Category: Fundamental rights

Neues aus dem Elfenbeinturm: May 2018

1st International Forum of the Hungarian European Law Institute Hub – The impact and effects of Brexit on EU Law and UK Law

Eötvös Loránd University, Budapest, 14 September 2018. Deadline for abstract submissions: 20 May 2018.

Workshop – Challenges to EU Law and Governance in the Member States

European University Institute, 8 June 2018. Deadline for registration: 22 May 2018.

Conference “OLAF and the EPPO in the new institutional setting for the protection of the financial interests of the EU”

Utrecht University, 15 June 2018. Deadline for (free) registration: 4 June 2018.

International Symposium on Religious Pluralism and European Integration: New Challenges

University of Milan-Bicocca, 28 September 2018. Deadline for abstract submissions: 4 June 2018.

Conference on the implementation of EU laws relating to cross-border judicial measures in civil and criminal law

Czech Bar Association, Prague, 7 June 2018. (Free) registration necessary.

The Right to Family Reunification of Unaccompanied Minor Asylum Seekers before the Court of Justice of the EU

By Silvia Bartolini

Introduction

On 12 April 2018 the Court of Justice of the EU (hereinafter, the “Court”) delivered a key ruling in A & S (case C-550/16), which hopefully marks a conscious step towards the creation of an effective EU system for the protection of children in migration.

As the Commission points out, the protection of children in all stages of migration should be “first and foremost about upholding European values of respect for human rights, dignity and solidarity. It is also about enforcing European Union law and respecting the Charter of Fundamental Rights of the European Union and international human rights law on the rights of the child” (COM (2017) 211 final). Yet their vulnerability is often denied or forgotten by Member States, especially in the mist of the so-called ‘migratory crisis’.

A & S brings forward the issue as to whether a Member State can deny both the status of being a child and the corresponding protection under EU law to a young refugee who entered its territory as an unaccompanied minor and turned eighteen while waiting for their application for international protection to be processed. In particular, could Member States be left to ‘use’ delays in the processing of children’s applications for the refugee status as a mechanism to thwart their fundamental right to family reunification?

In its children’s rights centred ruling, the Court made clear that Article 10 (3) (a) of Family Reunification Directive (Directive 2003/86/EC) creates an enforceable right to unaccompanied minor refugees to be reunited with their parents; a right which cannot be thwarted by the ‘negligent’ behaviour of the national authorities. In particular, an unaccompanied child who has turned eighteen while waiting for their refugee status application to be processed should still be considered as an ‘unaccompanied minor’ and therefore be entitled to a right to family reunification if their application is successful. Continue reading →

Mangold Recast? The ECJ’s Flirtation with Drittwirkung in Egenberger

By Eleni Frantziou

In its recent ruling in Egenberger (C-414/16), the Court’s Grand Chamber has redrawn the boundaries of a constitutional problem German courts are rather familiar with: the horizontal application of the right not to be discriminated against in situations coming within the scope of EU law. The case raises two important constitutional issues: firstly, whether the horizontal effect of EU fundamental rights must be direct; and, secondly, how the balance between conflicting fundamental rights should be reached in a private dispute. This post argues that, on the one hand, in Egenberger,the Court offers a methodologically more principled account of the horizontal effect of fundamental rights than its case law has provided to date. On the other hand, its approach towards the balance between religious freedom and non-discrimination is problematic because it does not offer the degree of clarity and guidance that is needed to accommodate horizontal conflicts of rights under the Charter framework. Continue reading →

Neues aus dem Elfenbeinturm: April 2018

Conference “Sovereigns and citizens in the Brexit bargain: Do rights count?” (Prof. Takis Tridimas)

Université de Liège, Amphithéâtre Portalis, 23 April 2018 (15:30-16:30).

Summer School “Parliamentary Accountability and New Technologies: Transparency, Privacy and Security Challenges”

LUISS Guido Carli University, Rome, 9-20 July 2018. Deadline for applications: 29 April 2018.

Call for papers: Edited Volume “Legal Impact Assessment of Brexit”

Deadline for submissions: 9 May 2018.

Workshop “The International Legality of Economic Activities in Occupied Territories”

T.M.C. Asser Institute, The Hague, 17 October 2018. Deadline for abstract submissions: 15 May 2018.

