Showing papers by "Filippo Fontanelli published in 2014"

The Implementation of European Union Law by Member States Under Article 51(1) of the Charter of Fundamental Rights

Abstract: The precise scope of application of the Charter of Fundamental Rights of the European Union is, in many respects, still uncharted. In particular, it remains largely unclear to which national measures the Charter applies. The relevant instruction contained in art. 51(1), referring to the elusive concept of the “implementation of EU law,” has so far resisted all hermeneutic efforts. As a result, it is difficult to predict whether or not a domestic measure that has legal effects touching upon the sphere of matters regulated by EU law, but that was not adopted to implement EU law directly, will be bound by the Charter. This article traces this state of legal uncertainty to the ambiguous case law of the Court of Justice, which has hesitantly confirmed case law on the application of fundamental rights to national measures as general principles of EU law, and, lately, has sought refuge in the equivalence between the application of the Charter and the application of EU law at large (Fransson, Texdata). It is argued that this minimalist approach simply begs the question of whether or not EU law applies in any specific case, a gateway question that the Court of Justice has been historically ill-equipped to answer. This congenital difficulty has carried over in the interpretation of art. 51(1) of the Charter, and has, so far, left national judges without guidance, an undesirable result for the consistent application of fundamental rights across the Union and its Member States. The analysis is updated as of the Siragusa order of March 2014, which seems to call into question the Fransson precedent, and proposes a new composite test, inspired by several cases of the 1990s.

National Measures and the Application of the EU Charter of Fundamental Rights – Does curia.eu Know iura.eu?

Abstract: Even after the entry into force of the European Union Charter of Fundamental Rights (‘the Charter’), some doubts regarding its legal effects are still looming large. Among them is whether, and to what extent, the Charter applies to national measures that are connected to European Union (EU) law but are not intended to implement it directly. This legal uncertainty affects the position of individuals seeking to assert their fundamental rights before a national judge. In particular, whereas the application of the Charter warrants disapplication of the conflicting national measures, the same remedy is often not available when plaintiffs rely only on other fundamental rights instruments (like the European Convention on Human Rights or national constitutions). This article offers a bottom-up account of how this hermeneutic cul de sac, often discussed at the theoretical level, influences adjudication in ordinary courts. It also appraises the outcome of two recent disputes that hinged precisely upon the application of the Charter and its relationship with other fundamental rights instruments (Kamberaj, Fransson). The aim is to ascertain whether national judges can derive some interpretive guidance from these precedents. It is submitted that the Kamberaj judgment fails to provide guidance on Article 51(1) of the Charter, and that the Advocate General’s laudable attempt at conceptualisation in Fransson is ultimately impracticable, at least in the short term. The decision in Fransson is maybe showing some goodwill on the part of the Court of Justice of the European Union (CJEU), but is insufficient. In the absence of a reliable test, it is argued that the CJEU should be pressed to clarify the scope of application of the Charter on a case-by-case basis through its preliminary reference jurisdiction. The recent case-law suggests instead that the CJEU prefers to maintain a hands-off approach. This is undermining the advent of the Charter as a discrete legal instrument (as opposed to an interpretative supplement) and is contrary to the CJEU’s mandate to help national judges in the interpretation of EU law. Besides, the VC The Author [2014]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com 231 Human Rights Law Review, 2014, 14, 231–265 doi: 10.1093/hrlr/ngu009 Advance Access Publication Date: 13 May 2014 Article at 0788000 on Jne 8, 2014 http://hrlrdjournals.org/ D ow nladed from Bundesverfassungsgericht’s reaction to Fransson shows that the lack of a clear test can encourage member states to attempt a counter-colonisation of areas falling within the scope of EU law, as far as human rights protection is concerned.

