Where EU action affects the legal or factual situation of an individual, guarantees for the affected person’s rights must exist. If rights have been violated, a remedy must be provided. This book examines how the EU may be held accountable for violations of human rights through procedures and remedies available to the individual applicant, within the EU’s legal system and beyond.
The first Part of the book highlights the significant challenges in the process of claiming remedies for human rights violations committed by the EU. Part II examines the increasing significance of the remedy provided by the principle of non-contractual liability in the framework of EU human rights law. Part III goes a step beyond and examines potential remedies in the sphere of international law, both as an alternative to the EU’s legal system and additional protection.
The book contains a comprehensive analysis of substantial and procedural, EU and international, law. It is a detailed and informed handbook for students, academics and practitioners alike.
Contents
Preface
Abbreviations
Acknowledgments
Introduction
A Introducing the research question
1 Europe and human rights
2 Introducing the concept of responsibility and remedies for
violations of human rights by the EU
Β The role of this book and the academic discourse on the EU and human
rights
1 The first milestone of this book: identification of the necessity
of a system of remedies for the EU vis-à-vis human rights
2 Addressing the question and substantially contributing to the
academic discourse on the EU and human rights
C Terminology – human and fundamental rights
D Plan and structure of this book
Part I The remedies deficit
Chapter 1 The failure of EU accession to the ECHR and the remedies
deficit
A Introduction
B The history of the ECHR in EU law
C The effects of non-accession: no reform for remedies within the EU’s
legal system
D The effects of non-accession: continuing inaccessibility to ECtHR
remedies
1 Binding judgments of international tribunals and the
CJEU
2 Inability to access substantive remedies and achieve execution
of ECtHR judgments
i Substantive remedies within the framework of the
ECHR
ii Execution of judgments within the ECHR
framework
iii The EU, substantive remedies and execution of
judgments of the ECHR
E Conclusion
Chapter 2 The action for annulment – an inaccessible internal remedy
A Introduction
B A potentially effective remedy
1 The relationship between annulment and human rights
2 Two rights – related grounds of review
i Essential procedural requirements
ii Infringement of the treaties and any rule relating to
their application
C Standing – an insurmountable obstacle?
D Limited scope for access to the remedy of annulment
1 Competence areas where judicial review may occur
2 The jurisdiction of the CJEU in CFSP matters and human
rights
3 Geographical scope of judicial review and human rights
E Conclusion
Chapter 3 Alternatives to the ECHR and the judicial review remedies
A Introduction
B The indirect remedies provided by direct effect and preliminary
references
C The Plea of illegality: another alternative for fundamental rights
protection to Article 263 TFEU?
D Existent alternatives to the ECHR remedies beyond the EU’s legal
system
E Conclusion
Table of Contents
Part II Non-contractual liability of the European Union and the protection of human
rights
Chapter 4 Introducing the relationship between non-contractualliability and
human rights claims
A Introduction
B The legal provisions and theoretical underpinning of non-contractual
liability
C Introducing the criteria of Article 340 TFEU 1
D Significance of interim relief for the protection of rights within the
action for damages procedure
E Applicability of non-contractual liability to human rights
violations
Chapter 5 Non-contractual liability: the concept of unlawfulness and human
rights
A Introduction
B Unlawfulness in damages actions and the protection of rights
C The need for sufficiently serious breach – the human rights
perspective
D Discretionary vs non-discretionary acts – a redundant distinction for
rights-based cases?
E Conclusion
Chapter 6 Damage, causation and the principle of non-contractual liability
of the EU vis-à-vis human rights claims
A Introduction
B Remediable damage and human rights
C Causation and human rights
1 “Damage following directly or sufficiently directly”
2 Indirectly caused damage and human rights
3 Expansion of EU policies, causation and human rights
D ‘Damage’ and ‘unlawfulness’ – may they be the same concept in
fundamental rights claims?
