Fundamental rights in Europe werkgroep aantekeningen
Week 1
CJEU Van Gend en Loos May the Dutch judge declare the decision
- Direct effect of Eu-law inapplicable due to a conflict with Article
30 of the Eu treaty?
EU-law has direct effect into national
law. Which means article 30 of the EU
Treaty has direct effect and enforcement
of this article can be requested from the
national judge.
This also means that individuals can
appeal to EU-law before the national
court.
The treaty has direct national effect and
it’s unconditional.
Van Duyn: only provisions that impose a
specific obligation (verplichting) on
member states, without requiring further
measures and are unconditional, have
direct effect.
CJEU Internationale Can a national constitution come before
Handelsgesellschaft EU-law?
- Primacy of EU-law over int.
laws of MS AND international EU-law cannot be tested against national
treaties (verdragen). law, nor against national constitutions.
EU-law has absolute primacy over
national law, even if the national law is
part of the constitution or a fundamental
principle of the MS.
- EU-law = superior (Costa ENEL)
CJEU Melloni Can national constitutional law be
prioritized over EU-law when executing?
Article 53 Charter should not be
construed to give precedence to national
constitutional rules over EU-law.
Rechten die op nationaal niveau als
fundamenteel worden aangemerkt,
moeten worden geschonden als dit in het
belang is van de effectieve doorwerking
van EU-recht, tenzij dit ook strijd oplevert
met de grondrechten uit de Charter.
, The CJEU ruled that the principle
of mutual recognition of European
Arrest Warrants prevails over national
concerns about the protection of
fundamental rights, unless there is a
clear and serious risk that the
individual's rights will not be respected in
the issuing state. This reinforces the EU's
commitment to legal cooperation
between member states, while still
requiring that fundamental rights are not
completely disregarded.
EU ECHR
Highest court = the court of justice/ European Court of Human Rights (ECtHR)
het Hof van justitie (CJEU) - Council of Europe is responsible.
- EU-law • ECHR (blz 343 Reader).
• Charter • The members of the ECHR
• TEU are bound to article 1 of the
• TFEU European Convention on
• Art. 267 TEU for Human Rights.
individual discissions.
The EU is a supranational
organization: they have the power
to make laws that are binding on its
MS and their citizens.
The EU is also an
intergovernmental
organization: they operate based
on treaties and agreements that are
negotiated and agreed upon by the
MS.
It has direct effect into national law: Monism/dualism: legal effects depend on
CJEU Van Gend en Loos page national constitutional law.
12.
Monist = you don’t have to translate
international law into your national law
to invoke it before national court.
- Netherlands.
Dualist = you have to translate
international law into national law, it
does not go automatically.
Can you appeal to that = does is have direct effect
Directives differ from regulations, because directive don’t have general
application.
, Directives must be:
1. Clear and precise,
2. Unconditional, and
3. The deadline for taking it into the domestic law must be passed.
A directive has direct effect if:
1. Unconditional,
2. Sufficiently clear,
3. Failure of the State to implement the directive, and
4. Only operate against the State.
Binding force = the obligation of implementing EU law.
Direct effect = the possibility for individuals to directly invoke EU law before the
national court.
Human rights are relative rights, which means they can be limited.
Direct effect: you can directly invoke EU-law, it is directly applicable in national
law, Van Gen den Loos.
- Invoking before court.
Direct applicability means the internal effect of an EU norm within national
legal orders.
Direct effect requires direct applicability BUT direct applicability doesn’t require
direct effect, it only makes direct effect possible.
Week 1
CJEU Van Gend en Loos May the Dutch judge declare the decision
- Direct effect of Eu-law inapplicable due to a conflict with Article
30 of the Eu treaty?
EU-law has direct effect into national
law. Which means article 30 of the EU
Treaty has direct effect and enforcement
of this article can be requested from the
national judge.
This also means that individuals can
appeal to EU-law before the national
court.
The treaty has direct national effect and
it’s unconditional.
Van Duyn: only provisions that impose a
specific obligation (verplichting) on
member states, without requiring further
measures and are unconditional, have
direct effect.
CJEU Internationale Can a national constitution come before
Handelsgesellschaft EU-law?
- Primacy of EU-law over int.
laws of MS AND international EU-law cannot be tested against national
treaties (verdragen). law, nor against national constitutions.
EU-law has absolute primacy over
national law, even if the national law is
part of the constitution or a fundamental
principle of the MS.
- EU-law = superior (Costa ENEL)
CJEU Melloni Can national constitutional law be
prioritized over EU-law when executing?
Article 53 Charter should not be
construed to give precedence to national
constitutional rules over EU-law.
Rechten die op nationaal niveau als
fundamenteel worden aangemerkt,
moeten worden geschonden als dit in het
belang is van de effectieve doorwerking
van EU-recht, tenzij dit ook strijd oplevert
met de grondrechten uit de Charter.
, The CJEU ruled that the principle
of mutual recognition of European
Arrest Warrants prevails over national
concerns about the protection of
fundamental rights, unless there is a
clear and serious risk that the
individual's rights will not be respected in
the issuing state. This reinforces the EU's
commitment to legal cooperation
between member states, while still
requiring that fundamental rights are not
completely disregarded.
EU ECHR
Highest court = the court of justice/ European Court of Human Rights (ECtHR)
het Hof van justitie (CJEU) - Council of Europe is responsible.
- EU-law • ECHR (blz 343 Reader).
• Charter • The members of the ECHR
• TEU are bound to article 1 of the
• TFEU European Convention on
• Art. 267 TEU for Human Rights.
individual discissions.
The EU is a supranational
organization: they have the power
to make laws that are binding on its
MS and their citizens.
The EU is also an
intergovernmental
organization: they operate based
on treaties and agreements that are
negotiated and agreed upon by the
MS.
It has direct effect into national law: Monism/dualism: legal effects depend on
CJEU Van Gend en Loos page national constitutional law.
12.
Monist = you don’t have to translate
international law into your national law
to invoke it before national court.
- Netherlands.
Dualist = you have to translate
international law into national law, it
does not go automatically.
Can you appeal to that = does is have direct effect
Directives differ from regulations, because directive don’t have general
application.
, Directives must be:
1. Clear and precise,
2. Unconditional, and
3. The deadline for taking it into the domestic law must be passed.
A directive has direct effect if:
1. Unconditional,
2. Sufficiently clear,
3. Failure of the State to implement the directive, and
4. Only operate against the State.
Binding force = the obligation of implementing EU law.
Direct effect = the possibility for individuals to directly invoke EU law before the
national court.
Human rights are relative rights, which means they can be limited.
Direct effect: you can directly invoke EU-law, it is directly applicable in national
law, Van Gen den Loos.
- Invoking before court.
Direct applicability means the internal effect of an EU norm within national
legal orders.
Direct effect requires direct applicability BUT direct applicability doesn’t require
direct effect, it only makes direct effect possible.