Implementation of EU Law through Domestic Measures after Fransson: The Court of Justice Buys Time and 'Non-Preclusion' Troubles Loom Large

Abstract: In 2014, the Court came to terms with the application of the Charter of Fundamental Rights to domestic measures in the wake of Fransson. The five cases discussed here provide an overview of the Court's subsequent interpretation of the "implementation" link between EU law and national measures, required for the Charter to apply. Arguably, the Court is playing by ear and eludes the real legal riddle: how to determine with certainty the application of EU law at large in a specific case. Because the application of the Charter depends on the application of EU law, this issue deserves more attention. In particular, the precise notion of the application of EU law could help to identify non-preclusion cases, i.e. those in which EU law applies to, but does not prohibit, domestic measures. Only in these cases does the Charter have added value as an autonomous standard of review.

Kadi on Trial : A Multifaceted Analysis of the Kadi Trial

Abstract: 1. Introduction , Matej Avbelj, Filippo Fontanelli and Giuseppe Martinico Part 1: Kadi II of the Court of Justice of the EU: An Introduction 2. Kadieu: Connecting the Dots, Filippo Fontanelli 3. Playing Chinese Whispers: the Kadi II Decision of The General Court of the European Union, Antonella Angelini 4. Thou Shalt only Partly Judge! Jurisdictional Review in the Opinion of the Intervening States in Kadi II, Paolo Busco Part 2: The Legal Theory Perspective 5. The Case of Mr Kadi and the Modern Concept of Law, Matej Avbelj 6. Kadi in Sight of Autopoiesis, Jennifer Hendry 7. The Intractably Unknowable Nature of Law: Kadi, Kafka and the Law's Competing Claims to Authority, Luke Mason Part 3: The Public International Law Perspective 8. The Kadi II Judgment of the Court of Justice of the European Union: Implications for Judicial Review of UN Security Council Resolutions, Arman Sarvarian 9. Kadi II: Backtracking from Kadi I?, Nikos Lavranos & Mihail Vatsov 10. The Solange Argument as a Justification for Disobeying the Security Council in the Kadi Judgments, Antonios Tzanakopoulos 11. Global Counter-Terrorism Sanctions and European Due Process Rules: The Dialogue Between the CJEU and the ECtHR, Federico Fabbrini & Joris Larik Part 4: The Constitutional Law Perspective 12. The Autonomy of EU Law: A Joint Kadi II - Van Gend en Loos Celebration, Giuseppe Martinico 13. Constitutional Dimensions of Administrative Cooperation: Potentials for Reorientation in Kadi II, Nele Yang 14. Multilevel Judicial Protection of 'Access to Justice' and the EU's Duty to Contribute 'To the Strict Observance and Development of International Law', Ernst-Ulrich Petersmann

Kadi on Trial

Abstract: 1. Introduction , Matej Avbelj, Filippo Fontanelli and Giuseppe Martinico Part 1: Kadi II of the Court of Justice of the EU: An Introduction 2. Kadieu: Connecting the Dots, Filippo Fontanelli 3. Playing Chinese Whispers: the Kadi II Decision of The General Court of the European Union, Antonella Angelini 4. Thou Shalt only Partly Judge! Jurisdictional Review in the Opinion of the Intervening States in Kadi II, Paolo Busco Part 2: The Legal Theory Perspective 5. The Case of Mr Kadi and the Modern Concept of Law, Matej Avbelj 6. Kadi in Sight of Autopoiesis, Jennifer Hendry 7. The Intractably Unknowable Nature of Law: Kadi, Kafka and the Law's Competing Claims to Authority, Luke Mason Part 3: The Public International Law Perspective 8. The Kadi II Judgment of the Court of Justice of the European Union: Implications for Judicial Review of UN Security Council Resolutions, Arman Sarvarian 9. Kadi II: Backtracking from Kadi I?, Nikos Lavranos & Mihail Vatsov 10. The Solange Argument as a Justification for Disobeying the Security Council in the Kadi Judgments, Antonios Tzanakopoulos 11. Global Counter-Terrorism Sanctions and European Due Process Rules: The Dialogue Between the CJEU and the ECtHR, Federico Fabbrini & Joris Larik Part 4: The Constitutional Law Perspective 12. The Autonomy of EU Law: A Joint Kadi II - Van Gend en Loos Celebration, Giuseppe Martinico 13. Constitutional Dimensions of Administrative Cooperation: Potentials for Reorientation in Kadi II, Nele Yang 14. Multilevel Judicial Protection of 'Access to Justice' and the EU's Duty to Contribute 'To the Strict Observance and Development of International Law', Ernst-Ulrich Petersmann

