scholarly journals The Essence of the Fundamental Right to an Effective Remedy and to a Fair Trial in the Case-Law of the Court of Justice of the European Union: The Best Is Yet to Come?

2019 ◽  
Vol 20 (6) ◽  
pp. 884-903
Author(s):  
Kathleen Gutman
Keyword(s):  
European Union ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
The European Union ◽  
Rights Protection ◽  
To Come ◽  
Effective Remedy ◽  
Judicial Protection ◽  
The Eu

AbstractThis contribution examines the developing contours of the essence of the fundamental right to an effective remedy and to a fair trial in the light of salient case-law of the Court of Justice of the European Union. It is divided into three main parts. The first part provides an overview of the meaning of the essence of fundamental rights in EU law and the scope of the inquiry in relation to Article 47 of the Charter of the Fundamental Rights of the European Union (“the Charter”). The second part evaluates the essence of the fundamental right to an effective remedy and to a fair trial in connection with justified limitations that may be placed on its exercise as provided for in Article 52(1) of the Charter within the framework of the EU system of fundamental rights protection, which in turn implicates the relationship with the Court’s case-law on national procedural autonomy, equivalence, and effectiveness. The third part delves into the essence of the fundamental right to an effective remedy and to a fair trial within the framework of the EU system of judicial protection, as illustrated by the Court’s case-law in several areas, including standing for individuals in direct actions before the EU courts, judicial independence, and restrictive measures in the Common Foreign and Security Policy. Through this analysis, the author argues that, while much awaits further refinement, certain recent developments in the Court’s case–law indicate that the essence of the fundamental right to an effective remedy and to a fair trial can play a meaningful role in the EU system of fundamental rights protection and the EU system of judicial protection more broadly, and thus the best may be yet to come as that case-law progresses in the future.

scholarly journals Farewell to the EU Charter: Brexit and Fundamental Rights Protection

2021 ◽  
Vol 4 (1) ◽  
pp. 36-52
Author(s):  
Marco Galimberti
Keyword(s):  
European Union ◽  
Legal Status ◽  
Case Law ◽  
Fundamental Rights ◽  
Bill Of Rights ◽  
The European Union ◽  
Rights Protection ◽  
Charter Of Fundamental Rights ◽  
The Uk ◽  
The Eu

Twenty years after its drafting and more than one decade after its entry into force, the Charter of Fundamental Rights of the European Union has ceased to be part of British law as a consequence of Brexit. Looking into this issue raised by the UK withdrawal from the European Union, the essay sheds some light on the legal status and impact of the EU Bill of Rights in the British legal order. Against this background, the article detects a connection between the UK Supreme Court’s case law and the jurisprudence of the Court of Justice of the European Union on the direct effect of the Charter. From this perspective, the analysis highlights the implications of the UK departure from the Charter and disentanglement from the Luxembourg case law, thus arguing that they may weaken the standards of fundamental rights protection.

scholarly journals Of Legislative Waves and Case law: Effective Judicial Protection, Right to an Effective Remedy and Proceduralisation in the EU Asylum Policy

2019 ◽  
Vol 12 (2) ◽  
pp. 143-166
Author(s):  
Evangelia (Lilian) Tsourdi
Keyword(s):  
National Level ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Asylum Policy ◽  
Basic Set ◽  
Procedural Autonomy ◽  
Effective Remedy ◽  
Judicial Protection ◽  
The Eu

This article explores the multifaceted relationship between the principle of effective judicial protection, the fundamental right to an effective remedy, and secondary EU procedural rules in asylum. Proceduralisation has been an explicit goal of the EU asylum policy since its inception. It has materialised in three legislative waves. The first resulted in the creation of a basic set of procedural guarantees, alongside a plethora of exceptional procedures. The second resulted in modest improvements in terms of harmonisation, and adherence to fundamental rights, but saw exceptional procedural arrangements either retained or introduced. The third, forthcoming wave, aims at further harmonisation that risks, however, being heavily focused on the underlying goal of externalising protection to third countries. Case law of the Court of Justice of the European Union has further refined procedural guarantees shaping national procedural autonomy. Drawing from the Charter rights to good administration and to an effective remedy, the Court has not shied away from adducing additional procedural requirements. It has also clarified how the principle of effective judicial protection and the Charter right to an effective remedy relate to each other, finding that the latter reaffirms the principle of effective judicial protection and largely aligning their scope. The emerging procedural landscape is increasingly complex. The Court's nuanced assessments combined with a plethora of exceptional arrangements at national level led to convoluted standards that are increasingly difficult to put in practice.

