EU Fundamental Rights Research Articles

EU Competition Law, Fundamental Rights and the Principle of Transparency – An Evolving Relationship

Faced with the challenges posed by gatekeepers, EU competition law is undergoing a period of significant change. I attempt to show in this article that one can understand this change as a shift in the relationship between EU competition law and fundamental rights. More precisely, I show that the initial relationship between these two factors has been operational, in the sense that fundamental rights have been relied upon to operationalize the substance of competition law. In the operational relationship, the right to a fair trial has been deployed by the European Commission to create and expand its quasi-judicial arm. This long-standing operational relationship has recently evolved into an informative one, where the rights to privacy and data protection have informed the European Commission’s merger assessments involving gatekeepers. Finally, I argue that, in light of the Meta/Facebook case and recent EU legislation, the relationship between EU competition law and fundamental rights can be called foundational. Indeed, it appears that both the CJEU and EU legislators intend to inject fundamental rights into the foundations of EU competition law. I also highlight how the principle of transparency has played an important role in these developments as an enabler and magnifier. These changes are significant and will impact the work of competition authorities, data protection authorities and other public bodies in the EU.

“Access Denied” – Interpreting the Digital Divide by Examining the Right of Prisoners to Access the Internet in the Case Law of the European Court of Human Rights

Abstract The present paper aims to investigate prisoners’ rights to use and access the Internet, focusing on the jurisprudence of the European Court of Human Rights (ECtHR). The study’s principal objective is to assess the fundamental rights aspects of Internet access, particularly within the context of relevant EU legislation, and to interpret how the digital divide impacts prisoners. The study primarily relies on a thorough review of pertinent literature and legal materials, and it incorporates case studies from Estonia, Lithuania and Türkiye to contextualize the literature findings within specific legal jurisdictions. The research findings suggest that prisoners’ Internet access should be evaluated in accordance with fundamental rights, including Article 10 of the European Convention on Human Rights. Regarding the digital divide, the study concludes that limiting prisoners’ access to the Internet could exacerbate the already existing societal gap, potentially hindering their reintegration into society. The particular focus on the above three countries stems from the fact that as per the precedent of the ECtHR, only four countries are involved in cases concerning restriction of access to the Internet (Estonia, Lithuania, Türkiye and Russia); however, Russia ceased to be a party of the European Convention on Human Rights, so analyzing the future of the issue of Internet acces there is highly limited. Our research contributes significantly to the literature on the digital divide, particularly in terms of its legal implications. The study’s comprehensive approach, which integrates both theoretical and practical aspects, is beneficial for domestic legal professionals and researchers engaged in interdisciplinary investigations of EU law and fundamental rights.

Bezárva és kizárva

Aim: The aim of this study entails the examination of the rights of prisoners to use and access the Internet, based on the case law of the European Court of Human Rights. A further objective of the study is to analyse the fundamental rights aspects of Internet access, in particular in the framework of the relevant EU law, and to interpret the phenomenon of the digital divide in relation to prisoners. Methodology: The study is primarily based on the review of the pertaining literature and legal materials. In addition, three case studies are included in the research, inter alia to allow the findings of the literature to be interpreted in the context of jurisdiction. Findings: The research concludes that prisoners’ access to the Internet should be studied in accordance with fundamental rights, including Article 10 of the European Convention on Human Rights. With regard to the digital divide, it is concluded that restricting prisoners’ access to the Internet may lead to the expansion of the digital divide, potentially hampering prisoners’ reintegration. Also of particular relevance to the findings is the demonstration that the polemics surrounding prisoners’ right of access to the Internet can be localised at a territorial level – in particular, the Baltic States and Turkey are affected. Value: The study is a useful contribution to the literature on the digital divide in Hungary, especially to the legal reception of the phenomenon. The study’s approach, combining theory and practice, is useful both for domestic legal practitioners and for researchers conducting interdisciplinary research on EU law and fundamental rights.

EU governance through funding: What consequences for the scope of application of EU fundamental rights?

The definition of the national situations that are covered by the scope of EU law for the purpose of applying EU fundamental rights is not an easy task. Therefore, it will be sometimes difficult for Member States and individuals to understand to what extent national action is constrained by EU law. The difficulties in drawing the line between what is in or out of the scope of EU law are amplified by the diversification of EU law making by EU institutions, which brings new situations in the border area. This trend in particularly remarkable in the field of governance through funding, which is now entering a new phase of its evolution. The use of EU funds, where old and new forms of EU law and governance are combined, constitutes the perfect testing ground to analyse the current reach of EU fundamental rights to national situations and, consequently, the limitations imposed on national actors implementing EU law.

