scholarly journals Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof

2013 ◽  
Vol 9 (1) ◽  
pp. 135 ◽  
Author(s):  
Evelien Brouwer
Keyword(s):  
Burden Of Proof ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
Dublin Regulation ◽  
The Eu

scholarly journals The Principle of Mutual Trust in EU Law and Policy

2021 ◽  
Vol 106 (6) ◽  
pp. 144-154
Author(s):  
Vadim Voynikov ◽  
Keyword(s):  
Member State ◽  
Internal Market ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Mutual Trust ◽  
Eu Law ◽  
Law And Policy ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Mutual trust is one of the central principles of the area of freedom, security and justice and the whole EU. Despite the fact, that mutual trust is not stipulated in founding treaties, this principle has been widely developed by the European Court of Justice. The purpose of this article is to identify the legal and political components of mutual trust in the EU, as well as the approaches to its implementation. The author comes to the conclusion that the principle of mutual trust originated from the internal market, however its development is mostly associated with the area of freedom, security and justice. Mutual trust in the EU presupposes that a member state does not need additional verification that another member state respects Union law and fundamental rights. Initially, the principle of mutual trust was given the absolute character, but in the post-Lisbon period, “blind trust” was replaced by the “earned trust”, which implies the possibility, in exceptional cases, to refuse mutual trust to another member state if the latter violates fundamental rights. Despite the development of the concept of mutual trust by the European Court of Justice and other EU institutions, recently there has been a serious deficit of interstate trust within the Union. In this regard, the principle of mutual trust is becoming declarative.

Prison Conditions and Judicial Cooperation in the EU – What Future for the European Arrest Warrant?

2021 ◽  
Vol 11 (2) ◽  
pp. 188-210
Author(s):  
Adriano Martufi
Keyword(s):  
Active Role ◽  
Case Law ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
Judicial Cooperation ◽  
Competing Interests ◽  
Court Of Justice ◽  
European Arrest Warrant ◽  
Degrading Treatment ◽  
The Eu

This article takes stock of the recent case law of the Court of Justice of the EU concerning prison conditions. This jurisprudence, inaugurated with the landmark case Aranyosi, deserves closer attention in that it shows that the CJEU has finally developed a ‘penological’ sensibility. The article posits that the emergence of concerns regarding prison conditions transforms the way in which surrender proceedings operate. It argues that executing judicial authorities are now called on to play a more active role, having to factor in the risk of inhuman and degrading treatment in the issuing state. The criteria devised by the Court to assess such risk are analysed in detail, as they constitute an attempt to strike a balance between the protection of fundamental rights and the principle of mutual trust. The article also claims that the individualised assessment of risks by an executing authority must rely on detailed empirical information regarding prisons in the issuing state. This makes the procedure more complex as it calls for the involvement of non-judicial actors (e.g. the ministry of justice) to provide such information. Finally, the article explores how competing interests (such as the fight against impunity across the EU) interact with the overarching task of protecting the rights and dignity of requested individuals.

The EU Legal Framework for the Protection of Fundamental Rights

2021 ◽  
pp. 94-211
Author(s):  
Jan Wouters ◽  
Michal Ovádek
Keyword(s):  
Legal Framework ◽  
Fundamental Rights ◽  
European Convention ◽  
Mutual Trust ◽  
National Parliaments ◽  
Law And Policy ◽  
Charter Of Fundamental Rights ◽  
National Governments ◽  
Eu Fundamental Rights ◽  
The Eu

This chapter offers a global view of the EU legal framework for the protection of fundamental rights and the basic functioning of its key constituents, most notably the Charter of Fundamental Rights. The EU Charter of Fundamental Rights was originally devised in 2000 by the so-called European Convention consisting of representatives of the European Parliament, national parliaments, the European Commission, and national governments. The Charter today is the centrepiece of EU fundamental rights law and policy. It is a separate document from the Treaties but holding the same legal value. It consists of a preamble and seven titles, the first six of which contain substantive rights and principles on dignity, freedoms, equality, solidarity, citizens' rights, and justice. The last title covers general provisions on the field of application of the Charter, its scope and interpretation, level of protection, and a prohibition of the abuse of rights. The chapter then considers EU secondary law; the principle of mutual trust; and the protection of EU values through Article 2 and 7 TEU.

scholarly journals The Court of Justice of the European Union’s Mutual Trust Journey in EU Criminal Law: From a Presumption to (Room for) Rebuttal

2019 ◽  
Vol 20 (4) ◽  
pp. 468-495
Author(s):  
Auke Willems
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
The European Union ◽  
Rights Protection ◽  
Court Of Justice ◽  
High Level ◽  
The Eu

AbstractMore than any other EU institution, the Court of Justice of the European Union has upheld the presumption of mutual trust in EU criminal law cooperation. Surprisingly though, despite mutual trust’s centrality in the Court’s jurisprudence, it has long not qualified nor properly elaborated the notion of trust, but rather held on to its presumed existence based on a high level of fundamental rights protection throughout the Union. This article will assess the important role of the Court in establishing, upholding and ultimately qualifying the trust presumption in the EU criminal justice context. Along the lines of a number of key cases, the narrative of a strong defence of (the presumption of) mutual trust appears, but also of an evolution toward more room for rebuttal in recent cases. This signals the increased weight given to fundamental rights protection in the EU’s Area of Freedom, Security and Justice.

