Europäischer Grundrechtsschutz

2021 ◽  
Author(s):  
Sascha Gourdet
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Eu Member States ◽  
Federal Constitutional ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Impact ◽  
German Federal Constitutional Court ◽  
The Eu

The Charter of Fundamental Rights of the European Union is becoming increasingly important in the EU member states. This is demonstrated not least by the decisions of the German Federal Constitutional Court on the so-called "right to be forgotten“. However, the scope of application of the Charter has not been fully clarified more than 10 years after its entry into force. This thesis first examines the question of how this scope is to be defined in more detail. Based on this, balancing solutions are shown, which allow the interaction of Charter rights and national fundamental rights. The question of the "last word" must remain open in the European fundamental rights system. Strengthening the protection of European fundamental rights can be achieved through judical dialogue. Finally, the impact of the EU's accession to the ECHR is discussed.

scholarly journals Two Constitutional Cultures, Technological Enforcement and User Creativity: The Impending Collapse of the EU Copyright Regime?

2021 ◽  
Author(s):  
Guido Westkamp
Keyword(s):  
Market Integration ◽  
Copyright Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Federal Constitutional ◽  
Eu Copyright Law ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

AbstractIn Pelham, the Court of Justice of the European Union and the German Federal Constitutional Court reached diametrically opposing conclusions on the relevance of freedom of art in copyright law. The different stances permit a speculative prediction – they can have immediate consequences for the predictable challenges against the new platform liability regime, and its associated dangers of widespread filtering and blocking. The article discusses the numerous constitutional implications, with specific attention given to the respective interests affected by the new regime (authors, exploiters, users, platforms) in light of the divergent approaches from the perspective of what appears to be two rather conflicting constitutional cultures: specific perceptions of fundamental rights and proportionality under German law versus an approach tending to emphasise market integration under the EU legal order. Recent assertions by the German Federal Constitutional Court redistributing the division of competences between national and EU law permit the prediction of a disturbing future collision course between the two systems, with potentially massive implications for EU copyright law by and large.

Core of State Sovereignty and Boundaries of European Union's Identity in the Lissabon – Urteil

2010 ◽  
Vol 11 (4) ◽  
pp. 399-418
Author(s):  
Elisabetta Lanza
Keyword(s):  
European Union ◽  
State Sovereignty ◽  
Constitutional Court ◽  
The European Union ◽  
Member States ◽  
Treaty Of Lisbon ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

In the 2009 judgment dealing with the Treaty of Lisbon, the German Federal Constitutional Court urges to modify a domestic statute in order to guarantee the rights of the internal rule-making power and also provides a reasoning on the role of the European Union (EU) as an international organization, the principle of sovereignty and the relations between European Institutions and Bodies and the EU Member States. According to the German Court the Treaty of Lisbon does not transform the European Union into a Federal State (Staatsverband), but into a Confederation of States (Staatenverbund). In spite of the 1993 landmark judgment, the so-called “Maastricht Urteil”, the Court steps forward and focuses also the subject-matters that necessarily have to pertain to the Member States jurisdiction, the so-called “domain reserve”. The German Federal Constitutional Court decision on the Lisbon Treaty arouses the reflection on the core of State sovereignty and on the boundaries of the EU legal system and focuses on the force of the right to vote of every citizen, the basis of democracy.Furthermore, the decision of the German Federal Constitutional Court highlights the well-known issue of the EU's identity and the balancing between EU democracy and Member State sovereignty. In the light of the German Constitutional Court statements, the present work aims to understand which could be actually the EU's identity and how could be approached “democratic deficit” of the EU.

scholarly journals The Dialectics Between Constitutional Identity and Common Constitutional Traditions: Which Language for Cooperative Constitutionalism in Europe?