scholarly journals The Relationship Between the Charter and General Principles: Looking Back and Looking Forward

2020 ◽  
pp. 1-25
Author(s):  
Emily HANCOX
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
Transformative Potential ◽  
The Relationship ◽  
The Eu

Abstract Article 6 Treaty on European Union sets out two sources of fundamental rights in the EU—the Charter and the general principles of EU law—without specifying a hierarchy between them. Even though the Charter became binding over a decade ago, the Court of Justice of the European Union (‘CJEU’) is yet to clarify unequivocally how these two sources interact. In this article I argue based upon the relevant legal framework that the Charter ought to replace the general principles it enshrines. This leaves a role for general principles in the incorporation of new and additional rights into the EU legal framework. Such an approach is necessary to ensure that the Charter achieves its aims in enhancing the visibility of the rights protected by EU law, while also providing the impetus for more coherent rights protection within the EU. What an extensive survey of CJEU case law in the field of non-discrimination shows, however, is that the CJEU has struggled to let its general principles case law go, potentially hampering the transformative potential of the Charter.

scholarly journals Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States?

2020 ◽  
pp. 1-22
Author(s):  
Aida TORRES PÉREZ
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Scope Of Application ◽  
Judicial Protection ◽  
Eu Fundamental Rights ◽  
The Eu

Abstract This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.

Local law repercussions on EU extradition law

2017 ◽  
Vol 8 (2) ◽  
pp. 116-127 ◽  
Author(s):  
Rebecca Niblock ◽  
Anna Oehmichen
Keyword(s):  
European Union ◽  
Case Law ◽  
Fundamental Rights ◽  
Special Focus ◽  
Mutual Trust ◽  
The European Union ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Local Law

The present article examines the developments of extradition law in Europe, with a special focus on case law in England & Wales and Germany. It explores the effects that the case law of the European Court of Human Rights and the Court of Justice of the European Union has had on extradition law within Europe, and how the tensions between mutual trust and fundamental rights protection in this area have been addressed by the two jurisdictions.

scholarly journals An approach to today’s EU constitutionality control – understanding this EU inter-jurisdictional phenomenon in light of effective judicial protection

2019 ◽  
Vol 3 (2) ◽  
pp. 104-124
Author(s):  
Joana Covelo de Abreu
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
Control Mechanisms ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
Court Of Justice ◽  
Constitutional Level ◽  
Judicial Protection ◽  
The Eu

Under today’s European constitutional demands, effective judicial protection sets the tone concerning potential jurisdictional instruments able to act as constitutionality control mechanisms. Inter-jurisdictionality stands for different and complementary jurisdictional systems living togetherin the same space and it aims to understand how their reflexive interactions can be maintained to promote effective judicial protection. Both the infringement procedure and the preliminary ruling act as constitutional controls. The first allows the Court of Justice of the European Union (CJEU) to evaluate the incompatibility of national solutions/omissions with EU law but, to meet its full effectiveness, widening legitimate parties needs to be considered as well. Also, validity preliminary rulings act as a constitutional control in proceedings relating to individuals – national judges should be aware of their referring obligations to the CJEU. There are voices amongst European academia that advocate a new constitutional procedure to promote fundamental rights’ protection. However, the main formulas highlighted rely on solutions tested on the national level which can compromise their efficacy. We perceive an inter-jurisdictional paradigm as the proper approach since it will allowthe promotion of effective judicial protection at a constitutional level as a new EU dogmatically thought phenomenon. This is to ensure judicial integration can be perceived as a reality, engaged in pursuing the future of the EU.

Travauxto the EU Treaties: Preparatory Work as a Source of EU Law

2015 ◽  
Vol 17 ◽  
pp. 145-167 ◽  
Author(s):  
Samuli MIETTINEN ◽  
Merita KETTUNEN
Keyword(s):  
European Union ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Dynamic Interpretation ◽  
Charter Of Fundamental Rights ◽  
Preparatory Work ◽  
The Eu

AbstractThe Court of Justice of the European Union has historically rejected references to preparatory work in the interpretation of EU Treaties. However, the preparatory work for the EURATOM, Maastricht, and Constitutional Treaties have played a role in recent judgments. The ‘explanations’ to the Charter of Fundamental Rights are expressly approved in the current Treaties. We examine the emerging case law on preparatory work. Reference to the drafters’ intent does not necessarily support dynamic interpretation, and may potentially even ossify historical interpretations. Even if the consequence of their introduction is a conservative interpretation, their use raises questions of transparency and democracy, and complicates the already difficult task of interpreting the EU constitution.

