Fundamental Rights Challenges

Why do scholars return again and again to the horizontal effect of fundamental rights? The arguments have not essentially changed for over half a century, and the positions remain opposed. Meanwhile, the courts apply a rather constant case law on the issue. Academic literature questions the doctrinal consistency of such case law—case laws, strictly speaking—and the correctness of some judicial decisions. However, an intriguing aspect of this recurring debate is that although it is common to underscore its practical significance, it takes place on an eminently theoretical plane, focusing mainly on the premises of judicial decisions and only secondarily on the results. This does not mean that the resolution of the cases is disregarded or overlooked. Scholars admit that the same (correct) outcome can be reached by different paths, but some of them are not deemed acceptable from a doctrinal point of view—and doctrinal inconsistencies could lead to contradictions in the case law. In this matter, the essential point is not to settle specific disputes, but to correctly frame the broader issue.

Article 51.1 of the Charter of Fundamental Rights of the European Union (CFREU) expressly lists the parties addressed and bound by it: “the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law (…).” This provision only refers to the CFREU’s binding effect on public authorities—either of the EU or of Member States, i.e., its vertical effect. It remains silent on its “horizontal” or inter privatos effect, that is, amongst individuals or private parties (also known as Drittwirkung). These pages examine the position of the Court of Justice on the existence of such a horizontal effect. This points, inter alia, to one of the main problems currently faced by the Court in this area: whether the connection of a fundamental right of the Charter with a directive strengthens its horizontal effect, taking into account that directives cannot, by definition, be invoked in disputes between private parties.

Article 51(1) CFREU clearly identifies two conditions for extending the application of the Charter beyond the EU’s own institutional framework. First, a Member State must be involved; and second, it must be implementing EU law. This chapter examines the first requirement. It begins by considering the meaning of ‘Member State’ in light of the Explanations relating to the Charter and in the case law of the CJEU. Then it highlights the loss of relevance of the concept of ‘State’, following the partial recognition by the CJEU of the horizontal direct effect of the Charter. Being part of the State is no longer necessary for an entity to be subject to the Charter and to set aside any conflicting national provision. Finally, the chapter explains how the notion of ‘State’ in the context of the direct effect of directives may play some role on this matter. It will be so when the EU act giving concrete expression to a principle enshrined in the Charter is a directive.

Annual paid holidays have been recognized in European Union legislation since the initial Treaty of Rome and are now recognized in the Charter of Fundamental Rights of the EU. Until recently, however, its configuration as a subjective fundamental right, which could be invoked in private-private relations, was not clear. Its peculiar configuration and jurisprudential background on the difference between the rights and principles contained in the Charter, led the Court to consider it a “principle of special importance” in social law, but not daring to consider it as a directly applicable subjective Law. With the promulgation of the Charter, the question arose whether it was an “essential EU principle” or a mere “information principle”. Recent decisions in this area demonstrate the social commitment of the ECJ to consider, at least when referring to paid annual holidays, that the “principle” is clearly a directly applicable “fundamental right”. And such a declaration entails very important changes in the area of responsibility for the breach of the EU legislation, when, for the first time in this area, the inverse responsibility arose.

The effect of fundamental rights in private relationships is a controversial question not only within Member States, but also with regard to rights enshrined in the Charter of Fundamental Rights of the European Union. Recent ECJ Judgments have been read as adopting a stance in favour of recognizing horizontal direct effect to certain rights. This paper addresses the issue based on the understanding of fundamental rights as principles that impose upon public authorities an optimization command. This comprehension of fundamental rights is crucial to explain the need of a legislative intervention in order to ensure their enforceability in private relationships and, therefore, to conclude that the rights enshrined in the Charter do not have horizontal direct effect. Only exceptionally certain fundamental rights do not require this intervention because they are defined as such in the private sphere, and thus within the scope of private relationships. The same applies for human dignity, which is directly enforceable in private relationships since it is inextricable tied to the essence of human beings. As we will show, this view is consistent with the EU legislative action and ECJ case law.

After the necessary incursion into the history of populism, the article examines the way in which populist logics and/or governments feed on social disenchantment, which is actually, fundamentally, a democratic disenchantment.

