EU Law - EU Charter and Accession to the ECHR Flashcards
1
Q
What does CJEU preference for Charter echo wariness of?
A
EU human rights being tied too closely to ECHR
2
Q
Bosphorous Airways v Ireland
A
Members can rely on EU obligations as defence of HR violation, as equivalent system of protection
3
Q
Article 52(5) Charter
A
Seeks to distinguish principles, which are ‘judicially cognisable’ only once implemented
4
Q
Horizontal clauses in Charter
A
Articles 51 - 53
5
Q
What does the solidarity chapter in the Charter reflect?
A
Provisions already integrated into EU law in European Social Charter
6
Q
What distinction is made in the Charter, between two concepts?
A
Rights and principles
7
Q
Akerberg Fransson general
A
Taxes, VAT but Directives irrelevant
8
Q
Test-Achats v Conseil des Ministres general
A
Car insurance
9
Q
What case shows Protocol (No.30) Article 1 EU Charter is not an ‘opt out’?
A
NS and ME
10
Q
What Article of what Treaty gives a sanction mechanism for serious and persistent breaches of human rights by Members?
A
Article 7 TFEU
11
Q
What FMW case shows dislike for ECtHR case law/
A
Dereci
12
Q
What are the six assessment stages in Schecke v Land Hessen?
A
Identify right, interference, reflected in ECHR, permissible limitations, compliance with limitations and proportionality
13
Q
What is a criticism of Melloni?
A
Unequivocal reassertion of EU primacy, rather than pluralist coexistence with other human rights systems
14
Q
Melloni judgment
A
Article 53 does not question EU supremacy - no higher standard of protection allowed
15
Q
How have the ECJ reviewed EU Treaty indirectly?
A
Through general principles - believe lack of protection is due to oversight
16
Q
What case shows a retreat from Akerberg Fransson?
A
Counterterrorism Database judgment
17
Q
What case shows ECtHR have already reviewed EU primary law?
A
Matthews
18
Q
Nada v Switzerland
A
ECtHR followed CJEU lead
19
Q
Who suggested EU attention to HRs is no more than self-serving instrumentalism?
A
Williams
20
Q
Counterterrorism Database judgment
A
Members not bound by Charter if national rules only within abstract scope of EU law, or purely factual effect on EU law
21
Q
EU Ombudsman on EU as human rights actor
A
Opened investigation into compliance of HR standards by Frontex
22
Q
Name at least two problems ECJ highlighted with the DAA
A
Mutual trust, review of EU primary law, xo-respondent mechanism and prior involvement procedure
23
Q
What case showed a very low threshold of ‘implementing in Union law’?
A
Akerberg Fransson
24
Q
What case enforced that Article 53 Charter does not question EU supremacy?
A
Melloni
25
What case showed ECtHR reviewing law of same rank as founding treaties?
Matthews
26
Taxes, VAT but Directives irrelevant
Akerberg Fransson
27
What two cases show mutual influence between CJEU and ECtHR prior to accession?
Nada v Switzerland; Dhabi v Italy
28
CJEU on Opinion 2/94
Accession to ECHR would have 'fundamental institutional implications', so Treaty amendment needed
29
Article 6(2) TEU
EU 'shall accede' to the ECHR
30
Eeckhout on Bosphorous
Need mutual sensitivity for respective roles CJEU and ECtHR play, although Bosphorous may go too far upon accession
31
Protocol (No.30) Article 1 EU Charter
CJEU/court/tribunal in UK/Poland can’t find Polish/UK action to be inconsistent with fundamental rights, freedoms and principles, and no justiciable rights from Title IV unless provided in national law
32
How many years did the Draft Agreement on Accession take to complete?
3 years
33
Car insurance
Test-Achats v Conseil des Ministres
34
What does Eeckhout argue in response to problem of prior-involvement procedure?
No distinction between interpretation and compatibility as CJEU need to rule on the former to tule on the latter
35
What investigation suggested EU is not a significant human rights actor?
