionsgrundrechte unter dem Einfluss des Prozessrechts

2019 ◽  
Author(s):  
Stefan Drechsler
Keyword(s):  
Fundamental Rights ◽  
European Federation ◽  
Economic Rights ◽  
Procedural Law ◽  
Pure Chance ◽  
Judicial Practice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Eu Fundamental Rights ◽  
The Eu

This book analyses the influence of the EU courts‘ procedural law on the EU fundamental rights doctrine, using the example of economic fundamental rights (Articles 15 and 16 of the European Charter of Fundamental Rights). Starting with the judicial practice of the past ten years, the distinction of the scope of various fundamental rights, the depth of scrutiny toward the Union legislator and the position of the economic fundamental rights in relation to other rights are examined. In doing so, the book illustrates the enormous – and heretofore far underestimated – relevance of procedural rules, the parties‘ strategies, and of pure chance for the European Court of Justice’s approach to fundamental rights. The book shows the potential for reform of the EU courts in order for them to meet the justified expectation of an informed and consistent case law on fundamental rights, and presents proposals for a framework of EU economic rights in the European federation.

scholarly journals The relationship between EU secondary rules and the principles of effectiveness and effective judicial protection in environmental matters: towards a new dawn for the 'language of rights'?

2019 ◽  
Vol 12 (2) ◽  
pp. 95-116
Author(s):  
Mariolina Eliantonio
Keyword(s):  
Environmental Law ◽  
Case Law ◽  
Fundamental Rights ◽  
Apparent Lack ◽  
Court Of Justice ◽  
Aarhus Convention ◽  
Charter Of Fundamental Rights ◽  
Effective Remedy ◽  
The Right ◽  
Judicial Protection

Environmental policy is an area which has been quite heavily proceduralised and is a rather peculiar example of 'multi-level proceduralisation' because of the presence of the Aarhus Convention. This paper explores the relevant procedural provisions taken in the field of environmental law and in particular in implementation of the Aarhus Convention, and examines the case law which has involved these provisions. This case law is specifically discussed as concerns the way in which the Court of Justice deals with the interaction between the relevant secondary rules and the general principles of effectiveness and effective judicial protection, as well as Article 47 of the Charter of Fundamental Rights concerning the right to an effective remedy. It is shown that it is difficult to distill a consistent approach on the part of the Court with regards to this interaction, and that much depends on the specifics of the case and the question posed by the referring court. However, with the latest case law, despite the apparent lack of underlying rights which would be able to trigger the applicability of the Charter of Fundamental Rights, the Court of Justice seems to be moving towards a heavier involvement of Article 47 of the Charter and, consequently, of a 'language of rights', which increasingly plays a pivotal role in boosting the effectiveness of the Aarhus Convention.

8. The Application of EU Law:

2015 ◽  
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
General Scheme ◽  
Legal Protection ◽  
Fundamental Rights ◽  
Eu Law ◽  
Procedural Law ◽  
National Courts ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Effective Remedy ◽  
The Right

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter examines the application of EU law by national courts and the way in which the CJEU controls national remedies for breach of EU law. Article 19 of the Treaty on European Union contains a new clause added by the Lisbon Treaty, which specifies that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Article 47 of the Charter of Fundamental Rights provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. However, beyond these broad new provisions, EU law does not lay down any general scheme of substantive or procedural law governing remedies for its enforcement. The European Court of Justice has responded to the lack of a harmonized system of EU remedies by requiring national courts, in certain cases, to make available a particular type of remedy (e.g., restitution or interim relief), regardless of whether this would be available under national law.

scholarly journals The requirement for effective judicial protection as a part of the Rule of Law in European Union law

2021 ◽  
Vol 35 ◽  
pp. 51-67
Author(s):  
Paulina Kochańska
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Case Law ◽  
Fundamental Rights ◽  
Legal Analysis ◽  
The European Union ◽  
European Union Law ◽  
The Rule Of Law ◽  
Charter Of Fundamental Rights ◽  
Judicial Protection

This article aims to present the importance of ensuring effective judicial protection in the Member States of the European Union. Within the scope of the study, the substance and content of the rule of law were studied, with particular emphasis of court independence, an important part of the effective judicial protection principle (article 19 TEU and article 47 Charter of Fundamental Rights). The perspective was captured in general, directing the considerations directly towards the principle of effective judicial protection. The legal analysis was carried out in the light of the recent case-law of the Court of Justice of the European Union, and enriched by the analysis of the EU law doctrine.

