The European Union is struggling to cope with the challenges adequately and in a timely manner. One of the underlying causes for indecisiveness is a rising conflict at the level of fundamental values. This contribution wishes to explore this problem from a conceptual point of view.
The approach will be twofold. In the first part, we will focus on the notions of “European” and “national” values in the context of the European Union. The analysis will mainly focus on Articles 2, 4 and 6 TEU and 52 of the Charter.
The second part will focus on the role of the Charter in solving possible value clashes. The starting point will be the CJEU’s case law in the field, which will help to answer the question of how the Charter fared in value conflicts before the CJEU. We claim that the Charter can help resolve some of the issues by providing relatively clear limits to the level of human rights protection, preventing the emergent backsliding of values, (once?) common to the European project.
Judicial dialogue has sought to render EU anti-discrimination law internally and externally consistent, meaning that it has not only synchronised hard and soft law measures, but also addressed inconsistencies with various international and domestic legal sources pertaining to equal treatment. Article 21 EU Charter has been used by national courts for : a) reinforcing the salience of the anti-discrimination directives; b) maintaining the favourable status quo; and/or c) amplifying the significance of relatively new concepts and catalyse social change. Policy makers have utilised “soft law” instruments such as guidelines, which have for some time now operated on the margins of traditional time-consuming and often futile legislative processes. The Europeanisation of national public policies and the transformation of EU anti-discrimination law occurs at the junction of these two mechanisms that both depend on dialogue and exchange in a multilevel governance structure.
Introducing the EU Charter had an enormous impact on fundamental rights protection, ne bis in idem and the outcome of the well-known Åkerberg Fransson saga that eventually prohibited double proceedings and punishments with respect to value added tax.
At the same time, judicial interaction between national and European courts played a significant role throughout this saga. Given the various developments on national, EU and European levels, one of the remaining questions is whether judicial interaction can provide an answer to complex legal and practical issues relating to the overlapping of fundamental rights sources in general, and ne bis in idem in particular, pending any further EU harmonising measures. As a result of this analysis, we conclude that courts are instrumental not only in the settlement of individual disputes, but also in changing the legal system.
This contribution analyses the role played by the EU Charter in asylum-, return- and visa-related hearing procedures through the lens of judicial interactions. It analyses how several types of judicial interaction have helped domestic courts in, first, identifying which of the various EU legal sources of the right to be heard are applicable to asylum seekers, returnees and visa applicants at the domestic level. It continues by investigating how judicial interactions have contributed to the development of concrete standards for the conduct of administrative hearings. Then it proceeds with an analysis of how judicial interactions have empowered domestic courts to shape new remedies for violation of the right to be heard outside the confines of EU secondary legislation and domestic procedural law directly on the basis of the EU law general principle of the right to defence and Article 47(2) EU Charter.
Collective redress mechanisms join the efforts and the needs of all the injured parties in order to obtain compensation for the violation collectively suffered achieving the objective of access to justice that underlies the principle of effective remedy enshrined in Article 47 of the EU Charter.
Collective actions have been the objects of several European judgements showing a clear hierarchy between individual and collective action, leaving the latter a complementary role. The principle of effectiveness of remedies, however, should justify a more in-depth analysis of the relationship between individual action and collective action by reviewing the complementary model developed by the court. If this step towards an increased level of protection is to be found only in some judicial decisions, an innovative example of the complementarity between the individual and collective instruments is represented by the new Italian legislation on class action.