EU Fundamental Rights Research Articles

The European Union's External Human Rights Commitment: What is the Legal Value of Article 21 TEU?

The Lisbon Treaty fundamentally changed the constitutional architecture of EU external action. As general principles, Article 21 and 3(5) TEU commit the EU to protect and promote human rights globally when developing and implementing its foreign policies. The legal value of this mandate and its concrete policy implication, however, have remained neglected by policy makers and legal scholarship. Aiming to provide a clear framework (of what can be done and what must be done) in EU foreign policy, this paper analyses the meaning of the human rights objective in the context of the vertical and horizontal division of competence (the 'can') and in context of fundamental rights protection endorsed by the EU (the 'must'). This analysis leads to two conclusions. In terms of the 'can,' the human rights objective gives new normative impetus that enables EU human rights policy to overcome its previous limited conception as being primarily a development concern or a mechanism for third country conditioning. In terms of the 'must,' Article 21 TEU should be seen in connection with the EU's fundamental rights responsibility that breaks with the territorial/extraterritorial dichotomy, which still cabins conventional international human rights jurisprudence and doctrine. The 'can' allows for sufficing the 'must,' which prescribes a human rights policy that is global in its extent and self-constraining in substance. Thereby the human rights objective exhibits a progressive concept of human rights responsibility that is able to adequately take into account the global reach of the EU’s legislative action.

The scope of the EU Charter and its application by the Hungarian courts

This paper maps out the factors regarding the Charter’s scope of application and then provides an overview of the subsequent interpretation afforded by the Court of Justice of the European Union (CJEU). The content and repercussions of the CJEU’s interpretation of the field of application of the Charter in the Member States will also be discussed and, finally, the focus will be turned to how the Hungarian judiciary refers and applies the Charter. The analysis of the practice of the national courts will show that despite the CJEU’s guidelines on situations when recourse to the Charter is required, Hungarian courts have applied a narrow reading of the Charter and have thereby insulated significant national measures that give effect to EU law from EU fundamental rights scrutiny.

Does the Risk-Based Approach to Data Protection Conflict with the Protection of Fundamental Rights on a Conceptual Level?

There is concern that the protection of fundamental rights has become “scalable” under the risk-based approach to data protection. Is it at odds with rights, in particular the EU fundamental rights framework, that the scope of the legal duties of data controllers depends on the risk posed by their processing operations? This comment will use ethical theory on risk to argue that there is no conflict on a conceptual level.

Fundamental Rights and Legal Wrongs: The Two Sides of the Same EU Coin

AbstractThis article argues that the relationship of EU fundamental rights to the rest of EU law can only be understood if the former are seen as an integral part of a general vision of what EU law is about. This vision conceives EU law as concerned to secure the government of a European political economy. In turn, it has come to shape the interpretation and incidence of EU fundamental rights with the latter conceived as a central tool for incorporating the individual into and asserting her place within the government of the European political economy. A paradox has therefore emerged. EU fundamental rights have become ever more pervasive in EU law, and it is couched more frequently in their terms, but these same fundamental rights seem ineffectual to deal with the suffering caused by events such as the crisis.

The judicial dialogue between the Luxembourg and National Courts in the European framework of the multilevel protection of fundamental rights

This article focuses on the vertical judicial interaction between the Luxembourg and National Court with regard to the fundamental rights protection. In the first part, the author mainly explores in what technique adopted by the Luxembourg Court finding the general principle of EU law through the reference to the national Constitutional provisions and how does the Luxembourg Court identify and create the general principle embedded on the reference of domestic law for setting the EU fundamental rights standard before the Lisbon Treaty came into effect. In the second part, the author mainly focuses on the role of Art.4(2) TEU respectively in the judgment of national courts and Luxembourg Court. In the final part, the author does a comparative research on the relationships between the German, Spanish, French and Italian Constitution Courts and the Luxembourg Court under Art 267 TFEU.

Anchoring European Governance: Two Versions of Responsible Research and Innovation and EU Fundamental Rights as ‘Normative Anchor Points’

Among the various experiments in ‘new governance’, the model of Responsible Research and Innovation (RRI) is emerging in the European landscape as quite promising. Up to now, there have been two versions of RRI: a socio-empirical version which tends to underline the role of democratic processes aimed at identifying values on which governance needs to be anchored and a normative version which stresses the role of EU goals (among which fundamental rights) as ‘normative anchor points’ of both governance strategies and policy making. Both versions are unsatisfactory. The first since it suggests movable anchorage which could clash with prefixed values, such as individual rights. The second since it does not safeguard fundamental rights in the process of balancing ‘anchor points’. This result is counterintuitive because it exposes governance to the risk of facing adverse court decisions in the defense of individual rights, thus losing its anticipative attitude. In order to avoid this outcome, the paper argues that it is only through better integration between the system of human rights and that of EU fundamental rights that the anticipative feature of RRI can be preserved.

