Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights

The trend towards the financialisation of housing since the 1980s and the global financial crisis exposed a dramatic lacuna in the legal protection of the right to housing. Yet, the right to housing features not only in national and international human rights instruments, but also in the EU Charter of Fundamental Rights. Charter rights are increasingly finding expression in the case law of the Court of Justice of the European Union (CJEU). In particular, drawing on the Charter, the CJEU's interpretation of EU consumer law is moving towards a recognition of housing rights as inherent components of consumer protection. On the basis of such developments, this article examines whether there is scope to extend this human rights approach to new areas – namely, to the Mortgage Credit Directive (2014) – a major EU harmonising measure – and to the work of EU institutions now responsible for banking supervision. The article concludes that, if guided by the Charter of Fundamental Rights, the case law of the CJEU and the practice of supranational banking supervision could significantly enhance the protection of the right to housing, both at EU and Member State level.     

Supranational Fundamental Rights or Primacy of Sovereignty?

This analysis explores in detail various aspects of the possible legal impact of ‘British’ Protocol No 30 (the so‐called opt‐out from the EU Charter of Fundamental Rights). On the basis of a legal appraisal, it concludes that the Protocol is not in any way to be understood as a substantial derogation from the standard of protection of fundamental rights in the EU or as an ‘opt‐out’ from the Charter in a substantial sense. Nevertheless, its significance is definitely not to be underestimated. Its adoption as a source of primary law enshrines a legally binding interpretation of the Charter and, in particular, an interpretation of its horizontal provisions. In Article 1(2) and Article 2, the Protocol in fact confirms that the application of the Charter cannot lead to a change in the existing competencies framework. These provisions are of a declaratory nature and apply to all Member States. In Article 1(1), the Protocol is of a constitutive nature since it rules out an extensive interpretation of what can be considered national legal acts adopted in the implementation of EU law only for those States signed up to the Protocol. This specifically means that if, in the future, as part of the application of the Charter, the Court of Justice of the EU (ECJ) has a tendency to subsume a certain area of national legislation under the ‘implementation of Union law’ outside the field of implementing standards, in the spirit of the Ellinki Radiophonia Tileorassi judgment (and subsequently allow their reviewability with respect to their conformity with the Charter), such action would be admissible only for those Member States that have not acceded to the Protocol. However, the Protocol cannot exclude the continued application of the general principles of law instead of the positively constituted fundamental rights in the Charter by the ECJ.     

So Long,Farewell, Auf Wiedersehen,Adieu: Brexit and the Charter of Fundamental Rights

The UK's relationship with the Charter of Fundamental Rights of the European Union can at best be described as strained, at worst, actively hostile. The Charter was, for the UK, an unwanted child, unloved at birth, grudgingly tolerated during life, and willingly surrendered at the death of the UK's membership of the EU. This article charts the UK's approach to the Charter from its inception to its demise in the EU (Withdrawal) Act 2018. It considers, in particular, the UK's so‐called opt out from the Charter in Protocol 30 and the confusion that has been generated as a result. It then argues that the Charter will have a legacy effect in the UK, primarily through the renaissance of the general principles of law.     

The fundamental right of data protection in the European Union: in search of an uncharted right

The entry into force of the EU Charter of Fundamental Rights and the ensuing introduction of the right to data protection as a new fundamental right in the legal order of the EU has raised some challenges. This article is an attempt to bring clarity on some of these questions. We will therefore try to address the issue of the place of the right to the protection of personal data within the global architecture of the Charter, but also the relationship between this new fundamental right and the already existing instruments. In doing so, we will analyse the most pertinent case law of the Court of Luxembourg, only to find out that it creates more confusion than clarity. The lesson we draw from this overview is that the reasoning of the Court is permeated by a ‘privacy thinking’, which consists not only in overly linking the rights to privacy and data protection, but also in applying the modus operandi of the former to the latter (which are different we contend). The same flawed reasoning seems to be at work in the EU Charter of Fundamental Rights. Therefore, it is crucial that the different modi operandi be acknowledged, and that any upcoming data protection instrument is accurately framed in relation with Article 8 of the Charter.     

Dignity, Democracy, Civilisation

This paper contributes to international discussion about the difficulty of defining human dignity as a legal concept by locating it at the heart of (European) democracy and human rights. Focusing on emerging dignity case law in the United Kingdom, the paper explores the connections among dignity, human rights and democracy, and the uses of dignity to enhance and refine democracy. While judges are key actors in the construction of dignity, they operate within the boundaries of a particular democratic ‘civilisation’ anchored in the core prohibitions of art 2, 3 and 4 European Convention on Human Rights, combined with those of the EU Charter of Fundamental Rights (art. 2, 3, 4 and 5). This normative core, the paper argues, is to be understood in the wider time frame of democracy and dignity, which is equally important for refining and thickening human dignity’s conceptual and normative definition, as well as for reflecting on the legitimacy of its (judicial) uses.     

