European Fundamental Rights Research Articles

Fundamental Rights and Limited Possibilities: The Proviso of the Possible in European Fundamental Rights Doctrine

Abstract Fundamental rights to positive state action are costly. An allocation in favor of one individual rightsholder always results in lower allocations in favor of others. The dominant approach in fundamental rights doctrine assumes these conflicts can be resolved judicially by balancing competing rights and other public needs. In practice, carrying out an in-depth balancing in resource allocation cases proves challenging but constitutional courts developed different strategies and concepts to deal with costly rights. The European Court of Human Rights applies a “wide” margin of appreciation and requires that positive state obligations do “not impose an impossible or disproportionate burden on the authorities.” Following the German Federal Constitutional Court, several constitutional courts have applied a concept known as the “proviso of the possible.” The proviso of the possible constrains positive rights and results in a wide margin of discretion granted to political authorities. This article attempts to investigate the specific meaning of the “proviso of the possible” in the context of European fundamental rights law by comparing it against alternative doctrinal concepts. The investigation aims to identify common legal principles and methods to deal with fundamental rights conflicts over scarce public resources.

Chilling effect: Turning the poison into an antidote for fundamental rights in Europe

In the famous case of Baka v. Hungary, Judge Sicilianos proposed that the European Court of Human Rights should recognize a subjective right for judges to have their individual independence safeguarded and respected by the State. Such a reading of Article 6 of the Convention would enable national judges to claim a violation of that provision each time their individual independence is interfered with. It would also allow the Court to address one of the critical blind spots in the Convention system. However, the Court left the proposal dormant until recently. It is now put before the parties in three pending cases. This article argues that the Court should seize the opportunity to enhance the protection of judicial independence, but not by employing the proposed subjective right approach. Instead, it should rely on the better alternative: the chilling effect. Such an approach would enable the Court to fill the gaps in the Convention while remaining faithful to the text and avoiding the impression that judicial independence is a privilege of judges.

Possibilities and Approaches of European Court of Human Rights and Court of Justice of the European Union in Fundamental Rights Protection in the Context of Environmental Litigation

Two judicial bodies, but both without right to protect the environment established. This is also how the coexistence of the two important judicial bodies located in the European area could be briefly characterized. The European Court of Human Rights and the Court of Justice of the European Union were created for different purposes, but their jurisprudence in the area of environmental protection and the protection of people's lives and health from the negative consequences of climate change overlap more than it might seem at first sight. We find certain similarities in terms of ensuring a certain degree of protection of fundamental rights in the context of the environment. The European Court of Human Rights has a priority in terms of the protection of fundamental rights in Europe, but in the field of the environment it faces several problems. Especially when we are talking about the protection of rights for future generations, where there is no direct victim or direct violation of fundamental rights, only a very high risk of their violation. On the other hand, the Court of Justice of the European Union has a much greater assumption of effectiveness, which has the potential to change the legislation of the member states and thereby indirectly ensure the protection of people's lives and health. Recently, the activity of the European Commission has been increasing in the interest of achieving climate neutrality, and this also means greater pressure on the states in the interest of the complete and correct transposition of European regulations in the field of the environment. In case of deficiencies, the European Commission can intervene by filing a lawsuit according to Article 258 of the TFEU, and achieve the required remedy. Although, such a procedure is not primarily aimed at the protection of fundamental rights, the positive impact on their protection cannot be neglected.

The Systemic Equivalence Test and the Presumption of Equivalent Protection in European Human Rights Law—A Critical Appraisal

AbstractThe systemic equivalence test constitutes an important tool in European Human Rights Law: It is used in order to structure the different systems of protection that apply in a common space and to common addressees. More precisely, where there is “systemic” equivalence between different legal orders protecting fundamental rights, a presumption of compatibility of concrete legal acts is applied. While this technique is very useful in the context of a multi-layered legal landscape, this systemic approach currently seems to be very poorly conceptualized by the various judicial instances calling upon it. This may entail risks for the protection of fundamental rights in Europe, as certain acts may benefit from a presumption of conformity even though they are adopted by legal systems that do not have the qualities required to benefit from it. This article critically assesses this technique, and provides avenues for improvement of its use.

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.

