Gunnar Thor Petursson

Weak Right, Strong Court - The Freedom to Conduct Business and the EU Charter of Fundamental Rights

With the entry into force of the Lisbon Treaty, the EU Charter of Fundamental Rights has finally become a legally binding document of primary law, a core element of the Union’s legal order and the starting point for the ECJ judge for assessing the compatibility of EU or Member States measures with EU fundamental rights. Notably, this Charter enshrines an explicit provision (Article 16) on freedom to conduct business. The core question in this Chapter is whether this explicit constitutional provision will bring a change of approach in defining and relying on the freedom to conduct business in the EU. The Chapter is divided into two main sections. The first section (1. A Weak Right with a Strong Potential?) analyses the roots and text of Article 16 of the Charter. It is pointed out that, at first blush, the freedom to conduct business appears to be a ‘weak right’. However, this ‘weak right’ may be given a strong meaning. In the second section (2. A Strong Court with a Weak Reasoning?), looking at the recent case law of the ECJ, it seems that Article 16 of the Charter may strongly impact at the EU level by offering not only a ground of challenging the policies of the Union but also by clashing with the social policies of the Member States in horizontal situations. The principle of proportionality is here often relied on by the ECJ in its reasoning. Is it done in an appropriate way? The concluding section of the Chapter examines who is afraid of Article 16; theorising that the strong interpretation of the Article may be troublesome for the institutions of the Union, especially the EU Commission, and also for the application of social rights. We find that contrary to previous thought the Article 16 is potentially both a powerful tool for challenging Union acts, decisions and legislative interpretation in the future, and also impacting Member States’ measures, even if originating in (purely) private conduct.

The Paradox of Human Rights Protection in Europe: Two Courts, One Goal?

1. Introduction, Oddny Mjoll Arnardottir and Antoine Buyse Part I: In Search of a Centre of Gravity 2. The Paradox of Human Rights Protection in Europe: Two Courts, One Goal? Xavier Groussot, Nina-Louisa Arold Lorenz and Gunnar Thor Petursson 3. The Role of the European Court of Human Rights in the Changing European Human Rights Architecture, David Por Bjorgvinsson 4. The European Court of Human Rights and National Courts: A Constitutional Relationship?, Geir Ulfstein 5. National Courts and Judicial Disobedience to the ECHR: A Comparative Overview, Giuseppe Martinico 6. The Advisory Jurisdiction of the ECtHR under Protocol No.16: Enhancing Domestic Implementation of Human Rights or a Symbolic Step? Bjorg Thorarensen Part II: European Rights and National Implementation: Rethinking the status quo 7. Flying or Landing? The Pilot Judgment Procedure in the Changing European Human Rights Architecture Antoine Buyse 8. The Court of Justice and Fundamental Rights: If Margin of Appreciation is the Solution, What is the Problem? Niamh Nic Shuibhne 9. From Flexible to Variable Standards of Judicial Review: The Responsible Domestic Courts Doctrine at the European Court of Human Rights Basak Cali 10. Speaking the Same Language? Comparing Judicial Restraint at the ECtHR and the ECJ Oddny Mjoll Arnardottir and Dora Gudmundsdottir 11. Squaring the Circe at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has it Just Begun?, Andreas Follesdal

Regulatory Trust in EU Free Movement Law – Adopting the Level of Protection of the Other?

The principles of mutual trust and mutual recognition are well established features of EU law. On a technical level, it is clear that the principles may require adoption of foreign levels of protection in individual cases as well as in legislation. At a closer look, however, the principles through “the rule of reason” also may imply quite the opposite: the imposing of domestic requirements on foreign goods, services etc. The CJEU case law following the Cassis judgement may be seen as striking a balance between cooperation and Member State self-determination, or between trust and distrust, in different fields. This contribution aims at looking into the regulatory function of the legal principle of trust in EU law. Taking this wider regulatory perspective, the mutual recognition regimes of EU must be seen from a holistic perspective. Rather than dwelling upon harmonized and non-harmonized fields separately, we will approach mutual trust as one, albeit multi-faceted, concept, where harmonization, proportionality assessments and Member State actions in various fields of law form part of the same wider picture. In this regulatory perspective, the law on mutual trust and mutual recognition may be seen as a balancing between the regulatory interests of the EU (promoting free movement and cooperation) and the various Member States (promoting their interests of – alleged – protection of safety of various kinds). Through this perspective, we will be able to address the tension between regulation and deregulation, between integration and disintegration, and between unity and diversity present in EU law on a very general level. The first section of this contribution will look at the constitutional life of mutual trust within the CJEU case law: looking at its origins and main logic. The second section will attempt to clarify why the principle of mutual trust is mostly invisible in the free movement jurisprudence. This section also argues for understanding mutual recognition in terms of Regulatory Trust. The last section focuses on the thorny issue of the levels of protection and attempts to understand which are the key factors used by the CJEU in reviewing the (host) States measures that restrict free movement law and thus may constitute a break to the application of the principles of mutual trust and mutual recognition.

