Risk and fundamental rights infringements as a form of ‘damage’ per Article 82 GDPR

Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading ‘solidarity'. In this article two basic questions will be addressed. The first question will address the ‘old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test ‘light' in order to limit the interference of EU law with the essence of fundamental rights.

The article is devoted to the theoretical analysis of fundamental human rights as a special category. It is established that fundamental human rights should be understood as main, most important, basic rights. Three aspects of distinguishing this category of human rights are proposed. The content-value aspect indicates the connection of fundamental rights with basic social values, which determines their universal nature. The hierarchical aspect determines the place of fundamental rights in the system of human rights and freedoms, emphasizes their supremacy and systemic nature. The procedural-restrictive aspect demonstrates the peculiarities of the realization of fundamental rights in the context of the functioning of public and political power and emphasizes the prevention of state interference in the most important areas of private life.
 The influence of local conditions and local cultures on the recognition of certain rights as fundamental on the example of activity of the Inter-American Court of Human Rights has been studied. It is emphasized that in specific conditions of place and time, certain human opportunities become especially relevant and require increased legal protection and guarantees, which leads to the expansion of the catalog of fundamental human rights. Examples include freedom of access to information and the right to privacy, which have become fundamental rights in recent decades. It is concluded that fundamental human rights are aimed at protecting the most important, basic social values, are the basis for the formation of an integrated human rights system and create a reliable framework that protects the individual from excessive pressure from public and political authorities.

Abstract. Fundamental social rights have come a long way in the history of the European Union. Until recently, with the currently contested EU Constitutional Treaty, the Union showed a willingness to adopt a binding instrument containing fundamental social rights. This article argues that the newly pledged fundamental rights would have a considerable impact on both EU as well as Member State policies. The paper also outlines the development of fundamental social rights in the European Union and shows a lack of a clear and uniform approach to the fundamental rights debate in Europe. It is argued that a more general ?constitutionally coloured? fundamental rights pathway must be distinguished from the social policy track, but that the two approaches have merged over the years, finding a synthesis in the Charter on Fundamental Rights incorporated into the Constitutional Treaty. The focus is therefore on a pre-constitutional and a post-constitutional understanding of fundamental social rights.

Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

Problem setting. For many years, in Ukraine, as in many other countries, standard labour relations prevailed in the field of labour and employment, characterised by stability and duration, subordination and control of the employee to the employer, as well as the availability of social guarantees for employees. However, socio-economic changes, globalisation, the post-industrial revolution, and the development of information technologies that allow the use of labour, in particular, through digital platforms, have led to the formation and spread of non-standard labour relations characterised by instability and the lack of an adequate level of labour guarantees and working conditions, primarily in the areas of remuneration, working hours and rest periods, occupational safety and health, etc. analysis of recent researches and publications. In their studies, labour scholars have drawn attention to the need to consolidate non-standard forms of employment in Ukraine and to comprehensively reform labour legislation: S.V. Venediktov, S.V. Vyshnovetska, L.P. Garashchenko, V.P. Kokhan, Y.I. Svichkariova, O.G. Sereda, Y.V. Simutina, M.M. Shumylo, A.M.Yushko and others. In recent years, several monographic studies have been published on the problems of reforming and improving labour legislation with due regard to the need to ensure proper protection of social and labour rights in the realities of the digital era. At the same time, little or no attention has been paid to the challenges posed by the spread of such employment to the implementation and protection of fundamental labour rights proclaimed by the International Labour Organization, including freedom of association and the effective recognition of the right to collective bargaining; the effective abolition of child labour; the elimination of discrimination in respect of employment and occupation; and a safe and healthy working environment. Purpose of the research is to identify and characterise the challenges and threats of non-standard employment through the prism of basic principles and rights at work that are part of universally recognised human rights. article’s main body. Despite the fact that most of the attention in the world today is probably paid to the issues of access to labour rights and guarantees for so-called gig workers engaged in online platforms, who often face the inability to enjoy these rights, the problems of implementing internationally recognised fundamental labour rights go far beyond platform employment and extend to a much wider area of work that does not fall under the category of standard indefinite full-time employment. For example, in cases of concluding an employment contract with non-fixed working hours, the probability of employees’ “voluntary” refusal to exercise their fundamental rights and respond to possible abuses by the employer is very high and significantly increases the employer’s managerial powers. One of the most acute challenges of the digitalisation of the economy in Ukraine is the development of an adequate mechanism for the exercise by precarious workers, primarily those who work through online platforms, of one of their fundamental rights – the right to associate for the collective protection of their socio-economic interests. conclusions and prospects for the development. The development of the digital economy and the rise of nonstandard employment have led to a broad debate on the scope of labour law, while little attention has been paid to a comprehensive understanding of how these forms of employment affect the enjoyment of fundamental principles and rights at work. Yet, such an understanding is extremely necessary in view of the international community’s recognition of fundamental labour rights as human rights. Non-standard employment, especially when combined with precariousness or precariousness, can make it difficult or even impossible to ensure and implement fundamental ILO principles and rights at work, including freedom of association and the effective recognition of the right to collective bargaining; effective prohibition of child labour; nondiscrimination in respect of employment and occupation; and a safe and healthy working environment. In view of this, proper enforcement of these rights as human rights requires systemic actions by governments and businesses aimed at both limiting the use of non-standard employment and further improving the mechanisms for the implementation and protection of labour rights regardless of employment status.