Minimum Harmonisation and Article 16 CFR: Difficult Times Ahead for Social Legislation?

Two years later, as other contributions in this volume show, it still seems worth discussing Alemo-Herron. The case was a particularly bad surprise for those who had been more favourably impressed by previous decisions such as Aziz or Morcillo, in which the Court of Justice seemed inspired by the Charter of Fundamental Rights to grant relief to people being crudely hit by the economic crisis. Alemo-Herron seems to indicate a different path, providing the application of EU fundamental rights to private law questions with a somewhat bitter aftertaste. We argue that Alemo Herron is a problematic decision in two fundamental ways: first, it discounts the constitutional meaning of minimum harmonisation and second, it grants a thick partial meaning to article 16 CFR.

The EU as a global rule of law promoter: the consistency and effectiveness challenges

This paper aims to examine the consistency and effectiveness of the EU as a global promoter of values by focusing on the rule of law, one of the key values on which the EU is based and which is also supposed to guide EU’s external action. The paper first offers the diagnosis that the EU has failed to properly address a number of key issues: (i) what the EU seeks to promote under the heading ‘rule of law’, (ii) how it measures and monitors a country’s adherence to this principle and (iii) the disconnect between its external and internal policies and instruments. To address these issues, four key recommendations are made: (i) the adoption of a guidance note, (ii) the development of a transversal measurement and monitoring instrument, (iii) the adoption of a rule of law checklist and (iv) the revision of the role of EU Fundamental Rights Agency, with the view of transforming it into a ‘Copenhagen Commission’ with new powers and a broader geographical remit.

Employment as a Goal of Monetary Policy of the European Central Bank

The German Bundesbank has since the 1970s focussed its monetary policy on controlling the rate of inflation. The price stability-oriented course in monetary policy was enshrined in the Bundesbank Act and in the Treaty on the Functioning of the European Union (TFEU) as part of the third stage of the establishment of the European Monetary Union. It is argued that the goal of promoting of employment is compatible with the primary goal of price stability under Article 127 of the TFEU. The European Central Bank is bound by the EU Fundamental Rights Charter which foresees a right to engage in work in Article 15.

Constitutional Courts as Guardians of EU Fundamental Rights? Centralised Judicial Review of Legislation and the Charter of Fundamental Rights of the EU

The +Italic Simmenthal -Italic judgment of 1978 shed light for the first time on the tension between the centralised model of judicial review of legislation +Superscript 1 -Superscript and the principle of primacy of EU law. 2 However, it has only been in recent years that the difficult coexistence of the two systems has become evident, so much so that it now questions the fundamental role of the centralised review of legislation as hitherto known in Europe, and perhaps, in the long run, its very survival. 3 Technically, what is particularly challenged by the principle of primacy is a specific way of access to constitutional courts, through a question of constitutionality raised by ordinary courts. Obviously, this is not just a question of pure procedure. What is at stake is the constitutional courts' 'core business', i.e. the protection of fundamental rights that might be taken away from them to the benefit of ordinary courts in partnership with, and under the guidance of, the Court of Justice

Protection of Fundamental Rights in the European Union

This paper addresses two issues of primary importance to the protection of fundamental rights in EU. First, it examines the future place of judgements of the European Court of Human Rights in EU jurisprudence against the backdrop of the recent (negative) Opinion of the Court of Justice on EU accession to the European Convention of Human Rights. Secondly, the paper explores the notion of the scope of application of EU fundamental rights with regard to Member States action in the light of the ruling of the Court of Justice in Arkerberg Fransson. With regard to the former question, it will be here argued that the case law of the Court of Human Rights maintains its position in the EU legal system due to the combined effects of Article 6 (3) TEU and Article 52 (3) of the EU Charter of Fundamental Rights. From the point of view of the Convention, the same is reflected in the 'Bosphorus' jurisprudence of the Court of Human Rights. As regards the second issue, the demarcation between the parameters of EU fundamental rights protection and the sphere in which Member State law retains exclusive responsibility over fundamental rights has been afforded deeper precision, both by the cases of Akerberg Fransson itself and in subsequent rulings. this is considered to be a welcome development.

Fundamental Rights Review of National Measures: Nothing New under the Charter?