Conference “Procedural rights in criminal proceedings in the EU”

Universities of Utrecht, Leiden and Maastricht, 13-14 September 2018. Deadline for applications: 15 May 2018.

Conference “Human Rights Laws at a Crossroads: What Directions after Brexit?”

University of Leicester, 25 May 2018. (Free) registration necessary.

Workshop “Constitutional Protection of Minorities – Comparing Concepts, Models and Experiences in Asia and in Europe”

University of Trento, 4-5 May 2018. Registration necessary.

Summer School “Comparing Constitutional Adjudication – Islam in Constitutional Adjudication in Europe”

Dimaro, Italy, 30 July-3 August 2018. Deadline for applications: 26 April 2018.

Seminar “The Western Sahara Campaign Case”

Queen Mary University of London, 3 May 2018. Registration necessary.

Settling the dust? An analysis of Taricco II from an EU constitutional and criminal law perspective

By Giovanni Zaccaroni and Francesco Rossi

Many valuable contributions have been written (for example this blog post but also elsewhere, among many others) on the M.A.S. decision (M.A.S. and M.B., case C-42/17 a.k.a. Taricco II) and, more in general, on the Taricco saga. The majority of them, however, focus mainly on the criminal and constitutional law dimensions separately. In this contribution, we focus on these dimensions together: we believe that this decision is equally important for the relationship between the Court of Justice of the EU (CJEU) and the national Constitutional Courts as it is for the hazardous path of a harmonization of the general part of criminal law at EU level.

The reason why these two dimensions are usually examined separately lies on the different background of the scholars concerned. In this blogpost we have done the effort to put together and explain the importance of the M.A.S. decision from the viewpoint of a criminal lawyer and from the one of a (European) constitutional lawyer. To do that, this work will be divided in two main parts: we will firstly look at the relationship between the CJEU and the Italian Constitutional Court (ICC) (in the first part, sections I and II, written by Giovanni Zaccaroni). We will then see whether and how the decision advances the harmonization of criminal law at an EU level (the second part, sections III-V, written by Francesco Rossi). Continue reading →

Neues aus dem Elfenbeinturm: March 2018

Conference “The Future of the EU and European Law”

Palacký University, Olomouc, 19-20 April 2018. Deadline for registration: 29 March 2018.

Conference “Law-Making in Multi-Level Settings – Federalism, Europe, and Beyond”

University of Antwerp, 20-21 September 2018. Deadline for abstract submissions: 9 April 2018.

Call for papers “European Junior Faculty Forum”

European University Institute, 12-13 July 2018. Deadline for paper submissions: 1 May 2018.

Conference “Brussels, We Have a Problem – Rethinking Justice Within the European Union”

University of Witten/Herdecke, 8-10 June 2018. No deadline for registration.

Summer School “Cinema Human Rights and Advocacy”

Venice, 27 August-5 September 2018. Deadline for registration: 20 June 2018.

The EU Single Market Information Tool: The European Commission’s new investigative power in 2018

By Gianni De Stefano and Jaime Rodríguez-Toquero

The European Commission is about to gain a new investigative power through the Single Market Information Tool (SMIT).  The SMIT will allow the Commission to request information (including factual market data or fact-based analysis) from private firms or trade associations when the Commission initiates or substantiates infringement proceedings against one or more Member State(s) that may have failed to fulfil an obligation under the applicable Single Market legislation.  This post will discuss the background of the SMIT, its purported rationale, and critically reflect on the powers granted to the Commission under the SMIT.

The Commission is at pains to clarify that the SMIT initiative does not aim to create new enforcement powers allowing it to pursue infringements of Union law in the Single Market area against individual market participants.  That said, the Single Market rules can be infringed by either Member States or private companies.  Therefore, companies responding to such information requests will not only incur administrative and financial burdens, but they will also have to be careful not to incriminate themselves in doing so, as we will see below.

Continue reading →

Neues aus dem Elfenbeinturm: February 2018

Call for submissions – European Papers

No deadline.

Conference “Looking to the Future and Beyond: New Approaches to ADR”

University of Leicester, 10 May 2018. Deadline for abstract submissions: 28 February 2018.

Dimensions and Identities Summer School “Dimensions of Human Rights”

University of Salzburg, 23-27 July 2018. Deadline for abstract submissions: 30 March 2018.

