Articles for tag: CEAS, EGMR, EuGH, Human Rights Litigation, strategic litigation

The Future of Legal Struggles

The year 2023 was not a good year for the rights of asylum seekers. The decision about a new legal framework for the Common European Asylum System (CEAS) was described as a "historic moment" (Ylva Johansson), but in fact works as a programme of disenfranchisement. If the pursuit of progressive positions are blocked in the political arena, actors shift their strategies to the judicial field. Even before the summer of migration 2015, successful legal struggles had a significant impact on European migration policy. Push-backs on the high sea were prohibited and transfers of asylum seekers to inhumane conditions under the Dublin system were prevented. The draft for the new CEAS are characterised by attempts to circumvent the consequences of these judgements. In this blogpost, I will discuss what the future of legal struggles within the framework of the new CEAS might look like.

28. Februar 2024

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On Citing Van Gend & Citing it Correctly

There are multiple common misunderstandings that have, over time, taken on the status of established truths. For example, to Sherlock Holmes is often attributed the quote “Elementary, my dear Watson”, which never appears in the Conan Doyle novels. Neither did Voltaire ever confide to anyone that he “disagreed with what you say, but will defend to the death your right to say it”. In EU law, there exists a similar widespread misconception, albeit tiny in nature. Simultaneously, it does concern the probably most famous ruling ever delivered by the European Court of Justice, so the comparative weight is substantial.

26. Februar 2024

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The CJEU’s Feminist Turn?

In Case C-621/21, the Grand Chamber of the Court of Justice of the European Union (CJEU) held that women in general and women facing domestic violence in their country of origin in particular, qualify as a protected ‘social group’ under EU Directive 2011/95 and thus avail themselves for refugee status or subsidiary protection in the Common European Asylum System. This contribution applies the perspective of feminist approaches to international law to critically analyze what this decision means for women and victims of gender-based violence – in- and outside of the European Union.

20. Februar 2024

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Shielding Frontex 2.0

In Hamoudi v Frontex, the General Court dismissed another action that could have clarified if, when, and how independent or joint human rights responsibility would arise when Frontex is engaged in shared operational conduct with the Member States. This time not on the basis of an obscure re-interpretation of the Applicant’s claim, but instead, on the basis of an unattainably high and unrealistic burden, standard and method of proof. In doing so, the General Court again eschews from clarifying the nature, conditions and consequences of both independent and joint human rights responsibility of Frontex. Taken together, these cases raise the question whether there are any viable forms of judicial recourse for fundamental rights violations committed or contributed to by the EU’s Border and Coastguard Agency.

30. Januar 2024

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The European Game

The long-awaited judgement of the Court of Justice of the European Union in Case C-333/21 - European Super League Company has finally arrived. There is a lot to unpack, especially with respect to developments in competition law. Constitutional lawyers will, however, find particular interest in how the Grand Chamber dismissed Advocate General Rantos’ pitch for a constitutional recognition of the European sports model based on Article 165 TFEU. This post focuses on this aspect of the European Super League judgment. It argues that while the Advocate General’s construction was rejected, the Court still used this judgement to further define its own constitutional understanding of the European sports model, as well as to solidify its role as the primary interpreter of that model.

4. Januar 2024

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A Hidden Success

Following the EU General Court’s dismissal of the complaint of WS and other asylum seekers against Frontex in its ruling on September 6, 2023, scholarly commentary has largely expressed disappointment. However, a more optimistic way of reading the judgement is also possible. By declaring the lawsuit admissible, the court confirmed that factual misconduct by Frontex can be addressed with action for damages claims – and this in itself is a major step forward in the system of fundamental rights protection in the European Union.

13. Oktober 2023

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The Price of Transatlantic Friendship

While the citizens of most EU Member States enjoy visa-free travel to the US, citizens of Bulgaria, Romania and Cyprus do not. Following the Commission’s repeated refusal to activate the reciprocity mechanism in EU visa law to remedy this inequality in access to visa-free travel, the European Parliament asked the CJEU whether the Commission was under an obligation to do so. The Court answered in the negative, holding instead that the Commission had wide discretion in this regard. Its reasoning centers the sensitive political nature that visa retaliation vis-á-vis the US implies, while failing to instill a sense of urgency in working towards equal treatment of EU citizens. This threatens to perpetuate a situation in which the advantages of supranational integration in the context of the Schengen acquis are permanently withheld from nationals of Romania, Bulgaria and Cyprus.

12. September 2023

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Rechtsgut Datenschutz?

Während materielle Schadensersatzansprüche für Datenschutzverletzungen in der Praxis eine untergeordnete Rolle zu spielen scheinen und verhältnismäßig einfach festzustellen und zu beziffern sind, bereitet die in Art. 82 DSGVO vorgesehene Ersatzfähigkeit immaterieller Schäden den Gerichten Kopfzerbrechen. Eine richtungsweise Entscheidung zu immateriellen Schadensersatzansprüchen für DSGVO-Verletzungen fällte der EuGH Anfang Mai 2023 in der Rechtssache C‑300/21. Es ist das erste Urteil aus einer langen Reihe an Vorabentscheidungsersuchen zur Auslegung des Art. 82 DSGVO. Nach wie vor interpretationsbedürftig bleibt jedoch, wie ein immaterieller Schaden nun konkret festzustellen und zu bemessen ist. Nach einer kurzen Zusammenfassung der Kernaussagen des EuGH befasst sich dieser Beitrag daher mit diesem praxisrelevanten Problem und möchte – insbesondere unter Berücksichtigung etablierter Instrumentarien der deutschen und österreichischen Rechtspraxis – Lösungswege für die mitgliedstaatlichen Gerichte aufzeigen.

21. Juli 2023

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Competition law as a powerful tool for effective enforcement of the GDPR

It looks like a good week for data protection. On Tuesday, the Commission presented a new proposal for a Regulation on additional procedural rules for the GDPR, and a few hours later, the ECJ published its decision C-252/21 on Meta Platforms v Bundeskartellamt (Federal Cartel Office). While the Commission's proposal to improve enforcement in cross-border cases should probably be taken with a pinch of salt, the ECJ ruled on some things with remarkable clarity. The first reactions to the ruling were quite surprising; few had expected the ECJ to take such a clear stance against Meta's targeted advertising business model. It does however represent a consistent interpretation of the GDPR in the tradition and understanding of power-limiting data protection.

7. Juli 2023

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Poland’s Extended Disciplinary System

The judgement of the European Court of Justice (ECJ) on June 5, 2023 (C-204/21) has added a new chapter to the rule of law crisis in Poland. The outcome was largely expected given the well-established jurisdiction of the ECJ on matters of the rule of law. However, a close reading of the judgment demonstrates that it recognizes the more insidious ways in which Poland has undermined judicial independence. Specifically, I argue that the ECJ's ruling paves the way for a legal response to the suppression of judicial independence through public intimidation and stigmatization of judges.

2. Juli 2023

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