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  • Titill er á ensku Fundamental differences. Jurisdictional and constitutional concerns regarding the CJEU´s continuing development of fundamental rights
  • Meistara
  • The purpose of this mostly descriptive legal study is as the title suggests to explore whether there are any fundamental differences between the CJEU, the ECtHR and national courts when it comes to the protection of fundamental rights and to look at the potential impact of the Lisbon Treaty on the CJEU´s continuing development of fundamental rights.
    Throughout the study the main questions proposed are whether or not there is an ongoing European constitutional development concerning human rights and whether the CJEU has shown that it takes those rights seriously and applies them to the standard set by the ECtHR. It is also interesting to look at whether the EFTA Courts has adopted the same approach as the CJEU when it comes to fundamental rights and what the status of those rights is in the EEA legal order.
    In order to answer those questions it is important to look at both the CJEU´s relationship with the ECtHR and it´s somewhat challenging relationship with Member States supreme and constitutional courts some of which have openly challenged the Court and its fundamental rights jurisprudence. It remains to be seen what effect the EU´s proposed accession into the ECHR will have on the Court of Justice and whether the constitutional and supreme courts of the Member States will accept the CJEU´s continuing development of fundamental rights now that there is a comprehensive catalogue of fundamental rights.
    The thesis is divided into three parts. The first part focuses on the development of fundamental rights at a Union level both the EU´s legislative and structural development regarding those rights as well as the CJEU´s fundamental rights jurisprudence. Even though there will be a brief overview of legislative developments in the field of fundamental rights leading up to the Treaty of Lisbon the main focus will never the less be on the case law of the CJEU which is extensive in this field.
    The second part of the thesis will examine the constitutional concerns that have been brought up by national courts and various commentators following the CJEU´s development of general principles of Union law such as supremacy and fundamental rights. The chapter will include a summary of the CJEU relationship with national constitutional courts and an attempt will be made to determine whether this relationship, which has been turbulent at times, has reached a status quo or whether the national courts will potentially challenge the CJEU´s continuing development of fundamental rights now that the Union has a binding Charter of rights.
    The third part deals with the CJEU’s interpretation of the ECHR and the relationship between the Strasbourg and Luxemburg courts as well as potential jurisdictional clashes that might occur after the Union´s accession to the ECHR. The CJEU´s interpretation of certain rights found in the Convention particularly the right to access to justice will be examined in order to try and determine whether the Court´s somewhat restrictive approach is in line with the ECtHR´s case law. There will also be a look at the status of fundamental rights in the EEA legal order and an attempt will be made to answer the question of whether the EFTA Court has given the same weight to those rights as the CJEU.
    Lastly, conclusions will be summarized in Chapter 7, and some thoughts expressed on the subject of the future development of fundamental rights at a Union level.

  • 4.9.2012

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