The EU Charter of Fundamental Rights in the Member States

✍ Scribed by Michal Bobek; Jere mias Adams-Prassl (editors)

• Publisher: Hart Publishing
• Year: 2020
• Tongue: English
• Leaves: 631
• Series: EU Law in the Member States
• Category: Library

✦ Synopsis

Ten years after the Charter of Fundamental Rights of the European Union became part of binding primary law, and 20 years since its adoption, this volume assesses the application of the EU Charter in the Member States. How often, and in particular by which actors, is the EU Charter invoked at the national level? In what type of situations is it used? Has the approach of national courts in general, and of constitutional courts in particular, to EU law and to EU fundamental rights law changed following the entry into force of the Charter? What sort of interplay does the Charter generate with the national bill of rights and the European Convention? Is life with the Charter on the national level a harmonious ‘praktische Konkordanz’ or rather a messy ‘ménage à trois’?
These and other questions are discussed in the four parts that form the book. Part I is dedicated to the normative foundations. Part II sets out Member States’ Perspectives, providing a structured, in-depth account of the Charter’s operation in 16 different Member States. Part III provides a detailed evaluation of the national application of selected rights contained within the Charter. Part IV synthesises the materials presented to develop a series of broader perspectives, and looks to discover underlying lessons about the relationship between EU fundamental rights law and national legal systems.
Volume 7 in the series EU Law in the Member States