EU Ombudsman into Frontex
36
Members not bound by Charter if national rules only within abstract scope of EU law, or purely factual effect on EU law
Counterterrorism Database judgment
37
AMS general
Right to be consulted, private employer
38
Circular definition of 'implementing in Union law', so if EU law applies, so do fundamental rights
Akerberg Fransson
39
Name at least two reasons why accession may still be desirable today?
Signal credibility of EU, ECtHR has expertise, possibility of conflict on same issue and desirability of challenging EU acts before ECtHR
40
AG in Opinion 2/94
Accession unnecessary as EU about economic integration
41
What case shows EU development on equal treatment on grounds of sex?
Test-Achats v Conseil des Ministres
42
Akerberg Fransson judgment
Circular definition of 'implementing in Union law', so if EU law applies, so do fundamental rights
43
Article 6 TEU
Three sources of fundamental rights protection
44
How long was the Convention to draft the EU Charter?
1 year
45
Article 53 Charter
Nothing in the Charter affects HRs or fundamental freedoms adversely
46
NS
CJEU accepted MSS of ECtHR
47
When the ECtHR say they would review in Bosphorous?
If there were a manifest deficiency
48
Who suggested CJEU sometimes 'manifestly' prefers the Charter?
Burca
49
What case Left open if sufficiently precise provision of Charter would have horizontal application against an individual?
AMS
50
Article 7 TFEU
Sanction mechanism for serious and persistent breaches of human rights by members
51
Who questions if mutual trust even clearly trumps protection of fundamental rights?
Eeckhout
52
What was the effect of the EU Charter
Made ECHR rights 'visible'
53
What, under Article 52(5), is only judicially cognisable once implemented by the Member?
Principles
54
Eeckhout on Melloni
Shows potential conflicts between EU and national law can be resolved from within
55
Field of application of the Charter
Article 51 Charter
56
Schecke v Land Hessen general
Data protection of farmers
57
Name the six chapter rights given in the Charter
Dignity, freedoms, equality, solidarity, citizens' rights and justice
58
Article 51 Charter
Field of application of the Charter
59
What showed dislike of possibility of superior review in Opinion 2/94?
'Fundamental institutional implications'
60
Article 52 Charter
Scope and interpretation of rights and principles
61
What was the main issue with the prior-involvement procedure in DAA?
Limited to compatibility of EU law
62
Why can EU not be a defendant in Strasbourg?
Not a member of the ECHR
63
Williams on EU as human rights actor
EU attention to HRs is no more than self-serving instrumentalism
64
NS and ME
Protocol (No.30) is not an opt out - no exemption from obligations to comply with Charter, or ability to prevent court from ensuring compliance
65
What does Eeckhout argue in response to problems of corespondent mechanism?
ECJ need not look intrusively, just at discretion to determine responsibility
66
Right to be consulted, private employer
AMS
67
What did the two separate concurring opinions by 7 judges in Bosphorous express?
Reservations about majority approach - concern about largely abstract general system of 'equivalence' replacing case-by-case analysis
68
ECtHR found failure to make a preliminary reference to ECJ violated Article 6(2) ECHR
Dhabi v Italy
69
Articles on citizens' rights
Articles 20 - 25 TFEU
70
Douglas-Scott on Bosphorous?
Would need to abandon it upon accession to the ECHR
71
AMS judgment
Left open if sufficiently precise provision of Charter would have horizontal application against an individual
72
What does Eeckhout point to to suggest mutual trust does not trump protection of fundamental rights?
Opening provision in TFEU on AFSJ requires respect for fundamental rights
73
ECtHR followed CJEU lead
Nada v Switzerland
74
Dereci general
Austria, Turkey, daughter
75
What case shows indirect review of EU acts by ECtHR prior to accession?
Bosphorous
76
What is an example of ECJ reviewing EU Treaty indirectly?
No action by EU P against other institutions
77
Data protection of farmers
Schecke v Land Hessen
78
AG Jacobs in Bosphorous
For 'practical purposes', ECHR is part of EC law and 'can be invoked as such both in this Court and in national courts'
79
What G argued against inclusion of social and economic rights in EU Charter?
UK
80
Julian Hernandez
Fundamental rights review of Member action ensures EU law supremacy
81
What section gave three sources of fundamental rights protection?
Article 6 TEU
82
Bosporus showed presumption of what?
