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Article 37 Charter of Fundamental Rights of the European Union: On the way to a fundamental right upgrade?

Kaiser, Zeno LU (2016) JAEM01 20161
Department of Law
Abstract
Environmental law is an area of law that has been under constant development
in the European Union especially over the last decades. This has resulted in a
variety of legally binding instruments. At the same time the European Union
has also improved its fundamental rights regime with tools like the now binding
Charter of Fundamental Rights. This Charter also contains an article on
“Environmental Protection” in Article 37 Charter.
The use of this article has been scarce. One of the reasons might be because
of the unclear status of the article in the Charter and EU law. As a starting
point it is considered as a principle as prescribed by Article 52(5) Charter and
the Explanations of the Charter. The distinction between rights and... (More)
Environmental law is an area of law that has been under constant development
in the European Union especially over the last decades. This has resulted in a
variety of legally binding instruments. At the same time the European Union
has also improved its fundamental rights regime with tools like the now binding
Charter of Fundamental Rights. This Charter also contains an article on
“Environmental Protection” in Article 37 Charter.
The use of this article has been scarce. One of the reasons might be because
of the unclear status of the article in the Charter and EU law. As a starting
point it is considered as a principle as prescribed by Article 52(5) Charter and
the Explanations of the Charter. The distinction between rights and principles
of the Charter remains unclear. Principles face some limitations in respect to
rights of the Charter. This might be overcome through other ways of interpreting
Article 37 Charter. The purpose of this thesis is to show the ways
Article 37 Charter has been considered. This includes the legal background
and framework of Article 37 Charter and its possible limitations.
The limitations will cover some of the core concepts of EU law like the principle
of proportionality, the internal market freedoms and other rights of the
Charter. Since they are primary law and established general principles of the
EU they are naturally at the border of the scope of application of Article 37
Charter. This is also the cases with individual freedoms of others that are
challenged when Article 37 Charter becomes something like a super-justification
since the courts respect the discretion of the institutions of the EU. This
remains to be a difficult situation to assess and a careful balancing by the
courts is of great importance. This might be one of the reasons why the CJEU
has scarcely applied Article 37 Charter so far. The Advocate Generals seem
to be willing to use it more often.
This thesis finds that the distinction between rights and principles remains
inconclusive and should not be used to restrict the application of Article 37
Charter. A fundamental rights Charter should be empowered and should not
stop at a weakening distinction of rights and principles. The limitation to a
principle will restrict access of individuals to courts. This is especially important
in the field of environmental law which among its aims has in Article
37 Charter sustainable development. To achieve this and to also allow for a
powerful usage of Article 37 Charter even by individuals it should be considered
whether Article 37 Charter is ready for a fundamental right upgrade. (Less)
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author
Kaiser, Zeno LU
supervisor
organization
course
JAEM01 20161
year
type
H1 - Master's Degree (One Year)
subject
language
English
id
8876420
date added to LUP
2016-06-07 14:00:51
date last changed
2016-12-15 07:02:24
@misc{8876420,
  abstract     = {Environmental law is an area of law that has been under constant development
in the European Union especially over the last decades. This has resulted in a
variety of legally binding instruments. At the same time the European Union
has also improved its fundamental rights regime with tools like the now binding
Charter of Fundamental Rights. This Charter also contains an article on
“Environmental Protection” in Article 37 Charter.
The use of this article has been scarce. One of the reasons might be because
of the unclear status of the article in the Charter and EU law. As a starting
point it is considered as a principle as prescribed by Article 52(5) Charter and
the Explanations of the Charter. The distinction between rights and principles
of the Charter remains unclear. Principles face some limitations in respect to
rights of the Charter. This might be overcome through other ways of interpreting
Article 37 Charter. The purpose of this thesis is to show the ways
Article 37 Charter has been considered. This includes the legal background
and framework of Article 37 Charter and its possible limitations.
The limitations will cover some of the core concepts of EU law like the principle
of proportionality, the internal market freedoms and other rights of the
Charter. Since they are primary law and established general principles of the
EU they are naturally at the border of the scope of application of Article 37
Charter. This is also the cases with individual freedoms of others that are
challenged when Article 37 Charter becomes something like a super-justification
since the courts respect the discretion of the institutions of the EU. This
remains to be a difficult situation to assess and a careful balancing by the
courts is of great importance. This might be one of the reasons why the CJEU
has scarcely applied Article 37 Charter so far. The Advocate Generals seem
to be willing to use it more often.
This thesis finds that the distinction between rights and principles remains
inconclusive and should not be used to restrict the application of Article 37
Charter. A fundamental rights Charter should be empowered and should not
stop at a weakening distinction of rights and principles. The limitation to a
principle will restrict access of individuals to courts. This is especially important
in the field of environmental law which among its aims has in Article
37 Charter sustainable development. To achieve this and to also allow for a
powerful usage of Article 37 Charter even by individuals it should be considered
whether Article 37 Charter is ready for a fundamental right upgrade.},
  author       = {Kaiser, Zeno},
  language     = {eng},
  note         = {Student Paper},
  title        = {Article 37 Charter of Fundamental Rights of the European Union: On the way to a fundamental right upgrade?},
  year         = {2016},
}