Colloquium “Current Challenges for EU Cross-Border Litigation in a Changing Procedural Environment”

Max-Planck-Institute Luxembourg for International, European and Regulatory Procedural Law, 26 September 2018. Deadline for abstract submissions: 15 April 2018.

Conference “Le règlement des différends dans les accords de l’UE avec des pays tiers”

University of Fribourg, 2 May 2018. Deadline for registration: 18 April 2018.

Summer School: “Venice School of Human Rights”

EIUC Venice School, 9-16 June 2018. Deadline for registration: 23 April 2018.

Summer School “Recent Developments on Financial Crime, Corruption and Money Laundering: European and International Perspectives”

University of Thessaloniki, 4-12 July 2018. Deadline for applications: 30 April 2018.

PNR Agreements between Fundamental Rights and National Security: Opinion 1/15

By Arianna Vedaschi and Chiara Graziani

On July 26, 2017, the European Court of Justice (ECJ) issued Opinion 1/15 (the Opinion of the Advocate General on this case had been discussed previously in this blog, part I and part II) pursuant to Article 218(11) TFEU on the draft agreement between Canada and the European Union (EU) dealing with the Transfer of Passenger Name Record (PNR) data from the EU to Canada. The draft agreement was referred to the ECJ by the European Parliament (EP) on January 30, 2015. The envisaged agreement would regulate the exchange and processing of PNR data – which reveals passengers’ personal information, itinerary, travel preferences and habits – between the EU and Canada. The adoption of the agreement is crucial because, according to Article 25 of Directive 95/46/EC as interpreted in the Schrems decision (commented here), the transfer of data to a third country (discussed here) is possible only if such country ensures an “adequate level of protection.” This standard can be testified by an “adequacy decision” of the European Commission or, alternatively, by international commitments in place between non-EU countries and the EU – as the one examined by the ECJ in this Opinion.

Not surprisingly, the leitmotiv of the Court’s Opinion is the challenging balance between liberty and security. Maintaining a realistic perspective, the Court considered mass surveillance tolerable at least in theory, because it is a necessary and useful tool for the prevention of terrorism. Yet, it insisted that there should be very strict rules as to the concrete implementation of such surveillance. For this reason, it found some provisions of the draft agreement incompatible with Articles 7 (privacy) and 8 (data protection), in conjunction with Article 52 (principle of proportionality) of the Charter of Fundamental Rights of the European Union (CFREU).

As a result, the agreement cannot be adopted in the current form and the EU institutions will have to renegotiate it with Canada. For sure, this renegotiation will prove to be challenging. Nevertheless, as the analysis below will show, the Luxembourg judges, by addressing particularly technical issues of the agreement, provided a detailed set of guidelines that, if respected, would ideally preserve fundamental rights – in this case, the right to privacy and to data protection – without undermining public security. Through a smooth and refined reasoning, the Court’s decision indeed suggests potential solutions to amend the draft agreement in a way that is compliant with the CFREU and, ultimately, the rule of law. Continue reading →

Neues aus dem Elfenbeinturm: December 2017

Conference “Constitutional Challenges in the EMU: the New Instruments of European Economic Governance”

Brussels, 29-30 March 2018. Deadline for abstract submissions: 15 January 2018.

International Electoral Observers Training

European Inter-University Centre for Human Rights and Democratisation, Venice, 19-24 March 2018. Deadline for registration: 15 February 2018.

Conference “Economic Constitutionalism: Mapping its Contours in European and Global Governance”

European University Institute, 14-15 June 2018. Deadline for abstract submissions: 28 February 2018.

Conference “Upgrading Trade and Services in EU and International Economic Law”

Radboud University, Nijmegen, 15 June 2018. Deadline for abstract submissions: 16 March 2018.

Call for papers: Utrecht Journal of International and European Law

Deadline for submissions: 9 April 2018.

The Global Fight against Impunity and the European Court of Justice: A New Approach to Tax Fraud as a Crime against Human Rights

by Giuliana Ziccardi Capaldo

Introduction

This contribution is a comment to the blog posts of Maxime Lassalle on Taricco I and Michal Krajewski on Taricco II. In the following, I summarize some reflections developed in my article entitled “Lotta globale all’impunità e Corte di giustizia europea: un nuovo approccio alla frode fiscale come crimine contro i diritti umani”, that touch upon the core of the Taricco dispute between the European Court of Justice (ECJ) and the Italian Constitutional Court concerning the prosecution of value added tax (VAT) fraud.

