The standard of fundamental rights protection in the field of asylum: The case of the right to an effective remedy between EU law and the Italian Constitution

2019 ◽  
Vol 12 (2) ◽  
pp. 167-183
Author(s):  
Chiara Favilli
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
National Standards ◽  
Eu Law ◽  
Current Standard ◽  
Rights Protection ◽  
Legal Space ◽  
Effective Remedy ◽  
The Right ◽  
The Eu

Asylum is an example of multilevel protection of fundamental rights in the European legal space, where different standards apply at both national and European level. As far as EU law is concerned, the current standard of protection is mainly regulated by secondary legislation. However, the search for compromisebased solutions when adopting EU legislative measures nurtures a decreasing trend in terms of the level of protection guaranteed to the rights of asylum seekers or refugees. The result at the national level, at least in some Member States, is the decrease of the standard deriving from national constitutions in the name of European harmonization. The right to an effective remedy in the field of asylum is an example of this phenomenon, with poor obligations deriving from the relevant EU legislation and an approach of the CJEU that appears to be more restrictive than that of the ECtHR. In order to contain this perverse trend, the EU institutions involved in the law-making process and the Court of Justice should take seriously their duty – now firmly grounded on EU primary law provisions, notably in the Charter – to avoid conflicts with national standards and to ensure the coherence with the standard of protection guaranteed to the right to an effective remedy by the ECHR.

scholarly journals La tutela judicial de los derechos fundamentales en el ámbito de aplicación nacional del derecho de la Unión Europea : recientes acotaciones del Tribunal de Justicia y del Tribunal ConstitucionalEspañol = The judicial protection of fundamental rights in the sphere of the national application of EU law : recent remarks by the Court of Justice and by the Spanish Constitutional Court

2013 ◽  
pp. 391
Author(s):  
Juan Ignacio Ugartemendia Eceizabarrena
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
National Standards ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
El Sistema ◽  
Judicial Protection ◽  
The Eu

Este artículo es un estudio relativo a la tutela judicial de los Derechos Fundamentales cuando se aplica Derecho de la Unión en el ámbito interno, y a cuáles son los principales problemas con los que se topa el Juez nacional que aplica el Derecho de la Unión al llevar a cabo dicha función protectora. El trabajo, dicho de forma más concreta, se centra en el examen de una serie de recientes y decisivas resoluciones jurisdiccionales, dictadas tanto por parte del Tribunal de Justicia de la Unión Europea como por parte del Tribunal Constitucional Español, que analizan problemas y señalan soluciones relativas a esas cuestiones, además de mostrar cuál es la evolución y el estado de la situación al respecto. Se trata de resoluciones que abordan cuestiones de fondo, como, por ejemplo: ¿hasta qué punto es posible utilizar estándares nacionales de protección de los Derechos Fundamentales en situaciones conectadas con el Derecho de la Unión o con su aplicación, en lugar de utilizar el sistema de protección de los Derechos Fundamentales de la Unión Europea? Y asimismo, resoluciones que atienden a cuestiones de dimensión más procesal como la de dirimir hasta qué punto tiene autonomía el Juez nacional a la hora de plantear una petición prejudicial (se entiende a la hora de tutelar derechos reconocidos por normas de la Unión) en relación a las normas procesales nacionales.This article deals with the judicial protection of fundamental rights when EU Law is applied at national level and the main problems national judges have to deal with when applying EU Law as protectors of rights. More precisely, the work is focused on the examination of some recent and decisive judicial decisions, both by the European Court of Justice and by the Spanish Constitutional Court which analyze the problems and address the solutions to those questions besides showing the evolution and current situation in that regard. They are decisions that deal with the merits as for example to which extent it might be possible to use national standards of protection of fundamental rights in situations connected to EU Law or to its application instead of using the system of protection of EU human rights. Likewise, they are decisions which handle with more procedural questions as for example to what extent national judges are autonomous to file a preliminary question (it is understood that when it comes time to protect rights acknowledged by the EU) relative to national procedural rules.

scholarly journals An approach to today’s EU constitutionality control – understanding this EU inter-jurisdictional phenomenon in light of effective judicial protection