The EU Fundamental Rights Landscape after Opinion 2/13

2016 ◽  
Author(s):  
Johan Callewaert ◽  
Marc Joseph Bossuyt ◽  
Emmanuelle Bribosia ◽  
Christophe Hillion ◽  
Martin Kuijer ◽  
...  
Keyword(s):  
Fundamental Rights ◽  
Eu Fundamental Rights ◽  
The Eu

EU Health Law & Policy

2019 ◽  
Author(s):  
Anniek de Ruijter
Keyword(s):  
Public Health ◽  
Health Care ◽  
Human Health ◽  
Fundamental Rights ◽  
The European Union ◽  
Health Issues ◽  
Division Of Powers ◽  
Legal Principle ◽  
Legal Competence ◽  
The Eu

This book describes the expansion of EU power in health care and public health and analyses the implications of this expansion on EU health values and rights. The main conclusion of the book is that the EU is de facto balancing fundamental rights and values relating to health, implicitly taking on obligations for safeguarding fundamental rights in the field of health and affecting individuals’ rights sometimes without an explicit legal competence to do so. This brings to light instances where EU health policy has implications for fundamental rights and values without the possibility to challenge the exercise of power of the EU in human health. This begs the question of whether subsidiarity is still the most relevant legal principle for the division of powers and tasks among the Member States, particularly when EU policy and law involves the politically sensitive areas of health care and public health. This question draws out the parameter for continuing the debate on the role of the European Union in promoting its own values and the wellbeing of its peoples, in light of its ever-growing role in human health issues.

The Democratic Costs of Constitutionalization— The European Case

2017 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
At Risk ◽  
Economic Integration ◽  
Fundamental Rights ◽  
European Law ◽  
European Court ◽  
Political Implications ◽  
The Impact ◽  
The Relationship ◽  
The Eu

This chapter examines the democratic costs of constitutionalization by focusing on the European case. It first considers the interdependence of democracy and constitutionalism before discussing how constitutionalization can put democracy at risk. It then explores the tension between democracy and fundamental rights, the constitutionalization of the European treaties, and the European Court of Justice’s (ECJ) two separate judgments regarding the relationship between European law and national law. It also assesses the impact of the ECJ’s jurisprudence on democracy, especially in the area of economic integration. The chapter argues that the legitimacy problem the EU faces is caused in part by over-constitutionalization and that the remedy to this problem is re-politicization of decisions with significant political implications.

Intersectional Discrimination

2019 ◽  
Author(s):  
Shreya Atrey
Keyword(s):  
South Africa ◽  
Burden Of Proof ◽  
Intersectionality Theory ◽  
Indirect Discrimination ◽  
The Us ◽  
Treaty Body ◽  
The Eu

Why has intersectionality fallen by the wayside of discrimination law? Thirty years after Kimberlé Crenshaw coined the term ‘intersectionality’, discrimination lawyers continue to be plagued by this question across a range of jurisdictions, including the US, UK, South Africa, India, Canada, as well as the UN treaty body jurisprudence and the jurisprudence of the EU and the ECHR. Claimants continue to struggle to establish intersectional claims based on more than one ground of discrimination. This book renews the bid for realizing intersectionality in comparative discrimination law. It presents a juridical account of intersectional discrimination as a category of discrimination inspired by intersectionality theory, and distinct from other categories of thinking about discrimination including strict, substantial, capacious, and contextual forms of single-axis discrimination, multiple discrimination, additive discrimination as in combination or compound discrimination, and embedded discrimination. Intersectional discrimination, defined in these theoretical and categorial terms, then needs to be translated into doctrine, recalibrating each of the central concepts and tools of discrimination law to respond to it—including the text of non-discrimination guarantees, the idea of grounds, the test for analogous grounds, the distinction between direct and indirect discrimination, the substantive meaning of discrimination, the use of comparators, the justification analysis and standard of review, the burden of proof between parties, and the range of remedies available. With this, the book presents a granular account of intersectional discrimination in theoretical, conceptual, and doctrinal terms, and aims to transform discrimination law in the process of realizing intersectionality within its discourse.

The Protection of Intellectual Property in International Human Rights Law

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Fundamental Rights ◽  
European Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Cultural Rights ◽  
Core Subject ◽  
Charter Of Fundamental Rights ◽  
The Eu

This chapter examines the human rights system and the way it deals with human creations and innovations that are the traditional core subject matter of intellectual property (IP) rights. It begins by reviewing the scope for protection under Article 27 (2) Universal Declaration of Human Rights (UDHR) and Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The chapter moves on to the protection of property in human rights law, especially on the regional, European level. It examines how IP can be protected as property under the European Convention of Human Rights (ECHR) and under the EU Charter of Fundamental Rights (EU Charter). Finally, the chapter looks at some of the overlaps with international IP rules and the conflict norms in the human rights system to address such overlaps.

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