Background of the Paradox (Looking Inside the Paradox Box) – History, Procedure, Symbols and the Family

This chapter provides the historical, procedural backgrounds of the Courts, their particularities and their inner logics in order to analyse the paradox of human rights protection in Europe. It focuses on the aspects of procedure relevant for the later analysis. The chapter looks at the structure and procedure of the CJEU to unveil the administrative frame forming the daily interaction of the members of the Court. It aims at understanding CJEU judges and the European Human Rights Culture, and focuses on looking inside the CJEUs black box. Throughout this book comparisons are made to the ECtHR, because of the close ties of both institutions and the shared features as European regional courts. The ECtHR judges deal with a range of possible human rights violations. The ECtHR is built on a common law system, where separate opinions flow and deliberations are internally open to clerks and translators.Keywords: CJEU; Courts; ECtHR; European Human Rights Culture; human rights protection

The Margin of Appreciation in Strasbourg and Luxembourg

This chapter is divided into three sections: The first section makes some general points on the doctrine of margin of appreciation. The second section focuses on the doctrine of margin of appreciation in the Strasbourg legal order. The third section analyses the development of this doctrine in the EU legal order. The doctrine of margin of appreciation has been applied extensively by the Strasbourg Court, in particularly in cases related to limitations of fundamental rights by the contracting parties to the Convention. The first use of the margin of appreciation doctrine by the Strasbourg organs was seen in the Cyprus case. The states may invoke the legitimate aims and purposes laid down in Articles 8 to 11 of the Convention and Article 2 of Protocol 4 to the Convention. The visible use of the margin of appreciation doctrine increases the legitimacy of any court.Keywords: appreciation; doctrine; legitimate aim; Strasbourg

Europe’s Rich Diversity – 27 Different Countries on the Bench: How Differences Matter in the Decision Making

This chapter helps to understand the inner workings of the CJEU and how the differences are moulded together in order to come to one common legal finding. It is divided in to two parts. In the first part, it looks at the individual backgrounds of the members of court and how they affect the decision making. In its second part, it looks at the general influence of different legal families. Prior vocation affected the work of the Court more than legal family. The statement of being nationality blind is true for the composition of benches and seems to hold true as regards the influence of national legal background to the discussions. CJEU judges are highly sensitive towards outside reception and acceptance of their legal understanding. It was one of sincerely interested judges that are engaged and curious and rather passionate about their work.Keywords: CJEU judges; decision making; legal families; legal traditions

The European Human Rights Culture - A Paradox of Human Rights Protection in Europe?

The European Human Rights Culture – A Paradox of Human Rights Protection in Europe? analyses the political term “European Human Rights Culture”, a term first introduced by EU Commission President Barroso. Located in the fields of comparative law and European law, this book analyses, through first-hand interviews with the European judiciary, the judicial perspective on the European human rights culture and sets this in context to the political dimension of the term. In addition, it looks at the structures and procedures of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), and explains the embedding of the Courts’ legal cultures. It offers an in-depth analysis of the margin of appreciation doctrine at both the CJEU and ECtHR, and shows its value for addressing human rights grievances.

The Relationship between the Two European Courts and the Accession to the European Convention on Human Rights

After decades of discussion, the Lisbon Treaty has placed on the Union an obligation to accede to the European Convention on Human Rights (ECHR) and has given an explicit competence to the European Union (EU) institutions to accede to this system. After accession, the relationship between the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) will be formal based on system of direct complaints and indirect complaints. The first section of this chapter traces the origins and the long path followed by the EU to accede to the ECHR. The second section focuses on the relationship between the two Courts, i.e. the ECtHR and the CJEU, in light of the Strasbourg case law and Luxembourg case law. The Draft Accession Agreement provides that the procedure before the CJEU is to be conducted in accordance with internal rules of the EU.Keywords: CJEU; Draft Accession Agreement; ECHR; ECtHR; European Convention; European Union (EU); human rights; Luxembourg case law; Strasbourg case law