2019 ◽  
Vol 3 (2) ◽  
pp. 104-124
Author(s):  
Joana Covelo de Abreu
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
Control Mechanisms ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
Court Of Justice ◽  
Constitutional Level ◽  
Judicial Protection ◽  
The Eu

Under today’s European constitutional demands, effective judicial protection sets the tone concerning potential jurisdictional instruments able to act as constitutionality control mechanisms. Inter-jurisdictionality stands for different and complementary jurisdictional systems living togetherin the same space and it aims to understand how their reflexive interactions can be maintained to promote effective judicial protection. Both the infringement procedure and the preliminary ruling act as constitutional controls. The first allows the Court of Justice of the European Union (CJEU) to evaluate the incompatibility of national solutions/omissions with EU law but, to meet its full effectiveness, widening legitimate parties needs to be considered as well. Also, validity preliminary rulings act as a constitutional control in proceedings relating to individuals – national judges should be aware of their referring obligations to the CJEU. There are voices amongst European academia that advocate a new constitutional procedure to promote fundamental rights’ protection. However, the main formulas highlighted rely on solutions tested on the national level which can compromise their efficacy. We perceive an inter-jurisdictional paradigm as the proper approach since it will allowthe promotion of effective judicial protection at a constitutional level as a new EU dogmatically thought phenomenon. This is to ensure judicial integration can be perceived as a reality, engaged in pursuing the future of the EU.

Application of the EU CFR by National Courts in Purely Domestic Cases

2017 ◽  
Author(s):  
András Jakab
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Left Behind ◽  
National Courts ◽  
Domestic Courts ◽  
Local Courts ◽  
Domestic Level ◽  
The Eu

This chapter argues that the most promising way to conceptualize the values of European constitutionalism in a judicially enforceable manner is through a creative reinterpretation of Article 51(1) EU CFR. It asserts that in order to create a fully fledged value community which benefits all its citizens equally, the CFR should become fully applicable in every case in its own right—even in purely domestic cases in domestic courts and even in the absence of a systemic failure of fundamental rights protection at the domestic level. This would mean that judicial review would be introduced across Europe via the supremacy of EU law. This judicial review would be decentralized in the sense that local courts could exercise it, but its unified application would be ensured by the preliminary procedure. The EU could thus become a ‘community of fundamental rights’ with nobody left behind.

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.

The Relation between the Charter's Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as the Test Case

2013 ◽  
Vol 9 (1) ◽  
pp. 73-101 ◽  
Author(s):  
Herwig C.H. Hofmann ◽  
C. Mihaescu
Keyword(s):  
Legal System ◽  
Fundamental Rights ◽  
Test Case ◽  
Eu Law ◽  
Multiple Sources ◽  
Charter Of Fundamental Rights ◽  
Right To Good Administration ◽  
The Right ◽  
The Eu

Charter of Fundamental Rights of the EU – Multiple sources of fundamental rights in the EU legal system – Non-hierarchical, pluralistic understanding of their interrelationship – Case study: the right to good administration – Difficulties in defining the scope of the right to good administration under the Charter and that of the right to good administration as a general principle of EU law – Adoption of a pluralistic understanding of the EU fundamental rights’ sources allows for a clarification and improved understanding of the individual's rights in the EU legal system

scholarly journals National Security Concerns as an Exception to EU Standards on Data Protection

2021 ◽  
Vol 4 (2) ◽  
pp. 86-91
Author(s):  
Araceli Turmo
Keyword(s):  
National Level ◽  
Significant Risk ◽  
Personal Data ◽  
Fundamental Rights ◽  
Public Security ◽  
Eu Law ◽  
National Courts ◽  
Conflicting Interests ◽  
Security Concerns ◽  
The Eu

Discussions on the appropriate fundamental rights standards in the EU and the need to take into account conflicting interests are increasingly being reframed as debates on the conflict between the primacy of EU law and the constitutional standards of the Member States. One example of this reframing is the French administrative supreme court’s decision following the ECJ judgment in La Quadrature du Net. The Conseil ruled that the EU standards set in that judgment must be reviewed, at the national level, with regard to a national understanding of security concerns and the requirements of the fight against terrorism. Thus, constitutional requirements related to public security may be relied upon to argue for a lower standard of protection of personal data than those which the ECJ requires. As this decision shows, the ability of corporations and Governments to rely on litigation before national courts to challenge the standard of protection set at the EU level creates a significant risk, not only for the uniformity of EU law, but also for the protection of the rights of individuals. 

