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Law Second Year > EU Law - EU Charter and Accession to the ECHR > Flashcards

EU Law - EU Charter and Accession to the ECHR Flashcards

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1
Q

What does CJEU preference for Charter echo wariness of?

A

EU human rights being tied too closely to ECHR

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2
Q

Bosphorous Airways v Ireland

A

Members can rely on EU obligations as defence of HR violation, as equivalent system of protection

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3
Q

Article 52(5) Charter

A

Seeks to distinguish principles, which are ‘judicially cognisable’ only once implemented

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4
Q

Horizontal clauses in Charter

A

Articles 51 - 53

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5
Q

What does the solidarity chapter in the Charter reflect?

A

Provisions already integrated into EU law in European Social Charter

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6
Q

What distinction is made in the Charter, between two concepts?

A

Rights and principles

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7
Q

Akerberg Fransson general

A

Taxes, VAT but Directives irrelevant

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8
Q

Test-Achats v Conseil des Ministres general

A

Car insurance

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9
Q

What case shows Protocol (No.30) Article 1 EU Charter is not an ‘opt out’?

A

NS and ME

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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

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11
Q

What FMW case shows dislike for ECtHR case law/

A

Dereci

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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

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13
Q

What is a criticism of Melloni?

A

Unequivocal reassertion of EU primacy, rather than pluralist coexistence with other human rights systems

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14
Q

Melloni judgment

A

Article 53 does not question EU supremacy - no higher standard of protection allowed

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15
Q

How have the ECJ reviewed EU Treaty indirectly?

A

Through general principles - believe lack of protection is due to oversight

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16
Q

What case shows a retreat from Akerberg Fransson?

A

Counterterrorism Database judgment

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17
Q

What case shows ECtHR have already reviewed EU primary law?

A

Matthews

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18
Q

Nada v Switzerland

A

ECtHR followed CJEU lead

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19
Q

Who suggested EU attention to HRs is no more than self-serving instrumentalism?

A

Williams

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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

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21
Q

EU Ombudsman on EU as human rights actor

A

Opened investigation into compliance of HR standards by Frontex

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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

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23
Q

What case showed a very low threshold of ‘implementing in Union law’?

A

Akerberg Fransson

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24
Q

What case enforced that Article 53 Charter does not question EU supremacy?

A

Melloni

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25
Q

What case showed ECtHR reviewing law of same rank as founding treaties?

A

Matthews

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26
Q

Taxes, VAT but Directives irrelevant

A

Akerberg Fransson

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27
Q

What two cases show mutual influence between CJEU and ECtHR prior to accession?

A

Nada v Switzerland; Dhabi v Italy

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28
Q

CJEU on Opinion 2/94

A

Accession to ECHR would have ‘fundamental institutional implications’, so Treaty amendment needed

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29
Q

Article 6(2) TEU

A

EU ‘shall accede’ to the ECHR

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30
Q

Eeckhout on Bosphorous

A

Need mutual sensitivity for respective roles CJEU and ECtHR play, although Bosphorous may go too far upon accession

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31
Q

Protocol (No.30) Article 1 EU Charter

A

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

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32
Q

How many years did the Draft Agreement on Accession take to complete?

A

3 years

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33
Q

Car insurance

A

Test-Achats v Conseil des Ministres

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34
Q

What does Eeckhout argue in response to problem of prior-involvement procedure?

A

No distinction between interpretation and compatibility as CJEU need to rule on the former to tule on the latter

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35
Q

What investigation suggested EU is not a significant human rights actor?

A

EU Ombudsman into Frontex

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36
Q

Members not bound by Charter if national rules only within abstract scope of EU law, or purely factual effect on EU law

A

Counterterrorism Database judgment

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37
Q

AMS general

A

Right to be consulted, private employer

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38
Q

Circular definition of ‘implementing in Union law’, so if EU law applies, so do fundamental rights

A

Akerberg Fransson

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39
Q

Name at least two reasons why accession may still be desirable today?

A

Signal credibility of EU, ECtHR has expertise, possibility of conflict on same issue and desirability of challenging EU acts before ECtHR

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40
Q

AG in Opinion 2/94

A

Accession unnecessary as EU about economic integration

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41
Q

What case shows EU development on equal treatment on grounds of sex?

