Project FOCUS
Promoting Fundamentals of Charter Use in Society
FOCUS is a project which aims to raise public awareness of the EU Charter of Fundamental Rights, its value, and the capacity of key stakeholders for its broader application.
Within the FOCUS project, Verfassungsblog organizes and publishes scholarly blog symposia and blog posts on urgent topical questions concerning the protection of fundamental rights within the EU and the role of the EU Charter of Fundamental Rights. The project aims to stimulate and make accessible expert knowledge regarding the Charter’s strengths, weaknesses, impact on case law, and its broader role in European fundamental rights protection.
Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the granting authority can be held responsible for them. FOCUS project is funded by the European Commission’s Citizens, Equality, Rights and Values (CERV) programme and has received funding from the European Union’s Horizon Europe research and innovation programme under Grant Agreement No. 101143236.
All information about the FOCUS project can be found here: focuscharter.eu
LATEST POSTS
02 December 2024
A Right to Anonymity in the Digital Age
Although digital anonymity is associated with a wide range of opportunities, it also stands in the way of successful criminal prosecution. The right to respect private and family life under the the EU Charter as well as the right to protection of personal data are of fundamental importance for natural persons. However, since life is increasingly taking place online, anonymity can be exploited to spread hate, discriminatory content, and fake news. Considering these risks, the ECJ has opened the door to data retention in Europe and thereby restricted digital anonymity. Continue reading >>
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Data Retention Laws and La Quadrature du Net II
La Quadrature du Net II has been criticized for allowing generalized metadata retention measures. However, it is important not to lose sight of the fact that the law must not become a mechanism for protecting criminals. The scale of online rights violations are a real problem. P2P networks are not only a threat to copyright protection, but also an environment for the distribution of content related to serious crime. It is therefore necessary to strike a balance between these two concerns and to propose solutions that adequately protect users without guaranteeing impunity for criminals. Continue reading >>
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Squaring the Circle
La Quadrature du Net II, which allows for the general retention of IP addresses to combat copyright infringements committed online, should not be viewed as carte blanche for general data retention measures by the Member States. Instead of watering down fundamental rights protection on a case-by-case approach, Member States should agree on guarantees and safeguards as well as a list of serious crimes allowing only the restricted use of targeted data retention in specific cases. Continue reading >>
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29 November 2024
The Challenges of Nuance
Five Questions to Sabine Leutheusser-Schnarrenberger Continue reading >>
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Die Mühen der Differenzierung
Fünf Fragen an Sabine Leutheusser-Schnarrenberger Continue reading >>
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New Media, New Data and a Dark Foreboding
After the major shift in surveillance practices from state power and control to big tech corporations and monetisation, we are currently witnessing yet another Zeitenwende: Surveillance practices as a means of hybrid warfare, with the AI-driven vision of accessing what people think and feel. This type of surveillance produces knowledge that not only claims to reveal what people are likely to do in the future but also what they feel and think. The consequences of this epistemological bending are potentially grave. Continue reading >>Testing the Waters of Private Data Pools
Nowadays, data is mostly collected not by state actors but by businesses. In 2010, the German Constitutional Court held that the legislator has to evaluate the overall level of surveillance in Germany before enacting new data retention obligations. In light of the recent rejuvenised discussions about data retention and a general surveillance account, this text explores whether such an account needs to consider private data pools and what is required for a successful evaluation. Continue reading >>28 November 2024
Data Retention in a Cross-Border Perspective