Compliance with ECHR by equivalent protection of EU on fundamental human rights
83
Amnesty International on EU as human rights actor
Criticised EU for neglecting and undermining HR concerns
84
What case started the EU development on equal treatment on grounds of sex?
Test-Achats v Conseil des Ministres
85
Why does Eeckhout suggest ECtHR review of primary law could be to ECJ's interest?
CJEU barring from reviewing CFSP may breach right to an effective remedy
86
Test-Achats v Conseil des Ministres judgment
Gender Directive allowed discrimination of prohibited criteria indefinitely, not allowed
87
Matthews judgment
EU primary law violated Protocol 1 ECHR right to vote
88
What Treaty entered the EU Charter into force?
Lisbon Treaty 2009
89
What was attached to the Bosphorous judgment?
Two separate concurring opinions by 7 judges
90
What is the reasoning in Julian Hernandez the same as?
Reasoning for fundamental rights review of EU action in Handelsgesellschaft
91
What AG stated that ECHR is part of EC law 'for practical purposes', and in what case?
AG Jacobs in Bosphorous
92
EU 'shall accede' to the ECHR
Article 6(2) TEU
93
What is the Bosphorous case an example of?
Solange principle
94
Criticised EU for neglecting and undermining HR concerns
Amnesty International
95
Eeckhout on problem of mutual trust under Opinion
Does mutual trust even clearly trump protection of fundamental rights?
96
Who opened an investigation into compliance of HR standards by Frontex?
EU Ombudsman
97
Why does Douglas-Scott think Bosphorous would need to be abandoned upon accession to the EU?
EU should not be privileged
98
What Protocol of what means no court can find UK/Poland to be inconsistent with fundamental rights?
Protocol (No.30) Article 1 EU Charter
99
What case shows ECtHR enforcing EU law?
Dhabi v Italy
100
How does Dereci show ECJ dislike for ECtHR case law?
Barely mentioned Article 8 ECHR
101
Who are Frontex?
EU border agency
102
What case gives a model for how CJEU analyse cases for violation of Charter?
Schecke v Land Hessen
103
Name the two cases showing CJEU reviewing EU legislation through Charter
Schecke v Land Hessen; Test-Achats v Conseil des Ministres
104
What kind of rights are lacking in the ECHR, but present in the Charter?
Social and economic rights
105
What are the three sources of fundamental rights protection?
EU Charter, ECHR and general principles of EU law
106
Why is Protocol (No.30) Article 1 EU Charter primarily declaratory?
Doesn't overturn ECJ case law on various instrumental sources
107
gibraltar citizens vote in EU p
Matthews
108
Matthews general
gibraltar citizens vote in EU p
109
Dhabi v Italy
ECtHR found failure to make a preliminary reference to ECJ violated Article 6(2) ECHR
110
Why did Eeckhout find the concerns over prior-involvement procedure surprising?
Informally agreed in a joint press communication
111
Melloni general
EU arrest warrant, surrender, in absentia
112
What is the most controversial amendment by Lisbon to the ECHR?
Article 52(5)
113
Schecke v Land Hessen judgment
Regulation struck down for infringement of fundamental right to protection of personal data
114
MSS v Belgium and Greece general
EU asylum, Dublin, exceptions
115
What does Article 52(5) Charter try to introduce?
Introduce traditional distinction between negatively-oriented civil and political rights, and positively-oriented economic and social rights
116
What do limitations need to be under Article 52 Charter?
'Provided for by law', necessary, meet objective of general interest/need to protect rights of others AND proportionality
117
What Article states that overlap between Charter and ECHR means scope and meaning the same?
Article 52 Charter
118
What is the difference in position between Bosphorous and Handelsgesellschaft
Seems every individual can try to rebut presumption in Bosphorous as only manifest deficiency, as opposed to systematic
119
Opinion 2/94 Accession to ECHR was based on what proposal?
Treaty requiring all Members and EU to agree to accede to ECHR
120
Fundamental rights review of Member action ensures EU law supremacy
Julian Hernandez
121
How many chapters does the Charter have?
7
122
MSS v Belgium and Greece judgment
Discretion meant it should have been exercised and not sent back