E Comparing the CJEU’s approach to damages for the vindication of a
right per se with domestic law and European human rights law
1 Domestic legal systems
2 The European Court of Human Rights
F Conclusion
Table of Contents
Chapter 7 EU non-contractual liability for lawful acts and rights-based
claims
A Introduction
B The liability for lawful acts in EU law and human rights
C Is the exception in FIAMM useful for rights-based cases?
D Conclusion
Chapter 8The scope of application ofthe principle of non-contractualliability
and human rights
A Introduction
B Type of acts covered by non-contractual liability and human rights
C Institutions, bodies, agencies and organs subject to the principle and
the protection of human rights
D Competence areas covered
E Conclusions
Part III The European Union and international human rights obligations
Chapter 9 The EU and its involvement in international affairs
A Introduction
B The EU in the context of non-state actors in international law
C The EU – an international organisation with a foreign and defence
policy liable to breach human rights
D Conclusion
Chapter 10 Does the EU have international human rights obligations?
A Introduction
B The conditions for the existence of an international obligation
C The necessity of accession to a multilateral international human rights
instrument guaranteeing a sufficient range of human rights
D The alternative solution of indirect obligations and indirect review 201
E Obligations arising out of customary international law and jus
cogens
F Conclusions
Chapter 11 The EU and the doctrine of attribution in international law
A Introduction
B The doctrine of attribution in public international law
Table of Contents
C The criteria for holding the EU responsible as an international
organisation
D Case law on attribution and the EU
E Observations on the rules on attribution and their applicability to the
case of the EU
Chapter 12 The EU’s responsibility vis-à-vis member states obligations to
implement EU policies
A Introduction
B Member States as implementing policies of executive federalism
C Member Statesimplementing EU obligations and international human
rights law
D Conclusions
Chapter 13 Remedies potentially available for the breach of international
human rights law by the EU
A Introduction
B The consequences of a breach of international law by an international
organisation
C The meaning of victim, damage and reparation
D Remedies
1 Restitution
2 Compensation
3 Satisfaction
E Conclusions
Chapter 14 Procedural obstacles: available legal fora to challenge the EU on
the basis of an internationally wrongful act violating human rights
A Introduction
B The International Court of Justice and the Court of Justice of the
European Union
1 The International Court of Justice
2 The Court of Justice of the EU applying international law
vis-à-vis human rights violations by the EU
C Suggestions of the UNHCHR regarding potential scrutiny of EU
action
D Case study: the EULEX Panel
E Proposals for a World Human Rights Court
F Conclusions
Table of Contents
Conclusion
I Revisiting the research question
II Summary of findings
III Proposals
A TheCJEU’sjurisdiction must be expanded to comprise all areas
of Union action and all EU agencies, bodies and
institutions
B The CJEU ought to become more open to human rights claims
through its case law
C The EU ought to accede to more international human rights
instruments and accept the jurisdiction of their compliance
mechanisms
D Arrangementsshould be made by establishing specialist bodies
or cooperating with international institutions to establish the
EU’s accountabilitywith regard to its human rights obligations,
in light of the lack of a set of international human rights
obligations for the EU and the inadequate jurisdiction of the
CJEU
IV Final observations
Bibliography
I Books, contributions in books and articles
II Reports, official documents and publications
Table of Cases
I European Union
A Court of Justice of the European Union / European Court of
Justice
i Judgments
ii Opinions
B General Court of the European Union / Court of First
Instance
C Civil Service Tribunal
D Human Rights Review Panel for EULEX
II Council of Europe
A European Court of Human Rights
B European Commission of Human Rights
C European Committee on Social Rights
III United Nations
x
Table of Contents
A International Court of Justice
B United Nations Human Rights Committee
C United Nations Committee Against Torture
D International Criminal Tribunal for the Former
Yugoslavia
IV Interamerican Court of Human Rights
V World Trade Organisation
VI United States – Iran Claims Tribunal
VII Other International Tribunals
VIII National Case Law
A Cyprus
B France
C Germany
D Ireland
E United Kingdom
F The Netherlands
G Spain
Table of legislation and instruments
Index