유럽인권법원의 von Hannover v Germany (no. 2)와 (no. 3) 사건 속에서 나타난 사생활 보호와 공익의 조정

Regarding the issue of the unity of the protection of fundamental rights in Europe, it is necessary to review the content of the European Court of Human Rights precedents on the conflict between the protection of privacy in Article 8 of the European Convention on Human Rights and the freedom of expression in Article 10 of the European Court of Human Rights, as shown in the the European Court of Human Rights' rulings on Hannover v Germany in 2004 and no. 2 and no. 3. With regard to these rulings it needs to be reviewed first and foremost whether German courts have accepted its obligation to protect rights of the European Convention on Human Rights and the European Human Rights Court's specific judgment standards established through its judicial precedents. The legal review of whether or not the courts of the member states of the Convention accept the decisions of the European Court of Human Rights in terms of fundamental rights dogmatic and fundamental rights theory is whether the scope of discretionary evaluation recognized by the courts of contracting state related to the guarantee of the European Convention on Human Rights is violated. The precedent of the European Court of Human Rights, which applies the public person doctrine only as a standard for legal interest balancing test to resolve cases of conflict of fundamental rights, cannot be cited as theoretical basis that public persons receive less or weaker protection of privacy rights than ordinary persons, or that there is legal basis for justifying discriminatory treatment for their privacy rights protection. Judgments of the European Court of Human Rights, which does not apply public figure doctrine as a means to determine the scope of protection of the right to privacy of public persons, but only uses it as a quantifying weighing factor with other rights or public interests suggest that the right to privacy of public figures is not guaranteed in the form of an unlimited absolute right, but a provisional right (prima-facie- Recht). It means that the scope of protection of public figure’s privacy right as a fundamental right is determined in the process of balancing test between two coflicting fundamental rights, such as privacy rights and freedom of expression, or the public interest, which is in conflict with it.

Two Ways of Completing the European Fundamental Rights Union: Amendment to vs. Reinterpretation of Article 51 of the EU Charter of Fundamental Rights

AbstractThe aim of this Article is to show that the enforcement of Article 2 of the Treaty on European Union (‘TEU’) values vis-à-vis Member States could benefit from the application of the EU Charter of Fundamental Rights (‘CFR’) also in instances where the current interpretation of Article 51(1) CFR prevents this. This would be the case if the CFR were also applicable to purely domestic cases, eg—but not only—with regard to fundamental rights-relevant violations related to the values enshrined in Article 2 TEU. In this case, the European Court of Justice, which has already partly taken this path recently, could prevent the violation of core EU values. The most important historical challenge to those values in Europe today is the systematic dismantling of the rule of law and democracy in certain Member States. It is the very purpose of fundamental rights to provide answers to such dangers. When one speaks of the rule of law and democracy, one necessarily also means fundamental rights. This Article thus advocates an EU which perceives itself as a complete fundamental rights union. While the traditional interpretation of Article 51(1) CFR had a balanced division of competence between the EU and its Member States in mind, the disregard of Article 2 TEU values triggers a clausula rebus sic stantibus: the neat federal balance can only be upheld if both ends stick to the original promise made. It demonstrates two ways of completing the European fundamental rights union: treaty revision, on the one hand, and reinterpretation of Article 51 CFR, on the other hand. Both ways have in common that only a complete fundamental rights union can establish a system of fundamental rights protection that is uniform and thus equality-preserving in cases where national fundamental rights fail to provide sufficient protection.

Kryzys strefy euro i nowe wyzwania dla demokracji i praw podstawowych w Unii Europejskiej

The outbreak of the global financial crisis in 2007 exposed numerous structural flaws in the architecture of the euro area. From today’s perspective, it is known that without quick action going beyond the legal framework of the treaties and the competences of EU bodies, the euro area would most likely collapse. These design flaws are slowly being removed through the implementation of “unconventional” monetary policies conducted by the European Central Bank, as well as by new institutional tools aimed at increasing the coordination of economic policies and supervision over the financial condition of individual euro area Member States. With these changes, fundamental questions have arisen about the legitimacy of emergency reforms. The state of emergency has been lifted, but questions about the legitimacy of the new competences and methods in overseeing the euro area leave doubts as to their compliance with the principles of democracy and respect for fundamental rights. The aim of the article is to present the challenges related to the current and postulated shape of the Eurozone reforms seen through the prism of European fundamental values, i.e. democracy and human rights.

When Comparative Law Walks the Path of Anthropology: The Third Gender in Europe

AbstractGender recognition is a crucial achievement for non-binary people. To better understand this right, this article combines comparative law with theoretical insights from anthropology to offer a discussion of non-binary recognition in European fundamental rights law. It identifies three approaches to such a right and critically assesses each of them. The first approach is denial, with the non-binary option being explicitly or implicitly rejected, as has occurred in French and Italian courts. The next approach is limited recognition, whereby a non-binary option is granted under specific limitations, such as when certain physical characteristics are present or when a claimant permanently identifies with the non-binary gender. This is the course of action that has been taken in German law. The third approach is gender self-determination, whereby individuals can obtain recognition on the basis of their declaration alone. This solution has been offered by the Belgian Constitutional Court. On the strength of findings from anthropology, the article argues that the first two models are incapable of genuinely engaging with gender diversity, while the third one offers more robust legal protection. The analysis presented here serves as an example of how anthropological insights can be effectively used to advance comparative law research.

