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After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?

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Abstract

This article examines the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by the Lisbon Treaty in 2009. A survey of the output of the Court during that time reveals a sharp rise in the number of cases in which a provision of the Charter was cited or argued before the Court. Further, the Court has engaged substantively with and given prominence to the Charter argument in a growing number of these cases. In other words, the incidence of human rights adjudication before the CJEU has been significantly augmented by the adoption of the Charter as a binding legal instrument. The article considers the implications for the Court of Justice of the growing demand for it to function in certain cases as a human rights adjudicator. More particularly, it questions whether the long-standing judicial style and approach of the Court – its self-referential, formulaic and often minimalist style of reasoning – is appropriate to this expanded role. The article argues that the nature and context of the increasing number of human rights claims being made before the Court call for greater openness on the part of the CJEU to the use of international and comparative law and to the possibility of third party interventions. Further, and particularly given the evident unwillingness of the CJEU to countenance the practice of separate concurring or dissenting opinions, the Court should, particularly in cases involving human rights claims, rethink its increasingly frequent practice of dispensing with the Opinion of an Advocate General.

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... Pojam međunarodne zaštite manjina podrazumijeva odredbe međunarodnih dokumenata o zaštiti prava manjina i njihovih pripadnika kojima je svrha da omoguće održanje i napredak manjina, a čini ju organizacija UN-a. 52 Na razvoj međunarodnog sustava zaštite prava manjina snažan utjecaj 48 71 Okvirnoj konvenciji zamjeraju se neodređene formulacije prava, izostavljanje problematike teritorijalne autonomije te činjenica da su neke države u deklaracijama uz Okvirnu konvenciju nacionalnim manjinama označile samo neke skupine na svom području. 72 Prema Okvirnoj konvenciji svaki pripadnik manjine ima pravo slobodno izabrati da li da bude tretiran kao takav (čl. ...
... Fredman, S.: Emerging from the shadows: Substantive equality and article 14 of the European convention on human rights, (u daljnjem tekstu: "Fredman: Emerging from the shadows: Substantive equality and article 14 of the European convention on human rights"), Human Rights Law Review, Vol.16, 2016., No. 2, str. 284.-289.71 Crnić-Grotić, V.: Obveza zaštita manjina od Kopenhagena do danas, (dalje u tekstu: "Crnić-Grotić: Obveza zaštita manjina od Kopenhagena do danas"), Godišnjak Akademije pravnih znanosti Hrvatske, Vol.10, 2019., No. 1, str. ...
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Even thought the Court of Justice of the EU has already decided a number of cases dealing with national identity, judicial clarification of the concept is still missing. On the contrary, the reasoning employed in the Court’s case-law leaves a lot to be desired. This article explores the reasons that lead the Court to underarticulating its decisions in identity cases. I argue that the Court’s minimalism in adjudicating national identity is rooted not only in reasons driving the Court’s general minimalist approach, but also in considerations specific to identity cases. These reasons include the national identity’s inherent potential to hinder European integration, the sensitivity of determining the content of Member States’ national identities by a supranational court, the attempts to obscure the Court’s receptivity of identity arguments, and the potential to widen the applicability of its identity rulings.
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Traditionally, citizenship has been defined as the legal and political link between individuals and their democratic political community. However, traditional conceptions of democratic citizenship are currently challenged by various developments like migration, the rise of populism, increasing polarization, social fragmentation, and the challenging of representative democracy as well as developments in digital communication technology. Against this background, this peer reviewed book reflects recent conceptions of citizenship by bringing together insights from different disciplines, such as political science, sociology, economics, law, and history.
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Like any other adjudicative body, the Court of Justice of the European Union (CJEU) is an essentially reactive institution: it cannot create disputes on its own motion, but it needs to be ‘mobilized’. This simple observation leads us to a question of central importance in the field of courts and social justice: who brings social justice claims before the Court of Justice? This is a particularly salient question if confronted with the Court’s restrictive legal standing rules: individuals and collective actors have limited access to the Court and engaging in EU litigation requires the availability of specific resources and allies. This paper relies on an original dataset of 291 rulings of the CJEU in the field of migration, complemented with qualitative empirical research, to unveil and map the actors that defend migrant rights in Luxembourg. The analysis offers an innovative and critical reflection on the accessibility of international courts by disadvantaged groups, showing how some features of the preliminary reference procedure affect the type of actors that engage in EU litigation.