It is rather trendy to talk about the ‘horizontal effect’ of fundamental rights in a society where the dividing line between public and private power is increasingly blurred. However, as soon as one tries to define the exact meaning of horizontal effect and its conditions, several issues swiftly arise. This article explores the past, the present, and the future of the horizontal direct effect in the European Union (EU) legal order, by focusing on the application of this doctrine to the fundamental labour rights today protected in the Charter of fundamental rights. Most notably, with the approaching of the fifth birthday of Bauer and Max-Planck, by looking at the case of the fundamental right to paid annual leave under Article 31(2) of the Charter, this article aims at unravelling the actual meaning of the conditions for the horizontal direct effect of the EU fundamental rights and the actual perimeter of this direct effect. Although the effectiveness of minimum labour rights mandatorily enhanced by this case law should be welcomed, it is argued that the doctrine of the horizontal direct effect of EU fundamental rights seems still stuck between being a proper constitutional doctrine and a mere type of direct effect. It is also claimed, first, that horizontal direct effect is not a unitary phenomenon in EU law. In spite of the continuity in the ECJ’s technical reasoning, there is indeed a striking contrast between the language of ‘perfect equalisation’ of the Charter to the treaties and its actual approach to the assessment of the horizontal direct effect of fundamental (labour) rights. The ECJ’s case law analysis on the fundamental right to paid annual leave will prove this point. Secondly, it is suggested that horizontal direct effect can be defined as a sui generis, on-call, subsidiary, corollary, and ‘amputee’ doctrine, and we will offer some considerations on each of these features by reference to the Court’s practice under investigation. Thirdly, we suggest that the horizontal direct effect of fundamental (labour) rights relies more on the history and trajectory of the EU regulation of that specific right in the EU legal order rather than on the wording of the Charter’s provision or other technicalities.

Only in 1998, the Constitution of the Republic of Latvia – Satversme, which has been adopted more than a hundred years ago and is one of the oldest constitutions in Europe, was supplemented with a new chapter concerning the regulation of fundamental human rights. Until the adoption of Chapter 8 of the Satversme, only a few fundamental human rights could be found in the Constitution. The article discusses the development of the regulation of fundamental rights in the Satversme, the importance of fundamental rights in a democratic state, as well as reflects the catalogue of fundamental rights. In the article, the authors, looking at the catalogue of fundamental rights included in the Satversme, analyses fundamental rights by dividing them in groups, i.e. civil, political, social, economic, cultural and solidarity rights. The publication outlines the most characteristic features of each group of fundamental rights, points out content of those rights and looks into the recent case law of the Constitutional Court. The publication can contribute to the study material for law students of constitutional law course.

