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CURRENT DEVELOPMENTS: IV. CITIZENSHIP AND HUMAN RIGHTS

Published online by Cambridge University Press:  17 January 2008

Erika Szyszczak
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Abstract

Citizenship and human rights continue to play an important role in the evolution of Community law. Both sets of principles have appeared in the case law of the European Courts and in the creation of a Constitutional document for Europe. Part II of the draft Constitution incorporates the Charter of Fundamental Rights of the Union. Additionally, the first report from the independent network of experts in fundamental human rights details the various international human rights obligations which the Member States are subject to, analysing Member State policy in a number of areas in the light of the international obligations.1 Paradoxically, at a time when greater emphasis is being paid to the constitutional recognition of human rights there are indications of divisions between some of the Advocates General, the Court of First Instance and the European Court of Justice (the Court) on the constitutional role of fundamental rights in relation to access to justice.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 2 , April 2004 , pp. 493 - 501
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 See EU Network of Independent Experts in Fundamental Rights (CFR-CDF), Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002 (March 2003). Available at: <http://europa.eu.int/comm/justice_home/cfr_cdf/doc/rapport_2002_en.pdf>..>Google Scholar

2 Case C-184/99 [2001] ECR I-6193.Google Scholar

3 Case C-85/96 [1998] ECR I-2691.Google Scholar

4 Above n 2, para 33.Google Scholar

5 Case C-224/98 [2002] ECR I-1691, para 28. The allowance was paid to young people seeking their first employment. It had been deemed to be a ‘social advantage’ within the meaning of Art 7(2) of Regulation 1612/68/EEC in Case 94/84 Deak [1985] ECR 1873, para 27. The Court held Belgium to be in breach of its Community law obligations by failing to make the allowance available to young people who were the children of migrant workers and who had not completed their secondary education in Belgium: Case C-278/94 Commission v Belgium [1996] ECR I-4307.Google Scholar

6 See Case C-195/98 Österreichischer [2000] ECR I-10497, paras 54 and 55.Google Scholar

7 Above n 5, para 31.Google Scholar

8 See now, Arts 3 (1) (q) and 149(2) EC.Google Scholar

9 Above n 5, para 34.Google Scholar

10 Ibid, para 35.

11 Case C-274/96 [1998] ECR I-7637.Google Scholar

12 Case C-100/01 [2002] ECR I-10981.Google Scholar

13 Case 36/75 [1975] ECR 1219.Google Scholar

14 Case C-413/99 [2002] ECR I-7091.Google Scholar

15 Ibid, para 93.

16 Ibid, para 94.

17 Ibid, paras 50 and 52, citing Case C-308/89 Di Leo [1990] ECR I-4185, para 13.

18 Ibid, para 59.

19 Case 267/83 [1985] ECR 567, para 18.Google Scholar

20 Above n 14, para 72.Google Scholar

21 Case C-60/00 [2002] ECR I-6279.Google Scholar

22 Szyszczak, E ‘Regularising Migration in the European Union’, in Bogusz, B, Cygan, A, Cholewinski, R, and Szyszczak, E (eds) Irregular Migration and Human Rights (Leiden Martinus Nijhoff Publishers 2004); Editorial Comments (2003) 40 CMLRev 537.Google Scholar

23 Case C-257/00 [2000] ECR I-345.Google Scholar

24 Case C-109/01, judgment of 23 Sept 2003.Google Scholar

25 Case C-370/90 [1992] ECR I-4265. Quaere: how far the ruling in Ackrich can be reconciled with the ruling in Case C-459/99 MRAX [2002] ECR I-6591?Google Scholar

26 Discussed previously in Szyszczak ‘Social Policy’ (2003) 52 ICLQ 1013.Google Scholar

27 Case C-117/01, Opinion of 10 June 2003.Google Scholar

28 Case C-148/02, judgment of 2 Oct. 2003.Google Scholar

29 Ibid, para 41.

30 Case C-50/00 UPA v Council [2002] ECR I-6677, Opinion of Advocate General Jacobs, para 39.Google Scholar

31 Case T-177/01 [2002] ECR II-5137. On appeal Case C-263/02, Opinion of Advocate General Jacobs 10 Mar 2003.Google Scholar

32 Respectively Case 222/84 [1986] ECR 1651 and Case 294/83 [1986] ECR 1339.Google Scholar

33 Above n 30.Google Scholar

34 Case 25/62 [1963] ECR 95.Google Scholar

35 For a full discussion see A Cygan ‘Protecting the Interests of Civil Society in Community Decision-Making—The Limits of Article 230 EC’ (2003) 52 ICLQ 952 and ‘Recent Developments in Judicial Review and Article 230 EC’ (2003) ERA Forum 3/2003 67.Google Scholar

36 Joined Cases C-187/01 and C-385/01 [2003] ECR I-1345. Art 54 CISA states: ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can longer be enforced under the laws of the sentencing Contracting Party.’Google Scholar

37 Cf Programme of Measures to Implement the Principle of Mutual Recognition of Decisions in Criminal Matters, OJ (2001) C 12/10. Under the chapter heading ‘Taking Account of Final Criminal Judgments Already Delivered by the Courts in Another Member State’, Art 1.1. states ‘Ne bis in idem. Aim: To strengthen legal certainty in the Union by ensuring that a final conviction handed down by a criminal court in one Member State is not challenged in another Member State. The fact that such a decision has been handed down in one Member State must preclude a further prosecution in another Member State for the acts that have already been judged. This aim has been partially realized in Articles 54 to 57 of the Convention implementing the Schengen Agreement.’Google Scholar