Two very closely related issues are considered in this regard. One is that the ECJ’s view in Taricco I on the interpretation and application of the obligation to combat fraud, imposed on Member States by Article 325 TFUE, opens the way to a new approach to tax fraud as a crime against human rights. The second, logically connected, is that the alleged conflict between the interpretation of Article 325 TFEU given by the ECJ and Italian Constitutional law (the principle of legality in criminal matters as laid down by Article 25(2) Const.) is a false problem for which I present a solution.  Continue reading →

A Way Out for the ECJ in Taricco II: Constitutional Identity or a More Careful Proportionality Analysis?

By Michal Krajewski

The final countdown to the announcement of the long awaited judgment in case C-42/17, M.A.S. & M.B. (Taricco II) on 5 December 2017 has begun. The preliminary reference (for an overview see Bassini and Pollicino), by which the Italian Constitutional Court (the ‘ICC’) challenged the judgment of the European Court of Justice (the ‘ECJ’) in C-105/14, Taricco I, has already generated a heated debate online (see for instance here and here). The most fascinating question is whether for the first time the ECJ will authorise a national court to disapply an EU legal provision to protect its national constitutional identity or higher national standards of fundamental rights’ protection. My aim in this post is to question the compatibility of Taricco I judgment with the EU law itself. I will first argue that the ECJ’s judgment in Taricco I is problematic under EU law because the ECJ left out from its reasoning the general principle of legal certainty and ensuing limits to the direct applicability of EU provisions.  Second, I will explore whether the ECJ can still withdraw from its stance taken in Taricco I without opening the Pandora’s box of exceptions to the EU law primacy: either due to national constitutional identity (Article 4(2) TEU) or higher national standards of fundamental rights’ protection (Article 53 of the Charter of Fundamental Rights).  Continue reading →

Two instruments but a difficult relationship? Some upcoming decisions of the CJEU on the ne bis in idem

By Michele Simonato

The principle of the ne bis in idem in criminal matters (i.e. the right not to be prosecuted or punished twice for the same criminal conduct) is a key safeguard against arbitrary use of the ius puniendi. Furthermore, it offers an interesting perspective from which we can observe the development of an area of freedom, security and justice in Europe, and how the relationships between the two main European human rights instruments – the Charter of Fundamental Rights of the EU (‘CFREU’) and the European Convention of Human Rights (‘ECHR’) and the related case law emanating from the courts of Luxembourg and Strasbourg – are evolving. Indeed, the way in which the CJEU will answer in the near future the questions that are submitted to it in several pending cases (see cases C-524/15, Menci; C-537/16, Garlsson et al.; C-596/16 and C-597/16, Di Puma) might have a ‘constitutional’ impact that goes well beyond the ne bis in idem principle. This post will take a closer look at some of these pending questions. Continue reading →

Brexit, Fundamental Rights And The Future Of Judicial And Police Cooperation

By Cristina Saenz Perez

The future of EU-UK judicial cooperation in criminal matters is far from certain. In her Florence speech, Theresa May affirmed that one of the goals of the UK government was to establish a “comprehensive framework for future security, law enforcement and criminal justice cooperation” after Brexit. In the government’s ‘Future Partnership Paper’, the government also expressed the need of concluding a separate agreement that guarantees the future of cooperation in police and security matters between the UK and the EU. Despite all the efforts, the latest decisions have shown how difficult an agreement in this area will be. Continue reading →

Third country law in the CJEU’s data protection judgments

By Christopher Kuner

Introduction

Much discussion of foreign law in the work of the Court of Justice of the European Union (CJEU) has focused on how it deals with the rules, principles, and traditions of the EU member states. However, in its data protection judgments a different type of situation involving foreign law is increasingly arising, namely cases where the Court needs to evaluate the law of third countries in order to answer questions of EU law.

This is illustrated by its judgment in Schrems (Case C-362/14; previously discussed on this blog, as well as here), and by Opinion 1/15 (also discussed on this blog, part I and part II), a case currently before the CJEU in which the judgment is scheduled to be issued on 26 July. While these two cases deal with data protection law, the questions they raise are also relevant for other areas of EU law where issues of third country law may arise. The way the Court deals with third country law in the context of its data protection judgments illustrates how interpretation of EU law sometimes involves the evaluation of foreign legal systems, despite the Court’s reluctance to admit this. Continue reading →

Neues aus dem Elfenbeinturm: June 2017

Call for papers “The Process of European Integration between Limits and Antinomies: Citizenship, Immigration and National Identities”

Review “Freedom, Security & Justice: European Legal Studies”. Deadline for abstract submissions: 30 June 2017.

