Ten Years after the Viking Judgment: EU Court of Justice Still in Search of Balance between Market Freedoms and Social Rights (original) (raw)
Related papers
undamental rights protection in European Union has changed with the years. At first, the Treaties constituting European Communities were silent on human rights protection, and European Court of Justice (ECJ) had to make it possible. Unlike fundamental rights, market freedoms have always enjoyed an explicit relevance in the Treaties as instruments to serve European economic integration. But, ECJ must resolve conflicting situations between a fundamental right and a market freedom. We try to study the balance between social rights, as fundamental rights, and market freedoms in the jurisprudence of the European Court of Justice, and find fundamental rights protection problems. Nevertheless, fundamental rights have become more relevant since the Charter of Fundamental Rights of the European Union entered into force, so it seems to be an excellent time to consider the protection of fundamental rights, in particular social rights, at conflicting situations with market freedoms.
2018
This Article analyses how the Court of Justice decides on conflicts between fundamental freedoms and fundamental rights in the EU. The practice of the Court will be compared with similar cases from the practice of the US Supreme Court where rights protecting economic activity and other rights come to conflict. This comparison demonstrates that the challenges faced by the Court of Justice regarding conflict of rights cases are not peculiar. The relevant case law of the Court has been the subject of criticism. The criticisms raised in relation to the way of resolving conflicts of rights by the Court of Justice could be eliminated either by the refinement of judicial argumentation of the Court or, following the example of US law, by legislation.
SSRN Electronic Journal, 2013
This article assesses the impact of the Åkerberg and Melloni judgments on the interpretation of the horizontal provisions of the EU Charter of Fundamental Rights. Specifically, it evaluates whether the European Court of Justice (ECJ) has chosen an expansive approach or a minimalist one? Asking if the Court's approach in these cases has clarified or diluted the application of the EU Charter of Fundamental Rights. The article is limited to looking, in light of the judgments in Åkerberg and Melloni, firstly at Article 51 of the Charter; then at Article 52 and finally at Article 53. It will be shown that Article 51 of the Charter is the most important provision, whilst Article 52 the most complex and Article 53 the most underestimated. In the final sections it is highlighted that the judgments are illustrative that the ECJ strongly protects the level of protection of the Charter and the effectiveness and uniformity of EU law. However, it will also be shown that these two cases whilst clarifying the application of Article 51, and the meaning of implementing Union law, are the source of new questions rather than final answers.
Disagreement—Commonality— Autonomy: EU Fundamental Rights in the Internal Market
The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.
Je t'aime . . . moi non plus: Ten years of application of the EU Charter of Fundamental Rights
Common Market Law Review, 2022
The first area of discussion concerns the need to ensure the visibility of the EU Charter in both EU law and at national level. This is not an easy task due to the complexity of many substantive and horizontal provisions of the Charter. Notably, the role of Article 51 of the EU Charter is to be discussed in detail in relation to the lack of visibility of the substantive provisions and their difficult invocability in certain circumstances. The second discussion relates to the overuse of the procedural rights/provisions of the EU Charter contra the limited use of the social rights/provisions enshrined in the Solidarity Chapter (Title IV). The bilan is crystal clear and points towards a clear dominance of Article 47 EU Charter (‘effective judicial protection’) in the Court of Justice case law, whereas the social provisions of the Charter constitute the parents pauvres of the European Bill of Rights and of the EU legal order in general. This conclusion is reflected and developed in many contributions of this book. The third area of discussion relates to the interpretation of the horizontal provisions of the EU Charter, where a lack of coherence is pointed out, particularly in relation to 52 of the EU Charter. The CJEU has developed a complex and incoherent interpretation of these provisions in developing for instance the ‘essence test’ and a bumpy doctrine of ‘corresponding rights’. The fourth and last area of discussion has an eye in the future and concerns the recent evolution in the CJEU case law as to the application of the EU Charter in Rule of Law issues. This development is fostered by the backsliding of the rule of law in many Member Sates of the European Union. The Charter in combination with Article 2 TEU and Article 19 TEU reveals to be an efficient instrument (at least more efficient than Article 7 TEU) to counter the systematic, perpetual and vile attacks committed by the illiberal States on the Rule of Law. Yet the proximity between the Rule of Law principles and the (constitutional?) principle of mutual trust in the CJEU case law appears to be problematic.
1 Introduction — A Matter for Two Courts : The Fundamental Rights Question for the EU
2015
THE EU IS one of the oldest and most successful projects of economic integration at the regional level. However, its legal system has grown well beyond the boundaries set by the original treaties, both in terms of competences and supremacy over national laws. The EU governing institutions have gradually and steadily increased their reach over time. In particular, the doctrine of supremacy and direct effect developed by the Court of Justice of the European Union (CJEU) have created a supranational entity where private litigants can invoke EU rules to challenge national laws conflicting with Union law. Both implicit or explicit extensions of the competences set out in the original treaties, have modified the architecture of the Union. 1 Thus, elements of supranationality have ‘ spilled over ’ into areas such as for example asylum and immigration that were, until recently, firmly managed through intergovernmental mechanisms. Moreover, parallel processes of policymaking, the so-called s...