Fundamental Rights in the European Union - Towards Higher Law of the Land? – A Study of the Status of Fundamental Rights in a Broader Constitutional Setting
1. INTRODUCTION
1.1 EU and fundamental rights in a nutshell: 1950s - 1999
1.2 Towards a EU Charter of Fundamental rights - the turn into the 21st century
1.3 Defining the research questions and structure of the study
1.4 Methodology and material
1.5 Research in this field
1.6 Fundamental Rights and human rights as concepts in EU law
2. DEVELOPMENT OF FUNDAMENTAL RIGHTS AS GENERAL PRINCIPLES OF COMMUNITY LAW AND ITS CRITIQUE - THE PROGESS SO FAR
2.1 Introductory remarks
2.2 On the nature and sources of EU law
2.2.1 Principles of a constitutional nature: direct effect and supremacy of Community law
2.2.2 Sources of law
2.3 A challenge of supremacy by Constitutional Courts - the case of Germany as an example
2.4 The evolution of the human rights doctrine-the role of the ECJ
2.4.1 Early case law of the ECJ
2.4.2 Sources of fundamental rights
2.4.2.1 Constitutional traditions common to the Member States
2.4.2.2 International human rights treaties
2.4.2.3 Special emphasis on the European Convention of Human Rights
2.4.3 National measures under Communitv law
2.5 Codification of the human rights doctrine in treaty context
2.6 The institutional response to the method of protection
2.6.1 The option of adopting a fundamental rights catalogue
2.6.2 The 1989 European Parliament declaration and the 1989 Community Charter of Fundamental Social Rights of Workers-significant steps towards a bill of rights
2.7 The debate of accession by the EC/EU to the ECHR: 1979-1996
2.7.1 Commission initiatives
2.7.2 Opinion 2/94
2.8 Some concluding reflections
3. THE DELIBERATION FOR A EU CHARTER OF FUNDAMENTAL RIGHTS FOR THE EUROPEAN UNION - THE WORK OF THE I AND II CONVENTION
3.1 Need for a Charter of Fundamental Rights- some preliminary observations
3.2 The genesis of the EUCFR
3.2.1 Mandate of the Cologne European Council
3.2.2 The Convention method - seeking for legitimacy
3.2.3 Fundamental rights and the question of legitimacy
3.2.3.1 Some conceptual remarks on the notion of legitimacy
3.2.3.2 Legitimacy and the role of rights
3.2.3.3 The EUCFR- a result of a deliberative process?
3.3 Drafting of the Charter
3.4 General Provisions - The Rules of Interpretation
3.4.1 Some preliminary remarks
3.4.2 Field of application
3.5 Scope of guaranteed rights
3.5.1 Limitation of rights and the principle of conformity
3.5.2 The EUCFR and the ECHR - a dual system of human rights protection?
3.5.3 The Charter in light of the alleged problem of divergent interpretations by Strasbourg and Luxembourg Courts
3.6 Rights and Principles in the Charter context
3.6.1 Indivisibility in the context of the EUCFR
3.6.2 Justiciability of economic and social rights - a black and white issue?
3.7 Level of protection
3.8 Abuse of power
3.9 Concluding remarks
4. CONSTITUTIONAL VALUES: ON THE RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND FUNDAMENTAL ECONOMIC FREEDOMS
4.1 Introduction
4.2 The foundation of the European Economic Constitution
4.3 The fundamental rights character of the free movement principles
4.4 On legal norms as rules and principles and "balancing"
4.5 Fundamental economic freedoms as non-absolute values
4.5.1 At the very outset - introductory remarks
4.5.2 Exceptions to the free movement provisions - the case of goods
4.5.3 Fundamental rights as an independent ground for impeding free movement?
4.6 Economic freedoms and Fundamental Rights - towards a direct balancing and weighting of principles?
4.6.1 The Schmidberger case
4.6.1 Omega Spielhallen case
5. IMPLEMENTATION OF THE CHARTER AND THE CONSTITUTIONAL DEBATE
5.1 Impact of the EU Charter of Fundamental Rights as a non-legally binding instrument on the protection of fundamental rights
5.1.1 Introductory remarks
5.1.2 The current implications of the non-binding Charter - a declaration without legal effect?
5.2 Impact on the legal argumentation of fundamental rights by the CFI and EC]
5.3 Institutional practice within the EU
5.4 Constitutionalisation of fundamental rights
5.4.1 The European Convention - the background
5.4.2 Working Group II of the Convention
5.5 The Charter and its relation to fundamental rights as general principles of law?
5.6 But... is the Constitutional Treaty dead?
5.7 Will the Charter survive?
5.8 Concluding reflection on the constitutionalisation of the Charter
6. TOWARDS A MAXIMUM APPROACH? - THE ACCESSION DEBATE REVISITED
6.1 Why accession?
6.2 A new approach by the ECtHR - The Matthews case
6.3 Post Matthews - acceleration of application against EU Member States collectively and individually
6.4 Still a feasible option and a necessity?
6.5 A clear mandate exists, but still a long way to go
6.5.1 WG II and the European Convention
6.5.2 The other side of the coin
6.6 Does article 1-9 (2) of the Constitutional Treaty entail a general mandate to accede to other international human rights treaties?
6.7 Conclusion
7. FUNDAMENTAL RIGHTS AS A SUPRA-CONSTITUTIONAL VALUE IN EUROPEAN UNION LAW - CONCLUDING OBSERVATIONS
7.1 On the normative status of fundamental rights in EU law.
7.2 Towards higher law of the land?
7.3 On the need to focus on preventive dimension
7.3.1 From a reactive to proactive approach?
7.3.2 The establishment of the new Fundamental Rights Agency
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