Fundamental rights Flashcards

1
Q

Reason for recognition by EU of existence / protection of fundamental rights

A

Doctrines of supremacy (Costa), direct effect (Van gend en loos) meant that individuals would not be protected by their national institutions

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2
Q

What does Tridimas say?

A

That in reality the proportionality test is two stage only - neccessity and suitability

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3
Q

What was the follow-up to Grogan?

A

X - abortion, rape. Ireland DID NOT refer

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4
Q

Changing approach of ECJ toward ECHR and MSs application of it

A

Cineteque - No jurisdiction over MSs courts compliance …… Ellinki - if national rules fall within scope of EU law, then FRs come into play

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5
Q

Why do we need general principles of EU law

A

To plug gaps, innovation, place limit on competence of EU

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6
Q

Pros for Charter of Fundamental Rights

A

Elevates rights to supra national level, all rights given equal status, important because of weak parliamentary controls, reflects modernity (see communication instead of correspondence), protects non-citizens

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7
Q

What problems does G Davies have with principle of subsidiarity?

A

Infantilises national govts, ECJ badly placed to rule on jurisdictional issues - inherently biased, treaty provides for WIDEST variety of competences

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8
Q

Case (pre Costa v ENEL) where ECJ would not touch fundametal rights

A

Stork v High Authority

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9
Q

Who criticised the rights language of the ECJ - “mythic construct”

A

Williams: rights reduced to a series of empty lables

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10
Q

Two cases which show the application of the propotrionality test

A

Fedesa - Lax test applied because EU measure - “manifestly inappropriate”. Cassis de Dijon - strict test because MS

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11
Q

Kadi

A

Freezing order, ECHR has special significance, court can annul measures which implement wishes of UN Security Council where conflict with FRs

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12
Q

Justification for the different proportionality tests?

A

Needs to be stricter for MSs, because otherwise might affect the effectiveness of EU law

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13
Q

Some general principles of EU law

A

ECHR, equality, dignity, subsidiarity, proportionality, conferral

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14
Q

Definition of constituitionalism

A

Need for common norms, assumes existence of international community, agreed hierarchy?

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15
Q

What happened in Grogan

A

Ireland, abortion, freedom of speech, ECJ said not their jurisdiction - danger of inequality before the law - need an EU law to hang your right on

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16
Q

What’s the danger of the interpretive function of fundametal rights

A

reverse onus - rights interpreted to be compatible w measures, rather than vice versa

17
Q

The case where it was recognised that “respect for fundamental rights forms an integral part of the general principles” of EU law

A

International Handelsgesellschaft

18
Q

Cons of pluralist approach

A

Chauvinist/parochial, not ECJs place - shoudl leave it to ECtHR, created conflict for states who are signatories to both UN and EU

19
Q

Definition of pluralism

A

Multiplicity olf normative systems - they won’t ever be in harmony

20
Q

Cases which illustrate the MSs wariness of supremacy / lack of protection for rights

A

Solange 1 and 11

21
Q

A case that says that the ECHR has “special significance”

22
Q

Tolerable interference with fundametal rights OK to achieve important aims

A

Hauer - planting of vines / right to property

23
Q

The doctrine of subsidiarity

A

Where the issue is most effectively resolved BALANCED against cultural identity of MS

24
Q

What does De Burca call the approach post-Kadi

A

“Robustly pluralist”

25
Criticisms of the Charter of Fundamental Rights
Stealth land-grab by EU, chilling effect on constitutional dialogue, patchy/arbitrary - key rights missing, possible clash with ECHR,
26
What are the three elements of proportionality?
1. Necessary to realise the objectives, 2. where there's mor ethan one option, choose the one that imposes the fewest constraints, 3. means proportionate to ends
27
Pros of pluralist approach
strengthened autonomy of EU (state building), reaction to facts - UN getting too big for its boots?, UN Security council - growing autonomy but no accountability - good way to keep in check
28
Who has problems with the principle of subsidiarity and why?
Davies - infantilises MSs, gived v wide competence to the EU (see aims), ECJ NOT best placed to decide on jurisdictional issues - inherently biased.
29
Who wrote about the approach post-Kadi
De Burca - Robustly pluralist
30
Who wrote about the proportionailty test?
Tridimas - conflates three part test to 2 elements
31
Who has problems with fundamental rights
Williams - mythic language reduces FRs to a series of empty lables