scholarly journals Die Wandlung des Grundrechtsschutzes durch das Bundesverfassungsgericht – Recht auf Vergessen I und II als „Solange III“?

2019 ◽  
Vol 102 (4) ◽  
pp. 277-292
Author(s):  
Rainer Hofmann ◽  
Alexander Heger ◽  
Tamara Gharibyan
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Level System ◽  
Constitutional Courts ◽  
Eu Member States ◽  
German Constitution ◽  
Multi Level ◽  
The Relationship

The relationship between the fundamental rights as laid down in the German Constitution and the fundamental rights contained in the Charter of Fundamental Rights of the European Union has been exceedingly conflict-prone ever since the early days of the European Union. Related thereto is the ongoing controversy on the judicial prerogative of the German Federal Constitutional Court (BVerfG) within that system. Thus, two big players in the European multi level system, i.e. the BVerfG and the European Court of Justice (ECJ), clash with their judicial powers and diverging interests. With its two recent decisions, 1 BvR 16/13 and 1 BvR 276/17 of November 6, 2019, the First Senate of the BVerfG introduced a far-reaching change in its approach of protecting basic rights by clarifying the relationship between the EU fundamental rights and the fundamental rights of the German Constitution. At the same time, the BVerfG has made a strong effort to maintain its position within the multilevel cooperation of the constitutional courts of EU member states, particularly in relation to the ECJ, which by both sides is referred to as a "cooperative relationship". This article explains the repercussions of the aforementioned judgments on the protection of fundamental rights in the European multi-level system.

scholarly journals Scope and Exercise of the Exclusive Competences of the Member States of the European Union

2020 ◽  
Vol 43 (4) ◽  
pp. 23-46
Author(s):  
Edyta Anna Krzysztofik
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Federal Constitutional ◽  
Uniform Manner ◽  
Constitutional Identity ◽  
The Eu

The process of European integration has introduced the Member States into a new legal reality. The existing exclusivity in the area of competence implementation has been replaced by a two-stage model of their exercise. The Member States, when conferring part of their supervisory powers, did not specify the scope of their own competences. The so-called European clauses were analysed in the Constitutions of selected Member States, which showed that they define the recipient of the conferral and, in a non-uniform manner, specify the subject of the conferral.  The analysis of the indicated provisions clearly shows that the Constitutions of the Member States exclude full conferral of competences on the European Union. There is no specification of the scope of competences that may be conferred. However, this issue was addressed by Constitutional Courts of the Member States. The article refers to the judgements of the German Federal Constitutional Court and the Polish Constitutional Court. It has been shown that they equate exclusive competences of the Member States with the scope of the concept of constitutional identity reduced to basic principles of the state. The Court of Justice of the European Union analysed the scope of competences of both entities. The article presents the analysis of judgements on: entries in Civil Registry regarding transcription of surnames, the issue of recognition of same-sex marriages, reform of the judiciary system in Poland, and the application of the Charter of Fundamental Rights in the areas that do not fall under EU competence. Regardless of the division of competences, the EU is bound by the principle of respect for national identity of the Member States, including constitutional identity. It both obligates the EU to respect the exclusive competences of the Member States and is a premise restricting the achievement of EU objectives.

scholarly journals The Spanish Constitutional Court and Fundamental Rights Adjudication After the First Preliminary Reference

2015 ◽  
Vol 16 (6) ◽  
pp. 1509-1528
Author(s):  
Miryam Rodríguez-Izquierdo Serrano
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Legal Doctrine ◽  
Law System ◽  
Community Law ◽  
Charter Of Fundamental Rights

The purpose of the preliminary reference procedure is to ensure a uniform application and interpretation of Community law across all the Member States, including European fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union. The entry into force of the Charter has reinforced the authority of the Court of Justice of the European Union (CJEU) in the field of fundamental rights adjudication. But the Charter may also be a new source of conflicts between the jurisdiction of the CJEU and the jurisdiction of national constitutional courts. Indeed, compliance with the indirect rulings over national law contained in the CJEU decisions became something logical for the national ordinary courts from the beginning of the integration process, but it was not the same for national constitutional courts. Most of them have always disliked the idea of asking for the CJEU's opinion on a conflict of law involving national constitutional provisions. The CJEU succeeded in establishing a legal doctrine through principles of Community law—supremacy and direct effect being the pioneers—that meant a material constitutionalization of the European Union (EU) law system. And for the national constitutional courts, such an understanding of EU law made a rival of the CJEU.

Instrument of Mobilization or a Bridge towards Understanding? Religion and Values in the Reform Process of the European Union

2009 ◽  
Vol 2 (3) ◽  
pp. 257-284 ◽  
Author(s):  
Christof Mandry
Keyword(s):  
European Union ◽  
Political Identity ◽  
Fundamental Question ◽  
Fundamental Rights ◽  
The Self ◽  
Reform Process ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu

AbstractThe self-understanding of the Europeans has been profoundly put into question since 1989, and during the EU reform process, 'Europe' was confronted by the task of describing itself anew. In this context, the debate about the significance of the religious patrimony took on a key position in the discourse. The broad public discussions of the preambles to the European Charter of Fundamental Rights and the Treaty establishing a Constitution for the European Union (ECT) indicate that the relationship between religion and political remains a controversial issue. The article argues that the 'preamble disputes' are part and parcel of the European Union's quest for a political identity and that the outcome of the identity debate—the self-description as a 'community of values'—deals in a specific way with this fundamental question.

