Balancing nowadays seems to be omnipresent, in particular in the continental European fundamental rights discourse. The notion has also permeated the case-law of the two supranational courts on... Show moreBalancing nowadays seems to be omnipresent, in particular in the continental European fundamental rights discourse. The notion has also permeated the case-law of the two supranational courts on which this study focuses: the European Court of Human Rights and the Court of Justice of the European Union. In a reaction to the growing critique on both Courts for a lack of clarity of their rulings, especially those rulings in which they rely on balancing, this study aims at answering the question whether the Courts__ frequent references to the notion of balancing contribute to the intelligibility and transparency of their decisions in cases concerning conflicts of fundamental rights and/or interests. In order to do so, this study combines a legal-theoretical research into balancing with an analysis of the __balancing case-law__ of the two European Courts. The legal-theoretical research leads to an __ideal type__ of balancing that provides a yardstick for the evaluation of the balancing case-law of the Courts. As it is found that the rulings of both Courts can be improved with regard to the application of the notion of balancing, proposals are made to improve the Strasbourg and Luxembourg balancing practices. When doing so, the study pays heed to the challenges the Courts face as a result of the multi-levelness of the European system of fundamental rights protection. Show less
The right to science is not very often enshrined in constitutions, despite being established in international law. This normative framework contributes to the lack of sufficient definition of... Show moreThe right to science is not very often enshrined in constitutions, despite being established in international law. This normative framework contributes to the lack of sufficient definition of States’ obligations, hindering a full-fledged recognition of this right. The article seeks to anchor an implicit right to science in a specific constitutional order and to explore its concretization through domestic constitutional practice. Relying on decisions taken by the Brazilian Constitutional Court, the content of the right to science and the States’ core obligations are elaborated. This elaboration considers the reciprocal influence between domestic and international law and aims at advancing the right to science. The study of the case law reveals both the importance of recognizing the autonomous right to science and its relevance in the promotion of other rights. Additionally, the right to science appears as an essential tool for tackling complicated societal and environmental challenges from a rational, democratic, and rights-based approach. Show less
There has never been a more pertinent time to discuss the accountability and the legal responsibility of Frontex, the European Border and Coast Guard Agency, for fundamental rights violations. In a... Show moreThere has never been a more pertinent time to discuss the accountability and the legal responsibility of Frontex, the European Border and Coast Guard Agency, for fundamental rights violations. In a period that hosts the first legal actions vis-à-vis the agency and a series of relevant non-judicial investigations, including by the European Parliament, this dissertation aims to address the main problem underlying these accountability efforts, namely the ‘problem of many hands’. As conceptualised by Dennis Thompson, this problem is where the multiplicity of the actors involved obscures the various responsibilities and creates gaps in accountability.To address it, this work contests the dominant ways of looking at the concepts of responsibility and accountability, and reimagines them for their optimal function.It adopts a holistic approach, taking into account not only judicial, but also other forms of accountability, studying not only EU liability law, but also other legal remedies before the CJEU, the ECtHR, and domestic courts, building bridges between international and EU law, and traveling from the empirical to the conceptual, to the normative, and from there to the applied.It creates the foundations for the accountability of the agency inside and outside courts, within the EU borders and beyond. Show less
Targeted advertising is the primary revenue stream for the largest online platforms that act as the internet’s gatekeepers, such as Alphabet and Meta. The financial incentives drive targeted... Show moreTargeted advertising is the primary revenue stream for the largest online platforms that act as the internet’s gatekeepers, such as Alphabet and Meta. The financial incentives drive targeted advertising towards maximizing the efficiency of algorithmically matching advertisements with consumers, which typically requires building fine-grained profiles that rely on consumers’ personal data. In the European Union (EU), the protection of personal data is a fundamental right operationalized by the General Data Protection Regulation (GDPR), establishing the limits of targeted advertising to the extent that it relies on the processing of personal data. Nevertheless, as online interface design and fine-grained personalization allow platforms and other publishers new ways to influence consumers, targeted advertising is also associated with the potential for consumer manipulation.While the consumer protection framework in the EU is the primary field that protects consumers from manipulation, it has received little attention in academia in the context of targeted advertising whencompared with the GDPR. In 2022, the EU adopted proposals for the Digital Services Act (DSA) and the Digital Markets Act (DMA), which contain consumer protection rules that directly limit targeted advertising. These developments in consumer protection law may fundamentally transform the internet, as its gatekeepers are now faced with a new legal regime that regulates their primary source of revenue.This Article provides an overview of the myriad of legislation that comprises the EU consumer protection framework—including how it intersects with the data protection framework—and analyzes how andthe extent to which it coalesces to limit targeted advertising. Show less