2019 ◽  
Vol 20 (8) ◽  
pp. 1097-1118 ◽  
Author(s):  
Massimo Fichera ◽  
Oreste Pollicino
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Binding Force ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
And Function ◽  
Role And Function ◽  
Constitutional Identity ◽  
The Eu

AbstractThis Article revisits the role and function of constitutional identity and common constitutional traditions and claims that the latter have had an increasingly stronger influence on the process of European integration—more than may appear at first sight. In addition, the relevance of common constitutional traditions has not been undermined but, on the contrary, strengthened by the emergence of fundamental rights in EU law and the subsequent conferral of binding force on the Charter of Fundamental Rights. Constitutional identity and common constitutional traditions are part of two discourses—security and fundamental rights—which are an expression of the security of the European project as an overarching frame characterizing the EU as a polity and legal system. After an overview of some of the most important rulings of the Court of Justice of the European Union, this Article concludes by emphasizing the importance of the recent conciliatory attitude recently adopted by the Court of Justice, although the more ambivalent attitude of the Italian Constitutional Court indicates how conflictual features are becoming increasingly important and can no longer be concealed as the EU reaches a more advanced stage of integration.

scholarly journals Some Kind of Right

2020 ◽  
Vol 21 (S1) ◽  
pp. 40-44
Author(s):  
Jud Mathews
Keyword(s):  
German Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Eu Member States ◽  
Right To Be Forgotten ◽  
Federal Constitutional ◽  
The Right ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
Specific Reason

AbstractThe Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long as the decision also makes sense in the context of the European and German law. I argue that it does, for a specific reason. The Right to Be Forgotten II represents a sensible approach to managing the complex pluralism of the legal environment in which Germany and other EU member states find themselves.

Wohin steuern die Ultra-vires- und die Identitätskontrolle? Eine Zwischenbilanz anhand der Entscheidungen des Bundesverfassungsgerichts im PSPP-Verfahren

IG ◽  
2021 ◽  
Vol 44 (3) ◽  
pp. 211-219
Author(s):  
Christian Walter
Keyword(s):  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
The Public ◽  
German Constitution ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

The article takes stock of the consequences which the decisions of the German Federal Constitutional Court (FCC) concerning the Public Sector Purchase Programme (PSPP) of the European Union (EU) have had on the relation between EU law and the German constitution. The interplay between the PSPP judgment of 5 May 2020 and a follow-up decision on its enforcement reveals a certain degree of back-paddling by the FCC. Irrespective of the infringement procedure, which the European Commission recently initiated against Germany, there are good chances for a respite for both the FCC and the Court of Justice of the EU. It is up to the FCC to use this period to clarify where it is headed with its jurisprudence on controlling the application of EU law in Germany.

Migration and Asylum Cases before the Court of Justice of the European Union: Putting the Eu Charter of Fundamental Rights to Test?

2015 ◽  
Vol 17 (1) ◽  
pp. 1-38 ◽  
Author(s):  
Francesca Ippolito
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Lisbon Treaty ◽  
The European Union ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Impact ◽  
The Eu ◽  
Third Country Nationals

This article explores the various guarantees embedded in the eu Charter of Fundamental Rights for eu citizens and third country nationals, following the extension of the Court’s jurisdiction by the Lisbon Treaty in the area of freedom, security and justice. In particular, it highlights the potential and limits to the impact of the Charter in immigration or asylum cases before the cjeu.

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.

Judicial Review of Economic Policy: The EU Courts

2020 ◽  
pp. 204-244
Author(s):  
Menelaos Markakis
Keyword(s):  
Economic Policy ◽  
Fundamental Rights ◽  
Ripple Effect ◽  
Eu Law ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
Almost All ◽  
The Eu

This chapter seeks to unpack access to EU courts in the area of EMU, the emphasis being on the challenges facing austerity-hit litigants wishing to put their substantive case before the Court of Justice of the European Union (CJEU). The discussion will proceed as follows. First, it will be shown that aggrieved individuals might not always be able to locate a formally binding EU law measure which could form the basis of a direct or indirect challenge before the EU courts. Second, it will be seen that the judicial doors to an Article 263 TFEU challenge (action for annulment) are, nevertheless, firmly shut as most private persons will not be able to overcome the admissibility hurdles of direct and individual concern. Third, almost all Article 267 TFEU challenges (preliminary reference) have so far been declared inadmissible, which begs the question as to the legal quality of the bailout terms and its ripple effect on the scope of application of the EU Charter of Fundamental Rights. Fourth, though aggrieved individuals could in principle bring an Article 340 TFEU action for damages before the EU courts, litigants are likely to face an uphill struggle in trying to convince the CJEU that the relevant requirements for liability of the EU institutions for damages for breach of EU law were met. The final section of this chapter will focus on the scope of application of the EU Charter, which has formed the basis of many (unsuccessful, thus far) challenges to austerity measures.

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