scholarly journals Austerity on the loose in Portugal: European judicial restraint in times of crisis

2016 ◽  
Vol 8 (3) ◽  
pp. E-105-E-132 ◽  
Author(s):  
Francisco Pereira Coutinho
Keyword(s):  
Fundamental Rights ◽  
Official Journal ◽  
Social Rights ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
Lower Courts ◽  
Charter Of Fundamental Rights ◽  
The Eu

Abstract The international bailout granted to Portugal between 2011 and 2014 was conditional on the adoption by the Portuguese State of austerity measures included in a memorandum of understanding (MoU) signed by the European Commission on behalf of the European Union (EU) and the Member States. The MoU was never published in an official journal or even translated into the Portuguese language. Its implementation caused a significant decrease in the level of protection of social rights. The compatibility of the MoU with core principles of the rule of law and with the EU’s social Constitution was never tested in court. A systemic failure in the jurisdictional system of the EU immunized the MoU to any judicial challenge. At the apex of the system, the Court of Justice of the EU declined to answer preliminary references submitted by Portuguese lower courts that questioned the compatibility with the Charter of Fundamental Rights of the EU of national budgetary measures that implemented the MoU. At the bottom, Portuguese courts either failed to properly identify the EU law acts that were the source of national austerity measures or disregarded their role as common EU law courts of ordinary jurisdiction when they bypassed the opportunity to refer a question for a preliminary ruling of the Court of Justice challenging the validity of the MoU.

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.

14. The European Union

2017 ◽  
Author(s):  
Berthold Rittberger
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Legal Rules ◽  
Constitutional Order ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

This chapter examines how the European Union acquired distinctive constitution-like features. It begins with a discussion of three routes to constitutionalization: the first is through changes in the EU's primary law; the second focuses on ‘in between’ constitutionalization; and the third leads directly to the European Court of Justice and its jurisprudence. The chapter proceeds by discussing two developments that have shaped the EU constitutional order almost since the beginning: the emergence of a body of EU law constituting a set of higher-order legal rules, and the consolidation of the constitutional principle of representative democracy. It explains how the supremacy and direct effect of EU law, as well as the EU court's concern with the protection of fundamental rights, helped transform the EU into a constitutional polity. It also considers how the extension of the legislative, budgetary, and other powers of the European Parliament animated the constitutional principle.

scholarly journals The Dialectics Between Constitutional Identity and Common Constitutional Traditions: Which Language for Cooperative Constitutionalism in Europe?

2019 ◽  
Vol 20 (8) ◽  
pp. 1097-1118 ◽  
Author(s):  
Massimo Fichera ◽  
Oreste Pollicino
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Binding Force ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
And Function ◽  
Role And Function ◽  
Constitutional Identity ◽  
The Eu

AbstractThis Article revisits the role and function of constitutional identity and common constitutional traditions and claims that the latter have had an increasingly stronger influence on the process of European integration—more than may appear at first sight. In addition, the relevance of common constitutional traditions has not been undermined but, on the contrary, strengthened by the emergence of fundamental rights in EU law and the subsequent conferral of binding force on the Charter of Fundamental Rights. Constitutional identity and common constitutional traditions are part of two discourses—security and fundamental rights—which are an expression of the security of the European project as an overarching frame characterizing the EU as a polity and legal system. After an overview of some of the most important rulings of the Court of Justice of the European Union, this Article concludes by emphasizing the importance of the recent conciliatory attitude recently adopted by the Court of Justice, although the more ambivalent attitude of the Italian Constitutional Court indicates how conflictual features are becoming increasingly important and can no longer be concealed as the EU reaches a more advanced stage of integration.

“Not Taking Rights Seriously”. Opting for the Primacy of eu Law over Broader Human Rights Protection

2015 ◽  
Vol 4 (2) ◽  
pp. 277-302
Author(s):  
Fisnik Korenica ◽  
Dren Doli
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
The Relationship

The European Union (eu) accession to the Convention for the Protection of Human Rights and Fundamental Freedoms (echr) has been a hot topic in the European legal discourse in this decade. Ruling on the compliance of the Draft Agreement on eu accession to the echr with the eu Treaties, the Court of Justice of the eu (cjeu) came up with a rather controversial Opinion. It ruled that the Draft Agreement is incompliant with the eu Treaties in several respects. One of the core concerns in Opinion 2/13 relates to the management of horizontal relationship between the eu Charter of Fundamental Rights (ChFR) and echr, namely Article 53 ChFR and Article 53 echr. The article examines the Opinion 2/13’s specific concerns on the relationship between Article 53 ChFR and Article 53 echr from a post-accession perspective. It starts by considering the question of the two 53s’ relationship from the eu-law autonomy viewpoint, indicating the main gaps that may present a danger to the latter. While questioning from a number of perspectives the plausibility of the cjeu’s arguments in relation to the two 53s, the article argues that the Court was both controversial and argued against itself when it drew harshly upon these concerns. The article also presents three options to address the cjeu’s requirements on this issue. The article concludes that the cjeu’s statements on the two 53s will seriously hurt the accession project, while critically limiting the possibility of Member States to provide broader protection.

