Fundamental Rights

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  • Created by: Hope
  • Created on: 08-05-16 10:47
What was the initial reaction to fundamental rights? Example?
It was rejected, because EC affairs should not impact upon protection of human rights. Stork v High Authority
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How were fundamental rights initially developed? example?
Through general principles of law. Stauder v City of Ulm
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What was said in Internationale Handelsgesselschaft?
Fundamental rights form an integral part of the GPs of law protected by the CJ
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What did the court say in regard to innational treaties? Example?
They would uphold common principles of MS but they also identified international treaties for the protection of fundamental rights as further guidelines. Nold v Commission
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What are the sources of fundamental rights?
National constitutional traditions, international treaties, the ECHR
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What are some case examples of national constitutional traditions?
Hauer v Land Rheinland-Pfalz, Omega, Grogan
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What is the limit to international treaties? Some examples?
They are not often used. ILO, UNCRC, ICCPR, ICESCR
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Which is the most important source, according to the court?
The ECHR.
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How has the relationship between the CJ and the ECHR been characterised? Why?
"special relationship"- ECHR has allowed the CJ to assert the autonomy and supremacy of EU law while avoiding the charge of having judicially incorporated judgements into EU law without MS Consent
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Examples?
Schmidberger v Austria, Kadi
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What obligations to MS have when applying EU law?
MS must not do anything which infringes EU rights
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What is the case with derogations? Authority?
In Case C-260/89 [1991] the CJ said any derogation must comply with human rights
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Was this always the case?
No, prior to this, in Cinethetique in [1985] they ruled derogations did not need human rights
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How many states does the ECHR have?
47
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What are the opinions concerning accession at the moment?
There are growing arguments for accession to create better cohesion between the two
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What is the case at the moment concerning the legal relationship between the ECHR and the CJ?
The CJ is not bound by the ECHR despite the fact that they cite ECHR as one of their main sources of law
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Where is there a risk of conflict between the two?
As they work in isolation from eachother, there is a risk of conflict over interpretation of the same rights
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What is the doctrine that came from the ECtHR in Bosphorous?
"Where the EU enacts legislation there will be a presumption that any legislation created by the EU is compatible with fundamental rights because the EU observes these rights"
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What are arguments for accession?
It would help enhance the credibility of the EU as an association which protects human rights, would address the problem that the institutions themselves aren't bound by human rights, clarity and coherence as to the sources of fundamental rights
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What are the accession issues to resolve?
Competence to EU to accede, maintaining autonomy of EU legal order, participation of EU institutions, which protocols to sign up to, problem of 'back-door' agreement
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Is this mentioned in Lisbon?
Art 6(2) TEU- the union shall accede to the ECHR.
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What are the accession procedures of the EU?
Unanimity in council, consent of EParl, ratification of MS through domestic constitutional rules, CJ opinion
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What are the accession procedures of the ECHR?
Accession agreement to be ratified by all parties to ECHR
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What are the key aspects of the draft agreement?
Institutions' acts and conduct subject to ECHR, scope of review for primary law, co-respondent mechanisms to deal with division of responsibility between EU and MS, exhaustion of remedies, EU participation in ECHR bodies, EU signs up to protocols 1&6
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What are the autonomy issues?
Protocol 8 TEU required specific characteristics of the EU to be preserved, would ECtHR finding a violation undermine CJ monopoly of EU law?
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Who is responsible for violations, union or MS?
Protocol 8 requires mechanisms to ensure applications under ECHR 'correctly addressed' to MSS or EU as appropriate. Co-respondent mechanism
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What happens in cases re Union acts?
Individuals can challenge EU institutions before the CJ, EU = domestic remedy for purposes of ECHR, any further action before ECtHR will have courts view of EU law
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What about in cases in national courts?
National court under no obligation to, but may use prelim.
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What happens in cases of prior involvement of the CJ?
Agreement reflects intervention of presidents of the ECtHR and CJEU to avoid ECtHR ruling on compatibility with the ECHR without prior involvement of the CJ
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Will this agreement then be put in place?
The CJ said no, it isn't compatible with EU law.
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Do all bodies share this view?
No, the commission doesn't but they do mention difficulties with it
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Why did the CJ reject the idea?
characteristics of EU law, co-respondent mechanism, prior involvement, CFSP
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What happens now?
The requirement to accede remains in the treaties, so we'll have to do it somehow, but it will be difficult
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How were fundamental rights initially developed? example?

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Through general principles of law. Stauder v City of Ulm

Card 3

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Card 4

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What did the court say in regard to innational treaties? Example?

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Card 5

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