19 November 2024
A Rare Win
In a rare win for the rights of asylum seekers in the first Greek asylum case making its way to Luxembourg, the CJEU has limited abusive uses of the safe third country concept that had condemned applicants to legal limbo. In its ruling on 4 October 2024, the Court left Greece’s designation of Türkiye as a safe third country intact. Nonetheless, the case will still have a significant impact on asylum applicants. This post sets out the practical effects of the judgment on people applying for asylum in Greece and beyond. Continue reading >>
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11 November 2024
Rising Gender Disparity at the CJEU
With the recent swearing-in of Judges and Advocates-General at the CJEU in October 2024, the number of women has decreased. Among the new cohort of 11 Judges and AG arriving in Luxembourg, only one new woman was appointed to the CoJ. There are currently 5 women Judges out of the 27 positions at the CoJ. Among the 11 Advocates-General, only 3 are women. We urge Member States to intensify efforts for gender parity and to reform their domestic nomination processes. Finally, we call on the 255 Committee to guarantee full gender parity. Continue reading >>
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05 November 2024
The Tail That Wags the Dog
In Opinion 2/13 the Court of Justice held that accession to the ECHR must not interfere with the operation of the principle of mutual trust as this would affect the autonomy of EU law. I offer a different reading: mutual trust is not a general principle capable of having autonomous legal effects. Furthermore, mutual trust is acquiring a novel value for the progressive operationalisation of the foundational values ex Article 2 TEU. Read in this way, it has then the potential to enhance fundamental rights protection and is certainly no bar to accession to the ECHR – it is the dog of core values that wags the tail of mutual trust and not vice versa. Continue reading >>
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04 November 2024
Two Courts, Two Visions
The diverging standards of protection concerning the right to a fair trial, as interpreted by the CJEU and the ECtHR, remain a critical obstacle to the EU’s renewed attempt at accession to the ECHR. In this field, the two Courts seem to be drifting further apart rather than converging, leading to unresolved conflicts between the standard of fundamental rights protection and mutual trust obligations in the EU. Except in the unlikely event of a course-correction by the CJEU, this means that we are no closer to accession today than we were ten years ago, when the now-infamous Opinion 2/13 was handed down. Continue reading >>
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04 November 2024
Enhancing Fundamental Rights Protection
The EU should ensure fundamental rights’ compatibility of EU legislation before its adoption. To that effect, we propose three distinct paths to improve the EU control mechanisms. Whilst mechanisms to ensure quality control do exist, primarily in the form of impact assessments, these mostly remain a merely formal exercise. Henceforth, we suggest strengthening the ex ante fundamental rights review of EU legislation through enhanced involvement of FRA in the legislative process. Continue reading >>
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03 November 2024
Of Artificial Intelligence and Fundamental Rights Charters
The Council of Europe has adopted the Framework Convention on Artificial Intelligence – the first of its kind. Notably, the Framework Convention includes provisions specifically tailored to enable the EU’s participation. At the same time, the EU has developed its own framework around AI. I argue that the EU should adopt the Framework Convention, making an essential first step toward integrating the protection of fundamental rights of the EU Charter. Ultimately, this should create a common constitutional language and bridge the EU and the Council of Europe to strengthen fundamental rights in Europe. Continue reading >>
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02 November 2024
Interviewing EU Judges
Who are the women and men behind the CJEU’s decisions? The CJEU is an incredibly powerful institution, yet little is known about the backgrounds, judicial philosophies, and ambitions of its judges and advocates general. The Union’s “Help Desk,” as CJEU President Koen Lenaerts modestly describes the Court, is now interpreting broad-ranging rules while also giving legal meaning to ambitious and ambiguous values such as the rule of law. This is where the Borderlines archive comes in – we interview the judges and advocates general of the Court of Justice, to learn about their backgrounds, varied experiences, and their jurisprudential philosophies. Continue reading >>
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01 November 2024
Reconciling National and European Constitutional Legalities
In light of the increasingly established autonomous European constitutional legality, national constitutional courts are now compelled to reconsider their roles. Through a progressive expansion of its direct applicability by national ordinary judges, the Charter of Fundamental Rights risks fostering the marginalization of national constitutional courts. I argue that the solution lies in a highly differentiated consolidation of constitutional legalities that integrates and embraces the unique roles of national constitutional courts in their respective systems of adjudication. Continue reading >>
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01 November 2024
Pouring New Wine into Old Wineskins
The three seemingly trivial observations that follow inform three substantive proposals regarding the protection of fundamental rights within the EU. To address the challenges faced by national constitutional courts and the CJEU, it is essential to leverage existing procedural tools within domestic legal systems. Additionally, expanding the applicability of these versatile tools and considering a structural revision of the judicial bodies may facilitate the creation of hybrid entities that could collaboratively address major issues, thereby steering constitutional developments in the EU. Continue reading >>
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31 October 2024
The right lessons from Trump 1.0
The US withdrawal from international institutions is a broader trend, not solely tied to Trump-era policies. Consequently, European governments that aim to preserve the rules-based international order should be prepared to take the lead and fill the gap left by the US exit. To pursue this strategy effectively, certain imperatives must be addressed. Continue reading >>
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