European Fundamental Rights Research Articles

The Spanish Constitutional Court and Fundamental Rights Adjudication After the First Preliminary Reference

The purpose of the preliminary reference procedure is to ensure a uniform application and interpretation of Community law across all the Member States, including European fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union. The entry into force of the Charter has reinforced the authority of the Court of Justice of the European Union (CJEU) in the field of fundamental rights adjudication. But the Charter may also be a new source of conflicts between the jurisdiction of the CJEU and the jurisdiction of national constitutional courts. Indeed, compliance with the indirect rulings over national law contained in the CJEU decisions became something logical for the national ordinary courts from the beginning of the integration process, but it was not the same for national constitutional courts. Most of them have always disliked the idea of asking for the CJEU's opinion on a conflict of law involving national constitutional provisions. The CJEU succeeded in establishing a legal doctrine through principles of Community law—supremacy and direct effect being the pioneers—that meant a material constitutionalization of the European Union (EU) law system. And for the national constitutional courts, such an understanding of EU law made a rival of the CJEU.

Composing Europe’s Fundamental Rights Area: A Case for Discursive Pluralism

AbstractThis article offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU inOpinion 2/13and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

Transatlantic Perspective on Judicial Deference in Administrative Law

The United States (US) concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between administration and courts.The Article analyses whether there are grounds for the validity of the concept of judicial deference in Continental Europe and in what areas (law, facts, or both). As a starting point, it remains generally accepted in Europe that it is the role of courts (and not administrative agencies) to interpret the law. Against this background, standards stemming from Article 6 of the European Convention on Human Rights (ECHR) are analyzed in order to determine whether a deferential standard of review is permissible under the ECHR principle of full judicial review. The analysis of the jurisprudence of the European Court of Human Rights (ECtHR) leads to the conclusion that there is space for US-like judicial deference under the European fundamental rights framework when it comes to questions of fact. On the other hand, the ECtHR’s jurisprudence does not offer much guidance as to whether any deference can be accorded to administrative statutory interpretation. Further study of the review by European Union (EU) courts of the European Commission’s decisions in the sphere of competition law shows that judicial deference is accorded in Europe in practice. Importantly, EU Courts declare deference to the Commission’s complex economic assessment and defer to the Commission’s interpretation of its own soft law. When it comes to facts, the standard of review seems to correspond with the US courts’ substantial evidence test. On the other hand, legal questions concerning the Commission’s own soft law are reviewed in a way similar to the Skidmore standard. Further similarities between Europe and the US are observed in the US Courts of Appeals’ practice of reviewing the Federal Trade Commission’s decisions in the field of antitrust. The actual intensity of review exercised by US courts remains close to the EU Courts’ review of the European Commission’s decisions.This Article shows that differences between the US and Europe — especially if one takes into account US courts’ often non-application of Chevron — are not so significant as one would intuitively think. In conclusion, this Article proposes three variables that may be identified in both the US and European approaches to decide whether judicial deference to administrative agency decisions should be accorded or not.

EU Citizenship, Principle of the Free Movement and Directive 2004/38

European Union (EU) citizenship and EU free movement law has received great impetus with the introduction of the Treaty of Maastricht. The Treaty on the European Union (TFEU) introduced the concept of European Union citizenship and several fundamental rights were granted to citizens of Member States under the TFEU. Article 21 of TFEU provides that subject to certain conditions, every citizen of the Union shall have right to reside and freely move within Member States. This provision has been enumerated as right to freedom of movement and right to residence under the Citizenship (Free Movement) Directive 2004/38/EC. This Directive is primarily implemented in the UK by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003). The Directive 2004/38/EC was introduced in 2004 to bring along certain rights that would be enjoyed by citizens of Member States of the European Union. However, the concept has been interpreted liberally over the years by the Court of Justice (CJ) to expand the application of the said law by giving special consideration to workers and citizens who are self employed.Recent case laws and interpretation of Directive 2004/38/EC has created an open space for discussion regarding whether all citizens enjoy equal rights or whether particular citizens are favoured over others when it comes to residence rights in Member States. Freedom of movement of persons is unlimited under the Directive but there are several restrictions within the Directive which has to be interpreted judiciously by the CJ.

