Charter Of Fundamental Rights Research Articles

The EU’s Transactional Approach to Rule of Law Spending Conditionality in the 2020s

AbstractRule of law spending conditionality marks a turn in the EU’s strategy in the 2020s. The entry of this value into the budgetary sphere represents an economization process, creating room for the development of a transactional approach to rule of law compliance. This article defines this conceptual framework and examines the extent of its application through the case study of three budgetary instruments used during the 2021–2027 cycle: the Recovery and Resilience Facility, the Rule of Law Conditionality Regulation and the horizontal enabling condition of the Charter of Fundamental Rights. Contributing to the recent Europeanization literature, it also emphasizes the change in European governance and in the EU–Member State relationship triggered by the new conditionality culture following the succession of European crises, moving from a traditional politico‐legal enforcement model to a transactional one.

DPA independence and ‘indirect’ access – illusory in Belgium, France and Germany?

Directive 2016/680 provides for two procedures for the exercise of the rights of access to one's data: a direct one (that is, directly against the law enforcement authority) and an ‘indirect’ one, in which the responsible Data Protection Authority (DPA) exercises the right of access of the data subject against the law enforcement authority which refused the direct access, including by carrying out a legality check on the data processing of the personal data of the individual requesting access. The recent judgment in Ligue des droits humains ASBL treated the question of the powers of DPAs in the framework of this procedure, amongst others, as a matter of DPA independence. Existing literature has observed that the implementing laws of three Member States – Belgium, France and Germany – severely restrict the powers of the DPAs when these perform the ‘indirect’ right of access, for example to carry out the legality check and inform the individuals of the results of the check. In the this article we will argue that these national restrictions constitute an unjustified interference with the requirement on DPA independence in EU data protection law, including in Article 8(3) of the EU Charter of Fundamental Rights.

Why the algorithmic recruiter discriminates: The causal challenges of data-driven discrimination

Automated decision-making systems are commonly used by human resources to automate recruitment decisions. Most automated decision-making systems utilize machine learning to screen, assess, and give recommendations on candidates. Algorithmic bias and prejudice are common side-effects of these technologies that result in data-driven discrimination. However, proof of this is often unavailable due to the statistical complexities and operational opacities of machine learning, which interferes with the abilities of complainants to meet the requisite causal requirements of the EU equality directives. In direct discrimination, the use of machine learning prevents complainants from demonstrating a prima facie case. In indirect discrimination, the problems mainly manifest once the burden has shifted to the respondent, and causation operates as a quasi-defence by reference to objectively justified factors unrelated to the discrimination. This paper argues that causation must be understood as an informational challenge that can be addressed in three ways. First, through the fundamental rights lens of the EU Charter of Fundamental Rights. Second, through data protection measures such as the General Data Protection Regulation. Third, the article also considers the future liabilities that may arise under incoming legislation such as the Artificial Intelligence Act and the Artificial Intelligence Liability Directive proposal.

Accession of the EU to the ECHR: A more developed fundamental rights low for the EU after the Lisbon Treaty?

The Treaty of Lisbon introduced important changes in the protection of human rights in the EU, the most important of which lie in the changes in Article 6 of the Treaty on the European Union. These provisions indicate that the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law, and that the EU "shall accede" to the European Convention on Human Rights (ECHR). Since the entry into force of the Treaty of Lisbon, the Charter has been referred to on numerous occasions by the European Court of Justice and now acts as the main source of human rights in the EU. This article examines the import of this case law, some of which are ground-breaking and controversial, as well as how the higher profile for human rights under the Charter is likely to change the nature of the EU’s relationship with the ECHR. The article also examines the complex procedure for the EU’s accession to the ECHR, which is now underway, highlighting particularly significant aspects of this process. The article concludes with some general reflections about the status of human rights protection in the EU, suggesting that this has become one of the most significant areas of EU law that has had, and continues to have, a crucial impact on the EU’s relationships with its Member States, the EU and international law.