The principle of human dignity, as never before, has to be pulled out of its ethereal plane. Empty rights do not contribute to the true civilization progress coveted by all. So that mankind walks faster towards the achievement of the values settled along the slow process of political and legal awareness that resulted in the construction of catalogs of fundamental rights, the full effectiveness of legal rights shall not be avoided. The indispensable protection to human dignity must be enforced with conviction. The issue of the effectiveness of fundamental principles significantly affects workers' legal protection. The ILO Declaration on Fundamental Principles and Rights at Work and the guidelines on decent, healthy and safe work, which define minimum international labour standards, have not been complied with in different countries, severely compromising the protection to workers' dignity. The applicability and enforcement of fundamental labour rights must be guaranteed to fight contemptible cases of slavery-like work conditions, workers' discrimination, retrenchment to free labour union and collective bargaining, child labour, unsafe work or under degrading conditions, among several other unfair and infamous situations experienced in the work environment. In a globalized economic scenario, where financial capitalism is emphasized, governments have to assume, as never before, their role in the effective protection of human rights at work. Accordingly, in view of the supremacy and inalienability of fundamental rights as essential principles of administrative activities of the Rule of Law, the role of the Government is to induce and shape social conducts. The present academic paper argues and claims that governments should have a decisively active role, fomenting and enforcing the effective compliance with fundamental rights at work, notably by applying legal instruments as the labour clause in public contracts. The labour clause expresses and affirms the cogent and binding force that arises out of public contracts and contractual provisions, and pulls subjective rights out of their abstract plane, establishing an actual and mandatory connection grounded on specific obligations immediately enforceable and aimed to realize fundamental rights at work and protect the dignity of workers, and applying immediate sanctions on the offender of such legal provisions. Therefore, it produces real and concrete legal developments to labour protection. The outlines of the contemporary conception of socially responsible public contracts require the adoption of the labour clause for the enforcement of fundamental labour rights at work. The characteristics and specificities of the new legal regime, which comprises administrative contracts, express and legitimize the full pertinence and legality of including the labour clause among their provisions. In this context, the compliance with international workers' protection standards is mandatory to a sustainable development. Socially responsible public contracts that value and enforce the protection to workers' dignity may effectively influence economic activities, promoting social justice in labour relations that emphatically claim for the structuring of employment and labour standards that respect human rights at work.

A presente pesquisa teve como objetivo tratar da efetividade dos Direitos Fundamentais Sociais, protegendo o conteúdo mínimo existencial a fim de garantir o Princípio da Dignidade da Pessoa Humana. Para tanto, abordou-se sobre o conceito geral dos direitos fundamentais, identificando as suas principais características e a diferença com Direitos Patrimoniais, enfocando, brevemente, os princípios constitucionais da proporcionalidade e razoabilidade na aplicação dos direitos fundamentais e a fiscalização de normas perante a violação deste. Após, partiu-se para uma aplicabilidade específica, explicando o que são os direitos fundamentais sociais para, então, tratar sobre o conteúdo mínimo existencial e a justiciabilidade de tais direitos, relacionando-se com a Teoria da Reserva do Possível e o seu uso perante o Poder Judiciário como alegação do Estado para afastar o conteúdo mínimo existencial do dever deste em aplicar os direitos fundamentais sociais. Tratou-se também sobre a eficácia social de tais direitos, já que demandam a distribuição de recursos do Estado e a prática de políticas públicas para torná-los efetivos socialmente. O Princípio da Dignidade da Pessoa Humana foi tratado para explicar a sua relação com os direitos fundamentais sociais. Por isso, faz-se necessária uma análise da efetividade dos direitos fundamentais sociais, pois, não sendo efetiva a aplicabilidade deles, não há o que se falar em Dignidade da Pessoa Humana, já que aqueles são precursores desta. Quanto à metodologia, foram utilizadas as técnicas do referente, da pesquisa bibliográfica, da categoria e do conceito operacional.