scholarly journals The Relationship between EU Law and Fundamental Principles of Estonian Substantive Criminal Law

2021 ◽  
Vol 30 ◽  
pp. 174-182
Author(s):  
Kaie Rosin
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
Principle Of Legality ◽  
The Relationship ◽  
The Eu

Although the EU lacks explicit competence to harmonise national principles of criminal law, there are many ways in which EU law and national criminal law are interconnected on a level deeper than mere minimum standards adopted from directives. The article analyses these intersections between EU law and fundamental principles of Estonian substantive criminal law, explaining how the principles of criminal law recognised and interpreted in the case law of the Court of Justice of the EU and covered by the Charter of Fundamental Rights of the European Union exhibit the capacity to affect fundamental principles of Estonian substantive criminal law. The article focuses on five principles specific to substantive criminal law, which are derived from the fundamental principles of the Estonian Constitution and have equivalents in human-rights law: the principle of legality of criminal law, the principle of retroactive application of the more lenient criminal law, proportionality, ultima ratio, and the principle of individual guilt. The analysis demonstrates that the relationship between EU law and the various principles of substantive criminal law is not uniform because the principles of substantive criminal law are not developed evenly at European Union level.

scholarly journals The requirement for effective judicial protection as a part of the Rule of Law in European Union law

2021 ◽  
Vol 35 ◽  
pp. 51-67
Author(s):  
Paulina Kochańska
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Case Law ◽  
Fundamental Rights ◽  
Legal Analysis ◽  
The European Union ◽  
European Union Law ◽  
The Rule Of Law ◽  
Charter Of Fundamental Rights ◽  
Judicial Protection

This article aims to present the importance of ensuring effective judicial protection in the Member States of the European Union. Within the scope of the study, the substance and content of the rule of law were studied, with particular emphasis of court independence, an important part of the effective judicial protection principle (article 19 TEU and article 47 Charter of Fundamental Rights). The perspective was captured in general, directing the considerations directly towards the principle of effective judicial protection. The legal analysis was carried out in the light of the recent case-law of the Court of Justice of the European Union, and enriched by the analysis of the EU law doctrine.

Administrative and judicial remedies of EU on civil servants’ rights protection

2021 ◽  
pp. 21-26
Author(s):  
Ivanna Maryniv ◽  
Andriy Kotenko
Keyword(s):  
European Union ◽  
Legal Protection ◽  
Civil Servants ◽  
Main Body ◽  
The European Union ◽  
Rights Protection ◽  
Court Of Justice ◽  
The One ◽  
Effective Remedy ◽  
The Eu

Problem setting. The modern pandemic reality makes all the citizens of the European Union vulnerable, especially in terms of employment and employment disputes. European civil service framework has been existing for more than 50 years, but until now some fundamental issues need to be tackled. Transparency is what the international community is striving for nowadays. The numerous tools for legal protection available to the EU servants offer completely different solutions to the one problem. Therefore, it is crucial to maintain the sound practice, according to the principle of sustainable development. The problems of the pre-trial administrative disputes resolution are questioning the mere ability of this mechanism to provide protection impartially and within sound terms. On the one hand, European Court of Justice stands as an effective remedy, which compensates the drawbacks of administrative way of rights protection. But on the other hand, the European Ombudsman institute shows, that both of the aforementioned remedies are not capable of giving up-to-date protection to the EU servants. That’s why substantial changes in this framework are needed, including reconsideration of the procedure of appeals prescribed under the Council of the EU Staff Regulation. Target of research is to evaluate the effectiveness of each of the remedies available to the EU servants for today in the EU acquis framework. Article’s main body. The article is devoted to the research of administrative and judicial means of remedies available to the EU servants. The analysis of the Court of Justice of the European Union case practice has been conducted. The procedure of resolution of administrative disputes between the EU servants and the EU institutions via the European Ombudsman institute has been investigated. The analysis of disputes concerning the protection of EU servants’ rights within the administrative framework within the institutions has been carried out. Conclusions. After analyzing various types of remedies on the protection of civil servants’ rights, a couple of issues to tackle has been revealed. The administrative remedies under Staff Regulations of the Council are not transparent enough to consider them sufficient for being the main way of protecting Staff rights prescribed in the Regulation. The European Ombudsman, along with judicial practice of the Court of Justice of the European Union might be the relief for the institutional mechanism of civil servants rights protection due to the strategic investigations the European Ombudsman is capable to undertake. Further recap of the administrative means of remedies available under the Staff Regulation is explicitly urgent to conduct as soon as possible.

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