EU Law in National Courts

European Union (EU) law is composed primarily of European Union treaties and secondary legislations such as directives, regulations and decisions of the Court of Justice. The Treaty on the Functioning of European Union (TFEU) came into force on December 2009. The Treaty on the European Union (TFEU) introduced the concept of European Union citizenship and several fundamental rights were granted to citizens of Member States under the TFEU.1Today, the European Court of Justice (ECJ) is known as the Court of Justice and it is a part of the Court of Justice of European Union (CJEU) system. Apart from the Court of justice, the CJEU also comprises of a General Court and a Civil Service Tribunal.

DNA data in criminal procedure in the European fundamental rights context.

Despite being one of the most useful and reliable identification tools, DNA profiling in criminal procedure balances on the border between the limitation and violation of Fundamental Rights that can occur beginning with the collection of the sample, its analysis, and its use; and ending with its processing. Throughout this complex process, violation of human or fundamental rights -such as the right to physical and moral integrity, the right not to be subject to degrading treatment, the right not to incriminate oneself, the right to family privacy together with that of not incriminating descendants or relatives in general, the right to personal development and the right to informative self-determination- is possible. This article presents an analysis of all the above-mentioned DNA treating phases in criminal process in the light of possible violations of some Fundamental Rights, while at the same time discarding some of them on the basis of European human rights protection standards. As the case-law of the European Court of Human Rights shows, the legislation on DNA collection and DNA related data processing or its implementation does not always respect all human rights and should be carefully considered before its adoption and during its application.

“Safeguarding the Right to Data Protection in the EU”, 30th and 31st October 2014, Paris, France

This contribution is based on presentations and discussions at the conference “Safeguarding the Right to Data Protection”, held in Paris on the 30th and 31st October, 2014. Vladimir Marinescu, of the Academy of European Law (hereafter: ERA), in cooperation with the Cour de Cassation , organised the event. The conference looked at developments in EU data protection law with a focus on data protection as a fundamental right. Speakers discussed recent jurisprudence from the Court of Justice of the European Union (hereafter: CJEU or the Court), the European Court of Human Rights (hereafter: ECtHR) and national courts. The conference covered four main focus areas: EU data protection law; civil and criminal law aspects of data protection and the internet; data protection as a cornerstone of European fundamental rights protection; and data protection remedies. This contribution elaborates upon some of the most pertinent issues speakers discussed.

Reconciling the Dublin system with European fundamental rights and the Charter

The article analyses the changes introduced to the Dublin system by the Dublin III Regulation concerning namely the provisions related to determining the Member State responsible for examining the application for protection, rules regarding procedural rights, the possibility to detain the person in order to secure transfer procedures and the “early warning mechanism”. It also assesses those rules from the point of view of fundamental rights.

The Implications of the Accession Agreement of the EU to the ECHR

In April 2013 the European Union and the member states of the Council of Europe reached consensus on a draft Agreement on the Accession of the EU to the ECHR. This event represents a milestone development for the protection of fundamental rights in the EU. The Accession has an enormous symbolic value for the European Union. We argue that the Accession Agreement creates strong institutional pressures for the ECtHR to raise its standards of protection up to the level set by the Court of Justice of the EU. This paper examines as well the dialogue between the Court of Justice of the EU and the European Court of Human Rights regarding due process rules in the context of targeted anti-terror sanctions imposed by the UN Security Council. By analysing the references that the two courts make to each other’s case law in the recent landmark decisions in Nada and Kadi II, the paper argues that the rivaling yet constructive relationship between CJEU and the ECtHR has played a key role in re-adjusting the balance between international security and fundamental rights in Europe. But what are the effects of accession on the ECHR and its court – the European Court of Human Rights? As the paper suggests, the looming accession of the EU to the ECHR influences the interaction between the two courts, and is already palpable in the case law of both. DOI: 10.5901/mjss.2014.v5n16p135