From low- to high-intensity review in the protection of EU fundamental rights

The CJEU often reviews the validity of EU legislation for compliance with fundamental rights standards. Prior to the entry into force of the Lisbon Treaty, the CJEU's approach to fundamental rights review was characterized by a low-intensity standard of review. Since the elevation of the Charter to primary law status, the CJEU has come to subject EU legislation to far more rigorous levels of scrutiny. This paper critically evaluates the methodology utilized by the CJEU to determine whether low- or high-intensity proportionality review is deployed in cases where EU legislation limits fundamental rights. This question has yet to receive detailed consideration in the literature. Looking to the future of EU fundamental rights, the paper rejects the idea that the nature of the right can determine whether a restriction placed upon that right is subject to low- or high-intensity review. There are practical and normative grounds for rejecting this approach. Instead, the paper argues that the intensity of review should be modulated on the basis of the severity of the interference with the right in question. It is thus seriousness of interference and not the nature of the right in question which determines the applicable standard of review.

The ‘autonomization’ of EU fundamental rights protection: Insights into the recent ECJ case law on Article 52(3) CFR

In a new line of case law on the interpretation and application of Article 52(3) of the Charter of Fundamental Rights, the European Court of Justice has explicitly applied the autonomy of EU law in the field of fundamental rights protection by referring to the non-binding Explanations relating to Article 52(3) CFR. According to these Explanations, Article 52(3) CFR has the purpose to ensure the consistency of the interpretation of the Charter with the European Convention on Human Rights, without ‘adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union’. Since the Grand Chamber judgment in N. (C-601/15 PPU, 15 February 2016), 23 cases have subsequently made this same reference to the autonomy of EU law when applying Article 52(3) CFR. The main point of this article is to showcase how the ECJ uses the Explanations in this line of case law as an instrument to establish an autonomous interpretation of the fundamental rights of the CFR, which are influenced, but not fully determined, by the ECHR.

The European Court of Justice, the EU Charter and the interpretation of fundamental social rights: Judicial law-making in disguise?

The early judgments on the horizontal effects of the right of equal treatment on the grounds of age fuelled concerns about the excessive judicialization of EU fundamental social rights. In this context, this contribution adds to the existing literature on the topical issue of the normative significance, or added value, of the EU Charter. It shows that one of the aims underlying the adoption of the Charter was to place limits on the interpretative mandate of the Court. Based upon an analysis of case law, it seeks to ascertain the manner in which the new ‘parameters of interpretation’ introduced by the Charter have been employed in the jurisprudence dealing with the interpretation of fundamental social rights. This analysis demonstrates that the entry into force of the Charter seems to have generated a renewed emphasis on literalism with respect to the interpretation of fundamental social rights. At the same time, this contribution concludes that recent judgments do not fundamentally depart from the teleological mode of reasoning traditionally employed by the Court. The Court's recent juridprudence suggests that fundamental social rights have come to play a positive role as a source of self-standing subjective rights and obligations for the sake of individuals.

Artificial Intelligence - Curse or Blessing? Historical Analysis of Digital Developments up to the First European Law on Artificial Intelligence (AI-Act)

Changes in the way people live and work, driven by digitalization and automation, have always triggered fears. Developments in the field of digitalization and automation, as well as the use of artificial intelligence, which has been the subject of much discussion recently, require people in all areas to have a certain degree of adaptability. Increasing complexity, the loss of jobs and the challenges of data protection are just a few examples of the challenges facing not only society but also legislators. The simplification of daily life and the increasing efficiency gains made possible by AI are some of the arguments in favor of using AI. The EU law on artificial intelligence aims to ensure that AI systems brought to market and deployed in the EU are safe and in line with the EU's fundamental rights and values. The groundbreaking proposal is also intended to promote investment and innovation in the field of AI in Europe.

On FRAND as a Means of Information Access

Abstract FRAND (fair, reasonable and non-discriminatory) is a highly debated acronym that has been scrutinised, expounded and tested in scholarly works, courtrooms, and policy discussions. Initially employed as a remedy means and access tool in sector-specific and standards-setting contexts, FRAND has recently made its way into the emerging EU data governance regime. Given this new position, it is appropriate to examine FRAND critically as a universal access mechanism of the information law domain at large. Drawing on a narrative of FRAND in SEP licensing, this article reflects on the innate capacity of FRAND to act as a flexible governance instrument. Examining regulatory forces and patterns guiding the interpretation of FRAND, the article presents the interplay of self-governance, national and EU layers of regulation. As shown, the determination of FRAND is firmly grounded on institutional and procedural norms, both in a standardisation context and beyond. The analysis highlights the fact that such a regulatory approach has costs and opportunities. To harness the flexibility of FRAND as a universal information access tool, it is essential to gain more clarity as to the content and goals of FRAND-enabled transactions. It is also critical to ensure that the efficiency of such a regulatory approach does not come at the cost of compromising on the protection afforded by EU fundamental rights and freedoms.