A

Test-Achats v Conseil des Ministres

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42
Q

Akerberg Fransson judgment

A

Circular definition of ‘implementing in Union law’, so if EU law applies, so do fundamental rights

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43
Q

Article 6 TEU

A

Three sources of fundamental rights protection

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44
Q

How long was the Convention to draft the EU Charter?

A

1 year

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45
Q

Article 53 Charter

A

Nothing in the Charter affects HRs or fundamental freedoms adversely

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46
Q

NS

A

CJEU accepted MSS of ECtHR

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47
Q

When the ECtHR say they would review in Bosphorous?

A

If there were a manifest deficiency

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48
Q

Who suggested CJEU sometimes ‘manifestly’ prefers the Charter?

A

Burca

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49
Q

What case Left open if sufficiently precise provision of Charter would have horizontal application against an individual?

A

AMS

50
Q

Article 7 TFEU

A

Sanction mechanism for serious and persistent breaches of human rights by members

51
Q

Who questions if mutual trust even clearly trumps protection of fundamental rights?

A

Eeckhout

52
Q

What was the effect of the EU Charter

A

Made ECHR rights ‘visible’

53
Q

What, under Article 52(5), is only judicially cognisable once implemented by the Member?

A

Principles

54
Q

Eeckhout on Melloni

A

Shows potential conflicts between EU and national law can be resolved from within

55
Q

Field of application of the Charter

A

Article 51 Charter

56
Q

Schecke v Land Hessen general

A

Data protection of farmers

57
Q

Name the six chapter rights given in the Charter

A

Dignity, freedoms, equality, solidarity, citizens’ rights and justice

58
Q

Article 51 Charter

A

Field of application of the Charter

59
Q

What showed dislike of possibility of superior review in Opinion 2/94?

A

‘Fundamental institutional implications’

60
Q

Article 52 Charter

A

Scope and interpretation of rights and principles

61
Q

What was the main issue with the prior-involvement procedure in DAA?

A

Limited to compatibility of EU law

62
Q

Why can EU not be a defendant in Strasbourg?

A

Not a member of the ECHR

63
Q

Williams on EU as human rights actor

A

EU attention to HRs is no more than self-serving instrumentalism

64
Q

NS and ME

A

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
Q

What does Eeckhout argue in response to problems of corespondent mechanism?

A

ECJ need not look intrusively, just at discretion to determine responsibility

66
Q

Right to be consulted, private employer

A

AMS

67
Q

What did the two separate concurring opinions by 7 judges in Bosphorous express?

A

Reservations about majority approach - concern about largely abstract general system of ‘equivalence’ replacing case-by-case analysis

68
Q

ECtHR found failure to make a preliminary reference to ECJ violated Article 6(2) ECHR

A

Dhabi v Italy

69
Q

Articles on citizens’ rights

A

Articles 20 - 25 TFEU

70
Q

Douglas-Scott on Bosphorous?

A

Would need to abandon it upon accession to the ECHR

71
Q

AMS judgment

A

Left open if sufficiently precise provision of Charter would have horizontal application against an individual

72
Q

What does Eeckhout point to to suggest mutual trust does not trump protection of fundamental rights?

A

Opening provision in TFEU on AFSJ requires respect for fundamental rights

73
Q

ECtHR followed CJEU lead

A

Nada v Switzerland

74
Q

Dereci general

A

Austria, Turkey, daughter

75
Q

What case shows indirect review of EU acts by ECtHR prior to accession?

A

Bosphorous

76
Q

What is an example of ECJ reviewing EU Treaty indirectly?

A

No action by EU P against other institutions

77
Q

Data protection of farmers

A

Schecke v Land Hessen

78
Q

AG Jacobs in Bosphorous

A

For ‘practical purposes’, ECHR is part of EC law and ‘can be invoked as such both in this Court and in national courts’

79
Q

What G argued against inclusion of social and economic rights in EU Charter?

A

UK

80
Q

Julian Hernandez

A

Fundamental rights review of Member action ensures EU law supremacy

81
Q

What section gave three sources of fundamental rights protection?

A

Article 6 TEU

82
Q

Bosporus showed presumption of what?

A

Compliance with ECHR by equivalent protection of EU on fundamental human rights

83
Q

Amnesty International on EU as human rights actor

A

Criticised EU for neglecting and undermining HR concerns

84
Q

What case started the EU development on equal treatment on grounds of sex?