✦ Table of Contents

Table of Contents
Notes on Contributors
List of Abbreviations
Introduction
I. A Constitutional Landmark
II. The Questions
III. Multilayered Perspectives
IV. Acknowledgements
PART I: THE FOUNDATIONS
1. The Role of the EU Charter in the Member States
I. The Question of Competences
II. The Autonomous Development of the Charter and the Question of Higher National Levels of Protection
III. The Horizontal Application of the Charter
IV. Concluding remarks
2. The EU Charter Ten Years On: A View from Strasbourg
I. Introduction
II. The Relationship with the ECHR Viewed Through the Lens of the Charter
III. EU Law, the Charter and the Strasbourg Court
IV. What Lies Ahead?
V. Concluding Remarks
PART II: MEMBER STATE PERSPECTIVES
3. Austria: United in Consistent Interpretation
I. Preliminary Remarks
II. Citations of and References to the Charter from a Quantitative Point of View
III. Legal Status of the Charter in the National Legal Order
IV. Citations of and References to the Charter from a Qualitative Point of View
V. Impact of the Charter on the National Branches of Government in Austria
VI. Final Remarks
4. Belgium: The EU Charter in a Tradition of Openness
I. Introduction
II. Status of the Charter in the Belgian Legal Order
III. Application of the Charter in the Belgian Legal Order
IV. Impact of the Charter on the Belgian Legal Order
5. Bulgaria: Rays of Light in a Cloudy Sky
I. Introduction
II. A Statistical Overview
III. The 'Quality' of the Charter-Based Judicial Reasoning
IV. The Scope of Application of the Charter and the Level of Protection Guaranteed by It
V. Rights Guaranteed by the Charter
VI. Conclusion and the Broader Context
6. Czech Republic and Slovakia: Another International Human Rights Treaty?
I. Introduction
II. Constitutional Status of the Charter in the Czech Republic and Slovakia
III. Application of the Charter in Domestic Courts' Practice
IV. Conclusion
7. The EU Charter before the French Parliament and Courts: Between (Great) Disillusion and (Little) Hope
I. Introduction: The Exceptionalism of the French Legal Landscape
II. References to the Charter from a Quantitative Point of View
III. References to the Charter from a Qualitative Point of View
IV. The Charter and French Academic Discourse
V. Conclusions
8. Taking Up the European Mandate: The Charter Before German Courts
I. Introduction
II. Empirical Assessment of the Role of the Charter in Germany
III. The Charter as a Standard of Judicial Review in Germany
IV. Charter Rights as Applied by German Courts
V. Institutional and Contextual Background
V. Conclusion
9. Hungary: A Half-Hearted Look at the Charter
I. The Formal Status of the Charter
II. The Quantitative Dimension of the Charter's Domestic Application
III. The Qualitative Dimension of the Charter's Domestic Application
IV. Institutions and the Broader Context
10. Ireland and the Charter: Ten Underwhelming Years?
I. Introduction
II. National Sovereignty Issues
III. Cases Where the Charter Has Been Used Largely Rhetorically
IV. Cases Where the Charter May Be Said to Have Had Some Impact
V. Conclusions
11. Italy: New Frontiers and Further Developments
I. Quantitative Dimension
II. Constitutional Status and the Qualitative Dimension of the Charter in the Case-Law of the Italian Constitutional Court
III. References to the Charter
IV. Balancing and Proportionality
V. Concluding Remarks: Aiming at Enhanced Cooperation Among All Courts
12. The Netherlands: The New Kid on the Block, Growing Pains or Growing Gains?
I. Introduction
II. Quantitative Dimension
III. Qualitative Dimension
IV. Rights Guaranteed by the Charter
V. Institutions and the Broader Context
13. Poland – The Charter of Fundamental Rights as a Last Resort?
I. Introduction
II. References to the Charter in the Polish Case-Law in Numbers
III. The (Self-Standing) Status of the Charter in the National Legal Order
IV. Rights Guaranteed by the Charter in the Polish Case-Law
V. Reactions of Different Actors to the Application of the Charter by the Courts
VI. Conclusions
14. Portugal: Lukewarm Engagement with the Charter
I. Introduction
II. The Case-Law Engaging with the Charter1
III. The Constitutional Court and the Charter
IV. The Legislative Process and the Charter
V. Charter Rights before National Courts
VI. Horizontal Issues
VII. Impact of the Charter within the Judiciary
VIII. Scholarly Perceptions of the Charter
IX. Conclusion: Trends Identified
15. Trials, Tributes and Tribulations: The EU Charter before the Slovenian Courts
I. Introduction
II. The Charter Before the Slovenian Ordinary Courts
III. The Charter Before the Slovenian Constitutional Court
IV. Final Comments and (Tentative) Conclusions
16. The (Incomplete) Reception of the EU Charter of Fundamental Rights in Spain
I. Introduction
II. Quantitative Dimension
III. Qualitative Dimension
IV. Rights Guaranteed by the Charter
V. Institutions and the Broader Context
VI. Conclusion
17. Limited But Not Inconsequential: The Application of the Charter by the Courts of England and Wales
I. Introduction
II. Quantitative Dimension
III. Qualitative Dimension
IV. Rights Guaranteed by the Charter
V. Concluding Remarks and the Broader Context
PART III: SELECTED RIGHTS
18. Article 8: The Right to Data Protection
I. Introduction
II. The Disparate Impact of the Charter Right to Data Protection across EU Member States
III. Disaggregating Data Protection from Privacy
IV. Differentiation through the Back Door: 'Implementing' the General Data Protection Regulation
V. Concluding Observations
19. Article 47: The Right to an Effective Remedy and to a Fair Trial
I. Introduction
II. Scope of Application of Article 47 of the Charter
III. Justified Limitations of Article 47 of the Charter
IV. Article 47 of the Charter and Other Fundamental Rights Sources
V. Conclusion
20. Article 50: The Elusive Shape of the Ne Bis In Idem Rule
I. Introduction
II. Preliminary Remarks on Prima Facie Modest National Use of Article 50
III. Qualitatively Relevant National Use of the Ne Bis In Idem Rule
IV. Concluding Remarks
21. Article 51: The Scope of Application of the Charter
I. Introduction
II. National Courts and the 'Test' of Article 51(1) of the Charter
III. Is There Life Outside the Scope of the Charter?
IV. National Views on Unsettled Ground
V. Concluding Remarks
22. Article 52: Twenty-Eight Shades of Interpretation?
I. Introduction
II. Member States' Approaches Towards the Principle of Proportionality
III. A Brief Comment on Essence
IV. The Charter, the ECHR and National Constitutional Rights
V. Conclusion
23. Why Article 53 of the Charter Should Ground the Application of National Fundamental Rights in Fully Harmonised Areas
I. Introduction: The EU Constitutionalist Dream vs Member State Constitutionalism
II. The Possible Readings of Article 53 of the Charter
III. The Court of Justice's Interpretation of Article 53 of the Charter: Conserving Orthodoxy
IV. The Case for the Pluralist Reading of Article 53 of the Charter
V. Conclusion
PART IV: BROADER PERSPECTIVES
24. References for a Preliminary Ruling and the Charter of Fundamental Rights: Experiences and Data from 2010 to 2018
I. The Charter, National Courts and the Need for Judicial Dialogue: A Prologue
II. The Use of the Preliminary Ruling Procedure by the Courts
III. Requests for a Preliminary Ruling Mentioning the EU Charter of Fundamental Rights
IV. The Courts Sending Requests Concerning the Charter and the Relevance of Such Requests12
V. The Relative Prominence of Charter Articles and its Linkages in Requests for a Preliminary Ruling
VI. The Legal Sources that Courts Use in Charter-Relevant Requests for a Preliminary Ruling
VII. The Role of the ECHR in Charter-Relevant Requests for a Preliminary Ruling
VIII. The Charter, National Courts and the Need for Judicial Dialogue: An Epilogue
25. The Charter as a Standard of Constitutional Review in the Member States
I. Introduction
II. Judicial Constitutionalisation of the Charter in Austria
III. Attempts to Recentralise Constitutional Review in Italy
IV. Departure from the Procedural Separation between EU and Constitutional Law Disputes in Germany
V. The Charter as an Indirect Standard of Constitutional Review
VI. No Meaningful Review in Light of the Charter in France
VII. Conclusion
26. Exporting Cherries for the Cakes: The Charter of Fundamental Rights in Domestic Courts of the EU's Neighbourhood
I. Introduction
II. Slowly Paving the Way: The Jurisprudence of Third-Country Courts and the Charter
III. The Charter as an Exportable Commodity: Limits and Potential
IV. Seeing the Wood for the Trees: The Position of the Charter in EU Agreements with Third Countries
V. The Incoming Tide of EU Law and the Judiciary in Third Countries
VI. Conclusions
27. Protecting Fundamental Rights Beyond the Charter: Repositioning the Reverse Solange Doctrine in Light of the CJEU"s Article 2 TEU Case-Law
I. Freedom of Speech as a Key to Human Rights and Democracy
II. The Limited Applicability of the Charter
III. Reverse Solange: The Doctrine"s Basic Logic and Elements
IV. Protecting Fundamental Rights under Article 2 TEU
V. Maintaining the Federal Balance
VI. Conclusion
28. The Cosmopolitan and Federal Margins of Appreciation
I. Introduction
II. The Cosmopolitan Dimension
III. Two Reasons for Federalism
IV. Consequences
V. Freedom of Movement and Fundamental Rights
VI. Tug-of-War
VII. Absorption
VIII. Kelsen's Third Sphere
IX. Beyond Law
Conclusion
I. Quantity
II. Quality
III. Structures and Institutions
IV. The Road(s) Ahead
V. The Charter: A (R)evolution that Never Was?
Selected Bibliography
Index