The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU: Towards an EU Copenhagen Mechanism. CEPS Paperbacks. November 2013

This study examines the protection of fundamental rights, democracy and rule of law in the European Union, and the challenges that arise in reflecting on ways to strengthen EU competences in these contested terrains. It provides a ‘state of play’ and critical account of EU-level policy and legal mechanisms assessing the relationship between rule of law, democracy and fundamental rights in the member states of the Union. The cross-cutting challenges affecting their uses, effective implementation and practical operability constitute a central point of the analysis. The study argues that the relationship between rule of law, democracy and fundamental rights is co-constitutive. Any future rule of law-related policy discussion in the EU should start from an understanding of the triangular relationship between these dimensions from the perspective of ‘democratic rule of law with fundamental rights’, i.e. the legally based rule of a democratic state that delivers fundamental rights. The three criteria are inherently and indivisibly interconnected, and interdependent on each of the others, and they cannot be separated without inflicting profound damage to the whole and changing its essential shape and configuration.

Frontex and the respect of fundamental rights: from better protection to full responsibility. EPC Policy Brief, 3 June 2014

The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) was created to improve border management cooperation between Member States. Seen from its inception as a security-oriented body, tools and rules have been gradually developed to enhance the human rights dimension and protection regarding Frontex activities. However, this step has not been accompanied with the explicit recognition of Frontex’s legal responsibility regarding violations of human rights occurring during joint operations it coordinates. Despite Frontex position rejecting such a responsibility, it is no longer clear whether this position can be maintained, as Yves Pascouau and Pascal Schumacher demonstrate in this Policy Brief.

Access to Electronic Data by Third-Country Law Enforcement Authorities, Challenges to EU Rule of Law and Fundamental Rights. Center for European Policy Studies, 2015

This study examines the challenges posed to European law by third country access to data held by private companies for the purposes of law enforcement. It pays particular attention to the implications for rule of law and fundamental rights of foreign authorities’ direct access to electronic information falling outside pre-established channels of supranational cooperation. A special focus is given to EU-US relations and the practical issues emerging in transatlantic relations covering mutual legal assistance and evidence gathering for law enforcement purposes in criminal proceedings.

An EU mechanism on Democracy, the Rule of Law and Fundamental Rights. CEPS Paper in Liberty and Security in Europe No. 91/April 2016 Thursday, 21 April 2016

The European Union is founded on a set of common principles of democracy, the rule of law, and fundamental rights, as enshrined in Article 2 of the Treaty on the European Union. Whereas future Member States are vetted for their compliance with these values before they accede to the Union, no similar method exists to supervise adherence to these foundational principles after accession. EU history proved that this ‘Copenhagen dilemma’ was far from theoretical. EU Member State governments’ adherence to foundational EU values cannot be taken for granted. Violations may happen in individual cases, or in a systemic way, which may go as far as overthrowing the rule of law. Against this background the European Parliament initiated a Legislative Own-Initiative Report on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights and proposed among others a Scoreboard on the basis of common and objective indicators by which foundational values can be measured. This Research Paper assesses the need and possibilities for the establishment of an EU Scoreboard, as well as its related social, economic, legal and political ‘costs and benefits’.

A ‘right to have rights’ in the EU public sphere? An Arendtian justification for the application of the EU Charter of Fundamental Rights

This paper discusses the Court’s reasoning in interpreting the EU Charter, using recent case law on horizontal effect as a case study. It identifies two possible means of interpreting the provisions of the Charter: firstly, an approach based on common values (e.g. equality or solidarity) and, secondly, an approach based on access to the public sphere. It argues in favour of the latter. Whereas an approach based on common values is more consonant with the development of the case law so far, it is conceptually problematic: it involves subjective assessments of the importance and degree of ‘sharedness’ of the value in question, which can undermine the equal constitutional status of different Charter provisions. Furthermore, it marginalises the Charter’s overall politically constructional character, which distinguishes it from other sources of rights protection listed in Art 6 TEU. The paper argues that, as the Charter’s provisions concretise the notion of political status in the EU, they have a primarily constitutional, rather than ethical, basis. Interpreting the Charter based on the very commitment to a process of sharing, drawing on Hannah Arendt’s idea of the ‘right to have rights’ (a right to access a political community on equal terms), is therefore preferable. This approach retains the pluralistic, post-national fabric of the EU polity, as it accommodates multiple narratives about its underlying values, while also having an inclusionary impact on previously underrepresented groups (e.g. non-market-active citizens or the sans-papiers) by recognising their equal political disposition.

Fundamental Rights and Reverse Discrimination

Reverse discrimination – whereby member states may treat their own nationals worse than nationals of other member states by invoking a “purely internal situation” in which European law does not apply – has long been a problem within the European Economic Community turned European Union. Using as a touchstone the Zambrano case, to be decided shortly, this paper argues that introducing citizenship alters the status of individuals vis-à-vis their governments, implies equality of treatment among citizens, and should eliminate reverse discrimination. Raising examples from the United States and Canada, I show how the introduction of federal rights empowered individuals and redrew the relationship between the governments of the center and the units. Citizenship limits the power of member states to treat their own nationals worse than nationals of other member states. This does not eliminate the tension between center and unit (or federal and regional; EU and member state) law but should give extra weight to former over the latter. Jurisdictional issues remain, but the rise of Union citizenship means that EU law should grow to encompass any right protected or promoted by shared citizenship.

Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers

Internet connectivity providers have been ordered to block access to websites facilitating copyright infringement in various EU countries.In this paper, the proportionality of these enforcement measures is analysed. After addressing preliminary questions, the recent ECJ ruling UPC Telekabel Wien (C-314/12) and then case law from all Member States are examined from the perspective of proportionality. Finally, five criteria are submitted for proportionality analysis, and a proportionality evaluation is provided. The major observation is that the underlying goal of copyright enforcement has implications on how the scale tilts. In particular, ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is considered legitimate. On the other hand, if the goal is to decrease the impact of infringement, higher efficiency and economically quantifiable results may be required

The three systems for the protection of fundamental human rights in the European Union and exceptional measures against terrorism: the case of extraordinary extraditions (the CIA flights) with special reference to the Spanish case

This document is aimed first of all, make a small introductory reference on the three levels of protection of fundamental rights in Europe with the idea of helping to clarify and understand mainly to non-European systems that we are not talking. For that, based on this, going on to assess the impact generated in these systems suggest that the complaints alleged involvement of European countries in secret CIA flights to combat international terrorism, as well as investigate the responses that have given each protection of these areas to try to clarify them. 

O direito fundamental a processo em tempo razoável: satisfação de obrigações mediante ação monitória contra a Fazenda Pública

Pós-graduação em Direito - FCHS