Towards Administrative Human Rights in the EU. Impact of the Charter of Fundamental Rights

Abstract: This article analyses the development of administrative human rights in the EU. It demonstrates that the new right to good administration enshrined in Article 41 of the Charter of Fundamental Rights crowns a long process of constitutionalisation of basic administrative rights in the Community. The article discusses the meaning, content, and possible impact of Article 41 of the Charter. It explains, inter alia, the doctrinal basis of a ‘right to good administration’, and its more immediate origins. It also offers a textual analysis and commentary of Article 41. Other rights, which possibly come within the concept of ‘good administration’ but are not included in Article 41, are also suggested. The article concludes with an evaluation of Article 41 of the Charter. It argues that although Article 41 is a significant development in terms of individual administrative rights, it offers a one‐sided vision of the function of administrative law.     

The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality

This article analyses the horizontal effect of the Charter of Fundamental Rights of the European Union. Horizontal effect has been an integral part of the Union's application of fundamental rights, especially in the field of equality. However, the codification of fundamental rights in the Charter raises important questions as to how horizontal effect will continue to apply in the EU, particularly in the aftermath of the Court's reticent rulings in cases such as Dominguez and Association de Médiation Sociale. This article argues that the emphasis on prior approaches to horizontal effect in recent rulings fails to address the profound constitutional issues that the horizontal effect of a fundamental rights catalogue raises, which concern the role of private responsibility within the developing constitutional order of the European Union. It therefore calls for a more systematically theorised approach towards the horizontal application of fundamental rights under the Charter framework.     

Opening up personal data protection: A conceptual controversy

The existence of a fundamental right to the protection of personal data in European Union (EU) law is nowadays undisputed. Established in the EU Charter of Fundamental Rights in 2000, it is increasingly permeating EU secondary law, and is expected to play a key role in the future EU personal data protection landscape. The right's reinforced visibility has rendered manifest the co-existence of two possible and contrasting interpretations as to what it come to mean. If some envision it as a primarily permissive right, enabling the processing of such data under certain conditions, others picture it as having a prohibitive nature, implying that any processing of data is a limitation of the right, be it legitimate or illegitimate. This paper investigates existing tensions between different understandings of the right to the protection of personal data, and explores the assumptions and conceptual legacies underlying both approaches. It traces their historical lineages, and, focusing on the right to personal data protection as established by the EU Charter, analyses the different arguments that can ground contrasted readings of its Article 8. It also reviews the conceptualisations of personal data protection as present in the literature, and finally contrasts all these perspectives with the construal of the right by the EU Court of Justice.     

One law to rule them all? The reach of EU data protection law after the Google v CNIL case

Google v CNIL is, arguably, one of the landmark cases of EU data protection law and it has been an important development regarding its territorial reach. The judgment's findings in this regard have been controversial and have led to much discussion about their legitimacy and potential repercussions. This paper examines two aspects of this case. First, it considers the holdings of this judgment regarding the global application of EU law in relation to international law and sovereignty. This article argues that though EU decision-makers might have a degree of ‘data imperialism’ in their thinking, this judgment is not at odds with neither international law nor sovereignty. Second, the paper examines the methodology of the Court and the role it accorded to the Charter of Fundamental Rights of the EU– an aspect that many commentators overlook. In this regard, I argue that the Court's methodology was problematic and that it failed to duly consider the role of the Charter, thus fragmenting EU law.     

Taking fundamental rights seriously in the Digital Services Act's platform liability regime

This article highlights how the EU fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the reform of the E-commerce directive by the Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well-balanced and proportionate European legal instrument, this article addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Section 2 delves into the intricate landscape of online intermediary liability, interrogating how the E-Commerce Directive and the emerging Digital Services Act grapple with the delicate equilibrium between shielding intermediaries and upholding the competing rights of other stakeholders. The article then navigates in Section 3 the fraught terrain of fundamental rights as articulated by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) under the aegis of the European Convention on Human Rights and the EU Charter. This section poses an urgent inquiry: can the DSA's foundational principles reconcile these legal frameworks in a manner that fuels democracy rather than stifles it through inadvertent censorship? Section 4 then delves into the intricate relationship between fundamental rights and the DSA reform. This section conducts a comprehensive analysis of the key provisions of the DSA, emphasising how they underscore the importance of fundamental rights. In addition to mapping out the strengths of the framework the section also identifies existing limitations within the DSA and suggests potential pathways for further refinement and improvement. This article concludes by outlining key avenues for achieving a balanced and fundamental rights-compliant regulatory framework for platform liability within the EU.     

