Elise Muir

Editorial: Enforcing fundamental values: EU law and governance in Hungary and Romania

One of the most signifi cant stories of the EU’s development in the last 10 years has been the rise of fundamental rights as a signifi cant plank of EU policy. Th is development reached its zenith in 2009 with the entry into force of the Lisbon Treaty, placing a binding Charter of Fundamental Rights, and the future accession of the Union to the ECHR, at the centre of the EU legal order. A number of unanswered questions relate to this development. One is the horizontal or ‘private’ application of EU fundamental rights.1 Another is the application of EU fundamental rights against the EU Member States, particularly against Member States who may violate ‘fundamental values’ through changes to the very constitutional foundations of the national legal order. Th is latter question has been given renewed salience via developments over the past year in two Member States in particular, Hungary and Romania.2 In the case of Hungary, both the EU institutions and external observers such as the Venice Commission have frequently voiced concern that reforms undertaken by the government of Victor Orban since its elevation to power in 2010 may fall foul of rule of law standards.3 Much of this attention has focused on the attempt of the Orban government to amend the country’s constitution. Th e Hungarian government took advantage of signifi cant parliamentary majorities to push through a number of constitutional reforms and ‘cardinal laws’ – which came into force in January 2012 – on the right to freedom of conscience and

Enhancing the protection of third-country nationals against discrimination: putting EU anti-discrimination law to the test

Non-discrimination and migration constitute two areas of EU law and policy that have greatly evolved since the entry into force of the Amsterdam Treaty. Both are of particular relevance to third-country nationals whose status, mobility and integration may depend highly on EU migration law and the EUs prohibition of discrimination. In between these two fields of EU law, there exists however a grey zone that remains insufficiently explored: it is a challenge for the coherence of EU anti-discrimination law. Should and can EU law enhance the protection of the third-country nationals whose status it regulates against nationality discrimination and against other forms of discrimination that may result from EU migration law?

The Procedural and Institutional Dimension of EU Anti-discrimination Law

This chapter does not deal with substantive norms of EU equality law, but with the way in which EU law has built a procedural and institutional framework that Member States should put in place in order to facilitate the effective application of the substantive anti-discrimination rules. This dimension was almost absent from the first phase of EU anti-discrimination law, which focused on the grounds of sex and nationality, and its main features were established by two directives adopted in 2000 and later developed in other instruments as well. The emphasis is, on the one hand, on a series of requirements which aim at facilitating the effective access to justice of victims of discrimination and, on the other hand, on the creation of non-judicial equality bodies designed to promote a culture of equality. This framework was most recently, in 2014, extended with some modifications to non-discrimination on grounds of nationality and the free movement of workers within the European Union.

Fine-tuning non-discrimination law: exceptions and justifications allowing for differential treatment on the ground of age in EU law

This article explores the outer and inner boundaries of the prohibition of discrimination on grounds of age as established by European Union (EU) law and implemented in a selected number of member states. The case law of the Court of Justice of the European Union (CJEU) on the matter is marked by a broad interpretation of the material scope of the prohibition of age discrimination. A large range of situations thereby fall within the scope of EU law; yet the European Court has overall adopted a rather flexible approach to acknowledging the legitimacy of justifications as well as the adequacy and necessity of measures having a discriminatory effect. Some of the key substantive challenges faced by courts relate to the delicate link between age and capabilities as well as to the interaction between the prohibition of age discrimination and retirement ages. It will be argued that the complexity of the CJEU’s case law on the matter is regrettable.

The Dublin III System: More derogations to the duty to transfer individual asylum seekers?

In the C.K. et al. v. Republika Slovenija ruling (judgment of 16 February 2017, case C-578/16 PPU), the Court of Justice ruled that the transfer of the asylum seeker should be suspended if the particular medical condition of the applicant is so serious as to provide substantial grounds for believing that the transfer would result in a real risk of inhuman or degrading treatment, within the meaning of Art. 4 of the Charter of Fundamental Rights of the EU. The Court thus qualifies its prior case law, ruling that not only risks stemming from systemic flaws but also circumstances affecting the individual situation of an asylum seeker can preclude the transfer under the Dublin system, in exceptional circumstances. After outlining the Court’s reasoning, this contribution argues that this judgment changes the Court’s approach to derogations under the Dublin system in a positive yet limited way; and that its case law on mutual trust as well as its approach to the case law of the European Court of Human Rights on the matter largely seems to remain unaffected.

Il)legitimate differential treatment

Since the expiry of the transposition period of the Racial and Employment Equality Directives, national non-discrimination regimes have considerably developed. The past 10 years have been marked by the broadening of the scope of European Union (EU) nondiscrimination law, efforts to consolidate the definition of key legal concepts as well as the constitutionalization of this area of law. Accession by the EU to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2010 as well as the prospect of accession to the European Convention on Human Rights (ECHR) intensifies the relevance of international law in the fight against discrimination across Europe. Domestically, legislation, court judgments and equality bodies are building on this EU and international law framework, thereby expanding the reach of non-discrimination law. In recent years however, some member states at the Council have proven reluctant to extend the scope of EU non-discrimination legislation any further. The proposal for a directive to implement the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation beyond employment and occupation to access to goods and services is still stuck in the pipelines of the EU legislative process. One of the common concerns expressed by some member states and reflecting objections raised by employers and service providers is that non-discrimination law has gone far enough or may actually have gone too far already, by imposing constraints on public and private actors. This special issue seeks to explore the underpinnings of this concern through a detailed analysis of the use of exceptions and justifications to the prohibition of discrimination under the existing provisions of EU law and the UNCRPD. For the purposes of this volume, ‘exceptions’ are situations that are excluded from the scope of non-discrimination law and where different treatment is thus allowed, whilst ‘justifications’ are situations

Editorial: The Maastricht Journal at Twenty

This special issue of the Maastricht Journal of European and Comparative Law celebrates the 20th anniversary of its founding. When the Maastricht Journal was established in 1994 it was one of the first journals devoted to the emerging ius commune Europaeum. There is no doubt that at that time there was already a considerable number of journals devoted to either European law or comparative law, but they all lacked the focus on the common roots and principles upon which the European legal systems are based. The Maastricht Journal aimed to fill this gap. The editorial board is proud to say that in hindsight this has proved to be a highly visionary choice. in 1994 one could not foresee how topical thinking about the common law of Europe would become. The Journal has followed this development closely and has offered a forum for both endorsement and critique of the Europeanization of law. today the Maastricht Journal is no longer the only journal devoted to the study of the common law of Europe. But it is still unique in its focus on both European law and the Europeanization of substantive fields such as private law, constitutional law, criminal law, environmental law, and so on. The 20th anniversary of the Journal calls for something special. it is a happy coincidence that 2013 is also the year in which the entry into force of the Maastricht treaty on European Union is celebrated. This treaty has intensified the European integration process. Since then, the substantive scope of European Union law has expanded even further, while the institutional mechanisms supporting this process were being modernized. This double expansion and modernization process is so broad and complex that it has become almost impossible for a single and isolated observer to keep an accurate overview of the essential characteristics of the EU legal order. The 20th anniversary seemed like an excellent occasion to constitute a platform for bringing together the knowledge of experts in selected sub-disciplines of EU substantive law and asking them to explore their own field of expertise in light of a joint set of research questions. These questions focus on the general dynamics of their discipline so as to critically reflect on the Europeanization process at the core of the Journal’s scope. true to the Journal’s mission from the very beginning, the present issue is thus an exercise at the intersection of European law and the substantive fields. From the European