Thesis
La proportionnalité a progressivement pris une place centrale dans l’imaginaire juridique. Initialement conçue comme un principe régissant l’utilisation des pouvoirs de police, elle est aujourd’hui considérée comme un outil avancé de science constitutionnelle. Sa généralisation, accompagnée par le paradigme du droit constitutionnel global, est perçue comme irrésistible et naturelle. Cette recherche a été guidée par l’intuition que, même si les juristes à travers le monde raisonnent de plus en plus en termes de proportionnalité, celle-ci peut avoir des sens très différents, et ce, même au sein d’un seul système juridique. Les différentes utilisations du langage de la proportionnalité sont rarement étudiées en tant que telles. Pour autant, l’identification des sens locaux de la proportionnalité est cruciale si l’on veut comprendre sa propagation, apprécier son succès et évaluer les possibilités de convergence entre systèmes juridiques. Ce travail consiste en une étude approfondie et comparative de l’utilisation du langage de la proportionnalité parmi les acteurs juridiques en France, en Angleterre et en Grèce. Il cherche à montrer que les sens locaux de la proportionnalité ne sont pas simplement des applications imparfaites d’un modèle global. Au contraire, ils reflètent les cultures au sein desquelles ils évoluent, des chemins d’évolution culturelle propres à chaque système et des trajectoires locales d’européanisation.
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The article analyses the consequences of the European directive “DAC6” on tax consultants and intermediaries. The author argues that the new provisions are incompatible with the client attorney privilege as this is normally understood in the western Countries. As the privilege is an essential part of the “Rule of Law” principle, the directive should find no ground of application to any professional consultancy activity whatsoever.
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The right to be forgotten as established in the CJEU's decision in Google Spain is the first online data privacy right recognized in the EU legal order. This contribution explores two currently underdeveloped in the literature aspects of the right to be forgotten: its unexpected consequences on search engines and the difficulties of its implementation in practice by the latter. It argues that the horizontal application of EU privacy rights on private parties, such as internet search engines—as undertaken by the CJEU—is fraught with conceptual gaps, dilemmas, and uncertainties that create confusions about the enforceability of the right to be forgotten and the role of search engines. In this respect, it puts forward a comprehensive legal framework for the implementation of this right, which aims to ensure a legally certain and proportionate balance of the competing interests online in the light of the EU's General Data Protection Regulation (GDPR).
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This chapter explores the notion of dual citizenship in the context of political participation in more than one country. To accomplish this goal, we follow a qualitative research design based on a single-case study. By analysing the case of Turkish migrants living in Germany, we find that transnational political engagement of migrants is influenced both by the citizenship regime of the receiving country and the diaspora policy of the sending country.With the aim to illustrate the factors influencing the transnational political actions of Turkish diaspora members, a special emphasis is given will be given to institutional and legal regulations of home and host countries. Our main conclusion is that peoples' ties to their home country and interest in what is happening in their country of origin should not be dismissed as a refusal to integrate or as a sign of a lack of loyalty to their county of residence, but should be recognised as a genuine transnational orientation expressed by dual citizenship.
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E tanulmány gyakorlati szempontból közelít meg egy nemzetközi jogi problémát, az emberi jogok megsértését. Az emberi élet, méltóság és más emberi jogok értéke pénzben nem kifejezhető, azt „beárazni” nem lehet. Mégis, amikor emberi jogi jogsértésekről beszélünk, gyakran felejtjük el, hogy egyes emberi jogok védelmének ára van és ez az ár nemcsak morális. Amikor az államok kötelezettséget vállalnak (vagy kapnak – vállalás nélkül – ius cogens formában) arra, hogy védeni fogják az emberi jogokat, számolniuk kell azzal, hogy ez a védelem belekalkulálandó költségvetésükbe is. A tanulmány azt igyekszik gyakorlati példákon keresztül feltárni, hogy az emberi jogsértésekért milyen konkrét – pénzben kifejezhető – árat fizetett egy európai ország, Görögország.
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With the decline of public funding and new strategies pursued by interest groups, foreign private foundations and donors have become growing contributors to the European human rights justice system. These groups have created their own litigation teams, have increasingly funded NGOs litigating the European Courts, and have contributed to the content and supervision of the European judgements, which all have direct effects on the growth and procedure of human rights. European Human Rights Justice and Privatisation analyses the impacts of this private influence and the resultant effects on international relations between states, including the orientation of European jurisprudence towards Eastern countries and the promotion of private and neo-liberal interests. This book looks at the direct and indirect threat of this private influence on the independency of the European justice and on the protection of human rights in Europe.
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With the decline of public funding and new strategies pursued by interest groups, foreign private foundations and donors have become growing contributors to the European human rights justice system. These groups have created their own litigation teams, have increasingly funded NGOs litigating the European Courts, and have contributed to the content and supervision of the European judgements, which all have direct effects on the growth and procedure of human rights. European Human Rights Justice and Privatisation analyses the impacts of this private influence and the resultant effects on international relations between states, including the orientation of European jurisprudence towards Eastern countries and the promotion of private and neo-liberal interests. This book looks at the direct and indirect threat of this private influence on the independency of the European justice and on the protection of human rights in Europe.
