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By: Jb1999 • 1 year ago
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Fundamental rights in Europe
Overzicht makkelijk terugvinden op tentamen
WG 1
Appeal to the Charter in domestic courts (scope of application)
Human right protected under art. 1 Protocol 1 ECHR (personal scope)
Appeal to ECHR in domestic proceedings (scope of application)
Directive before a national judge
Eu law tested against national law
Automatische erkenning juistheid beslissing Bosphorus presumptions
Jurisdiction
WG 2
Absolute rights
Breach (schending) of 3 ECHR
Derogation from human rights in time of emergency
5 ECHR & 6 Charter similarities
WG 3
Violation of ECHR (limitation test International law)
ECHR compared to Charter
Proportionality in EU law cases
Violation of Charter (Limitation test EU law)
Connection between limitation ECHR & Charter
WG 4
Annulment (nietigverklaring) of a legal act of the EU before the CJEU
Domestic court declaring EU law invalid
Preliminary questions (domestic court has doubts whether the EU legislation violates
fundamental right obligation)
Preliminary questions one of the parties request it, difference highest and lower court
Admissibility before ECtHR
Margin of appreciation
Judicial protection; art. 6, 13 and 47 ECHR
WG 5
Appeal to EU Charter and/ or European Social Charter
Violation ECHR Airey v. UK
8 ECHR positive or negative obligation at stake
Appeal against the denial of shelter and food
Negative and positive obligations under art. 8 ECHR right to respect for private and family
life
Violation ECHR with a certain action of a state
WG 6
Applicability of art. 14 ECHR
Material scope of art 8 ECHR
Appeal to ECHR NL
Direct/indirect discrimination
Difference formal substantive = difference equality equity
EU law direct and indirect discrimination
ECHR basic test
WG 1 direct effect – scope – jurisdiction
,Personal scope: je vraagt je af wie beschermd is door de mensenrechten
Material scope: je gaat je afvragen wat beschermd wordt door een mensenrecht, je vraagt je af
welke artikelen gelden.
Scope of application: je gaat je afvragen of ECHR of Charter wel gelden in een situatie
Scope of application in the ECHR we look at art. 1
Scope of application in EU-law we look at art. 51 (Charter)
Appeal to the Charter (handvest) in the domestic courts
1. This question refers to the scope of application; does the charter apply?
2. Charter is EU-law
You don’t have anything to do with monism and dualism with EU-law, because the EU is
supranational, so it has direct effect.
o This is in contrary to ECHR, where the effect of the convention in national law is
determined by national constitutional law. The rule that determines what the precise
effect is, is the monism or dualism.
3. It’s necessary to confirm that the Charter is applicable
Art. 51 (1) Charter if you are implementing EU law, then the Charter applies.
This article governs the scope of application of the Charter, it can only be invoked when a
member state is practicing EU-law.
4. Feiten benoemen are they implementing EU-law?
In the Akerberg/Franson case, we learned that implementing EU law needs to include law
that is within the scope of EU law. You can find this in the explanations of art. 5
o VOORBEELD: Akerberg/Franson: Tax/VAT is within the scope of EU law. Even though
we are just talking about Swedish tax, when Sweden acted, it also touched EU law.
Scope of application: only for areas that are generally governed by EU-law. Union
citizenship or Tax falls within the scope of EU law.
5. Conclusion: So, the Charter is/isn’t applicable.
Does … have human right protected under Article 1 Protocol 1 ECHR?
1. This question refers to the personal scope
2. Is art. 1 Protocol ECHR applicable?
VOORBEELD: yes, because … is a contracting party of the CoE (Council of Europe) ans the
state had jurisdiction within its own territory, this Article is applicable.
3. Article 1 Protocol 1 ECHR applies both natural and legal persons
Article 6 ECHR right to a fair trial (appeal to ECHR in domestic proceedings; scope of application)
1. Right to a fair trial is protected under article 6 ECHR
2. Obligations state:
Fair and public hearing of the case
Within a reasonable time
By an independent and impartial tribunal established by law
The judgment shall be pronounced publicly but there are some conditions that can exclude
this obligation
3. Does the state have a dualistic/monistic system?
Dualistic ECHR does not have direct effect; ECHR needs to be transposed or incorporated
into domestic law. … CANNOT DIRECTLY APPEAL TO ARTICLE 6 ECHR IN DOMESTIC CRIMINAL
PROCEEDINGS
You can appeal in front of the Strasbourg court if the member state is a contracting party
Monistic ECHR does have direct effect; … CAN DIRECTLY APPEAL TO ART. 6 ECHR IN
DOMESTIC CRIMINAL PROCEEDINGS
, Directive before a national judge
1. Generally, a directive has to be implemented in order to appeal to the provisions in it (288
TFEU)
2. But in the van Duyn case the court decided that directives can also have direct effect against
states if:
It is suficiently clear and (Van Gend & Loos)
o Look at the text and analyse the wording of the directive. If a judge could apply it
without legislasing, it is suficiently clear.
Unconditional and (Van Gend & Loos)
o If the judge has to make up law when it applies this rule, then it is not suficiently
clear and unconditional. The judge could apply it without rule making, something
that a judge can directly apply.
o Let op! Iets is niet onvoorwaardelijk op het moment dat er in het artikel staat ‘kan’,
dit is namelijk een discretionaire bevoegdheid en het is dan niet onvoorwaardelijk.
Als er bijvoorbeeld staat ‘shall’ of ‘moet’ dan is het wel onvoorwaardelijk.
If the deadline for implementation should be passed
3. Conclusion: … cannot/can rely on this article of the Directive.
EU-law may not be tested against national law
1. In the Handelgesellschaft case, the Court of Justice affirms that the validity of EU law may not
be tested against national. That would undermine uniformity and efficacy of EU law.
It would have an adverse effect on the uniformity and efficacy of EU law.
2. Any other way in which provisions of national constitutional law may nevertheless be
relevant when applying EU-law:
“Respect for fundamental rights forms an integral part of the general principles of law
protected by the Court of Justice”. “The protection of these rights, whilst inspired by the
constitutional traditions of the Member States, must be ensured within framework of the
structure and the objectives of the Community”
o That means that the EU has to respect the constitutional law
Bosphorus presumptions (automatische erkenning juistheid beslissing?)
Presumption: it is assumed that EU law is complying with ECHR. The presumption changes the proof.
1. Does the International organisation, in this case EU, provide Human rights protection.
The protection has to be more less and same (equivalent).
If yes, go to step 2. If no, then regular assessment.
2. Is the member state implementing EU law
If yes, go to step 3. If no, then regular assessment.
3. Does the member state have discretion this can be decided on several factors
Discretion = freedom to decide what should be done in a particular situation
If yes, the presumption does not apply, so regular assessment. If no, the presumption can be
applied.
4. If the presumption applies, was the protection ‘manifestly deficient’?
If yes, violation. If no, no violation.
Bosphorus presumption: in this case we assume that the EU law has enough protection of
Fundamental rights (EU law and ECHR are in one line)
Ireland has no power to decide how to implement, they just have to do it. So they have no
discretion. If Ireland had something to say about how they would implement, than the
Bosphorus presumption does not count.
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