Egzekucja roszczeń odszkodowawczych w związku z wywołaniem i prowadzeniem wojny napastniczej

The article presents key issues related to the assertion of claims for liability for damages resulting from the instigation and conduct of a war of aggression. These issues have become topical again not only due to revival of the discussion concerning claims for damages caused during the Second World War, but also due to the ongoing armed conflict between the Russian Federation and Ukraine since 2021. At present, there are no codified, uniform and well-established legal principles in this area regarding the claims themselves in general, or for their enforcement. Under international law, a war of aggression can certainly give rise to an obligation to provide compensation on the part of the state that caused or conducted it (the responsible state).In the twentieth century, the issue of liability for reparations was primarily regulated in acts of peace-making, most famously in the Treaty of Versailles. However, there is still an ongoing theoretical discussion as to whether and how liability for damages can be effectively claimed by the injured state, but also by individuals – on the basis of the rules of international law or even domestic law, since these entities do not, in principle, have international legal subjectivity. Indeed, individual claims are or at least can also be the subject of international agreements. In this context, the article points to a trend away from the principle of absolute jurisdictional immunity of states in favour of limited immunity, which should also be applied to immunity from enforcement. This leads to the question of the desirability of moving away from rigid rules of protection for states when, by provoking and waging a war of aggression, they can on this basis avoid liability for their own unlawful actions. Furthermore, given the limited framework of legal instruments of influence in relations between states, the question arises as to whether and which measures (including the long-known so-called precautionary measures) can be used unilaterally not only against a state, but also against its citizens and the assets of the legal entities subject to its legislation. In practice, it is precisely such measures that can serve to secure claims for damages through the seizure of property assets. However, it should not be forgotten that the application of such unilateral measures may be challenged in relations between Member States of the European Union. In addition, any expropriation or confiscation may be challenged as inadmissible not only under the constraints of Article 215 TFEU, but also in light of the protective norms of the EU Charter of Fundamental Rights and Article 1 of Protocol No. 1 to the ECHR, and, at the level of state legislation, constitutional norms.

OUT-OF-COURT RESOLUTION OF CONSUMER DISPUTES UNDER THE EUROPEAN UNION LAW

The subject of the article is an analysis of out-of-court methods of resolving consumer disputes in European Union law. They constitute a procedural guarantee of the implementation of consumers’ right to a high level of protection, guaranteed in Art. 38 of the Charter of Fundamental Rights of the European Union. The article describes Directive 2013/11/EU on alternative dispute resolution for consumer disputes. The principles of its implementation in European Union countries are also presented. Also addressed by the analysis is the latest proposal to amend the ADR Directive presented by the European Commission. According to the author, Directive 2013/11/EU has fulfilled its role as the foundation of the consumer rights protection system in the European Union. However, with the development of services on the internet, consumers are exposed to new threats. The proposal to modify the ADR Directive presented by the European Commission is a step aimed at increasing the level of consumer protection.

Problems of abuse of law when applying to the European Court of Human Rights

The article focuses on the fact that abuse of law is not only an urgent problem of modern legal science, but also one of the most complex and important issues to be addressed. This phenomenon is becoming aggressive and global, negatively affecting the processes of democratisation and consolidation of statehood. The prevalence of cases of abuse of law can slow down the development of society, violating the acquired norms and values. It is important to understand that achieving stability in social relations and their further development is impossible without taking into account the specifics of this legal phenomenon. Abuse of law not only violates the basic principles of law, but also poses a significant threat to the development of the rule of law and the determination of its future course.
 The particularities of the use of the term “abuse” in international law are determined. It is noted that the European Court of Human Rights considers that this concept should be understood in its ordinary meaning, namely, as the fact of exercise of a right by a subject of law outside its intended purpose in a manner which causes prejudicial damage. The author identifies the approaches to understanding the abuse of law which are used by the European Court of Human Rights in its work.
 It is noted that in addition to the Convention for the Protection of Human Rights and Fundamental Freedoms, the provisions defining the basis for preventing abuse of law at the international (supranational) level are also contained in the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the Charter of Fundamental Rights of the European Union.
 The author examines a number of judgments of the European Court of Human Rights in which cases of abuse of law occurred. The author defines the role of the state in cases of abuse of law. The main features inherent in the abuse of law are outlined. Attention is paid to the fact that in addition to the positive components of preventing abuse of law, this activity also has negative consequences.
 The importance of preventing abuse of law is emphasised, subject to the obligatory observance of the principles of fairness, transparency and consideration of individual rights and freedoms of subjects. Ensuring a balance between the protection of rights and prevention of their abuse is an important task for the effective work of the European Court of Human Rights.