This blog post compares the European and US approach to metadata surveillance and highlights some challenges that arise therefrom. It aims at shedding light on the main legal issues that may arise for the future of global counterterrorism. The essential role of courts in striking and keeping a balance between security and protection of human rights is further examined in light of the judgement in La Quadrature du Net II. Efforts should be made to avoid that the economic power of the US would lower the privacy standards when it comes to metadata surveillance. Continue reading >>
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The Long and Winding Road
The Court of Justice’s Quadrature du Net judgements mark another key moment in the complex and long-lasting legal debate on mass data retention in the European Union. This blogpost critically discusses the “constitutionalisation path” outlined by the EU Judges as well as the fragmented roads taken by Member States, with specific attention to Italy. Ultimately, it demonstrates the need for a decisive EU legislators’ intervention, able to draw the future path of data retention regimes. Continue reading >>
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Of Minor Benefits and Major Costs
Is general and indiscriminate data retention permissible under the EU fundamental rights framework? In La Quadrature du Net II, the Court tilts the metaphorical scale towards data retention. The take-away could contribute to the enlargement of privatised surveillance that rests on a generalised pre-emptive data retention scheme. The ECJ’s findings could cement intrusive practices emerging from the counter-terrorism narrative to regular state practice at the expense of fundamental rights protection. Continue reading >>
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27 November 2024
Prioritising Member States Over Citizens
The classic story about the right to privacy and data protection in the EU is one of a high level of protection. Yet, this original rosy image is increasingly fading away, most visibly in the La Quadrature du Net litigation, which is a continuation of two dynamics. First, the Court is still cleaning up the residual mess that lingers on from the now annulled Data Retention Directive. Second, in so doing, it is incrementally allowing the Member States indiscriminately retain personal data. Hence, the Court is carving out space for Member States’ preferences to the detriment of the protection of the individual. Continue reading >>
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Die Vorratsdatenspeicherung
Die jüngeren Urteile des EuGHs zur Vorratsdatenspeicherung sind nicht als „kopernikanische Wende“ zu verstehen, in der der EuGH sein Selbstverständnis als Grundrechtsgericht aufgegeben hätte. Sie sind keine autoritär motivierte Abkehr von einer vormals grundrechtsfreundlichen Rechtsprechung. Vielmehr fügen sich die Urteile ein in die komplexe Entwicklung des ursprünglich national geprägten Sicherheitsverfassungsrechts. Diese Einordnung bedarf eines genaueren Blickes. Continue reading >>
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Data Retention
The recent judgements of the CJEU on data retention should not be regarded as an authoritarian move towards a less fundamental rights-sensible position of the Court. Rather, the case law adapts the ever more complex development of the constitutional security law, which was originally dominated by the Member States. As a European court, the CJEU cannot simply ban certain police measures but must respect the complexity and heterogeneity of national law enforcement agencies. Continue reading >>
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26 November 2024
Protecting Victims Without Mass Surveillance
Mass data retention is on the rise. In the current heyday of security packages in Germany, we are now witnessing a “super grand coalition” in favor of mandatory IP address retention. Some are calling for greater protection for victims through data retention. Yet, what one often overlooks is the following: The investigative capacities of law enforcement authorities have never been better, and the digital data pools that can be analyzed have never been larger. Hence, victims must be protected without mass surveillance. Continue reading >>
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More Protection for Victims Through Data Retention
Mass data retention is all about proportionality. The threat level determines the proportionality of the means – both of which are subject to the perpetual flux of time. Data retention is intended to protect victims of digital crimes. To protect freedom online, our security services urgently need to be able to access stored IP addresses. The alarming developments in our security situation are calling many certainties from the past into question. This also involves a re-evaluation of traffic data retention. Continue reading >>
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Eyes Everywhere
