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Asylum and the EU Charter of Fundamental Rights

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Asylum and the EU Charter of Fundamental Rights

Abstract

The eBook (open access) on Asylum and the EU Charter of Fundamental Rights was published within the Project “Judging the Charter – The Charter in Judicial Practise with a Special Focus on the Case of Protection of Refugees and Asylum Seekers” (http://www.editorialescientifica.com/shop/e-book/asylum-and-the-eu-charter-of-fundamental-rights-detail.html). The aims of the Project, having started in September 2016, was to increase competencies of judges and other legal professionals in relation to the Charter of Fundamental Rights of the European Union. The Project was characterised by direct interaction with judges in national seminars and international working conferences but also has developed a 'knowledge data base' on Charter rights as well as e-learning materials, which are available online on the following link (https://charter.humanrights.at/).
ASYLUM AND THE EU CHARTER
OF FUNDAMENTAL RIGHTS
Edited by
A. CresCenzi r. ForAstiero G. PAlmisAno
EDITORIALE SCIENTIFICA
ASYLUM AND THE EU CHARTER
OF FUNDAMENTAL RIGHTS
Edited by
A. CresCenzi
r. ForAstiero
G. PAlmisAno
Raccolta degli Atti del Convegno Nazionale
Associazione Italiana di Diritto dell’Ambiente 2018
Roma 22-23 maggio 2017
Editoriale Scientifica
Napoli
© Editoriale Scientifica srl 2018
Via San Biagio dei Librai, 39
Palazzo Marigliano
80138 Napoli
www.editorialescientifica.com
info@editorialescientifica.com
ISBN 978-88-9391-515-1
All rights reserved
This E-book has been produced within the Project
Judging the Charter
(JUST/2015/JTRA/AG/EJTR/8682)
co-funded by the European Commission.
The contents of this E-book are the sole responsibility of the listed authors
and can in no way be taken to reflect the views of the European Commission.
© 2017-2018
Partners of the Project
Ludwig Boltzmann Institute of Human Rights, Austria (https://bim.lbg.ac.at)
Institute for International Legal Studies – National Research Council of Italy (http://www.isgi.cnr.it)
Ombudswoman of the Republic of Croatia (http://ombudsman.hr)
Centre for European Constitutional Law, Greece (http://www.cecl.gr)
Institute for Law and Society INPRIS, Poland (http://www.inpris.pl)
Table of Contents
Foreword 7
Section I
GAbriel n. toGGenburG
The Charter of Fundamental Rights: An Illusionary Gi-
ant? Seven brief points on the relevance of a still new EU
instrument 13
lorenzA Violini, AlessAndrA osti
The Effectiveness of the Charter of Fundamental Rights
in a Comparative Perspective: which Level of Integration? 23
AndreA CresCenzi
The Prominence of the EU Charter of Fundamental Rights
in the Light of the CJEU Case Law and the Application of
the Dublin System 43
mArCelle renemAn
Asylum and Article 47 of the Charter: Scope and Intensity
of Judicial Review 59
ChiArA FAVilli
Overview and Summary of the Obligations of the EU In-
stitutions and State Authorities with regard to the Charter
in the Field of Asylum. Proposals for Possible Improve-
ments in EU Legislation and Policies 79
Section II
rositA ForAstiero
The Right to an Effective Remedy and the Protection
of Particularly Vulnerable Persons as Asylum Seekers in
Light of the Charter of Fundamental Rights 99
INDEX6
GeorGiA sPyroPoulou
The EU Charter of Fundamental Rights and Asylum Pro-
cedures in View of the Recent Developments in Greece
Following Implementation of the EU-Turkey Statement 121
GiuliAnA moninA
“Judging” the Grounds for Detention of Asylum Seekers:
Discrepancies between EU Law and the ECHR. An Anal-
ysis of the CJEU Decisions of K. v. Staatssecretaris van
Veiligheid en Justitie & J.N. v. Staatssecretaris van Veilig-
heid en Justitie 151
JACek biAłAs, mAłGorzAtA JAźwińskA
Preliminary Questions in Asylum Cases Lodged by the
Courts from Central and Eastern Europe: a Pragmatic
Study 175
iris Goldner lAnG
The Western Balkans Route as an Alternative to Breaching
the EU Charter of Fundamental Rights 195
Adel-nAim reyhAni, CArlos Gómez del tronCo, mAtthiAs
nikolAus mAyer
Challenging the Externalised Obstruction of Asylum –
the Application of the Right to Asylum to EU Coopera-
tion with Libyan Coast Guards 203
Afterword
GiusePPe PAlmisAno
The Rights of Asylum Seekers in Europe Beyond the EU
Charter of Fundamental Rights: Shortcomings and Poten-
tial of the European Social Charter 245
Article
The WTO, which is composed of 164 Member States at different levels of development, currently plays an increasingly important role as a legal regulator on the global level. Simultaneously, the EU (which currently consists of 27 Member States) has introduced law at the regional level. Although these two organizations do have similarities, they also differ significantly from each other and in practice function in isolation. The WTO is an entity /with its own legal norms, whose aim is to support trade liberalization. On the other hand, the EU is notable for guaranteeing peace, promoting shared values and generating wealth for all EU citizens by means of its own norms. As the EU and its Member States are a State Party of the WTO, the legal regulations of the WTO are included in EU sources of law and are binding for all EU Member States. Thus, the relationship between the WTO and the EU is closely related. This contribution deals with the theoretical comparison between the EU and the WTO in the context of axiology, basic principles and human rights protection aspects. I am of the opinion that it is not justified to look at these organizations in a completely separate way but to identify their common features. The main aim of the contribution is to confirm the hypothesis whether the process of integrating their legal regulations is possible. To consider this issue the Author has divided this paper into three parts: an introduction, a study of the WTO, a study of the EU and a conclusion. The following research methods have been used: legal comparison, analytical and descriptive.
Chapter
Has the incorporation of the Charter of Fundamental Rights into the Lisbon Treaty strengthened our reasons for accepting the powers entrusted to the European Union?—The Charter of Fundamental Rights was adopted and later transformed into primary law in order to enhance the legitimacy of the EU. This echoed a critique of the gradually expanding powers of the EU, including the expanding reach of the right to free movement, more supranational decision-making procedures, and new Union powers in novel policy areas such as the area of justice and home affairs. One line of criticism held that the wide powers of the Union were not balanced with a sufficient level of democratic control and effective protection against abuse. The Lisbon Treaty sought to enhance legitimacy in three ways: Decision-making processes were to some extent democratised; the Member States agreed that the Union shall accede to the ECHR; and the Charter was transformed into primary law. There is a partly competing perspective that posits that the EU’s legitimacy may depend more on its ability to facilitate effective problem-solving of acute public policy issues, including migration, terror, and economic crises. In this chapter, we analyse to what extent the transformation of the Charter into primary law has already succeeded, and may continue to succeed, in providing better reasons for accepting the powers entrusted to the EU. In this context, we provide, first, an analysis of certain questions regarding the interpretation and application of the Charter, questions which are key to assessing what changes to EU law the said transformation has led to and may lead to, as compared to older epochs of EU law, when fundamental rights were based on unwritten law. In the final assessment, we argue that the answer to the legitimacy question depends on the extent to which European courts will allow Member States flexibility regarding how fundamental rights are protected in different institutional environments. Effective problem-solving may require the ability to adapt different solutions to various locations and to different situations, based upon the weighing of diverse interests.
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