Towards a right to cybersecurity in EU law? The challenges ahead

This article aims to engage with the scholarly debate on the introduction of a new fundamental right to cybersecurity in EU law. In particular, the legal analysis focuses on three legal challenges brought about by a theoretical framework for development of a new right to cybersecurity. They regard: i) the need for a new right to cybersecurity against the background of the existing fundamental right to security (Art. 6 EU Charter of Fundamental Rights, CFR); ii) the actual content of this new right; and, iii) how such a new right could be implemented. The article concludes by advocating for the need of acknowledging a new right to cybersecurity in EU law.

REALIZATION OF THE RIGHT TO ENSURE A HIGH LEVEL OF CONSUMER PROTECTION IN THE EUROPEAN UNION

The subject of the article is the realization of the right to ensure a high level of consumer protection in the European Union. The basis for constructing this law is Art. 38 of the Charter of Fundamental Rights of the European Union, the provisions of the Treaty on the Functioning of the European Union and EU directives defining the subject of consumer law. The article discusses the normative basis for the protection of consumer rights in European Union law. Selected standards of consumer rights protection in the case law of the Court of Justice of the European Union were discussed, too. The article also discusses the role of European Union consumer law in realization of the right to consumer protection in the Republic of Poland. According to the author Art. 76 of the Constitution of the Republic of Poland does not provide grounds for constructing a subjective right to ensure a high level of consumer protection. Therefore, the provisions of European Union law and the case law of the Court of Justice of the European Union are of key importance.

The Contemporary Foster Care Legislative Framework in Greece: A Review of its Assets and Weaknesses

This review comprehensively analyzes the contemporary Greek legislative foster care system according to N4538/2018, exploring all the relevant international agreements such as the United Nations Convention on the Rights of the Child and the European Union's Charter of Fundamental Rights, that influenced its enactment. It highlights the rights and protection afforded to children in foster care, detailing provisions from the Hague Convention on the Rights of the Child and European legislation. It explores thoroughly the recent legislative reforms in Greece, including the establishment of the National Council for Foster Care and Adoption. It emphasizes the development and adherence to National and Special Registers for minors in the modern Child Protection System, as well as the implementation of Individual Family Rehabilitation Plans. It reveals that the recent legislation framework has many advantages but also a few weaknesses that could be amended. The legal procedures and criteria for placing minors in fostering in Greece, and the required criteria to ensure that foster parents meet the necessary guidelines to protect the best interests of children are discussed. This paper also examines the legal and procedural steps required to link children to foster families, the arrangements for supervision of foster parents and the consequences of fostering in cases of non-compliance. It is also proven that social workers play a key role in all stages and procedures of the application of the institution of foster care since they have taken up the main responsibilities for its implementation, prior, during and after the children are placed in foster parents. The article concludes that there is an imperative need for informed policies and practices that will ensure the adequate care and protection of minors in the foster system, recommending a synergy of legal, institutional, and educational strategies to optimize the welfare of foster children and support foster parents.

Multiple sources of right to an effective remedy in EU migration and asylum law: Towards common standards on judicial protection?

Along with the progressive insertion of the right to an effective remedy in instruments of secondary legislation in different sub-areas of EU migration and asylum law, the question of interplay between the right to an effective remedy guaranteed at the level of primary law (Article 47 of the EU Charter of Fundamental Rights) and secondary law has been gaining more and more importance for the determination of boundaries between matters covered by EU law and those governed by national legislation. The present contribution will seek to examine the interactions between Article 47 of the Charter and the relevant provisions of secondary law in the field of migration and asylum. It will demonstrate that despite dense codification of the right to an effective remedy in different instruments of secondary law, Article 47 of the Charter continues to play a significant role in the case law of the Court of Justice of the EU concerning procedural guarantees conferred upon migrants and asylum seekers. A particular emphasis will be put on the analysis of recent case law developments that reveal the potential of Article 47 of the Charter to serve as a main tool for readjustment of national procedural rules.

Human Dignity, Rights and Victim Participation in Criminal Justice

Human dignity is the cornerstone of human rights and central to the Treaty on European Union (EU) and the EU Charter of Fundamental Rights. It is embedded within constitutions across EU countries. This strong commitment to human dignity has given rise to extensive reflection on its centrality to correcting rights violations, inequality, discrimination and the oppressive conduct of state institutions. This article explores the work that human dignity does for people victimised by crime in the EU. We argue that the agentic human, central to the idea of victim participation, originates in human dignity. However, using a dignity lens, an analysis of victims’ rights documents and rights research reveals a paradox within the victim-friendly civil law jurisdictions of Europe. That is, the procedural position of the victim established in tradition and law is undermined by justice professionals’ attachment to the idea of the state’s ownership of the violation. We then discuss jurisprudence of the European Court of Human Rights relevant to the protection of human dignity to identify how this tension between the protection of individual victim rights, especially the right to remedy, and public interest is adjudicated. We suggest that the Court’s attention to individual rights should be harnessed by victim rights advocates and lawyers. While the victim’s procedural role matters to their substantive and meaningful participation in criminal proceedings, it is their right and capacity to act independent of the state that may matter more.