Judicial independence is a cornerstone of the rule of law. This notion is gaining relevance as a result of the judiciary reforms implemented in many non-liberal democracies. Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have often addressed judicial independence. However, only recently have they tied judicial independence with the rule of law. The CJEU has moved from a specific vision tied to the EU notion of national court or tribunal to a constitutional dimension whereby, through a creative interpretation of the second subparagraph of Article 19(1) TEU, considers that the principle of judicial independence is inherent to this provision. As for the ECtHR, some individual complaints arising from measures adopted by states signatories of the ECHR where there are systemic deficiencies in the rule of law related to judicial independence have resulted in interesting decisions. Nevertheless, the ECtHR’s individual right-oriented approach, and the fact that judicial review is implemented by means of individual complaints, narrow the ECtHR’s scope of action to tackle potential systemic risks entailed by the violations of judicial independence. In any case, the protection of judicial independence as an inherent element of the rule of law should not be dealt with in comparative terms, but rather in terms of cooperation. To this date, the contributions of both courts have proven the importance of the judicial dimension to counter the threats to the independence of the judiciary.

This paper analyses the difficulties encountered by the Court of Justice in exercising judicial control over austerity measures. Two factors complicate the task of the Court of Justice. First, the difficulty of the courts to rule on the validity of the economic policies of the political institutions. Second, the fact that the financial assistance mechanisms for the Eurozone countries were created outside the framework of EU law and the Member States rescues were organised by means of the adoption of hybrid legal acts of varied legal nature. The case law of the Court of Justices (Mallis, Ledra, etc.) is scrutinised taking into account these two factors.

The purpose of this chapter is to compare the scope of application of the principles of effectiveness and effective judicial protection in Union law. The chapter starts with a brief account of the origins, rationale and implications of both principles. It then spells out the commonalities and differences between their respective scopes of application, so as to demarcate the area of overlap where they both project themselves. Finally, the chapter reflects upon the interplay between both principles in that area, showing that it is mostly a function of the stakeholders whose interests are at stake. In order to do so, the analysis draws on the conceptual toolkit of economic regulation and on the notion of regulated actors and regulatory beneficiaries.

The margin of appreciation in the case law of the Court of Justice of the European Union (the ‘Court of Justice’) may be examined from two different, albeit complementary, perspectives. On the one hand, it relates to the limitations that the EU institutions or, where appropriate, the Member States may impose on the exercise of a fundamental right enshrined in the Charter of Fundamental Rights of the European Union (the ‘Charter’). Notably, the extent of that margin largely depends on the way in which the principle of proportionality is applied to the EU or national measure in question. The less intrusive a proportionality review is, the wider the margin of appreciation enjoyed by the EU or the Member States will be. On the other hand, the margin of appreciation may also be explored in the light of the vertical allocation of powers provided by the authors of the Treaties. It begs the question whether a Member State may apply its own level of fundamental rights protection or whether EU harmonisation prevents such a Member State from doing so. The purpose of this contribution is thus to look at those two perspectives.

The so-called national margin of appreciation doctrine stems both from the limited scope of an international protection system and from subsidiarity. The European Court of Human Rights (ECtHR) uses this instrument for self-restraint, as well as to force itself to be deferent towards national decisions regarding certain rights given political, religious or moral circumstances that might be sensitive for public opinion or social identity. Many studies on the European Convention on Human Rights (ECHR) system have focused on this doctrine. However, there is still no well-settled scholarly and case law approach.

This work draws attention to the important role that the margin of appreciation might play in the future in the Strabourg system. Three reasons: ones, the entry into force of Protocol No 15—August 2021—which can mean that the ECtHR take a step back to respect the States margin of appreciation; two, the reasonable decision-making criteria; and three, the ratification of Protocol No. 16 by the States party to the ECtHR. The national margin of appreciation has an expansive effect and it could even jeopardize the right to individual application to the ECtHR. A balance must be struck.

In some recent judgments, the Spanish Constitutional Court doctrine has undergone a significant evolution that has remained partially unnoticed. This article explores and critically assesses this evolution. The Court has abandoned the traditional three-tier proportionality test (adequacy, necessity and strict proportionality) as standard of review of legislative (i.e., Parliamentary) limitations on the right to private property and on the freedom to conduct a business. Proportionality is now replaced by a less strict scrutiny which shows a more deferential approach vis-a-vis Parliamentary rule-making.