Automated Decision-Making and Effective Remedies: The New Dynamics in the Protection of EU Fundamental Rights in the Area of Freedom, Security and Justice by Simona Demková

Automated Decision-Making and Effective Remedies: The New Dynamics in the Protection of EU Fundamental Rights in the Area of Freedom, Security and Justice by Simona Demková

Article 6 of the Anti Tax Avoidance Directive – Living a Life on Its Own?

Art. 6 of the Anti Tax Avoidance Directive (ATAD) includes a minimum harmonization standard for so-called General Anti Abuse Rules (GAARs) in the field of corporate income taxation. A significant number of Member States has not enacted the provision but referred to their domestic law already fulfilling the demands of the directive. While this is possible, it could point towards a lack of awareness of what ramifications Art. 6 ATAD has on Member States’ tax systems. Against this background, the article aims to shed light on the life Art. 6 ATAD has, as part of EU law, begun to live on its own. In doing so, we will reflect on five dimensions: (i) the impact of the Philip Morris line of case law on Member States’ ability to go beyond the minimum standard included in Art. 6 ATAD, (ii) the relation between Art. 6 ATAD and the EU’s general anti-abuse principle, (iii) the impact of the EU fundamental rights protection on the application of the national implementation of Art. 6 ATAD, as well as (iv) the interpretational insights to be won from other secondary EU and (v) state aid provisions. ATAD, GAAR, abuse, tax avoidance, principle, implementation, interpretation, fundamental rights, unshell, state aid

Citizen-Centric Personal Data Storage in The Public Sector: An Exploration of Opportunities, Challenges, and Preconditions

Public sector organizations are driven to re-imagine personal data management practices. Notably, the Flemish government aims to set up a Solid-enabled PDS-based data platform, which is to serve as the foundation of (personal) data sharing ecosystems that respect EU fundamental rights ‘by design.’ Of course, a critical success factor for this novel Flemish data platform is the broad adoption of citizen-centric data storage by public organizations in the region. This article constitutes an exploration of opportunities, challenges, and preconditions for the Flemish public sector through 13 expert interviews. Our findings show that citizen-centric personal data storage is expected to optimize intra-public sector data use, enable proactive public service provision, and foster trust. Challenges relate to a lack of human and financial resources, and data literacy/ inclusivity issues. For continued public sector engagement in PDS-based data ecosystems, preconditions in terms of moderation of ecosystem openness and data sharing reciprocity, as well as clustering of sub-ecosystems by use-cases, are to be considered.

The transformative nature of the EU Declaration on Digital Rights and Principles: Replacing the old paradigm (normative equivalency of rights)

In December 2022 the European Commission, the European Parliament and the Council of the European Union jointly signed the European Declaration on Digital Rights and Principles, a document aiming to steer the EU digital agenda upon EU constitutional values and fundamental rights. Digital constitutionalism scholars regard the Declaration as a positive step forward within the process of constitutionalization of the digital environment in Europe. The Declaration includes both traditional rights enshrined in the EU Charter of Fundamental Rights and digital principles. Some of these principles have progressively underpinned the EU digital policy framework while others have been expanded in the Declaration or are of completely new formulation. In this contribution, we assess the Declaration's value in terms of relevance and novelty within the landscape of protection of online needs and interests in the EU. By assessing the Declaration's normative approach and using Lawrence Lessig's distinction between codifying and transformative constitutional regimes, we evaluate the Declaration's progressive and transformative character under a constitutional perspective.

Using Terms and Conditions to apply Fundamental Rights to Content Moderation

AbstractLarge online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.

