Disagreement—Commonality—Autonomy: EU Fundamental Rights in the Internal Market

2013 ◽  
Vol 15 ◽  
pp. 1-26 ◽  
Author(s):  
Daniel Augenstein
Keyword(s):  
Economic Integration ◽  
Case Law ◽  
Internal Market ◽  
Legal Order ◽  
Fundamental Rights ◽  
Legal Space ◽  
Weak Claim ◽  
The Relationship ◽  
Eu Fundamental Rights ◽  
The Eu

AbstractThe contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

Disagreement—Commonality—Autonomy: EU Fundamental Rights in the Internal Market

2013 ◽  
Vol 15 ◽  
pp. 1-26 ◽  
Author(s):  
Daniel Augenstein
Keyword(s):  
Economic Integration ◽  
Case Law ◽  
Internal Market ◽  
Legal Order ◽  
Fundamental Rights ◽  
Legal Space ◽  
Weak Claim ◽  
The Relationship ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

The Democratic Costs of Constitutionalization— The European Case

2017 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
At Risk ◽  
Economic Integration ◽  
Fundamental Rights ◽  
European Law ◽  
European Court ◽  
Political Implications ◽  
The Impact ◽  
The Relationship ◽  
The Eu

This chapter examines the democratic costs of constitutionalization by focusing on the European case. It first considers the interdependence of democracy and constitutionalism before discussing how constitutionalization can put democracy at risk. It then explores the tension between democracy and fundamental rights, the constitutionalization of the European treaties, and the European Court of Justice’s (ECJ) two separate judgments regarding the relationship between European law and national law. It also assesses the impact of the ECJ’s jurisprudence on democracy, especially in the area of economic integration. The chapter argues that the legitimacy problem the EU faces is caused in part by over-constitutionalization and that the remedy to this problem is re-politicization of decisions with significant political implications.

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.

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

Zasada proporcjonalności jako obiektywne uzasadnienie ograniczeń w swobodnym przepływie osób w Unii Europejskiej

2016 ◽  
Vol 14 (4 (1)) ◽  
pp. 55-73
Author(s):  
Joanna Ryszka
Keyword(s):  
Internal Market ◽  
Legal Order ◽  
Fundamental Rights ◽  
Free Movement ◽  
Eu Law ◽  
Member States ◽  
Free Movement Of Persons ◽  
Principle Of Proportionality ◽  
The Eu

The principle of proportionality in the EU legal order applies, among others, to actions taken by Member States in the situation where they are willing to use, permitted by the EU law, derogation from its provisions, in particular – in the area of internal market freedoms. Derogation from those freedoms will not be justified if it is not absolutely necessary. National regulations must therefore be proportionate to the objective that these restrictions are to protect. With respect to the free movement of persons, as an example of these goals, the protection of fundamental rights could be mentioned. It is vitally important for the realization of an internal market due to the existence of interesting interactions occurring between them and specific ways of applying the principle of proportionality when they collide with each other.

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.

scholarly journals The Relationship Between the Charter and General Principles: Looking Back and Looking Forward

2020 ◽  
pp. 1-25
Author(s):  
Emily HANCOX
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
Transformative Potential ◽  
The Relationship ◽  
The Eu

Abstract Article 6 Treaty on European Union sets out two sources of fundamental rights in the EU—the Charter and the general principles of EU law—without specifying a hierarchy between them. Even though the Charter became binding over a decade ago, the Court of Justice of the European Union (‘CJEU’) is yet to clarify unequivocally how these two sources interact. In this article I argue based upon the relevant legal framework that the Charter ought to replace the general principles it enshrines. This leaves a role for general principles in the incorporation of new and additional rights into the EU legal framework. Such an approach is necessary to ensure that the Charter achieves its aims in enhancing the visibility of the rights protected by EU law, while also providing the impetus for more coherent rights protection within the EU. What an extensive survey of CJEU case law in the field of non-discrimination shows, however, is that the CJEU has struggled to let its general principles case law go, potentially hampering the transformative potential of the Charter.

scholarly journals National Security and Retention of Telecommunications Data in Light of Recent Case Law of the European Courts

2021 ◽  
pp. 1-29
Author(s):  
Marcin Rojszczak
Keyword(s):  
National Security ◽  
Gold Standard ◽  
Case Law ◽  
Legal Order ◽  
Fundamental Rights ◽  
Recent Case ◽  
Data Retention ◽  
Court Of Justice ◽  
General Obligation ◽  
The Eu

The Court of Justice is once again clarifying the limits of the application of data retention laws – General obligation to retain data exceeds the limits of what is strictly necessary within a democratic society – The national security exception does not preclude a judicial assessment of the legitimacy of its application – The existence of a genuine and specific threat as a premise for the use of untargeted data retention measures – The possibility of searching for the gold standard of data retention based on algorithmic processing – Different perceptions of the Court of Justice position by the referring courts – The Conseil d'État’s position distorts the idea of the protection of fundamental rights that is enshrined in the EU legal order

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