A

Test-Achats v Conseil des Ministres

85
Q

Why does Eeckhout suggest ECtHR review of primary law could be to ECJ’s interest?

A

CJEU barring from reviewing CFSP may breach right to an effective remedy

86
Q

Test-Achats v Conseil des Ministres judgment

A

Gender Directive allowed discrimination of prohibited criteria indefinitely, not allowed

87
Q

Matthews judgment

A

EU primary law violated Protocol 1 ECHR right to vote

88
Q

What Treaty entered the EU Charter into force?

A

Lisbon Treaty 2009

89
Q

What was attached to the Bosphorous judgment?

A

Two separate concurring opinions by 7 judges

90
Q

What is the reasoning in Julian Hernandez the same as?

A

Reasoning for fundamental rights review of EU action in Handelsgesellschaft

91
Q

What AG stated that ECHR is part of EC law ‘for practical purposes’, and in what case?

A

AG Jacobs in Bosphorous

92
Q

EU ‘shall accede’ to the ECHR

A

Article 6(2) TEU

93
Q

What is the Bosphorous case an example of?

A

Solange principle

94
Q

Criticised EU for neglecting and undermining HR concerns

A

Amnesty International

95
Q

Eeckhout on problem of mutual trust under Opinion

A

Does mutual trust even clearly trump protection of fundamental rights?

96
Q

Who opened an investigation into compliance of HR standards by Frontex?

A

EU Ombudsman

97
Q

Why does Douglas-Scott think Bosphorous would need to be abandoned upon accession to the EU?

A

EU should not be privileged

98
Q

What Protocol of what means no court can find UK/Poland to be inconsistent with fundamental rights?

A

Protocol (No.30) Article 1 EU Charter

99
Q

What case shows ECtHR enforcing EU law?

A

Dhabi v Italy

100
Q

How does Dereci show ECJ dislike for ECtHR case law?

A

Barely mentioned Article 8 ECHR

101
Q

Who are Frontex?

A

EU border agency

102
Q

What case gives a model for how CJEU analyse cases for violation of Charter?

A

Schecke v Land Hessen

103
Q

Name the two cases showing CJEU reviewing EU legislation through Charter

A

Schecke v Land Hessen; Test-Achats v Conseil des Ministres

104
Q

What kind of rights are lacking in the ECHR, but present in the Charter?

A

Social and economic rights

105
Q

What are the three sources of fundamental rights protection?

A

EU Charter, ECHR and general principles of EU law

106
Q

Why is Protocol (No.30) Article 1 EU Charter primarily declaratory?

A

Doesn’t overturn ECJ case law on various instrumental sources

107
Q

gibraltar citizens vote in EU p

A

Matthews

108
Q

Matthews general

A

gibraltar citizens vote in EU p

109
Q

Dhabi v Italy

A

ECtHR found failure to make a preliminary reference to ECJ violated Article 6(2) ECHR

110
Q

Why did Eeckhout find the concerns over prior-involvement procedure surprising?

A

Informally agreed in a joint press communication

111
Q

Melloni general

A

EU arrest warrant, surrender, in absentia

112
Q

What is the most controversial amendment by Lisbon to the ECHR?

A

Article 52(5)

113
Q

Schecke v Land Hessen judgment

A

Regulation struck down for infringement of fundamental right to protection of personal data

114
Q

MSS v Belgium and Greece general

A

EU asylum, Dublin, exceptions

115
Q

What does Article 52(5) Charter try to introduce?

A

Introduce traditional distinction between negatively-oriented civil and political rights, and positively-oriented economic and social rights

116
Q

What do limitations need to be under Article 52 Charter?

A

‘Provided for by law’, necessary, meet objective of general interest/need to protect rights of others AND proportionality

117
Q

What Article states that overlap between Charter and ECHR means scope and meaning the same?

A

Article 52 Charter

118
Q

What is the difference in position between Bosphorous and Handelsgesellschaft

A

Seems every individual can try to rebut presumption in Bosphorous as only manifest deficiency, as opposed to systematic

119
Q

Opinion 2/94 Accession to ECHR was based on what proposal?

A

Treaty requiring all Members and EU to agree to accede to ECHR

120
Q

Fundamental rights review of Member action ensures EU law supremacy

A

Julian Hernandez

121
Q

How many chapters does the Charter have?

A

7

122
Q

MSS v Belgium and Greece judgment

A

Discretion meant it should have been exercised and not sent back

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