scholarly journals The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint

2021 ◽  
pp. 155-181
Author(s):  
Pál Sonnevend
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Face ◽  
The Law

AbstractModern constitutionalism is based on the paradigm that courts are inherently entitled and obliged to enforce the constitution of the respective polity. This responsibility of courts also applies in the context of the European Union to both the CJEU and national constitutional courts. The present chapter argues that in the face of constitutional crises the CJEU and the Hungarian Constitutional Court shy away from applying the law as it is to the full. The reasons behind this unwarranted judicial self-restraint are most different: the CJEU aims to avoid conflicts with national constitutional courts whereas the Hungarian Constitutional Court has been facing a legislative power also acting as constitution making power willing to amend the constitution to achieve specific legislative purposes or to undo previous constitutional court decisions. Yet both courts respond to expediencies that do not follow from the law they are called upon to apply. It is argued that rule of law backsliding requires these courts to abandon the unnecessary self-restraint and exploit the means already available.

European Union Rights and Values in Human Health

2019 ◽  
pp. 16-51
Author(s):  
Anniek de Ruijter
Keyword(s):  
Public Health ◽  
European Union ◽  
National Policy ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Eu Fundamental Rights ◽  
The Eu

This book looks at the impact of the expanding power of the EU in terms of fundamental rights and values. The current chapter lays down the framework for this analysis. Law did not always have a central role to play in the context of medicine and health. The role of law grew after the Second Word War and the Nuremberg Doctors Trials (1947), in which preventing the repetition of atrocities that were committed in the name of medicine became a guidepost for future law regarding patients’ rights and bioethics. In the period after the War, across the EU Member States, health law developed as a legal discipline in which a balance was struck in medicine and public health between law, bioethics, and fundamental rights. The role of EU fundamental rights protections in the context of public health and health care developed in relation with the growth of multilevel governance and litigation (national, international, Council of Europe, and European Union). For the analysis here, this chapter develops an EU rights and values framework that goes beyond the strictly legal and allows for a ‘normative language’ that takes into consideration fundamental rights as an expression of important shared values in the context of the European Union. The perspective of EU fundamental rights and values can demonstrate possible tensions caused by EU health policy: implications in terms of fundamental rights can show how highly sensitive national policy issues may be affected by the Member States’ participation in EU policymaking activities.

6. General principles of law

2017 ◽  
Author(s):  
Lorna Woods ◽  
Philippa Watson ◽  
Marios Costa
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
General Principles Of Law ◽  
Relationship Of ◽  
The Relationship

This chapter examines the development of the general principles by the Court of Justice (CJ) to support the protection of human rights in the European Union (EU) law. It analyses the relationship of the general principles derived from the CJ’s jurisprudence to the European Convention on Human Rights (ECHR), and the European Charter of Fundamental Rights (EUCFR). It discusses the possible accession of the EU to the ECHR and the implications of Opinion 2/13. It suggests that although the protection of human rights has been more visible since the Lisbon Treaty and there are now more avenues to such protection, it is debatable whether the scope and level of protection has increased.

The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?

2015 ◽  
Vol 16 (6) ◽  
pp. 1491-1508
Author(s):  
Eva Julia Lohse
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
In The Beginning ◽  
The Eu

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

scholarly journals The right to paid annual leave as an EU fundamental social right. Comment on Bauer et al.: Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn, EU:C:2018:871

2019 ◽  
Vol 26 (3) ◽  
pp. 441-448
Author(s):  
Maria Antonia Panascì
Keyword(s):  
European Union ◽  
Case Note ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Right ◽  
The Relationship ◽  
Horizontal Direct Effect

This case note examines the judgment of Court of Justice of the European Union delivered in Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn on 6 November 2018. It engages with the noteworthy aspects of the ruling, such as the horizontal direct effect of the Charter of Fundamental Rights of the European Union (the Charter), the relationship between primary and secondary law in the European Union legal order and the scope of application of the Charter.

Fundamental Rights and the United Nations Financial Sanction Regime: The Kadi and Yusuf Judgments of the Court of First Instance of the European Communities

2006 ◽  
Vol 19 (3) ◽  
pp. 753-772 ◽  
Author(s):  
MIELLE BULTERMAN
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal Reasoning ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Community Regulation ◽  
Court Of First Instance ◽  
Right Of Access

Under the UN sanctions regime of Resolution 1267, UN member states are obliged to freeze the assets of persons and entities which are associated with Usama bin Laden, and which therefore reason have been listed by the UN. Within the European Union this ‘UN sanctions list’ is implemented by means of a Community regulation, having direct effect in all EU member states. The regulation was challenged by several individuals and an organization, which were added to the UN sanctions list on the basis of their association with al Qaeda. The regulation was challenged on two grounds. First, the applicants claimed that the Community did not have the competence to adopt the contested regulation. In the second place, the applicants claimed that the Community regulation infringed their human rights (right to property, right of access to court). Thus the CFI was asked to determine to what extent it is competent indirectly to review measures adopted under the UN Charter. This delicate legal question is answered in a lengthy judgment, the legal reasoning of which is not always convincing.

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