Preliminary material

Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

In 2017, the Court of Justice of the European Union (CJEU) delivered several highly important judgments and opinions in the field of human rights law. The present article aims to provide an overview of this jurisprudence. It considers the most important cases in the fields of asylum law, the right to hold a European Citizens ‘ Initiative, data protection, non-discrimination, and the rule of law. Following a summary of each case discussed, it analyses the relevant aspects concerning human rights protection. The article finally concludes that the case law of the CJEU in the field of human rights law remains ambivalent. While some cases show further improvement in protecting the individual, other cases still show a strong tendency of relying on a utilitarian approach to human rights. THE RIGHT TO ASYLUM The Right to Asylum under Article 18 of the EU Charter of Fundamental Rights (CFR) is of immense practical importance as the Common European Asylum System (CEAS) is still struggling with the consequences of the refugee crisis of 2015. The jurisprudence of the European Court of Justice (ECJ) in 2017 on the matter has also clarified issues that are of general importance for EU human rights law and doctrine. THE REFUGEE STATUS Many systems of human rights protection have a general concept that individuals responsible for acts of persecution and violations of human rights should not benefit from fundamental rights and freedoms themselves. Enemies of freedom should not benefit from fundamental rights while they are trying to subvert them. At the very least, the rights of the enemies of human rights can be restricted more severely than those of other beneficiaries. Thus, Article 17 of the European Convention on Human Rights (ECHR) contains a prohibition of abuse of rights, which makes it clear that the ECHR may not be interpreted as allowing any act aimed at the destruction of the rights guaranteed in the Convention. In the same vein, Article 1 section F of the 1951 Geneva Convention relating to the Status of Refugees (CSR51) states that the provisions of the Convention shall not apply to any person who is guilty of acts contrary to the purposes and principles of the United Nations (UN). The CFR, however, does not contain a similar clause.

Multiple developments are taking place in the European Union (EU) as concerns climate action through fundamental rights. On the one hand, the Court of Justice of the European Union (CJEU) might afford protection from climate change via first- and second-generation human rights; on the other, the EU is progressively recognizing the human right to a sustainable environment, and possibly to a sustainable climate, via Article 37 of the Charter of Fundamental Rights. These developments are nonetheless restrained by the limited possibility for individual natural and legal persons to act in the Court. On the other hand, EU Member States are parties to the European Convention on Human Rights (ECHR), to which the EU will also foreseeably accede in the future and through which a string of claims has been brought to the attention of the European Court of Human Rights (ECtHR). Also in this context, protection from climate change might be afforded via first- and second-generation fundamental rights, and possibly via the third-generation right to a sustainable environment and climate. Contrary to the CJEU system, however, there are no procedural limits to action by individual natural and legal persons in the ECtHR. The article argues that an extensive interpretation of first- and second-generation human rights, particularly the rights to life and to private and family life under ECHR articles 2 and 8, collectively interpreted as the rights to live in a sustainable environment and climate in line with the jurisprudence of the ECtHR, reverses the burden of proof and is essentially tantamount to acknowledging an independent fundamental right to a sustainable environment and climate, thus ensuring adequate climate protection in the EU from a human rights perspective.

In the present paper we aim to analyze several key aspect regarding the protection of the children�s rights in the EU specially and all over the world, in general. We will refer to the 1980 Hague Convention which applies in all EU member states in regard to the children under the age of 16 who are displaced from their habitual residence in another state or are detained in this second state unlawfully. The provisions of the Hague Convention apply if the child was illegally moved to or from a country which is a party to this Convention and if the minor was under sixteen years of age at the time of his removal or detention. Children are one of the most vulnerable category of people and the states should be very careful in regard to their protection. That is why there is a need to raise awareness and improve the knowledge and analysis of the legal standards that ensure the actual protection and promotion of these rights. We will also refer to the EU regulations: the Treaty on European Union (TEU) which establishes the Union�s obligation to promote the protection of children�s rights, the Charter of Fundamental Rights of the European Union (EU), EU regulations and directives and the jurisprudence of the Court of Justice of the European Union (CJEU). Within the Council of Europe, many conventions focus on specific aspects of the protection of children�s rights, from their rights and safety in cyberspace to adoption. Results and implications: These conventions complement the protection granted to children under the European Convention on Human Rights and the European Social Charter, including under the jurisprudence of the European Court of Human Rights (ECHR) and the decisions of the European Committee of Social Rights (ECSR).