The case law under the Charter on the use of EU fundamental rights to scrutinize national measures represents a continuation of the earlier jurisprudence. The wording of Article 51(1) Charter of Fundamental Rights has not resulted in a general rollback of EU fundamental rights. However, the Charter has focused attention on the issue, has resulted in important new guidance and some streamlining of the case law, and will make it hard for the Court to push the jurisprudence further. The normative justification for the Wachauf type cases can be readily found and has been convincingly articulated by the Court. This does not mean that it will be easy to decide whether the connection between the EU rules and the national measure is sufficient to count as implementation, but the Court has helpfully distilled factors to be taken into account. By contrast, the normative justification for ERT type cases is more difficult to establish. This case law represents a far-going interference with national legal systems. The standard explanation, that since derogations are creatures of Union law, EU fundamental rights must apply, fails to convince. The Court is expressing its distrust of national systems of fundamental rights protection. Unfortunately the distrust may be warranted, and the political system of the EU may not be well equipped to correct matters. The case law can be defended as a judicial remedy for the failure of the political, but needs to be applied with care.

Minimum Harmonisation after Alemo-Herron: The Janus Face of EU Fundamental Rights Review

While Alemo-Herron v Parkwood Leisure Ltd (case C-426/11) has received much criticism in recent months, one fundamental constitutional question has passed by unnoticed. Recently, the Court of Justice expanded the scope of EU fundamental rights review in the field of minimum harmonisation to include, in particular, member states action that goes beyond the EU minimum rules. This expansion of EU fundamental rights review is bound to unsettle the division of powers both horizontally (between the EU institutions) and vertically (between the EU and the member states), and at the same time, perhaps counter-intuitively, poses a significant danger for the level of social and environmental protection in Europe

The Impact of EU Fundamental Rights on Private Relationships: Direct or Indirect Effect?

Abstract: Traditionally, the primary goal of fundamental rights has been to limit the power of the state over individuals. However, it is undisputed in most legal orders today that fundamental rights also have an impact on the relationship between private parties. This article looks at how the fundamental rights guaranteed at the level of European Union (EU) law may affect private law relationships. In particular, this article analyses whether EU fundamental rights have a direct or indirect effect in private relations, that is to say, whether they are, as such, binding on private parties or whether they impose obligations on individuals only through the medium of an implementing act. It will be shown that, contrary to what has been written by a number of authors, this question actually matters in practice, especially in the context of the social rights guaranteed by the Charter of Fundamental Rights of the European Union. Special attention is devoted to the more recent case law of the Court of Justice of the European Union (CJEU), which in the view of some commentators supports the notion of a direct horizontal effect. Résumé: Traditionnellement, l'objectif premier des droits fondamentaux était de limiter le pouvoir de l'Etat sur les individus. Cependant, il est incontestable aujourd'hui que dans la plupart des ordres juridiques, les droits fondamentaux ont aussi un impact sur les relations entre parties privées. Le présent article observe comment les droits fondamentaux garantis au niveau de la législation de l'UE peuvent affecter les relations de droit privé. L'article examine en particulier si les droits fondamentaux de l'UE ont un effet direct ou indirect dans les relations privées, en d'autres termes, si en tant que tels, ils lient les parties privées ou s'ils imposent des obligations aux individus seulement par le moyen d'une loi de transposition. Il est démontré que, contrairement à ce qu'ont écrit un certain nombres d'auteurs, cette question est importante actuellement dans la pratique, spécialement dans le contexte des droits sociaux garantis par la Charte des droits fondamentaux de l'Union européenne. Une attention spéciale est accordée à la jurisprudence récente de la CJUE, qui, selon certains commentateurs, soutient la notion d'effet direct horizontal.

Why National Constitutional Courts Should Not Embrace EU Fundamental Rights

In this paper I argue against national constitutional courts' welcoming approach to EU fundamental rights. This more recent development is inextricably linked to the broader phenomenon of the displacement of these courts from law and politics in Europe. The paper builds on previous work concerning the place of constitutional courts in the EU, which sought to provide a theoretical basis for what is argued here with regard to the more specific issue concerning EU fundamental rights. In the first part, I will briefly present the background argument, based on a Habermasian idea of the European constitutional democracy. Then I sketch the understanding of fundamental rights, which builds on it. On that basis I finally discuss national constitutional courts' engagement with EU fundamental rights.

The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects

In principle, there are two ways in which states and international organizations can violate the human rights of persons outside their territorial jurisdiction. The first is by extraterri t orial conduct; the second is by domestic conduct, in the form of policies with extraterritor ial effect. This article considers the second of these scenarios, taking as its case study the EU’s obligations under EU law. To this end, it analyses Articles 3(5) and 21(3)(1) of the EU Treaty, EU fundamental rights, and the EU’s international obligations, which are also binding under EU law. It concludes by looking at the enforcement of any such obligations by individuals, the EU institutions, and EU Member States.