The Holship ruling of the ECtHR and the protection of fundamental rights in Europe

The status of trade union rights in the EU has been contentious since the CJEU sent shockwaves through the trade unions of Europe in December 2007 with its rulings in the cases of Viking and Laval. In its recent Holship ruling, the ECtHR has challenged these rulings. Contrary to the assertion of the CJEU in Laval that it is inherent in the very exercise of trade union rights and the right to take collective action that they will be prejudiced to a certain degree, the ECtHR stated that “the degree to which a collective action risks having economic consequences cannot (…) in and of itself be a decisive consideration in the analysis of proportionality under Article 11”. This has potentially wide-reaching implications for the relationship between the human rights recognized in international human rights conventions and EU fundamental rights.

The “Struggle” to Dissolve the Kosovo Specialist Chambers in The Hague: Stuck between Constitutional Text and Mission to Pursue Justice

Abstract The Kosovo Specialist Chambers (KSC) manifest the first effort of the European Union to participate in an international criminal law project by running a hybrid criminal tribunal, vested with jurisdiction to investigate the Parliamentary Assembly of the Council of Europe’s Marty Report. The KSC is entrusted with a mandate originating in a number of legal instruments. A “termination clause” is also present in the Constitution of the Republic of Kosovo. The Specialist Constitutional Chamber has recently ruled on an amendment discreetly activating the termination of the KSC. The Chamber’s decision outlawing “the amendment” manifests an attempt to reinforce the constitutive nature of the EU’s proprietorship over the KSC, attaching to it an international personality detached from that of Kosovo. The decision contends that the “power to dissolve” the KSC is basically vested with the EU, and Kosovo’s internal law cannot affect that relationship unilaterally. The article argues that the strong adherence of the Chamber’s decision on fundamental rights is an attempt to expose the victim-rights-centered mission of the KSC, clearly leaning towards a legitimacy rather than a legalistic exercise. The article concludes that the decision will have ample effect on the EU’s responsibility over the KSC, the nature of the “power to dissolve”, and the KSC’s mission in the European fundamental rights landscape in general.

Medical artificial intelligence

Although the European Commission proposed new legislation for the use of "high-risk artificial intelligence" earlier this year, the existing European fundamental rights framework already provides some clear guidance on the use of medical AI.

The Court of Justice and gender recognition: A possibility for an expansive interpretation?

The case-law of the Court of Justice of the European Union on sex non-discrimination and trans rights reveals that, over time, the principle of equal treatment has led to forms of gender recognition, clearly limited to the scope of EU law. The Court has ruled that lack of identity recognition may, if conditions are met, infringe on the principle of equal treatment. Focusing on several textual and contextual aspects of the Court's decisions, the article explores the possibility of an expansive reading of this case-law beyond the boundaries of the medicalised binary. Ultimately, the potential of the doctrine of the Court of Justice for the advancement of trans fundamental rights in Europe is discussed, in order to stimulate the debate on an important and timely topic.

Restricting Access to Legal Content in House Rules: The Platform’s Freedom To Conduct a Business as a Counterargument To Limit Users’ Freedom of Expression

This chapter focuses on platforms’ protection against (unjustified) interference with the free drafting of house rules, viewed through a lens of European fundamental rights protection. It discusses the difference in protection of two fundamental rights in the European Charter of Fundamental Rights: article 16’s freedom to conduct a business and article 17’s right to property. The articles’ subject of protection (“the essence of the right”) will be mapped by analyzing the CJEU’s case-law between respectively 1974 and 1979 until 2020 and the outcome of this analysis will be applied to the process of running a platform. It will show that article 16, rather than article 17, covers platforms’ house rule-drafting. However, it is unlikely that restrictive measures will interfere with the freedom’s essence. To be justifiable, measures that do not interfere with the essence must live-up to the principle of proportionality. Therefore, subsequently, the question arises whether potential measures live up to this principle. To prevent a purely normative answering of that question - due to the fact that a standardized test does not exist - the Unfair Contract Terms Directive’s unfairness test will be used as interpretational guidance. It is concluded that measures limiting a platform’s contractual freedom can, and most likely will, be justifiable to protect platform users’ freedom of expression. That opens the door for future legislation. Outside the direct realm of platforms, this chapter demonstrates that the freedom to conduct a business has been reduced to an empty shell, or rather, a shell that has never been inhabited. Apart from the situation where an undertaking would be able to demonstrate that a proposed measure would mean the end of the business, the freedom to conduct a business does not provide any effective protection.

Do AI-based anti-money laundering (AML) systems violate European fundamental rights?

Do AI-based anti-money laundering (AML) systems violate European fundamental rights?