The Sinews of Peace: Rights to Solidarity in the Charter of Fundamental Rights of the European Union

Abstract. This article examines the provisions on social and economic rights contained in the Charter of Fundamental Rights of the European Union. After a conceptual clarification of the terms “fundamental rights” and “rights to solidarity,” three main claims are made. First, not all rights to solidarity are granted the status of fundamental rights in the Charter, in contrast with the treatment of the right to private property. Second, positive law does not justify such an approach. An analysis of the sources of the Charter clearly indicates that the right to private property is not a proper fundamental right as Community law stands. Third, rights to solidarity could be construed as a repository of arguments that Member States and regions could invoke when claiming an exception to the four fundamental freedoms.     

Reconsidering discrimination grounds in the data economy: An EU comparison of national constitutions

The principle of equal treatment (i.e., all people have the right to be treated equally) is protected by non-discrimination provisions in national constitutions across the EU as well as the EU Charter of Fundamental Rights (CFEU). These provisions specify which grounds (e.g., gender, race, religion) are prohibited to use as the basis for making decisions on people, such as offering a person a job. In the data economy, in which large amounts of personal data are collected and analyzed, it has become possible to make decisions on people on the basis of all kinds of grounds, also grounds that are not protected in anti-discrimination law (e.g., zip code, shoe size, wealth). Even though mostly unintentional, patterns revealed by sophisticated data analysis can turn out to be discriminatory, either directly or indirectly. Particularly indirect discrimination (i.e., discrimination by proxy) can be hard to discover and enforce. From a substantive perspective, these technological developments also raise the question which discrimination grounds should be protected, since discrimination grounds are in flux and not harmonized across the EU. In this paper, through legal comparison, discrimination grounds across EU national constitutions and the CFEU are compared, to identify overlaps and differences. This overview is then used to start the discussion on the extent to which current legislation is still appropriate in the data economy or should perhaps be reconsidered.     

Reflections on the International Legality of the Special Tribunal for Lebanon

This article addresses legal problems posed by Security CouncilResolution 1757 of 30 May 2007, establishing the Special Tribunalfor Lebanon (‘STL’). After describing the historicalbackground of the resolution (section 1) and the plan to establishthe STL as a treaty-based institution (section 2), the paperturns to an analysis of Resolution 1757 (section 3). The authorquestions whether the Council intended to bring the Lebanon-UNagreement into force as an international treaty, and holds thatthe UN Charter does not give the Council a power to unilaterallyimpose on a member state an obligation in the form of a treaty.The author argues that in Resolution 1757 the Council did notsubstitute a Chapter VII decision for the missing ratificationof the agreement by Lebanon, but instead established the STLby making the provisions of the agreement negotiated with Lebanonan integral part of a Chapter VII resolution. Section 4 thenquestions whether the Council was entitled to procure Lebanon'sconsent to be bound by a treaty by threatening unilaterallyto put those provisions into effect through a Chapter VII resolution.After discussing certain rules of the law of treaties concerningthe coercion of a state, the author concludes that it is notthat law but the UN Charter itself that prohibits the Councilfrom exerting pressure on a member state in order to make thatstate ratify a treaty.     

Security assessment of suppliers of telecommunications infrastructure for the provision of services in 5G technology

The process of commencing services based on 5G technology has begun. One condition for starting up 5G technology is the distribution of the frequencies required for the provision of those services. For the first time in the process of making frequencies available, requirements have arisen pertaining to the security of the infrastructure necessary for the provision of those services. In the EU, recommendations have been drawn up, based in particular on an NISCG report entitled Cybersecurity of 5G networks EU Toolbox of risk mitigating measures. In this article, an analysis is made of the implementation of those recommendations concerning suppliers of infrastructure, based on examples from selected EU countries, in order to ensure that such assessments are objective and transparent. In some cases, the provisions implementing the recommendations do not fully protect the fundamental rights of the entities assessed as foreseen in EU and domestic law, particularly the right to a fair trial before an independent court. I propose certain changes in the regulations pertaining to suppliers of telecommunications equipment.     