Effektiver Umweltrechtsschutz in Planungskaskaden

2021 ◽  
Author(s):  
Sarah Langstädtler
Keyword(s):  
European Union ◽  
International Law ◽  
Environmental Law ◽  
Disposal Site ◽  
European Union Law ◽  
Federal Highway ◽  
Effective Remedy ◽  
Judicial Protection

This treatise examines and compares the remedy in the Federal Highway Act (FStrG), Grid Expansion Acceleration Act (NABEG) as well as in the Determination of a Final Nuclear Disposal Site Act (StandAG) in terms of ensuring an effective remedy to enforce environmental law. Particularly the concentrated remedy in the NABEG proves to be conflictual. There are reasonable doubts whether it guarantees a sufficiently effective judicial protection concerning the enforcement of environmental law. This leads to questions regarding its compatibility with international law (especially the Arhus Convention) and European Union law.

scholarly journals eGovernment as an element of the right to good administration

2018 ◽  
Vol 331 ◽  
pp. 29-39
Author(s):  
Justyna Matusiak ◽  
Marcin Princ
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
The European Union ◽  
European Union Law ◽  
Reasonable Time ◽  
Charter Of Fundamental Rights ◽  
Right To Good Administration ◽  
Administrative Proceedings ◽  
The Right ◽  
Procedural Rights

The right to good administration constitutes an established principle of European Union law, which includes the procedural rights of stakeholders in administrative proceedings, the result of which may affect their interests. Article 41 of the European Union Charter of Fundamental Rights states that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. When it comes to reasonable time of handling the case one can ask if eGovernment solutions are the guarantee of such a right. eGovernment understood as the use of all kinds of electronic means of communication, in particular, however, the Internet, improves services provided by the state to its citizens. The usage of IT technology in public administration allows it to perform its activities in a more efficient way. This improvement applies not only to the communication between parties but also to the quality of citizens’ life. To sum up, one can ask the question if the European right to good administration can be understood as the right to eGovernment solutions and if so, to what extent. Which services and technical solutions should be guaranteed as ones ensuring challenges of good administration?

Judicial Review

2016 ◽  
Author(s):  
Michael Schillig
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
Fundamental Rights ◽  
Bank Resolution ◽  
The Us ◽  
Charter Of Fundamental Rights ◽  
Us Constitution ◽  
Takings Clause ◽  
The Right ◽  
The Eu

The exercise of extensive powers by authorities during the recovery and resolution process may interfere with constitutionally protected fundamental rights of stakeholder in a multitude of ways. Particularly relevant are the right to conduct a business and the right to property under the EU Charter of fundamental rights, as well as the takings clause under the US constitution. A balance needs to be struck between the aims and objectives of bank resolution and the rights of investors and the requirements of due process. This is normally achieved through expedited and limited judicial review. This chapter assesses whether and to what extent the respective procedures are in line with constitutional and fundamental rights requirements.

Fundamental Rights Protection between Strasbourg and Luxembourg

2018 ◽  
Author(s):  
Katalin Ligeti
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
Individual Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Grand Chamber

Since long before the entry into force of the Charter of Fundamental Rights of the European Union (CFREU), the two highest courts in Europe, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have sought to develop their respective jurisprudence in such a way as to ensure a strong protection of individual rights, whilst avoiding clashes between the decisions taken in Luxembourg and Strasbourg. An important statement in this regard is provided by the Bosphorus judgment, in which the Grand Chamber of the ECtHR recognised the existence of a presumption of equivalent protection of fundamental rights under EU law. The presumption is rebuttable, but expresses the trustful attitude (and a certain degree of deference) of Strasbourg towards the ability of EU law (and of the CJEU) to protect Convention rights.

Administrative Procedure and Judicial Review in Germany

2021 ◽  
pp. 53-58
Author(s):  
Lilly Weidemann
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Protective Effects ◽  
Administrative Procedure ◽  
Basic Law ◽  
Federal Statute ◽  
The Right ◽  
Substantive Law ◽  
Subjective Rights

This chapter explores administrative procedure and judicial review in Germany. The German Basic Law contains a guarantee of access to justice. According to section 40(1) of the Code of Administrative Court Procedure (CACP), recourse to the administrative courts shall be available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court by a federal statute. German administrative court procedure generally aims to protect subjective rights. In general, all measures taken by a public authority are subject to review by courts. This principle forms an essential part of the fundamental rights constitutionally guaranteed. Thus, no measure by the public administration is excluded from this guarantee. The infringement of a procedural provision with protective effects does not necessarily lead to the right of the applicant to have the decision quashed. This usually requires the infringement of a right of the appellant resulting from substantive law. Damages cannot be claimed within the same (administrative) court proceeding that aims to quash an administrative decision.

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