The Practice of Judicial Interaction in the Field of Fundamental Rights


The Practice of Judicial Interaction in the Field of Fundamental Rights

The Added Value of the Charter of Fundamental Rights of the EU

9781800371217 Edward Elgar Publishing
Edited by Federica Casarosa, Centre for Judicial Cooperation, European University Institute, Italy and Visiting Fellow, Masaryk University, Czech Republic and Madalina Moraru, Researcher, Judicial Studies Institute, Faculty of Law, Masaryk University, Czech Republic
Publication Date: 2022 ISBN: 978 1 80037 121 7 Extent: 448 pp
This insightful and timely book provides a comparative assessment of selected legal issues emerging from the EU legal context which impact profoundly on the national legal systems. It argues that judicial interaction can answer complex legal questions relating to the implementation of the EU Charter.

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This insightful and timely book provides a comparative assessment of selected legal issues emerging from the EU legal context which impact profoundly on the national legal systems. It argues that judicial interaction can answer complex legal questions relating to the implementation of the EU Charter.

Featuring practical cases of judicial interactions between European and national courts, the contributions in this book analyse the multi-dimensional impact of a wide array of judicial interaction techniques such as the preliminary reference procedure, consistent interpretation, comparative reasoning, mutual recognition and disapplication. Constructed in an insightful manner, the book stimulates debate and dialogue across the boundaries of practice and academia, featuring exchanges of expertise and knowledge between legal practitioners and leading scholars.

This timely book will be an invaluable resource for scholars and post-graduate students in courses on European fundamental rights, empirical research methods in law, EU litigation practice and judicial cooperation. It will also prove to be a useful guide for legal practitioners, providing practical and punctual analysis of the jurisprudence of the Court of Justice of the European Union on the application of the EU Charter of Fundamental Rights.
Critical Acclaim
‘This book is a must-read for both academics and practitioners who engage with the application of fundamental rights in the interaction between the national and European level. Casarosa and Moraru have brought together a diverse group of esteemed authors, who provide new and inspiring insights into the application of the EU Charter of Fundamental Rights in the interplay between national courts and the CJEU. Offering both general and sector-specific views, the book contributes to a more profound understanding of the many ways in which European fundamental rights have influenced the adjudication of a variety of issues (including migration, consumer and non-discrimination cases) through the interaction of judges in Europe. It presents a colourful map of the current state of the field and starting points for the further development of fundamental rights protection in Europe.’
– Chantal Mak, University of Amsterdam, the Netherlands

‘The book edited by Casarosa and Moraru goes back to a larger research of the Centre of Judicial Cooperation at the EUI which brought together judges and academics in order to discuss and to investigate judicial interaction in the field of fundamental rights. The 26 contributions from all over the EU provide for a deep insight into the practical relevance of the Charter of Fundamental Rights over a broad array of legal fields. The particular background and the composition of the research group draws a lively picture on what is happening between European and national courts. The depth and breadth of the undertaking allows to much better understand the variety and the complexity of the interaction between European courts. It adds a new layer to the broad literature and is both tremendously helpful and deeply insightful for academics and practitioners.
– Hans-Wolfgang Micklitz, European University Institute, Italy
Contributors: Matej Accetto, Raluca Bercea, Maria Bergstrom, Fabrizio Cafaggi, Raffaella Calò, Federica Casarosa, Marc Clement, Stephen Coutts, Deirdre Curtin, Lila Farkas, Martina Flamini, Rita Gião Hanek, Mateusz Grochowski, Jarosław Gwizdak, Gabor Halmai, Paola Iamiceli, Alexandros-Ioannis Kargopoulos, Marjan Kos, Nicole Lazzerini, Magdalena Lickova, Bernard McCloskey, Madalina Moraru, Karolina Podstawa, Nina Półtorak, Florentino-Gregorio Ruiz Yamuza, Raffaele Sabato, Joan Solanes Mullor, Hans Sundberg, Maciej Taborowski, Markus Thoma, Gabriel Toggenburg, Lavinia Vizzoni, Sasa Zagorc, Edith Zeller

Foreword by Deirdre Curtin xii
Acknowledgements xvi
1 Judicial interactions in action – a tool for a more powerful
and influential EU Charter of Fundamental Rights 1
Federica Casarosa and Madalina Moraru

2 The application of the rights and principles of the Charter
of Fundamental Rights 24
Nina Półtorak
3 Comment: the Charter and its triple challenge: unclear
applicability, a foggy distinction between rights and
principles and a lack of engagement at the national level 54
Gabriel Toggenburg
4 European values and national constitutions: bringing the
EU Charter in from uncharted waters 60
Saša Zagorc and Marjan Kos
5 Comment: the standard of fundamental rights protection
according to the EU Charter: what is the role of national
standards (and courts)? 81
Nicole Lazzerini
6 The potential and the limits of the impact of the Charter on
constitutional jurisprudence 89
Matej Accetto
7 Comment: can the Charter help to protect rights in the
Member States? 108
Gábor Halmai
8 Judicial independence – the EU’s prescription in the
making to the Polish (and other) maladies 113
Karolina Podstawa and Jarosław Gwizdak
9 Comment: Austro-Hungarian partnership? A brief
comparison between an old democracy and a new democracy 137
Edith Zeller
10 Limitations to access to justice and Article 47 of the
Charter: the right to be advised, defended and represented 147
Magdalena Ličková and Joan Solanes Mullor
11 Comment: the EU law on the right to access a lawyer
revisited: proportionality and subsidiarity implications 166
Alexandros-Ioannis Kargopoulos
12 The Lisbon Charter and the Brexit void 173
Bernard McCloskey
13 Comment: Brexit and the diverse functions of the Charter
of Fundamental Rights 198
Stephen Coutts

14 The Charter’s potential in fighting hate and discrimination:
levelling up to international obligations through victim’s rights 206
Rita Gião Hanek and Lilla Farkas
15 Comment: under Article 21 EU Charter the CJEU has,
for the time being, adopted a rather deferential model of
judicial review 231
Raluca Bercea
16 Effectiveness and EU consumer law: the blurriness in
judicial dialogue 236
Mateusz Grochowski and Maciej Taborowski
17 Comment: effectiveness in EU consumer law: towards new triads 258
Paola Iamiceli
18 Judicial interactions upholding the right to be heard of
asylum seekers, returnees and immigrants: the symbiotic
protection of the EU Charter and general principles of EU law 264
Madalina Moraru and Marc Clement
19 Comment: the right to be heard in international protection
proceedings before an Italian judge 289
Martina Flamini

20 Ne bis in idem – a continuing judicial dialogue 296
Maria Bergström and Hans Sundberg
21 Comment: objective and subjective ne bis in idem– the AY case 319
Florentino-Gregorio Ruiz Yamuza
22 The impact of judicial interactions on the interplay
between administrative and judicial enforcement 325
Federica Casarosa and Raffaele Sabato
23 Comment: checks and balances between the
administration, the executive and the judiciary 347
Markus Thoma
24 The effective protection of collective interests: the
interplay between jurisprudence and legislation 353
Federica Casarosa and Raffaella Calò
25 Comment: collective redress and antitrust law 373
Lavinia Vizzoni
26 The impact of CJEU judgments on national legal systems:
preliminary thoughts on the link with judicial dialogue 379
Fabrizio Cafaggi

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