Ten years after its groundbreaking judgment declaring the Data Retention Directive incompatible with the EU Charter, the Full Court significantly eased its previously strict requirements. On 30 April 2024, it issued La Quadrature Du Net II and, for the first time, declared the general and indiscriminate retention of IP addresses permissible for the purpose of fighting general crime. Given the CJEU’s fundamental change of heart, we have gathered a range of scholars to contextualize the judgment and situate it within the broader debate on mass data retention, online surveillance, and anonymity. Continue reading >>
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European Society Strikes Back
“This is a frontal and deep attack against the … European society.” With this remarkable statement the Commission has started the “largest human rights battle in EU history”: the infringement proceedings against the Hungarian anti-LGBTIQ* law. The Commission claims that this law breaches the internal market, the Charter rights and the Union’s common values enshrined in Article 2 TEU. The “mega hearing”, which took place on 19 November 2024, is now facing its ultimate test: can the Member States’ compliance with Article 2 TEU be reviewed before the Court of Justice? Continue reading >>22 November 2024
Die stille Mehrheit hat ihre Stimme gefunden
Fünf Fragen an John Morijn und Luke Dimitrios Spieker Continue reading >>The Silent Majority Has Found Its Voice
Five Questions to John Morijn and Luke Dimitrios Spieker Continue reading >>
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05 November 2024
The Tail That Wags the Dog
In Opinion 2/13 the Court of Justice held that accession to the ECHR must not interfere with the operation of the principle of mutual trust as this would affect the autonomy of EU law. I offer a different reading: mutual trust is not a general principle capable of having autonomous legal effects. Furthermore, mutual trust is acquiring a novel value for the progressive operationalisation of the foundational values ex Article 2 TEU. Read in this way, it has then the potential to enhance fundamental rights protection and is certainly no bar to accession to the ECHR – it is the dog of core values that wags the tail of mutual trust and not vice versa. Continue reading >>
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04 November 2024
Two Courts, Two Visions
The diverging standards of protection concerning the right to a fair trial, as interpreted by the CJEU and the ECtHR, remain a critical obstacle to the EU’s renewed attempt at accession to the ECHR. In this field, the two Courts seem to be drifting further apart rather than converging, leading to unresolved conflicts between the standard of fundamental rights protection and mutual trust obligations in the EU. Except in the unlikely event of a course-correction by the CJEU, this means that we are no closer to accession today than we were ten years ago, when the now-infamous Opinion 2/13 was handed down. Continue reading >>
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Enhancing Fundamental Rights Protection
The EU should ensure fundamental rights’ compatibility of EU legislation before its adoption. To that effect, we propose three distinct paths to improve the EU control mechanisms. Whilst mechanisms to ensure quality control do exist, primarily in the form of impact assessments, these mostly remain a merely formal exercise. Henceforth, we suggest strengthening the ex ante fundamental rights review of EU legislation through enhanced involvement of FRA in the legislative process. Continue reading >>
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03 November 2024
Of Artificial Intelligence and Fundamental Rights Charters
The Council of Europe has adopted the Framework Convention on Artificial Intelligence – the first of its kind. Notably, the Framework Convention includes provisions specifically tailored to enable the EU’s participation. At the same time, the EU has developed its own framework around AI. I argue that the EU should adopt the Framework Convention, making an essential first step toward integrating the protection of fundamental rights of the EU Charter. Ultimately, this should create a common constitutional language and bridge the EU and the Council of Europe to strengthen fundamental rights in Europe. Continue reading >>
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02 November 2024
Stuck Between Unity and Diversity
The role of the EU Charter in disputes concerning fundamental rights standards between the EU and Member States has been characterized by ambiguity ever since the Charter’s inception. As the EU deepens integration of Member States to effectively face the challenges ahead, I advocate for a pluralistic interpretation of Article 53 of the Charter that allows for a greater degree of accommodation of national particularities. In that way, one would reduce constitutional tensions and find that there may be unity in diversity after all. Continue reading >>
