Fundamental rights

Question 1

Reason for recognition by EU of existence / protection of fundamental rights

Answer 1

Doctrines of supremacy (Costa), direct effect (Van gend en loos) meant that individuals would not be protected by their national institutions

Question 2

What does Tridimas say?

Answer 2

That in reality the proportionality test is two stage only - neccessity and suitability

Question 3

What was the follow-up to Grogan?

Answer 3

X - abortion, rape. Ireland DID NOT refer

Question 4

Changing approach of ECJ toward ECHR and MSs application of it

Answer 4

Cineteque - No jurisdiction over MSs courts compliance …… Ellinki - if national rules fall within scope of EU law, then FRs come into play

Question 5

Why do we need general principles of EU law

Answer 5

To plug gaps, innovation, place limit on competence of EU

Question 6

Pros for Charter of Fundamental Rights

Answer 6

Elevates rights to supra national level, all rights given equal status, important because of weak parliamentary controls, reflects modernity (see communication instead of correspondence), protects non-citizens

Question 7

What problems does G Davies have with principle of subsidiarity?

Answer 7

Infantilises national govts, ECJ badly placed to rule on jurisdictional issues - inherently biased, treaty provides for WIDEST variety of competences

Question 8

Case (pre Costa v ENEL) where ECJ would not touch fundametal rights

Answer 8

Stork v High Authority

Question 9

Who criticised the rights language of the ECJ - “mythic construct”

Answer 9

Williams: rights reduced to a series of empty lables

Question 10

Two cases which show the application of the propotrionality test

Answer 10

Fedesa - Lax test applied because EU measure - “manifestly inappropriate”. Cassis de Dijon - strict test because MS

Question 11

Kadi

Answer 11

Freezing order, ECHR has special significance, court can annul measures which implement wishes of UN Security Council where conflict with FRs

Question 12

Justification for the different proportionality tests?

Answer 12

Needs to be stricter for MSs, because otherwise might affect the effectiveness of EU law

Question 13

Some general principles of EU law

Answer 13

ECHR, equality, dignity, subsidiarity, proportionality, conferral

Question 14

Definition of constituitionalism

Answer 14

Need for common norms, assumes existence of international community, agreed hierarchy?

Question 15

What happened in Grogan

Answer 15

Ireland, abortion, freedom of speech, ECJ said not their jurisdiction - danger of inequality before the law - need an EU law to hang your right on

Question 16

What’s the danger of the interpretive function of fundametal rights

Answer 16

reverse onus - rights interpreted to be compatible w measures, rather than vice versa

Question 17

The case where it was recognised that “respect for fundamental rights forms an integral part of the general principles” of EU law

Answer 17

International Handelsgesellschaft

Question 18

Cons of pluralist approach

Answer 18

Chauvinist/parochial, not ECJs place - shoudl leave it to ECtHR, created conflict for states who are signatories to both UN and EU

Question 19

Definition of pluralism

Answer 19

Multiplicity olf normative systems - they won’t ever be in harmony

Question 20

Cases which illustrate the MSs wariness of supremacy / lack of protection for rights

Answer 20

Solange 1 and 11

Question 21

A case that says that the ECHR has “special significance”

Answer 21

Omega

Question 22

Tolerable interference with fundametal rights OK to achieve important aims

Answer 22

Hauer - planting of vines / right to property

Question 23

The doctrine of subsidiarity

Answer 23

Where the issue is most effectively resolved BALANCED against cultural identity of MS

Question 24

What does De Burca call the approach post-Kadi

Answer 24

“Robustly pluralist”

Question 25

Criticisms of the Charter of Fundamental Rights

Answer 25

Stealth land-grab by EU, chilling effect on constitutional dialogue, patchy/arbitrary - key rights missing, possible clash with ECHR,

Question 26

What are the three elements of proportionality?

Answer 26

1. Necessary to realise the objectives, 2. where there’s mor ethan one option, choose the one that imposes the fewest constraints, 3. means proportionate to ends

Question 27

Pros of pluralist approach

Answer 27

strengthened autonomy of EU (state building), reaction to facts - UN getting too big for its boots?, UN Security council - growing autonomy but no accountability - good way to keep in check

Question 28

Who has problems with the principle of subsidiarity and why?

Answer 28

Davies - infantilises MSs, gived v wide competence to the EU (see aims), ECJ NOT best placed to decide on jurisdictional issues - inherently biased.

Question 29

Who wrote about the approach post-Kadi

Answer 29

De Burca - Robustly pluralist

Question 30

Who wrote about the proportionailty test?

Answer 30

Tridimas - conflates three part test to 2 elements

Question 31

Who has problems with fundamental rights

Answer 31

Williams - mythic language reduces FRs to a series of empty lables