Article 37 Charter of Fundamental Rights of the European Union: On the way to a fundamental right upgrade?
Abstract: Environmental law is an area of law that has been under constant development in the European Union especially over the last decades. This has resulted in a variety of legally binding instruments. At the same time the European Union has also improved its fundamental rights regime with tools like the now binding Charter of Fundamental Rights. This Charter also contains an article on “Environmental Protection” in Article 37 Charter. The use of this article has been scarce. One of the reasons might be because of the unclear status of the article in the Charter and EU law. As a starting point it is considered as a principle as prescribed by Article 52(5) Charter and the Explanations of the Charter. The distinction between rights and principles of the Charter remains unclear. Principles face some limitations in respect to rights of the Charter. This might be overcome through other ways of interpreting Article 37 Charter. The purpose of this thesis is to show the ways Article 37 Charter has been considered. This includes the legal background and framework of Article 37 Charter and its possible limitations. The limitations will cover some of the core concepts of EU law like the principle of proportionality, the internal market freedoms and other rights of the Charter. Since they are primary law and established general principles of the EU they are naturally at the border of the scope of application of Article 37 Charter. This is also the cases with individual freedoms of others that are challenged when Article 37 Charter becomes something like a super-justification since the courts respect the discretion of the institutions of the EU. This remains to be a difficult situation to assess and a careful balancing by the courts is of great importance. This might be one of the reasons why the CJEU has scarcely applied Article 37 Charter so far. The Advocate Generals seem to be willing to use it more often. This thesis finds that the distinction between rights and principles remains inconclusive and should not be used to restrict the application of Article 37 Charter. A fundamental rights Charter should be empowered and should not stop at a weakening distinction of rights and principles. The limitation to a principle will restrict access of individuals to courts. This is especially important in the field of environmental law which among its aims has in Article 37 Charter sustainable development. To achieve this and to also allow for a powerful usage of Article 37 Charter even by individuals it should be considered whether Article 37 Charter is ready for a fundamental right upgrade.
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