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.

scholarly journals Prawo do prywatności osób prawnych podczas kontroli przedsiębiorstwa dokonywanej przez Komisję Europejską

2017 ◽  
Vol 107 ◽  
pp. 11-25
Author(s):  
Marta De Bazelaire De Ruppierre
Keyword(s):  
Competition Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
The Eu

THE RIGHT TO PRIVACY OF LEGAL PERSONS DURING THE EUROPEAN COMMISSION’S INSPECTIONSThe paper aims to discuss the application of the Charter of Fundamental Rights by the EU institutions in competition law proceedings, showing as an example the respect for the right to privacy of undertakings during the inspections carried out by the European Commission. Although exercising the control powers of the Commission potentially collides with a number of fundamental rights expressed in the Charter, it is the analysis of Art. 7 CFR that allows to depict the evolution of the EU’s approach to privacy of legal persons, showing the accompanying judicial dialogue, or lack thereof, between the European Court of Human Rights and the Court of Justice of the EU. The article short-defines the dawn raids, examines the application of Article 7 CFR to legal persons, highlighting the aspects of protection of domicile and secrecy of correspondence, compares the standards provided by ECHR and EU law, pondering also on how the CFR guarantees can be provided and effectively controlled. It also reflects on the issue whether the Court of Justice has a forerunner role in promoting fundamental rights of undertakings in matters of competition law.

scholarly journals Values and objectives of the EU in light of Opinion 1/17: ‘Trade for all’, above all

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Ivana Damjanovic ◽  
Nicolas de Sadeleer
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
The Eu

In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).

scholarly journals Whose Autonomy is it Anyway? Freedom of Contract, the Right to Work and the General Principles of EU Law

2019 ◽  
Vol 49 (3) ◽  
pp. 285-317
Author(s):  
Niall O’Connor
Keyword(s):  
Fundamental Rights ◽  
Eu Law ◽  
Freedom Of Contract ◽  
Legal Studies ◽  
Right To Work ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
The Relationship ◽  
The Eu

Abstract Just how significant is the freedom of contract found in Article 16 of the EU Charter of Fundamental Rights for the regulation of the employment relationship? For the first half of its existence, few could have foreseen that Article 16 would soon be at the centre of debates surrounding the place of business freedoms within EU employment law. This has changed in the wake of a number of controversial decisions in which the Court of Justice of the EU relied on Article 16 to undermine the effectiveness of employee-protective legislation. The article begins by setting out the nature of freedom of contract in EU law and its effects in the employment context. This is followed by a consideration of the relationship between the general principles and the Charter. Critical Legal Studies is relied on to show that existing arguments as to the use of Article 16 as a radical tool in the employment context have been both exaggerated and underplayed. Finally, potential counterweights to freedom of contract are examined, notably the right to work as both a general principle and Charter right.

scholarly journals Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the Court of Justice

2015 ◽  
Vol 11 (2) ◽  
pp. 321-356 ◽  
Author(s):  
Jasper Krommendijk
Keyword(s):  
Direct Effect ◽  
Judicial Review ◽  
Case Law ◽  
Fundamental Rights ◽  
Historical Background ◽  
Social Rights ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Eu

Historical background of the inclusion of social rights in the Charter of Fundamental Rights – Distinction between rights and principles – Similarities between the conditions for direct effect and the criteria for distinguishing between Charter rights and principles – Implications of this distinction for the possibilities of judicial review – Reluctance of the ECJ to explicitly deal with the distinction until Glatzel, as illustrated by its earlier judgments in Dominguez and AMS.

Migration and Asylum Cases before the Court of Justice of the European Union: Putting the Eu Charter of Fundamental Rights to Test?

2015 ◽  
Vol 17 (1) ◽  
pp. 1-38 ◽  
Author(s):  
Francesca Ippolito
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Lisbon Treaty ◽  
The European Union ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Impact ◽  
The Eu ◽  
Third Country Nationals

This article explores the various guarantees embedded in the eu Charter of Fundamental Rights for eu citizens and third country nationals, following the extension of the Court’s jurisdiction by the Lisbon Treaty in the area of freedom, security and justice. In particular, it highlights the potential and limits to the impact of the Charter in immigration or asylum cases before the cjeu.

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