This book deals with the collision of two fundamental rights within the European legal order: the right to access to documents and the right to data protection. If a document which is kept by one... Show moreThis book deals with the collision of two fundamental rights within the European legal order: the right to access to documents and the right to data protection. If a document which is kept by one of the European Union institutions contains personal data the two right collide. Although this possible collision is apparent, it is not sufficiently addressed in the two regulations in which both rights are further elaborated (Regulation 1049/2001 and Regulation 45/2001). After an analysis of legal developments within the EU, case law of the European Court of Human Rights and the relevant national legislation of the 27 Member States, the author presents his views on how the balance between the two rights should be struck. This leads to a concrete proposal for amending both regulations. Show less
The fight against torture and inhuman or degrading treatment or punishment is of fundamental importance, which has been broadly acknowledged, and resulted in different ways to pursue the... Show moreThe fight against torture and inhuman or degrading treatment or punishment is of fundamental importance, which has been broadly acknowledged, and resulted in different ways to pursue the effectuation of this prohibition. The coexistence of multiple monitoring mechanisms in the same field can raise important questions concerning overlap, collision and alignment. The subject of this study relates to the coexistence of the European Court of Human Rights (ECtHR) and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and focuses on the relation between these bodies from an organisational, terminological and normative perspective. It concentrates on answering the question how the relationship between the ECtHR and the CPT can be described and whether the current status between these bodies contributes to an effective and efficient protection of detainees against torture and inhuman or degrading treatment or punishment. Show less
The current study provides a comprehensive view of the legal and political context in which these instruments were designed, with explanations about their content and recommendations for any future... Show moreThe current study provides a comprehensive view of the legal and political context in which these instruments were designed, with explanations about their content and recommendations for any future amendments. It considers the first initiatives taken by the Commission and the Council on these issues before the entry into force of the Treaty of Amsterdam and also reviews proposals submitted by NGOs that have played a substantial role in the debate. Furthermore, documentation of the various European institutions on the negotiations surrounding the adoption of the texts in question as well as trends in case law are carefully examined. The study aims to answer the following questions: To what extent does the normative content of the guidelines allow a difference in treatment between EU migrants and Non EU migrants, does it give binding force to the obligations of Member States, and provide judicial certainty to stakeholders? Show less
Upon receipt of a right to be forgotten request, private actors like Google are responsible for implementing the balancing test between competing rights of privacy and data protection and free... Show moreUpon receipt of a right to be forgotten request, private actors like Google are responsible for implementing the balancing test between competing rights of privacy and data protection and free expression and access to information. This amounts to private jurisprudence that data subjects, lawyers, and interested parties could, theoretically, game to their advantage. This paper critiques this process and argues two separate, but related points. (1) Search engines have become the sole arbiter of the rights to privacy and data protection under Articles 7 and of the Charter of Fundamental Rights and Articles 8 and 10 of the European Convention of Human Rights, when safeguarding should be a responsibility of state authorities. (2) As private actors face litigation if their decision is not acceptable to the data subject, the right to access information and the public's right to know is compromised. Search engines exert considerable power over access to and Internet usage, yet nevertheless benefit from frameworks that permit a lack of adherence to similar human rights standards as public actors or agencies. As such, empowering search engines as decision-makers over conflicting fundamental rights is problematic. Rather than allow the content of the right to be forgotten to be fleshed out by private actors, the significant body of existing jurisprudence should form the basis for public guidelines on how to implement the right to be forgotten. An analysis of case law of national courts, the European Court of Human Rights and the CJEU reveals two related matters: it is possible to reverse engineer how search engines determine which requests will be actioned and those which will be denied. This paper argues a) collectively the body of jurisprudence is of sufficient standing to develop a public and transparent balancing test that is fair to all stakeholders and b) private actors should no longer be resolving the conflict between competing fundamental rights. The paper closes by positing a framework, loosely based on ICANN's Uniform Domain Resolution Procedure for resolving conflict between conflicting cyber property rights that provides transparency and accountability to the right to be forgotten and removes search engines as arbiters of the balancing test in select cases. Show less