Bank Resolution and the European Convention on Human Rights – A Note from the UK

Abstract This note considers human rights review of resolution decisions and processes – a context in which property rights can be limited or suspended given the operation of resolution decisions, including bail-in and sale decisions – in the context of the UK resolution regime and the relevance of the European Convention on Human Rights (the Convention) and the Charter of Fundamental Rights of the EU (the Charter) following the withdrawal of the UK from the EU. It outlines the UK framework, considers the current approach to rights review, and closes with the implications of the UK withdrawal from the EU on rights review, ex ante and ex post, against the Convention and Charter.

Panel II – Bank Resolution and Fundamental Rights

Abstract The second Panel of the SRB’s Legal Conference, moderated by the SRB General Counsel Karl-Philipp Wojcik, focused on the possible interferences between the resolution framework and the protection of fundamental rights as embedded in the EU Charter of Fundamental rights (the Charter) the European Convention on Human Rights (ECHR) and its protocols. The panellists also picked up case law developments regarding those interferences before both the European Court of Justice (ECJ), and the European Court of Human Rights (ECtHR).

The Diagonal Application of the EU Charter of Fundamental Rights: From “Displacement” through “Agency” to “Scope” and Beyond

Abstract The application of the EU Charter of Fundamental Rights to the Member States has given rise both to a controversial phraseology and a controversial case-law. This paper offers a reconstruction of the constitutional intent and proposes a conceptualization in conformity with the structural function and the constitutional contemplation of the pouvoir constituent. As to the phraseological debate, it demonstrates that the Charter’s application to the Member States may occur by reason of either “implementation” or “interpretation” of EU law and the two strands are embraced but not synthetized by “scope” as a collective term. As to the substantive debate, it demonstrates that the CJEU’s case-law on “implementation” is not only amorphous but also inconsistent with the Charter’s constitutional mandate. The paper proposes a novel approach based on the notion that the application to the Member States is accessory to the supremacy of EU law. The paper’s argument is presented in the following steps. First, the paper presents the pristine rationale and constitutional function of the application to the Member State through its emergence and historical context. Second, it provides a taxonomy and critical overview of the CJEU’s amorphous case-law and presents the Court’s futile attempt to create a coherent doctrine that faithfully reproduces the constitutional contemplation behind the diagonal application and that reflects the division of competences between the EU and its Member States. Third, it sets out the proposed doctrine of “displacement.”

Criminalising the Violation of EU Restrictive Measures: Towards (Dis)Proportionate Punishments vis-à-vis Natural Persons?

This paper aims at providing a critical perspective on the European Union’s adoption of criminal law as a key mechanism for enforcing sanctions against Russia and Belarus following the 2022 invasion of Ukraine. It scrutinizes the evolution and expansion of the EU’s sanctions regime, revealing a strategic shift towards a criminal law-based enforcement approach. With an emphasis on the EU’s legal framework, this contribution highlights the diverse national responses to breaches of these sanctions, ranging from administrative to criminal penalties. The lack of uniformity in these responses has sparked a significant EU initiative to criminalise sanction breaches, leading to a proposal for harmonizing criminal definitions and penalties across Member States. This initiative, while aiming to streamline enforcement and eliminate impunity, raises questions about the proportionality and appropriateness of using criminal law in this context. This paper delves into these concerns using the principle of proportionality of penalties enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union as a benchmark. It critically analyses the proposed criminal penalties, questioning their alignment with the severity of the offences and the rationale behind categorising offence as either minor or serious. Besides, the examination extends to the impact of monetary thresholds on determining the gravity of offences, the cumulative effect of linked offences, and the potential risks of overcriminalisation. Finally, it offers insights into the latest developments in the legislative process, discussing the European Parliament and Council’s stance on the proposal. The paper concludes by advocating for further refinements to ensure that the criminalisation of violation or circumvention of restrictive measures remains proportional and effective, ultimately upholding the EU’s commitment to justice and accountability in the face of international crises.