The European Arrest Warrant and Fundamental Rights

The following article is a short summary of the author’s PhD thesis (N.M. Schallmoser, Europäischer Haftbefehl und Grundrechte. Risiken der Verletzung von Grundrechten durch den EU-Rahmenbeschluss im Lichte der EMRK (Manz‘sche Verlags- und Universitätsbuchhandlung, Vienna, 2012), hereafter Schallmoser (2012)). The framework decision on the European arrest warrant and the surrender procedures between EU member states established a new and uniform system of surrender within the EU. Nevertheless, there is no fundamental rights clause that makes it possible to refuse surrender for reasons of fundamental rights and hardly any fundamental rights guarantees of the accused person are ensured in this framework decision. This is — besides the principle of mutual recognition — the consequence of the currently practiced concept of “division of labour” in fundamental rights matters within the EU, according to which the EU legislator only has to omit, but not to prevent fundamental rights infringements through legislation, and therefore waives establishing such fundamental rights guarantees. The consequences are different risks of the accused person to become a victim of violations of fundamental rights during an internationally labour-divided criminal proceeding. A “risk” in this regard is defined as the substantial likelihood that interference in a person’s fundamental rights leads to a violation or an aggravation of a violation that has already occurred. The present article declares the European legislator as the responsible authority for minimizing such risks. This obligation can be derived from the autonomous and independent commitment of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms and of course the Charter of Fundamental Rights of the European Union as set forth in Article 6 TEU.

Introduction of Book: Dealing with EU Law. The Role of National Courts in the Interpretation and Application of European Union Law

This new book aims to provide some insights on recent trends and patters in judicial dialogue between the Court of Justice of the European Union (hereinafter “CJEU”) and national courts (Constitutional Courts included).The book features seven contributions. Their order is not accidental: specific issues come after more general topics, these latter being dealt with within the first three chapters.The first article included in this book and written by Giuseppe Martinico serves as a relevant introduction to the subject-matter of this book. It aims at exploring the interesting issue of judicial application of the ECHR and EU law, in order to elucidate the vertical relationship between national judges (constitutional and common law alike) and these external legal sources.The second contribution is somehow related to the first one: Ioana Răducu discusses the dialogue between courts, and more precisely the way the former accept the decisions rendered by supranational courts and also the role played by the judicial dialogue in reducing the risk of conflicts between courts. Yet the emphasis placed by the author on this judicial dialogue is that of deference. The value of (judicial) dialogue in the EU, as discussed by the author, comes along with pragmatic advantages for both EU and domestic legal orders.The third chapter, authored by Juan A. Mayoral, approaches the issue of the use of preliminary ruling procedure and tries to establish determinants liable to explain differences in its use between new and old Member States. The value of this contribution lies especially in presenting original and comprehensive data on the use of preliminary references (1961-2011) in all 27 Member States and also in identifying differences in institutional dynamics at the national level.Giuseppe Bianco and Tatum Ragues present the interesting topic of balance between one fundamental freedom of the European Union (free movement of services) and fundamental rights, as it comes out from the approaches followed by the Court of Justice of the European Union in its rich case law. The authors emphasize the constitutional dimension of the principle of proportionality in the approach taken by the Court of Justice.Within the same preliminary ruling procedure, Ricardo Garcia Anton approaches in the fifth chapter of this book the role played by the Court of Justice in the field of indirect taxation. Two fundamental questions are explained here: the judicial dialogue between the European court and national courts and the role adopted by the Court of Justice. According to the author, within this field, the Court adopts a more hierarchical role, rather than the traditional cooperative one: “the traditional functions of the CJEU within the preliminary reference system are being replaced by those which belong to a national Supreme Court” (p 116). This paradigm shift is explored at length.The sixth contribution, written by Mihaela Vrabie, approaches the status of the Charter of Fundamental Rights of the European Union in the framework of the preliminary reference procedure, also concerning the much debated issue of the field of application of the Charter with regard to Member States.The final chapter introduces the parallel application of the Charter of Fundamental Rights and the European Convention on Human Rights by Romanian courts, as pointed out by certain preliminary references to the Court of Justice made by the former, but also in certain decisions by which courts rejected requests of the parties to make references to the Court of Justice. Certain patterns in that regard are approached.