Introduction. The article is devoted the constitutional foundations of the legal status of the individual in the Federal Republic of Germany, some fundamental rights, their content and protection. Particular attention is paid to the institute of restrictions of fundamental rights and freedoms in Germany. Fundamental rights are considered in the interpretation of the Federal Constitutional Court of Germany, the legal doctrine that describes fundamental rights and freedoms. The works of the leading German constitutionalists, as well as the works of domestic researchers are used. The author emphasizes the importance of fundamental rights in the formation and evolution of the democratic constitutional order in Germany. The modern tendencies of development of the institution of rights and freedoms in Germany are analyzed.Materials and methods. The material sources of the study were the provisions of the Basic Law of the Federal Republic of Germany of 1949, the current German legislation, the decisions of the Federal Constitutional Court (Bundesverfassungsgericht) of Germany, international human rights documents ratified by Germany. The works of German and Russian constitutionalists were also used during the research. The methodological basis of the article consists of general and special methods of legal research.Research results. The article analyzes in a detailed form the specifics of the constitutional regulation of fundamental human and civil rights and freedoms in Germany, their current state and prospects for further evolution. Problems related to the protection of rights and freedoms and mechanisms of their guarantees are thoroughly considered. Special attention is paid to the analysis of the resonant decisions of the supreme judicial body of the constitutional control of Germany on the legal status of the individuals in this country.Discussion and conclusions. The author comes to the conclusion that the Basic Law of the Federal Republic of Germany contains a fairly complete catalog of fundamental rights and freedoms, which are an integral part of the democratic constitutional order of Germany. The constitutional legislator provides for the possibility of restricting fundamental rights and freedoms only by law and on the basis of the law. The practice of the Federal Constitutional Court plays a special role in the interpretation of these restrictions. The protection of rights and freedoms is considered by the German constitutional legislator as the most important task of all constitutional bodies of the country. The country’s extensive system of guarantees of fundamental rights makes them very effective and efficient instruments.

The objective of this article is to describe the development of the perception of human rights’ issues pertaining to the field of labour law under the new jurisdiction and legal order created by the European Communities. The progress in the human rights area shall be illustrated by changing approaches of the European Court of Justice and Member States and of course by the greater awareness of the citizens of the “ever closer Union” of their fundamental rights. The gist of the work tackles the most interesting labour law cases which the European Court of Justice was deciding and which are sometimes of trailblazer character. This article commences by a necessary introduction of human rights protection in the context of labour law. It further briefly tackles the development of the European Court of Justice’ case law regarding human rights’ aspects generally. It also describes various instruments of the other EC institutions tackling the controversial subject of human rights, up to the most recent document, The Charter of Fundamental Rights of the European Union and the Europe’s Constitution. The principal part of this article concentrates on social human rights case law and outlines some of the basic general principles that the European Court of Justice employed when deciding such cases. However, it was never the aim of this paper to provide a complete list of Community fundamental social rights in the field of labour law as the author is well aware of the fact that such task would require much more elaborate analysis of this topic. Quite contrarily, the purpose of this article is to highlight labour law aspects connected with the judicial protection of fundamental rights of employees within the framework of the European Union and to enable a more clearer insight into some of the key judgments in this area. The final part reflects protection of fundamental social rights of employees provided by the Community in the Czech legal order. The article was written with the ultimate purpose of illustrating that fundamental social rights of employees are bound to enjoy more and more respect and the values comprised in some of the cases of the European Court of Justice and certain key Community instruments such as the Charter, are to become a necessary part of the foundations of the future European integration.

