Fundamental rights Flashcards
Reason for recognition by EU of existence / protection of fundamental rights
Doctrines of supremacy (Costa), direct effect (Van gend en loos) meant that individuals would not be protected by their national institutions
What does Tridimas say?
That in reality the proportionality test is two stage only - neccessity and suitability
What was the follow-up to Grogan?
X - abortion, rape. Ireland DID NOT refer
Changing approach of ECJ toward ECHR and MSs application of it
Cineteque - No jurisdiction over MSs courts compliance …… Ellinki - if national rules fall within scope of EU law, then FRs come into play
Why do we need general principles of EU law
To plug gaps, innovation, place limit on competence of EU
Pros for Charter of Fundamental Rights
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
What problems does G Davies have with principle of subsidiarity?
Infantilises national govts, ECJ badly placed to rule on jurisdictional issues - inherently biased, treaty provides for WIDEST variety of competences
Case (pre Costa v ENEL) where ECJ would not touch fundametal rights
Stork v High Authority
Who criticised the rights language of the ECJ - “mythic construct”
Williams: rights reduced to a series of empty lables
Two cases which show the application of the propotrionality test
Fedesa - Lax test applied because EU measure - “manifestly inappropriate”. Cassis de Dijon - strict test because MS
Kadi
Freezing order, ECHR has special significance, court can annul measures which implement wishes of UN Security Council where conflict with FRs
Justification for the different proportionality tests?
Needs to be stricter for MSs, because otherwise might affect the effectiveness of EU law
Some general principles of EU law
ECHR, equality, dignity, subsidiarity, proportionality, conferral
Definition of constituitionalism
Need for common norms, assumes existence of international community, agreed hierarchy?
What happened in Grogan
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
What’s the danger of the interpretive function of fundametal rights
reverse onus - rights interpreted to be compatible w measures, rather than vice versa
The case where it was recognised that “respect for fundamental rights forms an integral part of the general principles” of EU law
International Handelsgesellschaft
Cons of pluralist approach
Chauvinist/parochial, not ECJs place - shoudl leave it to ECtHR, created conflict for states who are signatories to both UN and EU
Definition of pluralism
Multiplicity olf normative systems - they won’t ever be in harmony
Cases which illustrate the MSs wariness of supremacy / lack of protection for rights
Solange 1 and 11
A case that says that the ECHR has “special significance”
Omega
Tolerable interference with fundametal rights OK to achieve important aims
Hauer - planting of vines / right to property
The doctrine of subsidiarity
Where the issue is most effectively resolved BALANCED against cultural identity of MS
What does De Burca call the approach post-Kadi
“Robustly pluralist”
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,
What are the three elements of proportionality?
- 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
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
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.
Who wrote about the approach post-Kadi
De Burca - Robustly pluralist
Who wrote about the proportionailty test?
Tridimas - conflates three part test to 2 elements
Who has problems with fundamental rights
Williams - mythic language reduces FRs to a series of empty lables