The personal scope of the Charter of Fundamental Rights of the European Union (the Charter) is an area that still needs to be defined by the Court of Justice of the European Union (CJEU). The issue surrounding the personal scope entails the question of who can claim the protection of fundamental rights. A particularly controversial matter has proved to be the question whether, and if so under what circumstances, private legal entities and public authorities can invoke fundamental rights. This article aims to provide a detailed examination of the ‘landscape’ the CJEU must take into account when dealing with the personal scope of the Charter in the future. Firstly, this landscape is made up of the background and objectives of the EU and the European Convention on Human Rights (ECHR) legal systems. Secondly, it is shaped by the personal scope application of the Charter as interpreted by the CJEU so far, and the personal scope application of the ECHR as interpreted by the European Court of Human Rights (ECtHR). Finally, the application by Member State courts of fundamental rights, via the Charter, ECHR and constitutional rights, forms an element in this landscape. An examination of these aspects will provide answers to the question of how the three main players on the European fundamental rights stage – the CJEU, the ECtHR and the national courts – have applied the personal scope of their fundamental rights up to now. This also encompasses answers to the question of how these applications relate to the different background and objectives of the ECHR and the EU legal systems. These answers will provide the CJEU with tools to deliver well-informed rulings on the personal scope of Charter provisions in the future.

Recent case law from the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) has declared practices involving the pushback of individuals, including those seeking asylum, to be illegal. This is a significant and positive development. This article examines the approaches taken in key cases before these two courts, comparing and reflecting on how they have framed pushbacks as a violation of fundamental rights and the procedural obligations that States have under international and European law. While both courts have ruled these practices to be in breach of applicable laws, their framing of the violations has differed. The ECtHR has focused on the fundamental rights that are threatened when individuals are pushed back across borders. In contrast, the CJEU has previously concentrated on the violations of procedural rules that occur during the forcible return of individuals. However, in the recent case of MA, the CJEU acknowledged that the breach of procedural rules inherent in pushbacks undermines access to effective protection, resulting in a denial of access to asylum. This situation constitutes a breach of Article 18 of the Charter of Fundamental Rights. This important development indicates a convergence in the approaches of the two courts, both condemning pushbacks as violations of individual rights and highlighting the necessity of the right to enter as an integral part of the effective right to asylum.

For centuries, the protection of fundamental human rights has been part of the historical conceptual and constitutional legacy of the peoples on both sides of the Atlantic. Great thinkers from all nations have contributed towards the generation of human and fundamental rights. Nowadays these rights (or at least their substance) are universally recognised, beyond the continents of Europe and America. Virtually all the UN nations recognise them at least verbally. The fact that they are not put into effect, let alone observed, everywhere, does not alter their claim to validity. Practice and theory operate at different speeds, and politics carries the duty to change this.^ The academic world is only able to send out reminders and to encourage progress. The General Assembly of the UN adopted a "Universal Declaration of Human Rights" on 10 December 1948. Following on from the origin of their spiritual forefathers, it was rooted in the European and American declarations of human rights, and embodied human dignity, protection of personality, individual rights to freedom, equality under the law, basic judicial rights and rights to political codetermination. However, these traditional rights were extended to include more recent legal rights, which had become manifestly threatened through experiences in the Thirties and Forties, namely bans on torture and deportation, the right of asylum and the right to citizenship. Certain social, economic and cultural rights were also added. However, it must be noted that the Declaration has not acquired the status of a binding international legal rule, despite the fact that a minimum standard (irrespective of how this may be circumscribed), has by now become a constituent of customary international law. Further markers en route to an international Charter of Human Rights have included numerous special declarations and conventions, and in particular the International Covenants on Civil and Political Rights and on Economic and Social and

In this Issue

This introductory Article sets out the background and summarises the content of the Symposium on ‘The Court of Justice of the European Union (CJEU) as a Relational Actor’. Observing that the CJEU has been a key player in shaping European legal integration, the Symposium takes as its starting point that courts – and the CJEU is no exception in this regard – are unable to drive developments in isolation. For the Court to carry out its role as guarantor of the Treaties and guardian of the rule of law in the Union, it needs not to isolate itself but to interact with other European Union (EU) and national institutions. Relations, the Symposium argues, are not only unavoidable but also legitimate and even vital for the adequate execution of the judicial function. This introduction briefly explores six of the Court’s most important relationships: those with the other EU institutions; the courts of the Member States; the Member States themselves; the parties appearing before it; other international courts; and the general public. It then summarises the contributions and highlights how they complement each other in examining the CJEU as a relational actor.