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01 November 2024
Reconciling National and European Constitutional Legalities
In light of the increasingly established autonomous European constitutional legality, national constitutional courts are now compelled to reconsider their roles. Through a progressive expansion of its direct applicability by national ordinary judges, the Charter of Fundamental Rights risks fostering the marginalization of national constitutional courts. I argue that the solution lies in a highly differentiated consolidation of constitutional legalities that integrates and embraces the unique roles of national constitutional courts in their respective systems of adjudication. Continue reading >>
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Pouring New Wine into Old Wineskins
The three seemingly trivial observations that follow inform three substantive proposals regarding the protection of fundamental rights within the EU. To address the challenges faced by national constitutional courts and the CJEU, it is essential to leverage existing procedural tools within domestic legal systems. Additionally, expanding the applicability of these versatile tools and considering a structural revision of the judicial bodies may facilitate the creation of hybrid entities that could collaboratively address major issues, thereby steering constitutional developments in the EU. Continue reading >>
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31 October 2024
Fundamental Rights Come Off the Bench
In 2014, the European Court of Justice clearly prioritised the EU’s position on the unity and effectiveness of EU law over the protection of fundamental rights (Opinion 2/13). Ten years later, in October 2024, a judgment pitting football against the media seems to have turned the tables. In Real Madrid vs Le Monde, the Court held that excessive defamation damages may breach the freedom of the press and trigger the public policy exception. This is a significant shift, prioritising fundamental rights protection over the traditional objective of seamless judicial cooperation across the EU. Continue reading >>
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Why the EU Charter Matters
This blog post argues that the most interesting aspect of the Charter of Fundamental Rights at the moment is its impact on remedies in national law. Almost 15 years since its entry into force, it is not unusual to meet domestic lawyers and judges who will voice doubts as to whether the Charter really matters in practice. Yet, through the right to an effective remedy under Article 47, the Charter opens up domestic law for new (or modified) remedies, thus placing national procedural autonomy under greater constraint than it was from the principles of effectiveness and equivalence. Continue reading >>30 October 2024
Whither, the EU Charter of Fundamental Rights
So, has the Charter come of age, now that it is nearing its quarter century, and has been binding in force for nearly 15 of those years. No longer is the Charter a “sleeping beauty”, and no longer are fundamental rights mere epiphenomena in EU law – offshoots framed in the amorphous category of “general principles of law” – creations of the EU’s earlier desire for legitimacy in its quest for greater integration. The EU Charter contains the essence of a common language, a currency that all can understand. And the EU is better with it than without it. Continue reading >>
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The EU Charter’s Odyssey
Since its inception, the Union has grown into a tremendously powerful political actor through ever-increasing legal harmonization. This development has significantly marginalized the role of national apex courts – the lighthouses of democracy. Moreover, the globally observed trajectory of authoritarian forces is shaking EU's roots and questioning the vision of a lasting European polity. To fend off all these challenges, the Union should be centred around the hard-won humanistic freedoms and common values defined in the Charter, serving as a basis for common identification and a canvas to project shared visions of a political entity. Continue reading >>
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23 October 2024
Wie die Grundrechte-Charta unbegleitete Minderjährige vor dem europäischen Verschiebebahnhof schützt
Die Anfang Juni 2024 im Amtsblatt veröffentlichten neuen Regelungen über das Gemeinsame Europäische Asylsystem finden ab 2026 Anwendung. Weiterhin zentral bleibt dabei die Frage, welcher Mitgliedstaat für die Bearbeitung des Asylantrags zuständig ist. In Hinblick auf unbegleitete Minderjährige verstößt ein Zuständigkeitsbestimmungsverfahren, das regelhaft die Möglichkeit der Überstellung in den Erstregistrierungsstaat prüft, gegen die kinderrechtlichen Garantien der EU-Grundrechtecharta. Continue reading >>