scholarly journals Prawo do prywatności osób prawnych podczas kontroli przedsiębiorstwa dokonywanej przez Komisję Europejską

2017 ◽  
Vol 107 ◽  
pp. 11-25
Author(s):  
Marta De Bazelaire De Ruppierre
Keyword(s):  
Competition Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
The Eu

THE RIGHT TO PRIVACY OF LEGAL PERSONS DURING THE EUROPEAN COMMISSION’S INSPECTIONSThe paper aims to discuss the application of the Charter of Fundamental Rights by the EU institutions in competition law proceedings, showing as an example the respect for the right to privacy of undertakings during the inspections carried out by the European Commission. Although exercising the control powers of the Commission potentially collides with a number of fundamental rights expressed in the Charter, it is the analysis of Art. 7 CFR that allows to depict the evolution of the EU’s approach to privacy of legal persons, showing the accompanying judicial dialogue, or lack thereof, between the European Court of Human Rights and the Court of Justice of the EU. The article short-defines the dawn raids, examines the application of Article 7 CFR to legal persons, highlighting the aspects of protection of domicile and secrecy of correspondence, compares the standards provided by ECHR and EU law, pondering also on how the CFR guarantees can be provided and effectively controlled. It also reflects on the issue whether the Court of Justice has a forerunner role in promoting fundamental rights of undertakings in matters of competition law.

scholarly journals Connecting the Dots Backwards, What Did Ruiz Zambrano Mean for EU Citizenship and Fundamental Rights in EU Law?

2021 ◽  
Vol 23 (1) ◽  
pp. 48-67
Author(s):  
Hanneke van Eijken
Keyword(s):  
Public Health ◽  
National Level ◽  
Case Law ◽  
Fundamental Rights ◽  
Added Value ◽  
Court Of Justice ◽  
The Right ◽  
Connecting The Dots ◽  
Near Future ◽  
The Eu

Abstract What was the added value of the Ruiz Zambrano judgment of the Court of Justice of the EU for the development of EU citizenship? And how does that affect the national level? In this contribution the case of Ruiz Zambrano and the subsequent case law of the Court of Justice and the Dutch courts is assessed to reveal its impact on EU citizenship and the protection of fundamental rights. The contribution shows that Ruiz Zambrano could be called a revolution, in the sense that irrespective of the exercise of free movement, nationals of the Member States can invoke their status of being an EU citizen. That has consequences for family reunification, and the right to reside as a family in the EU. However, the line of case law is still very limited and can be restricted on grounds of public policy and security (and public health; so far there is no case law on restriction on public health and Article 20 TFEU, but in the context of Covid-19 that might be different in the near future). Moreover, the fundamental rights narrative in the cases on Article 20 TFEU became more prominent. However, the implementation of this line of case law lies at the national level and the Dutch case law on Article 20 TFEU is therefore analysed as an example.

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.

scholarly journals Whose Autonomy is it Anyway? Freedom of Contract, the Right to Work and the General Principles of EU Law

2019 ◽  
Vol 49 (3) ◽  
pp. 285-317
Author(s):  
Niall O’Connor
Keyword(s):  
Fundamental Rights ◽  
Eu Law ◽  
Freedom Of Contract ◽  
Legal Studies ◽  
Right To Work ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
The Relationship ◽  
The Eu

Abstract Just how significant is the freedom of contract found in Article 16 of the EU Charter of Fundamental Rights for the regulation of the employment relationship? For the first half of its existence, few could have foreseen that Article 16 would soon be at the centre of debates surrounding the place of business freedoms within EU employment law. This has changed in the wake of a number of controversial decisions in which the Court of Justice of the EU relied on Article 16 to undermine the effectiveness of employee-protective legislation. The article begins by setting out the nature of freedom of contract in EU law and its effects in the employment context. This is followed by a consideration of the relationship between the general principles and the Charter. Critical Legal Studies is relied on to show that existing arguments as to the use of Article 16 as a radical tool in the employment context have been both exaggerated and underplayed. Finally, potential counterweights to freedom of contract are examined, notably the right to work as both a general principle and Charter right.

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