Externalising internal policies via conflict: the EU’s indirect influence on international institutions

ABSTRACT This paper identifies an innovative mechanism of how the EU’s internal policies could lead to policy adaptations within international institutions. Having authority over the single market, the EU regulates important market actors whose behaviour is oftentimes crucial for the effectiveness of global cooperation projects. By intentionally or unintentionally creating a vertical regulatory conflict with an international institution, the EU might influence the behaviour of European market actors in a way that it undermines the effectiveness of the international institution. To preserve its effectiveness, the external institution is forced to adapt towards European internal policies to dissolve conflict and to enable mutual compliance for European market actors. The potential of the mechanism is explored in two cases: The EU’s externalisation of data protection to the Internet Corporation for Assigned Names and Numbers (ICANN) and the externalisation of European fundamental rights to the UN Security Council. The process tracing finds that the EU is able to carve out authority from international institutions under specific conditions.

Data Protection and Freedom of Expression Beyond EU borders: EU Judicial Perspectives

In the information society, European law has extended its influence to global dynamics. The rights to privacy and data protection are paradigmatic examples of extending fundamental rights protection beyond EU borders. To fully understand this tendency, it is necessary to develop some premises regarding the dynamic force of the European fundamental rights to data protection and privacy in the digital world and the cleavage between the European vision and the US version of the right to privacy online and data protection.

Taking Constitutionalization Seriously: European IP Law, Weak Fundamental Rights and the Network of Courts

Abstract A set of three recent decisions delivered by the CJEU – Spiegel Online,1 Pelham2 and Funke Medien3 – deepens the widespread interpretation of European IP law through the lenses of constitutionalization. While there is no unitary understanding of constitutionalization, many scholars associate it with the growing influence of fundamental rights on European IP law – both within and beyond the statutory body. In fact, the case law provides plenty of evidence on how the Charter of Fundamental Rights and proportionality – its central method – is deployed to steer the implementation of EU law by domestic courts. However, as the said decisions also show, there are still a lot of questions and frustration. While we have to acknowledge that the CJEU takes fundamental rights into account when interpreting IP law, some critics see deficits when the Court strictly rejects the idea of external limitations on exclusive copyrights. European fundamental rights are – obviously – not a trump card. This article aims to clarify some misleading aspirations by re-examining both the idea of constitutionalization and its impact on European IP law. It will argue that weak or evasive fundamental rights are not necessarily a sign of deficient constitutionalization, they might rather be the consequence thereof.

The Democratic Impact of Strengthening European Fundamental Rights in the Digital Age: The Example of Privacy Protection

AbstractIn times of digital pervasion of everyday life, the EU has strengthened a normative idea of European fundamental rights, especially by referring to a strong notion of privacy protection. A normative corridor is evolving with the “right to privacy” at its heart, a right that will be instrumental in shaping the European legal architecture’s future structure. In this Article we argue that the constitutional protection of privacy rights is not only of individual relevance but also of major democratic significance: it protects the integrity of the communication structures that underpin democratic self-determination. The debate on privacy protection, however, often lacks a democratic understanding of privacy and misses its public value. Following an interactionist understanding of privacy and a discourse-theoretical model of democracy, our argument puts forward a conceptual link between privacy and the idea of communicative freedom. From this perspective, the substantiation of a European fundamental right to privacy can be seen as a possible contribution to promoting European democracy in general.

LA PROTECCIÓN DE LOS DERECHOS FUNDAMENTALES EN EL ESPACIO EUROPEO Y LOS DIVERSOS ESTÁNDARES POSIBLES DE PROTECCIÓN: EL CASO DEL RECONOCIMIENTO DE LA DIMENSIÓN SOCIAL DEL DERECHO A LA VIVIENDA POR PARTE DEL TEDH

El presente trabajo se propone clarificar los múltiples contornos de los derechos a la vivienda, con una particular referencia a la dimensión regional europea evidenciando los elementos de juicio utilizados por el TEDH. En concreto, la tutela de los derechos a la vivienda sigue diferentes vías, con la combinación de una pluralidad de mecanismos de protección que pueden combinarse de manera variada entre ellos y que son, ante todo, de carácter político, pero que implican también la intervención de medidas de carácter administrativo y jurisdiccional. “The protection of fundamental rights in Europe and the possible protection standards: Case study on the recognition of the social dimension of housing rights by the ECtHR.”
 Abstract
 With this work we aim to clarify the multifaceted contours of housing rights, with particular reference to the European context, highlighting the standards of judgment used by the ECHR. In particular, the protection of house rights follows various and articulated paths, making use of the combination of a plurality of protection mechanisms that can variously combine and which are primarily political, but which also impose the intervention of administrative and jurisdictional measures.