How Easily Could an Independent Scotland Join the EU?

The prospect of an independent Scotland raises many issues. This paper focusses on just one of them - the question of an independent Scotland’s EU membership. While it may have taken longer for this issue to reach the bubbling and boiling point that other issues of Scottish independence have attained - such as ownership of North Sea oil rights, or whether an independent Scotland might maintain sterling as its currency. Scotland’s EU membership has become no less contested and polarised than these other issues. This paper maintains that despite assertions to the contrary from UK lawyers, EU lawyers and EU officials, any future independent Scotland’s EU membership should be assured, and its transition from EU membership qua part of the UK, to EU membership qua independent Scotland relatively smooth and straightforward. In other words, it would take the form of an internal enlargement of the EU using the procedure for treaty amendment in Article 48 TEU. These arguments are made on the basis of EU law itself, which, it is argued, provide all the resources necessary to assure an independent Scotland’s EU membership through EU treaty amendment, and not through a cumbersome accession process as a new member state. In particular, the values, norms and ‘special ethos’ of the EU, expressed in concepts such as EU citizenship, fundamental rights and duties of loyalty, combine to provide a reasoned justification for such internal enlargement.

Fundamental Rights and Citizenship of the Union at a Crossroads: A Promising Alliance or a Dangerous Liaison?

AbstractThe reinforcement of the protection of fundamental rights at the European level and the emergence of the status of Union citizenship are two closely connected phenomena. European citizenship has been and continues to be one of the central arguments in favour of the extension of the scope of EU fundamental rights. This argument arises out of a sentiment that vindicates equality at the core of the citizenship of the Union as a fundamental status. Against this background, this paper examines the different possibilities of interconnection between the traditional doctrine of EU fundamental rights and the jurisprudential construction of the citizenship of the Union. Particularly, it will be discussed whether fundamental rights should be placed at the core of the formula that protects the ‘genuine enjoyment of the substance’ of the rights conferred by EU citizenship, inaugurated by Ruiz Zambrano, already latent in Rottmann and substantially refined in an ever‐growing case‐law (McCarthy, Dereci, O. and S., Ymaraga and Alokpa). It will be argued that this formula carries the very valuable potential to reinforce citizenship of the Union as an independent source of rights able to overcome problems such as reverse discrimination. For these purposes, this formula could be considered to encompass not only the absolute deprivation of the ‘genuine enjoyment of the substance of citizenship rights’, but also the existence of serious obstacles thereto.

The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects

That states can be responsible for the effects of their economic policies in third countries is not controversial. Thanks to a network of international trade agreements, virtually all states are under obligations designed to protect the economic interests of the producers of imported goods and services. And yet the proposition that states should also be responsible for the human rights effects of such policy measures is not universally accepted. Thus, a subsidy that causes injury to the domestic industry of a WTO Member or a market access barrier that negatively affects conditions of competition for imported products can violate trade obligations. But even if those effects on the producers of those products are severe, it is debatable whether they are capable of violating any given human rights obligations. In short, the extent to which human rights obligations apply to policies with extraterritorial effects is still very much an open question. This article considers the extent to which EU law applies to such policies, which is to say EU policies with extraterritorial effects on persons outside of EU territory. Section A discusses the human rights aspects of Article 3(5) and Article 21 of the Treaty on European Union (TEU), which date from the 2009 Lisbon Treaty. Section B looks at the jurisprudence of the EU Court of Justice on EU fundamental rights as these exist as general principles of EU law and in the EU Charter of Fundamental Rights, as influenced by the European Convention on Human Rights (ECHR). Section C discusses the EU’s obligation to comply with its international obligations, including with the human rights clauses found in all EU trade and cooperation agreements and with customary international law. Section D considers the enforceability of these obligations by the EU institutions and individuals. Section E summarises and concludes.

The fundamental rights implications of EU legislation: Some constitutional challenges

The architecture of the EU system of protection of fundamental rights is uniquely complex. The web of Charter and Convention articles is closely interwoven with general principles of EU law,Treaty provisions as well as with rights enshrined in EU legislation. The latter have received limited attention to date. EU legislation increasingly directly or indirectly, explicitly or implicitly, sets fundamental rights standards or marks the presence of Union law - thereby allowing the European Court of Justice to do so. The variety of EU legislation with fundamental rights implications sheds light on the active dimension of EU fundamental rights policy and poses multiple challenges for the interaction between the European and domestic legal orders that are explored in this article).