Horizontal effect of fundamental rights in EU Law / Sonya Walkila.
2016
KJE5132 .W348 2016 (Map It)
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Details
Author
Title
Horizontal effect of fundamental rights in EU Law / Sonya Walkila.
Published
Groningen : Europa Law Publishing, 2016.
Call Number
KJE5132 .W348 2016
ISBN
908952181X (paperback)
9789089521811 (paperback)
9789089521828 (e-book)
9789089521811 (paperback)
9789089521828 (e-book)
Description
xii, 288 pages : illustrations ; 24 cm
System Control No.
(OCoLC)926822350
Summary
"The grounds for debate on fundamental rights in the European Union are currently more fruitful than ever. Following the entry into force of the Lisbon Treaty, not only did the Union avail itself with its own ‘Bill of Rights’, i.e., the Charter of Fundamental Rights of the European Union, but is also preparing for its accession to the European Convention on Human Rights. By the same token, the Charter was elevated to the same level as other primary EU law. The frequent horizontal effect of fundamental rights in recent case law of the Court of Justice of the European Union is an indication of a stronger presence and the increased significance of fundamental rights in the Union’s legal order at the time when the boundaries between the public and private spheres are increasingly blurred. The Court of Justice strives to interpret and apply the law in a way which contributes to a build-up of a coherent case law and conforms to fundamental rights as closely as possible. The immediate source of the jeopardising act or degree of the incurred effects should not prove decisive. Rather, the horizontal effect of fundamental rights contributes to the ‘primacy, unity and effectiveness of European Union law’. This study suggests it is feasible to consider the horizontal effect of fundamental rights in the context of EU law. However, because of the semantic and structural openness of fundamental right norms they often necessitate the deduction of a more concrete normative content. This concretization of abstract norms makes adjudicating on the basis of fundamental rights a delicate matter, since it gives great power to the courts. Where this power is extended to the area which typically falls in the sphere of private law, it grows even stronger. Hence, besides powerfully serving to enhance the inner coherence and consistency of Union law and offering feasible solutions to legal problems, the horizontal application of fundamental rights implies a move towards a strengthened constitutional phase of the integration process. Arguments on fundamental rights entail much more than just formal or dogmatic disputes over the scope of application of an act of EU law. They touch on fundamental questions relating to the functioning of the Union and its constitutional nature which pertains to the entire legal order of the EU." -- Back cover.
Bibliography, etc. Note
Includes bibliographical references (pages 212-255).
Record Appears in
Table of Contents
Acknowledgements
v
Contents
vii
Abbreviations
xii
Introduction
3
pt. I
From Treaty Regime to Constitutional Order
ch. 1
Role of the Court of Justice in the Constitutional Law-Making
1.1.
Court's Methods and Tools
10
1.1.1.
`The Spirit, the General Scheme and the Wording'
11
1.1.2.
General Principles of EU Law
15
1.2.
Doctrinal and Constitutional Foundations
19
1.2.1.
Concept of Direct Effect
20
1.2.2.
Unpacking Direct Effect
23
1.3.
Interim Conclusions
26
ch. 2
Horizontal Application of EU Law
2.1.
Construing Horizontal Effect
30
2.2.
Horizontal Effect in the Court's Case Law
33
2.2.1.
Early Signs of Horizontality
33
2.2.2.
Evolving Jurisprudence on the Horizontal Effect
37
2.3.
Interim Conclusions
41
ch. 3
Concept of Horizontal Effect in the Union's Constitutional Order
pt. II
Protection of Fundamental Rights as Part of' the Very Foundations of the Union Legal Order'
ch. 4
Fundamental Rights: Universality and Historical Perspective
ch. 5
Fundamental Rights in the Union's Legal Order
5.1.
Contextual Perspective
60
5.2.
Gradual Incorporation of Fundamental Rights into EU Law
62
5.3.
Fundamental Economic Freedoms as Fundamental Rights?
69
ch. 6
Current Fundamental Rights Protection in the EU
6.1.
Significance of the European Convention on Human Rights for the Fundamental Rights Protection in the EU
78
6.2.
Charter of Fundamental Rights of the European Union: The Union's Own Bill of Rights
83
6.2.1.
Contents and Structure of the Charter
89
6.2.2.
Nature of the Charter Provisions: `Rights, Freedoms and Principles'
91
6.2.3.
Member State Specific Concerns over the Scope of the Charter
93
6.2.4.
Post-Lisbon Status and Use of the Charter
96
6.3.
Interim Conclusions
100
ch. 7
Scope of Application of Fundamental Rights in the Union's Legal Order
7.1.
General Scope of Application of EU Fundamental Rights
106
7.2.
Scope of Application of the Charter of Fundamental Rights
112
7.3.
National Constitutional Identity and Divergent Rights Standards: Where Do the Limits Go?
121
7.4.
Interim Conclusions
126
pt. III
Horizontal Effect of Fundamental Rights: A Comparative Constitutional Inquiry and the Union Way
ch. 8
Horizontal Effect of Fundamental Rights Penetrating the Public-Private Dichotomy in Law
8.1.
Public-Private Dichotomy in Law
134
8.2.
Public-Private Distinction Within the Context of EU Law
136
ch. 9
Comparative Constitutional Inquiry into the Concept of Horizontal Effect of Fundamental Rights
9.1.
German Drittwirkung: Radiating Effect of the Basic Rights
146
9.2.
Application of Fundamental Rights on the British Isles: Towards Horizontality
150
9.3.
Further European Constitutional Traditions
152
9.4.
Meet the Dividing Line: The State Action Doctrine of the US Constitutional Jurisprudence
154
9.5.
On Canadian Soil: Fundamental Rights as Interpretative Parameters
156
9.6.
Law under Constitutional Scrutiny: South African Approach
157
9.7.
Effective Protection, Cautious Terminology: Jurisprudence of Regional Human Rights Courts
159
9.8.
Conclusions on the Comparative Constitutional Inquiry: `There Lies a Common Interest'
164
ch. 10
Union Way -- The Horizontal Effect of Fundamental Rights in EU Law
10.1.
Rationale of the Horizontal Effect of Fundamental Rights
174
10.2.
Approach of the Court of Justice to Horizontal Effect of Fundamental Rights
176
10.2.1.
Guiding Features in the Court's Reasoning
176
10.2.2.
Horizontal Effect of Fundamental Rights in the Court's Case Law
177
10.3.
Adjudicating `Rights' and `Principles': An Analysis of the Content and Context
181
10.3.1.
Content-Based Analysis
183
10.3.2.
Context-Based Analysis
186
10.4.
In Sum: Horizontal Effect of Fundamental Rights in EU Law
188
10.5.
Interim Conclusions
192
pt. IV
Conclusions: Horizontal Effect of Fundamental Rights Contributing to `the Primacy, Unity and Effectiveness of European Union Law' and Beyond
ch. 11
Conclusions
11.1.
Horizontal Effect of Fundamental Rights: An Implication of a Stronger Fundamental Rights Protection in the Entwined Public-Private Sphere
198
11.2.
Implications of the Horizontal Application of Fundamental Rights: Towards a Strengthened Judicial Protection and Constitutional Structure of the EU?
201
Epilogue
208
Bibliography
212
Table of Cases
258
Table of Legislation
282