Implementation of EU Law through Domestic Measures after Fransson

Abstract: In 2014, the Court came to terms with the application of the Charter of Fundamental Rights to domestic measures in the wake of Fransson. The five cases discussed here provide an overview of the Court's subsequent interpretation of the "implementation" link between EU law and national measures, required for the Charter to apply. Arguably, the Court is playing by ear and eludes the real legal riddle: how to determine with certainty the application of EU law at large in a specific case. Because the application of the Charter depends on the application of EU law, this issue deserves more attention. In particular, the precise notion of the application of EU law could help to identify non-preclusion cases, i.e. those in which EU law applies to, but does not prohibit, domestic measures. Only in these cases does the Charter have added value as an autonomous standard of review.

Article: Converging Towards NAFTA: An Analysis of FTA Investment Chapters in the European Union and the United States

Abstract: The present study is concerned with the evolution of investment chapters of Free Trade Agreements (FTAs). Our purpose is to observe the structure and recurrent patterns of the normative content of these chapters in order to ascertain and analyse certain trends. The sample of agreements reviewed is limited to the investment agreements concluded (or about to be concluded, when there is sufficient information) by the two major importers and exporters of Foreign Direct Investment (FDI) — the United States and the European Union.After an overview illustrating the history and layout of the EU and U.S. systems of investment protection (Part I), we provide a breakdown of the provisions that create a gulf between the two models (Part II). In Part III, we describe and analyse the current impasse in the European Union’s newly centralised management of investment policies. Our central claim is then illustrated in Part IV, where we argue that the U.S. (NAFTA-like) template is likely to prevail over the European one, in the long run, because it fills the gaps in incomplete treaty regimes like those recurrent in European Bilateral Investment Treaties (BITs). The Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union seems to confirm this trend. In light of these remarks, we conclude that, in the future, pluri- and multilateral negotiations will increasingly lean towards the NAFTA model and gradually distance themselves from the European BIT standard.

The implementation of European law by member states under Article 51(1) of the Charter of Fundamental Rights

Abstract: The precise scope of application of the Charter of Fundamental Rights of the European Union is, in many respects, still uncharted. In particular, it remains largely unclear to which national measures the Charter applies. The relevant instruction contained in art. 51(1), referring to the elusive concept of the “implementation of EU law,” has so far resisted all hermeneutic efforts. As a result, it is difficult to predict whether or not a domestic measure that has legal effects touching upon the sphere of matters regulated by EU law, but that was not adopted to implement EU law directly, will be bound by the Charter. This article traces this state of legal uncertainty to the ambiguous case law of the Court of Justice, which has hesitantly confirmed case law on the application of fundamental rights to national measures as general principles of EU law, and, lately, has sought refuge in the equivalence between the application of the Charter and the application of EU law at large (Fransson, Texdata). It is argued that this minimalist approach simply begs the question of whether or not EU law applies in any specific case, a gateway question that the Court of Justice has been historically ill-equipped to answer. This congenital difficulty has carried over in the interpretation of art. 51(1) of the Charter, and has, so far, left national judges without guidance, an undesirable result for the consistent application of fundamental rights across the Union and its Member States. The analysis is updated as of the Siragusa order of March 2014, which seems to call into question the Fransson precedent, and proposes a new composite test, inspired by several cases of the 1990s.