122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
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122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
The Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected (ECHR) and National ConstitutionsLeonard RM. Besselink1General introductionIn democratic polities under the rule of law. all exercise of public power is subject to observance of fundamental rights. This is a main characteristic of constitutionalism This explains the importance of the topic of funda 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedmental rights protection in the European Union. It determines the constitutional nature of the European UnionBecause the Member States have a sometime122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
s very longstanding experience with their autonomous fundamental rights standards, while on top of that they have to apply a Union standard when they The Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctednion and the constitutional orders of the Member states. The topic of fundamental rights protection in its various aspects IS illustrative of the interdependence and the relative autonomy of the constitutional orders involved. This general report is hence inevitably an exercise in stocktaking of the 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected constitutional relations in the EU.Such stocktaking is particularly opportune since the recent entry into force of the Lisbon Treaty, which gave the122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
European Union Charter of Fundamental Rights binding legal force Also, the new Article on the sources of fundamental rights protection in the EU (ArtiThe Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedt not The choice has been to discuss constitutional issues concerning fundamental rights protection within the European Union. The report therefore does not cover any aspect of the EU'S external human rights policy, nor relevant issues on accession of new Member states.This report is divided into fi 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedve chapters. The first chapter concerns the sources of fundamental rights and their relationship. The second is devoted to the cluster of questions wh122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
ich concern the contexts in which these can be invoked, in particular whether they can be invoked between private parties inter se. and the ancillary The Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedeafter also the Charter') which was given binding legal force by the Lisbon Treaty, and briefly discusses the experience in judicial practice in the brief period of its application as a legally binding instrument.The fourth chapter is devoted to the consequences of a future accession to the European 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected Convention for Protection of Human Rights and Fundamental Freedoms (ECHR).The fifth chapter ties together a number of issues also touched upon in pre122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
vious sections, concerning some structural principles underlying the fundamental rights architecture of die European area of fundamental rights.MethodThe Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected between September 2011 and February 2012. There are no Member state reports for France. Belgium, Cyprus, Romania. Sweden, Lithuania or Latvia It would have been impossible to cover in this report all1 Professor of European Constitutional Law, University of Utrecht: Henri G. Schernrers Fellow of the 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected Hague Institute for the Internationalisation of Law at the Netherlands Institute for Advanced Studies. Tire author expresses his gratitude to all the122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
authors of the national reports and the Institutional Report for the many insights and ven,' rich information they have provided. Also, the author thThe Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedhe national and Commission reports. We have instead been eclectic in this general report and must refer the reader to the national reports in their full richness to capture all the detail. The various reports provide an opportunity to inform one another of the approaches taken In various Member stat 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedes.A caveat concerns the progress of time. The questionnaire was drawn up when a number of important cases were pending before the EC J and some natio122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
nal constitutional courts, which then seemed important. A number of these have in the meantime been adjudicated and new ones, which had not been quiteThe Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedthe negotiations on the accession to this instrument have arrived at a stalemate due to disagreements among the EU Member States. No doubt, new cases will have been published and new developments may have taken place by the time of the FIDE conference This may lead us to raise issues in this report 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedwhich could not have been discussed in the national reports, or to cover developments and questions at the conference which have not been discussed In122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
this report.Finally, experience teaches that In comparative studies a relative outsider can go very wrong in interpreting materials foreign to him. NThe Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedsic fundamental rights within the EU’s own legal order was triggered by the Member state courts. They referred cases to the European Court of Justice on questions which In essence were seeking to ensure that constitutional rights -often articulated and made effective in response to the very same his 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedtoric events which inspired the project of European integration as we know it - were actually guaranteed in the context of what we now know as the Eur122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
opean union. The story is too well-known to deserve repetition in full. Let US merely mention some points which are relevant to (he nature and scope oThe Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedection of fundamental rights which were canonised in Nold II. Wrapped up in the primary source of the general principles of European law these comprise the constitutional traditions common to the Member states’ and 'the international treaties for the protection of human rights on which the Member st 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedates have collaborated or ol which they are signatories’.2The formula underwent minor changes. The 'common constitutional traditions and human rights122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
treaties (0 which Member States are a party’ were originally declared to be sources of 'inspiration' and providing guidelines' respectively. In some oThe Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedent years. This is strange because the codification of the sources of fundamental rights in the Maastricht Treaty and after contains no such indirect language' the EU shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedom 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correcteds signed In Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Commun122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
ity law.’ In other words, the sources mentioned are to be respected as such, not merely as sources providing 'guidelines' or 'inspiration’.Possibly, tThe Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedes in the cabinets of the juges rapporteurs.The present case law seems quite clear in actually applying the ECHR as a direct source of the relevant fundamental rights, just as the constitutional traditions are analysed to determine the common tradition resulting therefrom, without creating extra dis 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedtance by considering (hem merely inspiration' - though the analysis is often left to the Advocate-General and, moreover, the common constitutional tra122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
ditions are not often actually used as a source of fundamental rights/The Maastricht version of the EU Treaty (Art. F(2). after the Amsterdam revisionThe Protection of Fundamental Rights post-LisbonThe Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedtreaties as sources of the general principles of3 ECJ 14 May 1974, Case 4-73. J. Nold, Kohlen- und BaustoffgroShandlung V Commission of the European Communities, ECR 1974.491, paragraph 13.3 Notably ECJ, C-260.89, ERT, ECR 1991,1-2925, para. 44; ECJ, C-368’95, 26 June 1997, Knlnlgte Famlllapress Zel 122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_correctedtungsverlags- und Vfertriebs GmbH. para. 24-25.1 Examples are ECJ. Cases 46'87 and 227’88, 21 September 1989, Hoechst,, ECR 1989, 2859, ff. Identical122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected
was the judgment of the Court in case 85’87, Dow Benelux, ECR 1989, 3150, as well as cases 97 en 99'87 Dow Chemica Ibérica and others ECR 1989, 3181;Gọi ngay
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