The trend towards the financialisation of housing since the 1980s and the global financial crisis exposed a dramatic lacuna in the legal protection of the right to housing. Yet, the right to housing features not only in national and international human rights instruments, but also in the EU Charter of Fundamental Rights. Charter rights are increasingly finding expression in the case law of the Court of Justice of the European Union (CJEU). In particular, drawing on the Charter, the CJEU's interpretation of EU consumer law is moving towards a recognition of housing rights as inherent components of consumer protection. On the basis of such developments, this article examines whether there is scope to extend this human rights approach to new areas – namely, to the Mortgage Credit Directive (2014) – a major EU harmonising measure – and to the work of EU institutions now responsible for banking supervision. The article concludes that, if guided by the Charter of Fundamental Rights, the case law of the CJEU and the practice of supranational banking supervision could significantly enhance the protection of the right to housing, both at EU and Member State level.

The aim of this Article is to show that the enforcement of Article 2 of the Treaty on European Union (‘TEU’) values vis-à-vis Member States could benefit from the application of the EU Charter of Fundamental Rights (‘CFR’) also in instances where the current interpretation of Article 51(1) CFR prevents this. This would be the case if the CFR were also applicable to purely domestic cases, eg—but not only—with regard to fundamental rights-relevant violations related to the values enshrined in Article 2 TEU. In this case, the European Court of Justice, which has already partly taken this path recently, could prevent the violation of core EU values. The most important historical challenge to those values in Europe today is the systematic dismantling of the rule of law and democracy in certain Member States. It is the very purpose of fundamental rights to provide answers to such dangers. When one speaks of the rule of law and democracy, one necessarily also means fundamental rights. This Article thus advocates an EU which perceives itself as a complete fundamental rights union. While the traditional interpretation of Article 51(1) CFR had a balanced division of competence between the EU and its Member States in mind, the disregard of Article 2 TEU values triggers a clausula rebus sic stantibus: the neat federal balance can only be upheld if both ends stick to the original promise made. It demonstrates two ways of completing the European fundamental rights union: treaty revision, on the one hand, and reinterpretation of Article 51 CFR, on the other hand. Both ways have in common that only a complete fundamental rights union can establish a system of fundamental rights protection that is uniform and thus equality-preserving in cases where national fundamental rights fail to provide sufficient protection.

THE FUTURE OF THE COMMON SECURITY DEFENCE POLICY AND A CONSTITUTIONAL QUESTION

Examining how differentiation affects patterns of cooperation among the European Union (EU) member states, existing scholarship has to date insufficiently taken into account the role of institutional designs. In this Handbook chapter, I argue that in light of the developments within Economic and Monetary Union (EMU), scholars might study more systematically how governance processes are structured under the circumstances of differentiation and, in particular, how inclusive the institutional structures are to outsiders. I review how EU member states outside the Eurozone are represented within the European Stability Mechanism, the Banking Union and the restructured Eurozone formats within the Council of the EU and European Council. The reviewed reform projects showcase the lack of organisational inclusiveness to euro outsiders within post-crisis EMU. Only on a very limited number of occasions are national officials representing those EU member states outside the Eurozone allowed to participate in meetings within the reviewed facilities. Considering these circumstances, shedding light on the institutional implications of differentiation in the EU becomes a pressing concern. In order to facilitate the study of this subject, in this chapter, I also make a proposal on how the inclusiveness of EU governance bodies to EU outsiders could be operationalised. The proposed operationalisation is based on two analytical dimensions: outsider representation and outsider access. While the former dimension measures how well outsiders are represented within an EU governance body, the latter one determines the influence they can exert on decisions made in one EU organisation through their position within other places. The chapter concludes by highlighting two measures which are particularly well suited to ensure inclusiveness within EU institutions.

In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).

The European Union Institutional Network on Anti-Fraud