Walking the line in times of crisis: EU fundamental rights, the foundational value of the rule of law and judicial response to the rule of law backsliding

The research focus of the paper is on the relation between general principles, fundamental rights and the rule of law in the EU. The role of the judiciary is evaluated through the prism of the jurisprudence of the Court of Justice of the EU (CJEU) with a particular focus on the formula, introduced in the Associação Sindical dos Juízes Portugueses judgment and subsequent decisions by the CJEU, related to the rule of law and independence of the judiciary. A thorough assessment of the relation between fundamental rights, foundational values of the EU such as the rule of law and effective judicial protection through the methodological evaluation of the effectiveness and functional interpretation is included. The core of the research reflects the functional approach of the CJEU with respect to judicial independence as the condition for effective protection of fundamental rights and EU law. Especially crucial is the role of national courts for upholding the rule of law on EU level. The role of the EU’s Rule of Law Report mechanism, introduced in 2020, is analysed as judicial independence forms an essential part of the reports. The EU Rule of Law reports serve as illustrations of the underlying problems, related to the rule of law and in particular the independence of the judiciary and effective judicial protection and related enforcement and implementation issues.

Protecting EU data outside EU borders under the GDPR

The EU General Data Protection Regulation (GDPR) aims to protect personal data outside EU borders by its rules on territorial scope and its restrictions on international data transfers. Despite its importance in EU fundamental rights law, the purpose and interaction of the GDPR’s protections of cross-border data processing have long been shrouded in confusion. Initiatives of EU bodies to interpret the GDPR’s safeguards illustrate the need for EU law to demonstrate clarity and consistency in defending fundamental rights outside EU borders. Only by maintaining the high level of protection required by the GDPR and the Court of Justice, can the EU’s ambitions of cross-border data protection be realized and the GDPR’s influence in third countries be maintained. data protection, GDPR, territorial scope, international data transfers, Court of Justice, European Commission, European Data Protection Board

Taking fundamental rights seriously in the Digital Services Act's platform liability regime

AbstractThis article highlights how the EU fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the reform of the E‐commerce directive by the Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well‐balanced and proportionate European legal instrument, this article addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Section 2 delves into the intricate landscape of online intermediary liability, interrogating how the E‐Commerce Directive and the emerging Digital Services Act grapple with the delicate equilibrium between shielding intermediaries and upholding the competing rights of other stakeholders. The article then navigates in Section 3 the fraught terrain of fundamental rights as articulated by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) under the aegis of the European Convention on Human Rights and the EU Charter. This section poses an urgent inquiry: can the DSA's foundational principles reconcile these legal frameworks in a manner that fuels democracy rather than stifles it through inadvertent censorship? Section 4 then delves into the intricate relationship between fundamental rights and the DSA reform. This section conducts a comprehensive analysis of the key provisions of the DSA, emphasising how they underscore the importance of fundamental rights. In addition to mapping out the strengths of the framework the section also identifies existing limitations within the DSA and suggests potential pathways for further refinement and improvement. This article concludes by outlining key avenues for achieving a balanced and fundamental rights‐compliant regulatory framework for platform liability within the EU.

Navigating the Legal Landscape of AI-Enhanced Banking Supervision: Protecting EU Fundamental Rights and Ensuring Good Administration

Navigating the Legal Landscape of AI-Enhanced Banking Supervision: Protecting EU Fundamental Rights and Ensuring Good Administration

The Fundamental Right to Fair and Equitable Treatment in the Cross-Border Recovery of Taxes within the EU: A Need for a Common Minimum Standard

This article examines the application of the EU fundamental rights protection standard in the context of cross-border recovery of taxes within the European Union. It argues that, when the Tax Recovery Directive is applicable, the standard of protection is adequate due to the principle of conforming interpretation requiring that secondary law is interpreted in line with primary law. However, we also contend that any fundamental rights violation at the level of the initial procedure for establishing the tax claim in the requesting Member State cannot be remedied whenever that procedure is in an area outside the scope of EU law (most of the direct tax measures). At the same time, the outcomes of such a procedure are subject to mutual recognition in other Member States. Therefore, and in order to strengthen the principle of mutual trust within the Union, the article proposes introducing a piece of secondary legislation that spells out a minimum standard of protection of taxpayers’ rights.

Mutual trust through the looking glass: The protection of children’s fundamental rights in EU return proceedings

The principle of mutual trust underpins EU proceedings for the return of the child following abduction. On such a basis, the courts of the Member State of refuge shall trust the courts of the Member State where the child was habitually resident immediately before the abduction being willing and capable to protect the EU fundamental rights of the child concerned. Therefore, they should not refrain from enforcing a certified judgment requiring the immediate return of the child, even in situations where there is a clear risk that the return is contrary to that child’s best interests. The purpose of this article is to demonstrate that there is a necessity – in the field of EU proceedings for the return of the child following abduction – to move beyond absolute trust, in order to ensure adequate protection of the children concerned.