Call for expressions of interest – Members of the Scientific Committee of the Fundamental Rights Agency

Vienna. Deadline for applications: 7 July 2017.

Workshop on “Current and Future Challenges of EU Agencification”

Brussels, 20 September 2017. Deadline for abstract submissions: 7 July 2017.

EJLS 10th Anniversary Conference Call for Papers “60 Years of European Integration: Reflections from Young Legal Scholars”

European University Institute, 16 November 2017. Deadline for abstract submissions: 15 July 2017.

Call for submissions “Trade, Law and Development”

Deadline for submissions: 20 September 2017.

Cautious Openness: the Spanish Constitutional Court’s approach to EU law in recent national case law

By Mario García

In recent months, the Spanish Constitutional Court (SCC) has issued a series of decisions related to EU law that show an interesting combination of both openness toward the European legal order and a certain degree of apprehension to the growing role of the Court of Justice of the European Union (CJEU) in constitutional matters. In these cases the SCC has arrived at fairly pro-EU results: the SCC decided that preliminary references from Spanish courts to the CJEU take precedence over constitutional questions submitted to the SCC, and that a non-transposed, directly-effective EU Directive can be taken as a factor in the interpretation of a constitutional provision. But, as discussed below, the details subtly suggest that the SCC does not fully agree with the ways in which the CJEU has asserted its institutional position, and prefers to avoid potential conflicts in the future. Continue reading →

Case C-133/15 Chávez-Vílchez and Others – Taking EU Children’s Rights Seriously

By Maria Haag

Can the Netherlands deny a third-country national (TCN), who is the primary carer of Dutch children, the right to reside? Two weeks ago, the Court of Justice of the European Union (CJEU) held in Chávez-Vílchez and Others that under EU law it cannot. In this important Grand Chamber decision, the CJEU has reaffirmed and expanded its landmark Ruiz Zambrano decision. Continue reading →

Neues aus dem Elfenbeinturm: April 2017

Conference “Le droit pénal et la procédure pénale face aux défis de la société numérique”

University of Liège, 28 April 2017. Deadline for (partly paid) registration: 27 April 2017.

Call for papers “First EU Business Law Forum – The Influence and Effects of EU Business Law in the Western Balkans”

Széchenyi István University, 15-16 June 2017. Deadline for abstract submissions: 4 May 2017.

Call for papers “International Society for the Philosophy of Law and Social Philosophy World Congress – Peace Based on Human Rights”

Lisbon, 16-21 July 2017. Deadline for abstract submissions: 15 May 2017.

Achbita v G4S: Religious Equality Squeezed between Profit and Prejudice

By Gareth Davies

And below: Bougnaoui v Micropole: Mildly Surreal Thoughts on Competence and Clothes (particularly when worn by women)

The two cases were decided on the same day by the Grand Chamber of the Court of Justice. Although they both concern essentially the same fact set – a firm wishing to dismiss an employee who insists on wearing an Islamic headscarf – the questions referred were different, and the substantive discussion is found in Achbita. Bougnaoui, briefly noted at the end of this blog, addresses just one, odd, point: the Court confirmed that the fact that a Muslim woman wears a headscarf does not make her incapable of doing her work. That is little comfort though – since Achbita decided that she can probably be dismissed anyway.

Achbita

In Achbita v G4S the Court of Justice was asked whether a private firm could prohibit the wearing of Islamic headscarves by employees who dealt with customers, or whether this violated the ban on religious discrimination in the workplace, found in Directive 2000/78. The claimant, Ms Achbita, worked as a receptionist for G4S in Belgium. When she began wearing a headscarf she was warned that it was against company policy, which disallowed all religious, political or philosophical signs in the workplace. When she continued, she was dismissed.

The Court found that under the right circumstances a company might be entitled to have a policy of this sort. One condition was that the policy must be in writing – in the interests of certainty and clarity. Another condition was that it must apply without distinction to all beliefs. Continue reading →