• Clash of Titans – general principles of EU law: balancing and horizontal direct effect

      Gualco, Elena; Lourenço, Luísa; University of Genoa; ERA Academy of European Law (2016-08-08)
      More than 10 years after the first ruling on the horizontal effect of the principle of non-discrimination on grounds of age, in the Dansk Industri case (Court of Justice, judgment of 19 April 2016, Dansk Industri (DI), Acting on Behalf of Ajos A/S v. Estate of Karsten Eigil Rasmussen, case C-441/14 [GC]) the CJEU reiterates Mangold and Kücükdeveci. It has by now proclaimed a new form of horizontality, deriving from the combined application of two different sources of law, i.e. the directive and the general principle. According to the Court, neither the general principle of legal certainty, nor that of legitimate expectations, which can be jeopardised by the horizontal effect of non-discrimination on grounds of age, question the necessity to ensure its effectiveness. Protecting non-discrimination on grounds of age justifies not only a broader application of that principle, but also its hierarchical priority over other general principles of EU law. However, insofar as general principles equally protect other fundamental rights, some questions arise: can the judicial activism of the CJEU equally improve effectiveness and uniformity in the protection of fundamental rights within the EU? Or, as Dansk Industri suggests, does the former goal (i.e. effectiveness) necessarily affect the latter?
    • “Clash of Titans” 2.0. From conflicting EU general principles to conflicting jurisdictional authorities: the Court of Justice and the Danish Supreme Court in the Dansk Industri case

      Gualco, Elena; University of Bedfordshire (2017-03-26)
      The present papers focuses on the reception by the Danish Supreme Court of the CJEU decision in the Dansk Industri case. Instead of disapplying a national provision which was found by the CJEU to be inconsistent with the general principle of non-discrimination of grounds of age, the Danish Supreme Court stresses that the Law of Accession of the Kingdom of Denmark to the European Union does not cover general principles of EU law and the national provision cannot be disapplied. The selective approach of the Danish Supreme Court raises a number of concerns which this paper highlights: first, a clear misunderstanding regarding the functioning of general principles of EU law; second, a violation of the duty of sincere cooperation and the relate doctrine of supremacy of EU law; third, an arguable assessment of the effects of the Charter of fundamental rights.
    • The development of age and disability equality within the European Union: the Court of Justice and the (mis)implementation of EU general principles

      Gualco, Elena (Il Mulino, 2019-12-01)
      Over the years, EU general principles have proven to be an essential source of protection of equality. The approach followed by the European Court of Justice has made general principles one of the most effective sources of law towards the goal of expanding the protection of equality and improving its enforcement. Against this backdrop, the article argues that some recent decisions in the fields of disability and age discrimination challenge the merits of such approach and eventually disclose its shortcomings. The ruling in Kaltoft shows at time a lack of consistency of the CJEU case-law and a far too discretional reasoning, while Dansk Industri and Parris demonstrate that the Court’s arbitrary approach has the capacity to ultimately jeopardise the effective and fair enjoyment of equality as an individual right.
    • From Grandrath to Bayatyan: the development of European jurisprudence on conscientious objection to military service

      Yiannaros, Andreas C. (Intersentia, 2017-03-31)
      The paper discusses the historical evolution of the legal right to conscientious objection to military service within the key institutions of the Council of Europe. It does so by examining the travaux preparatoire and legislative history of the European Convention on Human Rights, focusing on the intention of its drafters to incorporate into the scope of the treaty, a right to be exempted from military service on grounds of conscience. It further explores the activities of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe in order to identify whether these bodies intended to expand the scope of the Convention to cover objections of conscience to the undertaking of military duties as a constituent element of Article 9 ECHR, protecting the right to freedom of thought, conscience and religion. Finally, the paper explores the European Court of Human Rights’ jurisprudence on the question of conscientious objection to military service and assesses the importance and impact of Bayatyan v Armenia, a landmark decision by the Grand Chamber of the European Court of Human Rights which finally placed objections of conscience to military service firmly within the scope of Article 9 of the European Convention on Human Rights.
    • Is Toufik Lounes another brick in the wall? The CJEU and the on-going shaping of the EU citizenship

      Gualco, Elena; University of Bedfordshire (2018-06-21)
      This Insight tackles a recent judgment of the CJEU, Toufik Lounes (Court of Justice, judgment of 14 November 2017, case C-165/16, Toufik Lounes v. Secretary of State for the Home Department), where the CJEU was asked to rule on the case of a EU national, Ms García Omazábal, who had exercised her free movement rights, later acquiring the citizenship of the host State while also retaining her nationality of origin. The Court has further investigated the scope ratione personae of Directive 2004/38 and Art. 21, para. 1, TFEU, so to clarify whether, in the scenario above, the EU national and her third-country national spouse could still be considered “beneficiaries” under Directive 2004/38. The CJEU answered as follows: while Directive 2004/38 is not applicable in the situation above, Art. 21, para. 1, TFEU shall instead be applied so as to prevent the EU national holding a dual citizenship to be treated less favourably than a EU national having the citizenship of his country of origin only, and therefore having the EU national’s right to family life unreasonably disrupted. Against this backdrop, the Insight first highlights the merits of the decision, by also investigating its positive effects within the Brexit process. Secondly, it discloses a main shortcoming that is likely to weaken the overall protection granted to EU citizens, i.e. the CJEU choice to disregard the connection between the provisions on the EU citizenship and the respect of fundamental rights
    • Jaloud v Netherlands and Hassan v United Kingdom: time for a principled approach in the application of the ECHR to military action abroad

      Borelli, Silvia (2015-05)
      The aim of the present piece is not to undertake an examination of which of international human rights law (IHRL) and international humanitarian law (IHL) is ‘better’ or more appropriate to regulate the conduct of States in situations of armed conflict. Advocates of IHRL argue that it provides heightened protection for individuals, and that, by its own terms, it applies to, and is perfectly equipped to deal with situations of exception, including armed conflicts.[1] On the other hand, supporters of IHL focus on the need not to place unnecessary fetters upon the freedom of States to pursue their military objectives in situations of armed conflict, and argue that IHL provides an adequate level of protection, whilst being more pragmatic, better suited to the specificities of armed conflict and more likely to be observed by the parties to the conflict.[2] Insofar as they prioritise different values, proponents of the two opposing camps to a large extent talk past each other and the debate is therefore necessarily somewhat sterile.
    • Unaccompanied minors seeking for protection in the European Union: will a fair and adequate asylum system ever see the light?

      Gualco, Elena (National Research Council of Italy, 2016-12-30)
      SUMMARY 1. Introduction. – 2. Coping with an “Enhanced Vulnerability”: the Case of Unaccompanied Asylum Seeking Minors. – 3. Accommodating Migrants and Promoting the Development of the Host Country: Two Birds with One Stone? – 4. The Protection of Asylum Seeking Minors in Europe: an Overview. – 4.1. The Protection of Unaccompanied Minors Under the European Convention on Human Rights. – 4.2. The European Union: the Quest to Accommodate and Protect Unaccompanied Asylum Seeking Minors. – 5. Rethinking the Common European Asylum System to Provide an Effective Response to the Migration Challenge. – 5.1. The Current Deficiencies of the CEAS and the Struggle to Ensure the Protection of Unaccompanied Asylum Seeking Minors. – 5.2. Reforming the CEAS to Foster the Best Interest of the Child: a (Possible) Step Forward. – 6. New Proposals, Old Problems: Will an Adequate Asylum System Ever See the Light?