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Comparative constitutional law

Comparative constitutional law. Theme 5 the protection of fundamental rights in Europe. Levels of protection. national system of protection, on the basis of national catalogues and/or international catalogues Examples: UK – Human Rights Act Example: Germany – Basic Law

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Comparative constitutional law

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  1. Comparative constitutional law

  2. Theme 5 the protection of fundamental rights in Europe

  3. Levels of protection • national system of protection, on the basis of national catalogues and/or international catalogues • Examples: UK – Human Rights Act • Example: Germany – Basic Law • Example: France – Constitution and ECHR • ECHR: compliance mechanisms at European level with ECtHR • EU: multi-level system of fundamental rights protection

  4. National systems of fundamental rights protection • How and by whom? • Role of courts

  5. European Court of Human Rights (ECtHR) • located in the city of Strasbourg, France • one judge per member-state • elected by Parliamentary Assembly • renewable 6-year terms

  6. What can citizens ‘do’ with the ECHR? • Before a national court? Depends on the system • France, Belgium, Netherlands • Germany, UK • Before the ECtHR: individual complaint procedure

  7. The European Union and Fundamental Rights • Charter of Fundamental Rights • Accession to the ECHR • Respect for fundamental rights as general principles of EU law, drawn from national constitutional traditions and ECHR and other treaties.

  8. The European Union and Fundamental Rights – a fundamental rights policy • Commissioner for Human Rights • Fundamental Rights Agency • Fundamental Rights legislation – directives to be implemented by member states

  9. Fundamental rights protection in complex and intertwined systems • Is the EU bound by the ECHR? • Art 6 EU, not party • Can a member state be held liable for infringement of the ECHR when it merely implements EU law? • Bosphorus

  10. Fundamental rights protection in complex and intertwined systems • Is a MS liable under EU law if it infringes EU law in order to protect fundamental rights? • Schmidberger • Should the level of protection offered in Europe always be the same? • article 53 ECHR, article 53 Charter, subsidiarity, margin of appreciation, Omega • Should the fundamental rights in the national constitution mirror the ECHR and/or the Charter?

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