New Charter of the Soviet Railroads

In April 1964, the USSR Council of Ministers gave its approval to the new Charter of the Soviet Railroads, which went into effect on October 1, 1964. (1) This Charter replaces that of 1954, the shortcomings of which were among the basic factors necessitating a new codification of the norms regulating the operation of railway transport. Many of the provisions of the 1954 Charter gave the railroads privileged status over other branches of the economy and created a number of utterly unjustified benefits and advantages, thereby undermining the principle of cost accounting in the relationships between railway transport and its clientele.     

Going Unnoticed? Diagnosing the Right to Asylum in the Charter of Fundamental Rights of the European Union

Article 18 of the Charter of Fundamental Rights of the European Union enshrines the right to asylum. Nonetheless, despite its ‘constitutionalisation’ within primary law, asylum remains a far too amorphous right, whose axiological potential has gone virtually unnoticed in the ongoing migratory crisis. The paper will argue that this is partly due to the fact that the Court of Justice on a few occasions has declined to clarify the scope of Article 18. The provision at issue therefore remains a pathological element that requires an adequate diagnosis on which accurate prognoses can be based. In an attempt to diagnose the right to asylum enshrined in Article 18 of the Charter of Fundamental Rights of the EU, this paper will compare different hermeneutical approaches and reflect on the contextualisation of the mentioned provision through the lens of domestic and EU case law and in the light of the recent EU–Turkey Statement. The article will ultimately propose to interpret the EU asylum legislation as instrumental to the effective exercise of the right to asylum.     

Of Austerity,Human Rights and International Institutions

Austerity measures have led to the denial of social rights and widespread socio‐economic malaise across Europe. In the case of countries subjected to conditionality imposed by international institutions, the resultant harms have highlighted a range of responsibility gaps. Two legal developments come together to expose these gaps: Greece's argument in a series of cases under the European Social Charter that it was not responsible for the impact on rights brought about by austerity measures as it was only giving effect to its other international obligations as agreed with the Troika; and the concern to emerge from the Pringle case before the European Court of Justice that European Union (EU) institutions could do outside of the EU what they could not do within the EU ‐‐disregard the Charter of Fundamental Rights. That the Commission and the European Central Bank were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study, this article addresses the imperative of having international institutions respect human rights.     

The Spanish Parliament and EU Affairs in the Post Lisbon Treaty Era: All Change?

The new provisions on national parliaments in the Lisbon Treaty were welcomed with scepticism by some scholars and with hope by others. Sometime after the new provisions came into force, their impact on the role of national parliaments in the EU can already be examined. This article looks into the effect of the implementation of the Early Warning Mechanism and the other provisions on the parliamentary scrutiny of EU affairs in Spain. It also reflects on the possible implications for the EU political system. Although the scope and actual effect of the new measures have been quite modest, the new regulations allow for a better scrutiny of EU law, a tighter control of the executive on EU affairs and closer cooperation with EU institutions.     

A Disabled Market: Free Movement of Goods and Services in the EU and Disability Accessibility

Individuals with a disability who wish to use goods and services can have a variety of specific needs, ranging from accessible written information to standard products and services which have disability accessibility features built into them. In light thereof, this article focuses on the impact which Community law has had, and could potentially have, on ensuring an EU‐wide market in products and services which are accessible to consumers with a disability. The article examines the (possible) impact of a variety of provisions, including the rules relating to the free movement of goods and services (Articles 28 and 49 EC, respectively), the internal market (Articles 94 and 95 EC), non‐discrimination (Article 13 EC), EU citizenship provisions, and the work of the European standardisation bodies such as CEN. The central question throughout the article is does EC law allow for, or discourage, the establishment of mandatory disability accessibility standards at the national or EU level, and have the provisions been used to permit or establish such standards to date?     

Transformation or Dilution: Fundamental Rights in the EU Social Space

Abstract:  This article argues that in developing social rights to counterbalance economic freedoms, the EU has begun to reformulate traditional notions of rights. Instead of creating rights in their traditional individualised, negative, judicially enforceable, and fault-based form, a new proactive model is emerging, which aims at institutional change, based on the notion of the active citizen and the centrality of participation in both rule formation and enforcement. It is argued that while this model has important advantages, its weakness lies in its dependence on political will. The challenge is therefore to ensure that proactive strategies are firmly centred on fundamental rights rather than political discretion. Part I briefly sketches the development of social rights in the EU; Part II examines the applicability of Third Way ideology; Part III considers European employment strategy and gender mainstreaming, asking whether they represent a dynamic new manifestation of fundamental rights at work, or a betrayal. Part IV applies a similar evaluation to the EU Charter.