Fundamental rights protection in the EU post Lisbon Treaty

The 1957 treaty establishing the European Economic Community (EEC) has long been silent on the protection of fundamental rights within the legal order of the community. Although it did refer to the principle of non-discrimination on the basis of nationality and some workers’ rights, the treaty lacked a proper bill of rights. It has been suggested that the idea of including a comprehensive bill of rights was rejected on the grounds that this may be wrongly construed as an undue extension of the powers of the EEC when its primary goal was the attainment of economic integration by establishing a common market. Furthermore, another organisation was already in charge of protecting fundamental rights in Europe: the Council of Europe, founded in 1949

EU accession to the European Convention on Human Rights: a legal assessment of the draft accession agreement of 14 October 2011

This Paper offers a legal assessment of the draft agreement on the Accession of the EU to the European Convention on Human Rights published by the Steering Committee for Human Rights of the Council of Europe on 14th October 2011. It will recall the most contentious points debated before and during the drafting of the draft accession agreement before offering a critical review of how these points were addressed by the Commission and Council of Europe’s experts

The scope of application of EU fundamental rights on member states’ action: in search of certainty in EU adjudication

While one may understand that respect for EU fundamental rights is a condition of the legality of EU acts, the (legal) situation is not as straightforward regarding acts adopted by national authorities. Most EU lawyers would agree with the contention that it is not always clear when and whether national authorities are acting within the scope of application of EU law and many, probably, still wonder about the sense of this ambiguous concept elaborated by the Court of Justice of the European Union (CJEU). The aim of this essay is to clarify the situations where EU fundamental rights bind national authorities following the entry into force of the Treaty of Lisbon and the legally binding status acquired by the Charter. The potential federal effect of the Charter will be assessed as it is sometimes alleged that the new legally binding status of the Charter may eventually convince the CJEU to enforce common standards applicable right across the EU regardless of whether national measures fall within or outside the scope of application of EU law. Another important issue is the potential effect of the Charter on the application of EU fundamental rights in the context of legal proceedings between private parties. Accordingly, this article will also explore the potentiality for an increased “horizontal effect” of the EU fundamental rights set out in the Charter, that is, whether they may be more easily relied upon by a private party against another private party. Finally, a classification or mapping of the various situations in which private parties may rely upon EU fundamental rights to challenge the legality of national measures will be offered. This framework for analysis of the CJEU case law is based on a broad reading of the ‘Wachauf’ and ‘ERT’ lines of cases. Such a novel classification appears in our view necessary in light of the latest judicial developments and the need to bring more certainty as to the scope of application of EU fundamental rights to Member States’ actions

Private law principles, pluralism and perfectionism

This paper discusses the legitimacy of general principles of private law as they have been formulated recently by the Court of Justice of the European Union and proposed by the European Commission. It addresses challenges from different strands in political theory including liberal perfectionism, political liberalism and Habermasian discourse theory. There are four specific lessons to be learned from these theories. First, the quest should not be for very general and abstract principles with a very broad scope, but rather for principles of an intermediate level of abstraction and a limited scope, which could explain and bring coherence to a set of rules or a legal doctrine, but not to the whole law of contract. Private law principles which are too general and sweeping would risk to neglect the need for internal diversification within private law. Secondly, these private law principles should be situated on the non-constitutional level of ordinary private law, subject to the constitution (including its horizontal effect) which in turn must be compatible, in order to be legitimate, with the political principles of justice that the EU polity has given itself. Thirdly, the CJEU, although an institution that is not in itself a less legitimate lawmaker than the legislator, also when it comes to private law principles, has a strong duty to explain itself and to provide good reasons for adopting general principles of civil law and for choosing certain principles, especially if these principles happen to be controversial, either from a comparative law point of view or along any of the other axes along which European citizens and European Member States may differ. Finally, there is no legitimate place for strong perfectionism in the deliberation on fundamental European private law principles; any private law perfectionism should be either local (in specific doctrines like unfair exploitation) or thin (limited to values like rationality). However, as long as we remain cautious is all these respects, the quest for general private law principles is perfectly legitimate. There is no contradiction per se in seeking to find general private law principles in a pluralist world