Wzorce kontroli pojęcia „sądu krajowego” w prawie unijnym

The aim of the article is to demonstrate the evolutionary approach of the Court of Justice to the criteria for review of the concept of a court within the meaning of EU law. It has been shown that there are three basic standards used by the Court in this area. The first one is an examination of the premises developed as part of the procedure of a question referred to for a preliminary ruling, which includes functional and systemic premises. The second one is based on Article 47 of the Charter of Fundamental Rights of the European Union, which specifies three premises: independence, impartiality and establishment of a court by statute. The third standard of control indicated by the Court of Justice in the judgment in case C-64/16 is of a different nature. It has been applied to reforms of the justice system in the Member States and is based on the combined interpretation of three provisions: Article 2, Article 4 (2) and Article 19 (1) of the Treaty on European Union. The indicated standard was the cause of a lively discussion initiated by the constitutional tribunals of the Member States (the case of Poland and Romania). In principle, they do not question the right of the Court of Justice to review the concept of a court under the first and second standard. However, in relation to the reforms of the justice system, they emphasize their own competence, which is granted to them by their national constitutions. It should be noted that the fundamental problem that appears in the jurisprudence of both the Polish Constitutional Tribunal and the Court of Justice is the protection of primacy of the constitution and irrefutability of the judgments of constitutional tribunals by the Court of Justice.

Reporting Tax Schemes Violates Legal Professional Privilege

In this article, the author discusses the judgment of the CJEU in the case C-694/20 Orde van Vlaamse Balies and Others, which extends the protection of professional secrecy for lawyers. In the context of combating aggressive tax planning, the CJEU ruled that requiring licensed lawyers to inform other intermediaries involved in a tax scheme is unnecessary and violates the right to respectful communication with the client. The CJEU’s view that legal professional privilege takes precedence over tax objectives and obligations is the main novelty of the judgment under review. Individuals who consult a lawyer, as well as a tax advisor, have a reasonable expectation that their communications will remain private and confidential. Therefore, except in exceptional circumstances, they have a legitimate expectation that their lawyer will not, without their consent, disclose to anyone the fact that they are the subject of his or her advice. Following the judgment, the European Commission will legislate to amend the DAC6 Directive so that it meets the requirements of EU primary law as identified by the Court.
 The judgment is also important because it recognises that legal professional privilege is not limited to advice given in the context of litigation, which has been a restrictive view in antitrust cases.
 In Orde van Vlaamse Balies and Others, in which the Court held that the duty to inform other intermediaries imposed by Article 8ab(5) DAC 6 interfered with the right to respect for communications between lawyers and their clients guaranteed by Article 7 of the Charter of Fundamental Rights, the Court gave primacy to primary law (the Charter of Fundamental Rights) over secondary law (DAC 6). In this context, a new jurisprudential trend can be observed in which a substantive review of the Tax Directive was carried out on the basis of the Charter of Fundamental Rights. In general, the CJEU has been reluctant to get involved in substantively reviewing EU secondary legislation. More recently, however, the CJEU seems to be carefully analysing provisions of EU directives that are not in line with fundamental rights.

Regulation of the Freedom of Religion in Czechoslovakia after 1989 as a Reaction to the Legal Practice of the Totalitarian Regime

Following the political changes of 1989, Czechoslovakian believers were finally able to enjoy their long-awaited freedom. This article highlights how the legislative framework of the new democratic system responded directly to the specific areas where the rights of believers and religious institutions were suppressed by the previous totalitarian government, influenced by Marxist-Leninist atheism. Compared to other Eastern Bloc countries, Czechoslovakia is unique in its complete suppression of Catholic male religious orders. The Charter of Fundamental Rights and Freedoms [Listina základních práv a svobod], which guarantees the autonomy of churches and religious societies, explicitly provides for the right of churches to establish religious institutions. The first four sections of the text examine the precise legal and extrajudicial measures taken by the Communist regime to curtail churches, with ensuing sections exploring the constitutional guarantees and legislative basis for religious freedom in Czechoslovakia and, later, the independent Czech Republic. Legal regulation encompasses more than the individual rights of believers. It also pertains to church activities in a variety of public interest areas, their financial provision, and state recognition of new churches and religious societies.

Unravelling horizontal direct effect in EU law: the case of the fundamental right to paid annual leave between ‘myth’ and ‘practice’

Abstract 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.