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Critically discuss the proposition that the Treaty of Lisbon has completed the evolution of the EU legal system

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Introduction

David McCabe 11090596 Words: 2837(excluding footnotes and bibliography) Question: Critically discuss the proposition that the Treaty of Lisbon has completed the evolution of the EU legal system 1 Introduction: 1.1 In the aftermath of WW2 the leaders of Europe faced many challenges, economically, politically and socially. It was in this aftermath that the framers of the original EC treaties sought to create an economic union which was to promote trade and commerce within the continent and thus encourage propensity and co operation in a land which had been haunted by war after war. Also in this aftermath, the Council of Europe was founded in 1949 to ensure the protection of human rights and thus ensure the atrocities of authoritarian governments did not re-occur.1 This paved the way for the creation of the Convention of human rights (referred from now on as the ECHR) which enshrined a set of common goals and standards to the countries which agreed to abide by the Convention. The European court of Human rights (referred from now on as the ECtHR) was also established as a mechanism to which human rights cases and states in breach of the Convention could have the issues adjudicated. 1.2 Upon the creation of the EEC, fundamental human rights were not considered part of its mandate, promoting stronger economic ties and breaking down trade barriers was to be its primary function. However, as the EC grew and successfully achieved its goals, it morphed into an institution which incorporated a wider mandate. This transformation can inherently be traced back to the early case law of its legal arm, the European Court of Justice (EUCJ), and the landmark decisions which it handed down.2 This 'judicial activism'3 has paved the way for what we now recognise as the European Union and its unique and thriving legal system. 1.3 In the Lisbon treaty, the EU has been given a legal personality and will finally ascend to the Convention of Human rights. ...read more.

Middle

The protection of equality between men and women does not, however, prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex (i.e. positive discrimination). 4.5 It should be noted that the rights in the ECHR are considered to be a minimum standard of protection. It is recognised in article 52(3) of the Charter that the EU might provide a higher standard since it provides that "this provision shall not prevent Union law providing more extensive protection" .The result of this provision could be that the EU and national courts will build on and develop the ECHR rights through the Charter. 4.6 Another important issue is whether the ECJ has now been empowered to review any provision of national law in the light of the Charter. Even in areas where the EU can legislate, the reach of the Charter is not boundless. The Charter settles that national authorities, when acting outside the scope of EU law, are not bound by its provisions since it provides that the national authorities must respect EU fundamental rights "only when they are implementing Union law". In other words, it is still a condition for the EU courts in exercising their jurisdiction that the relevant national measures fall "within the scope" of EU law. The individuals haven't now gained the right to institute judicial proceedings on the basis of any provision of the Charter, in any situation, against any measure adopted by national or EU public authorities. 4.7 The EUCJ does makes clear that EU fundamental rights are binding on national authorities when they apply provisions of EU law which are based on protection for fundamental rights, or enforce and interpret EU rules or invoke EU derogation rules relating to the fundamental economic freedoms such as the free movement of goods 5 Has the aforementioned changes mentioned above completed the EU legal systems evolution? ...read more.

Conclusion

4 E. VOS, Regional Integration through dispute resolution: The EU experience (2005) 5 See Flaminio Costa v ENEL [1964] ECR 585 (6/64) 6 See NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen Case 26/62 [1963] ECR 1; [1963] CMLR 105 7 See Stauder 29/69 [1969] ECR 419 8 K Alter and S. Menunier 'Judicial Politics in the European Community' (1994) 26 Comparative Political Studies 9 See: Legal Reasoning of the Court of Justice in the Context of Principle of Equality, between Judicial Activism and Self-Restraint; by Pollicino - German Law Journal, pp. 283-317, 2004. 10 P. Pescatore, 'Les Droits de l'homme et l'int�gration Europ�enne' (1968) 4 Cahiers de Droit Europ�enne 629-673, 657. 11 29/69 [1969] ECR 419 12 11/70 [1970] ECR 1125 13 4/73 [1974] ECR 491, �13 14 Case C-185/95 P [1998] 15 I Pernice, 'Multilevel Constitutionalism in the European Union' (2002) 27 EULR 511 16 S. Douglas-Scott; 'A tale of two Courts: Strasbourg, Luxembourg and the growing European human rights acquis' (2006) 43 Common Market Law Review 629 17 Reflections on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights ELJ,Vol. 17, No. 5, September 2011; page 572 18 Pursuant to Art 218, para 10 TEU, the opinion may be sought by the Commission, Council or EP 19 Art. 6(1) of TEU 20 The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems? rederic van den Berghe European Law Journal, Vol. 16, No. 2, March 2010 21 The Charter of Fundamental Rights and the Environmental Policy Integration Principle (2011) Springer 22 The EU Charter of rights and the right to equality: S Peers (2011) 23 EU law module, notes from class 5 24 Caslav Pejovic: CIVIL LAW AND COMMON LAW: TWO DIFFERENT PATHS LEADING TO THE SAME GOAL 25 http://channels.isp.netscape.com/news/story.jsp?idq=/ff/story/1001/20111124/1707.htm 26 http://www.zerohedge.com/news/walk-thru-upcoming-european-treaty-changes-redemption-fund-plan-z-endgame 27 Sonia Morano-Foadi and Stelios Andreadakis: Reflections on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights by European Law Journal, Vol. 17, No. 5, September 2011, pp. 595-610 ?? ?? ?? ?? ...read more.

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