This book attempts to systematise the present interrelationship between fundamental rights and the EU internal market in the field of positive integration. Its intention is simple: to examine the way in which, and the extent to which, fundamental rights protection is realised through EU internal market legislation. To that end, the analysis is conducted around four rights or sets of rights: data protection, freedom of expression, fundamental labour rights and the right to health. The book assesses not only what substantive level of protection is achieved for these fundamental rights, but it also estimates whether there is a ‘fundamental rights culture’ that informs current legislative practice. Finally, it asks the overarching question whether the current state of harmonisation amounts to a ‘fundamental rights policy’. The book offers a much more varied picture of the EU’s fundamental rights policy in and through the EU internal market than perhaps initially expected. Moreover, it builds the case for a more conscious approach to dealing with and enhancing fundamental rights protection in and through internal market legislation, and advocates a leading role for the legislature in the establishment of an internal market that is firmly based on respect for fundamental rights.

Abstract: Regarding the conceptual and terminological delimitation related to Fundamental Rights and Human Rights, there are different interpretations within the legal field. Where in this tuning fork does one observe the problem situation of what would be the effects of the conceptual and terminological differentiation that encompass Fundamental and Human Rights? In this sense, this article aims to outline the complexity that involves the concepts and characteristics of Fundamental and Human Rights in the legal area and their understanding based on scientific arguments, since this issue is far from having a uniform understanding regarding this issue. theme. Likewise, in the methodology of this article, the logical-deductive method will be used, with a basis and fulcrum in the bibliographic review on the aforementioned topic. Furthermore, it is argued that the main conclusions of this article show that the expressions Fundamental and Human Rights are more similar, and a link of differentiation between their positions is evident, as Fundamental Rights are described and stated in the Federal Constitution. Human Rights are intertwined with the freedom and equality that are established in the international order, where the content of the two is essentially the same, what differs between them is the level in which they are enshrined within the norms and/or laws. The idea is to establish that Fundamental Rights have a relationship with positive law and Human Rights are intertwined with pre-positive law. Keywords: Delimitation. Conceptual. Terminological. Rights. Fundamentals. Humans.

The overall aim of Raffael Fasel’s excellent book More Equal than Others is to promote the ‘Species Membership Approach’ (SMA) as the way to award and protect ‘fundamental rights’ (the basic legal rights of individuals that are vital for securing their well-being). It is contrasted with the so-called ‘Meritocratic Approach’ (MA) that assigns rights based on individual characteristics, leaving those without said characteristics excluded from rights. And it is contrasted with the ‘Aristocratic Approach’ (AA) that assigns equal rights to all within a specified group, which traditionally has only been humans. The SMA offers a different way forward by keeping the egalitarian nature of the AA, whereby all humans are recognised as having equal rights. But, the SMA departs from the AA by recognising, akin to the MA, that humans are not the only group who can merit fundamental rights. Rather than assigning rights based on individual characteristics like the MA, the SMA instead extends them on the basis of species membership. This is a provocative and important new approach to our thinking on fundamental rights and it has numerous virtues. Nonetheless, while Fasel is right that some deference to groups is inevitable when assigning rights, it is crucial that we think carefully about the groups which count as relevant. And it is here where I believe Fasel’s argumentation goes astray. I maintain in this paper that sentience—both as an individual characteristic and a relevant grouping—is the proper basis for assigning fundamental legal rights. It further argues that Fasel’s own dismissal of sentience, a position with which he engages at some length, is flawed. In the first section of the paper, I briefly outline my own ‘sentient rights’ approach, and explain how it tackles the problems that Fasel identifies with alternative approaches for awarding fundamental legal rights. In the next two sections, I then confront and rebut the two objections that Fasel makes of this approach: that it inevitably leads to humans losing out to animals when their interests clash; and second, that it cannot award rights of equal value to individuals on the basis that sentience is scalar (comes in degrees). The fourth and final substantive section claims that the SMA’s prioritisation of pragmatism over moral relevance in the award of legal rights is flawed and may in fact stall progressive changes for non-human animals.

The Second Amendment's Inferiority Complex