The EU Charter of Fundamental Rights in the Member States

Description

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 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