United We Stand: The EU and its Member States in the Strasbourg Court

The Accession of the European Union (EU) to the European Convention on Human Rights (ECHR) will mark not only the beginning of a new era in terms of the protection of Fundamental Rights in Europe, but also in terms of the EU’s participation in international courts and tribunals. Up until now, the EU has never become a party to an international agreement with such a strong adjudicatory body. Therefore, it can be expected that the EU’s accession to the ECHR will have important implications for the common assumptions surrounding the relationship between the EU and adjudicatory decision making of international organisations. Furthermore, it cannot be excluded that the articulation of EU participation in the European Court of Human Rights (ECtHR) will not be replicated in other international agreements with an international court.Consequently, the examination of the mechanism envisaging the EU’s participation in ECtHR proceedings undoubtedly raises many interesting issues as regards the EU’s external representation. There are many noteworthy questions concerning the relationship between the Court of Justice of the EU (CJEU) and the ECtHR in institutional and substantive terms. This paper focuses on an institutional matter, namely, the EU’s locus standi in the ECtHR. More precisely, it examines how the draft Accession Agreement deals with the participation of the EU in the proceedings of the ECtHR; in other words, how the co-respondent mechanism organises the participation of the EU and its Member States in ECtHR proceedings. The current institutional design of the ECHR, and more specifically the way in which the ECtHR works, leads to many problems linked with the future joint participation of the EU and its Member States: the lack of legal certainty as regards the respondent and the lack of unity when pleading or issues concerning the autonomy of the EU’s legal order create problems in terms of the EU’s locus standi.

Who's afraid of the Charter? The Court of Justice, national courts and the new framework of fundamental rights protection in Europe

The Charter of Fundamental Rights of the European Union has forced the European Court of Justice and its national counterparts to face a series of difficult and principled questions: Who is the ultimate interpreter of fundamental rights in Europe? Which standard of protection is to be given priority? How does the Charter bind Member States when applying EU Law? This article argues that the first seminal decisions of the European Court of Justice on the matter, in particular the judgments in AkerbergFranssonand Melloni, have set the ground for a new framework of fundamental rights protection in the European Union. However, this framework does not depend on the sole authority of the Luxembourg court, but on a complex system of checks and balances that will demand complicity and commitment on the part of national supreme and constitutional courts.

European fundamental rights, biomedical research and vulnerability of elderly people

European fundamental rights, biomedical research and vulnerability of elderly people

The Spanish Constitutional Court and the Multilevel Protection of Fundamental Rights in Europe; Matters Relating to ATC 86/2011, of 6 June

EuCLR European Criminal Law Review , Seite 79 - 106

My brother’s keeper? Horizontal solange: “An ever closer distrust among the peoples of Europe”

It is suggested in this paper that the Court of Justice has made a modest, although by no means a trivial, move towards becoming the Constitutional Court of Europe, particularly in the N.S. case, where it rejected the Union's guiding rule of automatic reliance on the principle of mutual confidence. The paper proposes that this represents a test, labelledthe "horizontal Solange" test and which is composed of two tiers. The first, substantive, tier forms the Solange component. Cooperation between Member States will be maintained as long as all the Member States systematically adhere to core European fundamental rights. If the evidence shows that a systemic violation of core European fundamental rights took place in a Member State, other Member States should suspend their cooperation. The second, institutional, tier forms the "horizontal" component. The national courts are entrusted with the task of reviewing whether the other Member States abide by the European standard of protection of fundamental rights.The exact substantive contours of the test are examined alongside the test's possible implications for related fields of law of the European legal order. The test also allows the ECJ to interweave the different European fundamental rights systems into a fully integrated judicial dialogical network, and to steer the exact direction in which European legislation should advance.

