Read the summary and the most important questions on Fundamental Rights of Europe

• 1 Week 1; Fundamental Rights Challenges in Europe

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• Challenges with protection of fundamental rights

  1. Respecting national identities and subsidiarity v. Effective rights protection
     
  1. art. 5(3) TEU
  2. MS responsible for fundamental rights, however EU limits powers
  2. Effectiveness 
  1. ECtHR: partnership and dialogue 
  1. no direct effect, yet harmonious interpretation by domestic courts 

  1. CJEU: direct effect 
     
  1. national courts must refer questions of interpretation to CJEU
  2. CJEU has final say and are binding for national courts/authorities 

• 2 Week 2; the EU system of fundamental rights protection

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• Horizontal provisions; application

  Titel VII CFR
  
  

  1. application - 51(1) CFR
  1. Charter ALWAYS applies to the institutions of the EU
  2. for MSs only when applying EU-law - CJEU Akkerberg Fransson
  1. agents of the EU  
  1. strickt implementation of EU-regultations, directives and decisions
  2. CJEU Digital Rights Ireland
  2. derogating from EU-law
  1. restriction free movement on grounds of public policy/security/health - CJEU Pfleger

  
  Note:
  tax does not fall within the scope of EU-law

• Horizontal provisions; level of protection

  Art 53 CFR
  

  • Highest level of protection should be respected
  • however - CJEU Melloni 
  • national standards may be applied but they have to comply with the level of protection as well as the primacy, unity and effectiveness of EU-law.  

• Horizontal provisions; rights and principles

  Art. 52(5) CFR 
  

  • in court you can rely always on a codified right 
  • on principles you can only rely for interpretation and legality of acts 
  • problematic: 
  • not clear which are principles and which are rights

• CFR and EU power

  51(2) CFR 
  The Charter does not modify or give the EU new competences or powers

• Is CJEU bound by ECtHR's case law

  EU is not part of ECHR -> CJEU Akkerberg Fransson
  however, fundamental rights in ECHR count as general principles in EU (6(3) TEU) 
  
  CJEU is not bound to ECtHR case-law, however in practice it the caselaw is often followed
  
  Thereby -> 6(2) TEU 
  

  • union shall accede to the ECHR 
  • CJEU N.S and others v. UK 
  • an infringement of ECHR can be assessed by MSs    

• 3 Week 3; the ECHR system of fundamental rights protection

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• Admissibility criteria; three categories

  1. Procedural criteria
  2. jurisdictional criteria
  3. criteria relating to the complaint 

• Nuance and flexibility in addmissibility

  ECtHR CLR v. Romania §105 
  
  The ECHR needs to be applied effecitve and practical.

• Obligations deriving from judgement

  1. End violation 
     
  2. reparation 
  3. prevent similar violations

  ECtHR CLR v. Romania §158

• Courts judgement and CoM

  art. 41 jo. 46 jo. ECtHR M.S.S §399 
  Primarily the court gives a declaratory judgement for just satisfaction. However, it can indicate types of measures that might be taken by the state.
  
  CoM supervises the execution