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17 October 2024
Fundamental Rights Score a Goal
Amid the significant number of rulings delivered by the ECJ on 4 October 2024, the long-awaited judgment pitting football against the media stands out. In Real Madrid vs Le Monde, the Court held that excessive defamation damages may breach the freedom of the press and trigger the public policy exception under Brussels Ia Regulation concerning recognition and enforcement of foreign judgments. In doing so, the ECJ allowed national courts to conduct a substantive review of foreign judgments despite the principle of mutual trust, to ensure the enforcement of fundamental rights across the EU. Continue reading >>
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02 October 2024
Sale of Nationality as a Violation of Human Dignity
On 21 March 2023, the European Commission brought action against Republic of Malta for establishing and maintaining a policy and a practice of naturalisation despite “the absence of a genuine link of the applicants with the country, in exchange for pre-determined payments or investments”. In this blog, I argue that the Court is fully competent because Malta violated article 1 of the EU Charter of Fundamental Rights. Specifically, I argue that selling nationality violates human dignity because nationality confers legal subjecthood, which is a central condition for guaranteeing the human dignity of European citizens. Continue reading >>Umkämpfte Meilensteine
Am 28. August 2024 haben vier Richterverbände bekanntgegeben, dass sie Berufung gegen den Medel-Beschluss des Gerichts der Europäischen Union eingelegt haben. Das Verfahren verdient bereits deshalb Aufmerksamkeit, weil es wieder einmal das ewige Thema des Individualrechtsschutzes vor den Gerichten der Europäischen Union betrifft. Darüber hinaus – und von noch größerer Relevanz – wirft die Rechtssache wichtige, unbeantwortete materielle Fragen der Rechtsstaatskonditionalität auf. Insbesondere steht die Wirksamkeit des Instituts erneut auf dem Prüfstand – verhandelt erstmals im Kontext von NextGenerationEU. Continue reading >>
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09 September 2024
Der Mythos von der Notlage
Seit dem Attentat von Solingen überbietet sich die Politik in Forderungen, die Rechte von Geflüchteten zu beschneiden oder gar auszusetzen. Nicht nur die CDU und ihr Vorsitzender Friedrich Merz preschen mit radikalen Forderungen vor und inszenieren sich dabei als Retter eines Volkes im Ausnahmezustand. Auch wenn die Rhetorik von Merz und Teilen der Bundesregierung dies anders implizieren – aus rechtlicher Perspektive ist die Antwort klar: Zurückweisungen aufgrund eines „Notstands“ lassen sich weder durch das Flüchtlings- noch durch das Europarecht rechtfertigen. Continue reading >>26 August 2024
Pioniertat oder Bärendienst?
Immer häufiger erkennen nationale Gerichte der Natur eigene subjektive Rechte zu, etwa in Kolumbien oder Peru. Inspiriert davon unternahm das LG Erfurt in einem Urteil zu einem der „Dieselfälle“ vom 2. August 2024 nun den wenig überzeugenden Versuch, „Eigenrechte der Natur“ aus der EU-Grundrechtecharta abzuleiten: Rechte der Natur seien bei der Schadensbemessung „schutzverstärkend“ zu berücksichtigen. Dabei erweckt das Gericht fälschlich den Eindruck, die Betrachtung „der Natur“ als Rechtssubjekt sei bereits „common ground“. Damit trägt das LG Erfurt aber eher zum Gegenteil bei. Continue reading >>05 June 2024
Trans Rights and Gender Recognition before the CJEU
On May 7, 2024, the Advocate General of the CJEU issued his Opinion on the Mirin case concerning the right to Legal Gender Recognition (LGR) for transgender persons. Yet, the solution offered by the AG deviates from the Court’s previous case-law on LGR, by making it about free movement rather than protection against discrimination, or fundamental rights. It also places the applicant, and those in a similar position, in an administrative situation that is defeating the very purpose of LGR – an issue that the AG himself acknowledges. A more satisfactory and ambitious alternative would instead be to frame the LGR as protected under the EU Charter. Continue reading >>15 May 2024
The New Transgender Ruling in Czechia
In a recent decision in the case of N.G. (Pl. ÚS 52/23), the Czech Constitutional Court (CCC) addressed the pressing issue of trans persons’ rights, more specifically the requirements for legal gender reassignment, involving (often involuntary) sterilisation and castration. When compared to the earlier decision in T.H. (Pl. ÚS 2/20), the new ruling represents a major shift. In fact, the CCC changed its legal position by 180 degrees, giving preference to protecting individual rights over deferring to the legislator’s choices. Continue reading >>
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