The Framework for Fundamental Rights Protection in Europe under the Prospect of EU Accession to ECHR

Issues of human rights have always been crucial in the continent of Europe. The institutionalization of fundamental rights for European citizens remained a matter of much discussion among legal scholars for decades. With the amendment of the Lisbon Treaty, major changes were forwarded within the Union regarding that matter; one of those is the accession of the Union to ECHR. The purpose of this paper is to discuss major institutional aspects of this accession and propose solutions, after addressing certain difficulties on one hand and on the other, to draw the new picture of judicial protection of fundamental rights in Europe.

New Challenges for Pluralist Adjudication after Lisbon: The Protection of Fundamental Rights in a Ius Commune Europaeum

With the introduction of a legally binding Charter of Fundamental Rights and the envisaged accession of the European Union (EU) to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Treaty of Lisbon significantly affects the legal system for the protection of fundamental rights in Europe. It is argued that those innovations reinforce the integration between different legal suborders at the national, European Union and pan-European level into a common constitutional space. Simultaneously, it creates new challenges for pluralist adjudication on the part of the national constitutional courts, the Court of Justice of the European Union and the European Court of Human Rights. Arguably, the ambiguous scope of application of the Charter of Fundamental Rights, the uncertain implications of EU membership to the ECHR and the increasing overlap between national and European fundamental rights complicate the protection of human rights in the European legal order.

La Cour Européenne Des Droits De L’Homme Et Le Droit De L’Union Européenne, Notamment La Charte Des Droits Fondamentaux : Une Gestion Subtile Entre Ajustements Systémiques Et Enrichissements Mutuels (The European Court of Human Rights and the Law of the European Union, Including the Charter: A Subtle Control between Adjustments of Systems and Mutual Influences)

The negotiations of accession of the EU to the ECHR are formally under way to make the EU the 48th Contracting Party to the Convention. Interactions between the two European legal orders already exist and are well known. The ECHR-EU relationship has been developed by the case law of the European Court of Human Rights and the Court of Justice of the EU through a non anticipated but ever more necessary strategic dialogue in order to remedy the lacunae and weaknesses within the normative arrangement of the protection of fundamental rights in Europe. This paper focuses on the role of the ECtHR in relation to EU law. It examines, in light of recent case law (esp. M.S.S. v. Belgium and Greece, Ullens de Schooten and Rezabek v. Belgium, Bayatyan v. Armenia), the spontaneous solutions developed by the Strasbourg Court to deal with the norms of the EU legal order, whether the Court has been confronted with it or inspired by it, in particular by the now binding Charter. The analysis considers how the ECtHR has taken on a prominent role in the interferences between the case law of both courts in this regard and questions how it will be able to assume this responsibility when the ECtHR exercises a direct review of EU norms.The paper argues that while accession will normalize the ECHR-EU relationships, it will put extreme pressure on the Strasbourg Court. In addition to the considerable workload, and once procedural and technical issues will be dealt with in the accession agreement, the Court will have to deal with more substantial issues regarding its treatment of EU law such as for instance the future of the Bosphorus test or the legitimacy of reliance on the Charter when identifying a consensus in its case law. These issues are specifically linked to its interaction with EU law and its degree of review of EU acts post-accession; they are also very much linked to the more ‘existential’ issue about the role of the ECtHR per se and the kind of justice (individual, institutional or constitutional) it ought to deliver in the future to successfully control and adjust the protection of fundamental rights in Europe for the benefit of the individuals.

The Court of Justice in the Novel System for the Protection of Fundamental Rights in the EU

In the past decades, the system for the protection of fundamental rights in the European Union has undergone three important changes: a stronger ‘constitutional’ mandate for the EU in this field, a formalization of the rights to be protected and a politicization of the fundamental rights debate at EU level. This paper argues that these changes are likely to make the Court of Justice of the European Union particularly vulnerable to claims of judicial activism. The Court indeed now operates with an enhanced mandate in an increasingly complex inter‐institutional setting. Its actions will be scrutinized in the light of that of other European fundamental rights institutions each entrusted with fundamental rights issues; such institutions do not only involve domestic constitutional courts and the European Court for Human Rights but also EU political institutions now increasingly active in shaping EU fundamental rights policy.