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Court of Justice – Discrimination on the basis of disability – Article 21 and 26 of the Charter of Fundamental Rights – UN Convention on the Rights of Persons with Disabilities – Employment Equality Directive – Relationship between different sources of law protecting the right of persons with disabilities – Charter as interpretative aid – Charter as a parameter of validity – Scope of application of the Charter – Constitutionalisation of the UN Convention
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It is often said that the non-discrimination case-law of the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) might diverge because of their different backgrounds and ‘raisons d’être’. In addition, it is almost an orthodoxy that the European Court of Human Rights (ECtHR) is ahead of the European Court of Justice (ECJ) in developing fundamental rights doctrines in many fields, except for that of non-discrimination law. The question is, however, if these assumptions are correct. This chapter presents four examples in the field of equality and non-discrimination to show that, indeed, there are divergences that seem to reflect the differences in procedural and legal setting and rationale. It proves to be untrue, however, that the ECJ always takes the lead in developing non-discrimination law. In the past decade, several cases can be seen in which the ECtHR is setting the example and the ECJ has (or has not) followed suit. It can be derived from this that alignment and harmonisation of equal treatment and non-discrimination law are needed to avoid that the Member States are confronted with diverging or even conflicting requirements in the future.
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The European Union’s (EU’s) foreign policy objectives include promoting equality rights around the world. Commentary on such efforts in Asia has focused on the EU’s application of economic pressure to influence Asian states. This chapter seeks to shift the focus to a range of non-economic tools that the EU uses to promote equality rights in Asia. These “soft power” options include, but are not limited to, conducting official “human rights dialogues” with Asian leaders, providing technical assistance to government and civil society actors, developing social media campaigns, and setting positive examples through progressive law reforms in the EU. This chapter first explains why it is important for the EU to support equality rights through the exercise of soft power. It then specifically considers the EU’s highest court, the European Court of Justice (ECJ), as a source of soft power. Some Asian courts cite the ECJ as persuasive authority. The ECJ thus indirectly promotes equality rights in Asia by setting examples. It is problematic, however, that Asian courts learn from the ECJ while the ECJ and other EU institutions fail to reciprocate by learning from rights-protective Asian courts. This unidirectional flow of information reflects and reinforces neocolonial dynamics. The EU could allay concerns about neocolonialism, and perhaps increase its influence in Asia, by engaging Asian courts in a two-way dialogue on equality rights.
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The right to be forgotten as established in the CJEU's decision in Google Spain is the first online data privacy right recognized in the EU legal order. This contribution explores two currently underdeveloped in the literature aspects of the right to be forgotten: its unexpected consequences on search engines and the difficulties of its implementation in practice by the latter. It argues that the horizontal application of EU privacy rights on private parties, such as internet search engines—as undertaken by the CJEU—is fraught with conceptual gaps, dilemmas, and uncertainties that create confusions about the enforceability of the right to be forgotten and the role of search engines. In this respect, it puts forward a comprehensive legal framework for the implementation of this right, which aims to ensure a legally certain and proportionate balance of the competing interests online in the light of the EU's General Data Protection Regulation (GDPR).
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This contribution focuses on the Court of Justice of the European Union (Court or CJEU) reliance on international law in cases involving economic agreements covering occupied territories. In its earlier case law, the Court adopted a formalistic approach by ignoring the broader international legal framework of the dispute in an effort to achieve conformity with international law, while at the same time avoiding being drawn into political storms. The article continues by identifying an even more worrisome trend in the Court’s latest judgments in the Front Polisario and Western Sahara Campaign UK cases. In these two cases the Court showed its willingness to stretch the international rules of treaty interpretation to a breaking point in order to avoid pronouncing on the politically sensitive question of the de facto application of the EU’s agreements with Morocco in the territory of Western Sahara. The article concludes by asserting that the Court’s line of argumentation brings another dimension to the Völkerrechtsfreundlichkeit debate. The classical, binary understanding of the Court’s approach as ‘open/hostile’ to international law only provides us with a partial picture of how international law was actually used in these cases. The Court’s apparent willingness to rely on international law as a heuristic device to reinforce an outcome that radically departs from the logic and structure of international law and international legal argumentation requires a more in-depth engagement with both the content of the international law rules invoked in those judgments and with the Court’s use of such rules.
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This chapter deals with the phenomena of rule of law within the constitutional edifice of European Union. The aim is to determine its content and scope and to elaborate its promotion and enforcement in practice. A traditional approach sees this principle mostly as one-way-street focused only on Member States and as political requirement enforceable by the political procedures (Article 7 TEU). This chapter covers the rule of law as two-way proviso addressed to the EU itself and the Member States and discusses alternatives of its promotion. The key hypothesis is that operability of the rule of law concept requires its diagonal application, depoliticisation and judicialisation and concretisation via visible list of contents (in our proposal the EU Charter).
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