Abstracts Nr 4, 2008

Aurora Ciucă, The Treaty of Lisbon: Reforms and Human Rights Issues

The study is a survey of the institutional reforms initiated in the Treaty of Lisbon – the new “double qualified majority” voting system, the communautarization of Justice and Internal Affairs, the enlarged powers of the European Parliament and, in particular, the developments in the field of human rights. Under Article 6 of the European Communities Treaty, the Charter of Fundamental Rights will be a part of the “original” community law. While the meaning and the field of application of fundamental rights, including the acceptable limitations thereto, are identical in the Charter and the European Convention on Human Rights, with respect to social rights the Charter is less elaborate than the European Social Charter. The coming into force of the Treaty of Lisbon shall lead to the EU’s signing the European Convention. The article assesses the possible consequences of this event on the protection of human rights: the delays in celerity, the developments in the relation between domestic and community law, the criteria imposed on the states aiming at EU accession.

Keywords: The Treaty of Lisbon, the Charter of Fundamental Rights, EU Treaty principles, reforms, double qualified majority voting, jurisdictional guarantees


Bogdana Petrica, The Human Rights Clauses in the European Community’s Foreign Agreements

The article analyzes the contents of human rights clauses in the EC’s foreign agreements – a recent technique used for the first time in the development policy. Under a decision by the Council of Ministers from 11 May 1992, the inclusion of provisions concerning human rights and the principles of a market economy was to be the rule for all cooperation or association agreements concluded between the European Communities and CSCE member or partner states. All partnership and cooperation agreements subsequently entered into contain at least one politically conditioning clause. The same system of clauses was used in three types of agreements – European agreements with states in Central and Eastern Europe, association and stability agreements with states in the Western Balkans, and partnership and cooperation agreements with the new independent states which were formerly part of the USSR. These agreements contain several types of human rights clauses: an essential elements clause, a Baltic clause, a Bulgarian clause, sometimes supplemented by interpretive statements.

Keywords: foreign agreements, association agreements, third states, partnership, cooperation, human rights clauses, conditional clauses, joint statements


Horaţiu Alexandru Rusu, The Relationship between Community Law and the ECHR after Bosphorus

The co-existence of the Council of Europe mechanism of protecting human rights and of the European Union legal order proved a challenge every time protecting fundamental values became an issue. The European Court of Human Rights repeatedly decided on cases that involved running a fundamental rights review of the acts related to the membership of the European Union. The Strasbourg court was called on to decide to what extent it would exercise such review and whether it would assume a preemptory position over community law in upholding the human rights guaranteed by the European Convention on Human Rights. The approach taken by the Court has evolved over the years from relinquishing its jurisdiction to establishing a framework of substantial review of the acts of EU member states issued in application of community legislation from the perspective of their obligations assumed under the Convention. The article explores the remaking of the European Court of Human Rights’ jurisprudence in drawing up the relationship between community law and the European Convention on Human Rights.  The study focuses on the recently established “Bosphorus docrine”, which sets the standards of review by the ECHR and looks upon some possible future developments of the human rights protection mechanisms in Europe.

Keywords: European Convention on Human Rights, Luxembourg Court, state jurisdiction, equivalent protection doctrine, community law, community acts


Dezideriu Gergely, European Standards on the Burden of Proof in Discrimination Cases and the Transposition into Domestic Law as Exception from the Principle affirmanti incumbit probatio

The paper explores the standard of proof and of the burden of proof at European level as well as the transposition at national level from a jurisprudential point of view. The European Court of Human Rights’ and the European Court of Justice’s main approaches to the burden of proof in cases of discrimination are analyzed in view of the proof “beyond a reasonable doubt” or “the balance of probabilities”. Beyond the common principle “affirmanti incumbit probatio”, the article looks into the practical meaning of the principle of shifting the burden of proof in discrimination cases as interpreted by the case law of the European Court of Human Rights and the European Court of Justice. Subsequently, the transposition into the Romanian anti-discrimination law of the standard of proof is highlighted especially from the perspective of the jurisprudence of the National Council for Combating Discrimination.  

Keywords: discrimination, harassment, evidentiary standards, reasonable doubt, balance of probabilities, applicant, victim, reversal of the burden of proof, Great Chamber


Valentin Constantin, How the High Court of Justice Created a Judicial Event

On 4 June 2008, in the case C.S. Voinţa v. Romanian Government, the Romanian High Court of Justice delivered a “historic” decision. The Court found that a domestic piece of legislation was inapplicable because, in light  of the Jurisprudence of the Strasbourg and Luxembourg courts, respectively, it was contrary to Article 6 of the European Convention on Human Rights and Article 14 of the Charter of Fundamental Rights. The decision is historic because the High Court crossed two decisions of the Constitutional Court of Romania, which had found, after consideration of all the reasons on which the highest court in the country based its decision, that the domestic norm in question was not contrary to said European norms. The decision in question raises two problems. First, an intrinsic one, namely the reasoning based on which the High Court established a contradiction between the domestic and the European acts. And secondly, the relationship between the two systems. On the one hand, that between the Romanian system of protection of fundamental rights and the European system and, on the other hand, the relationship between the competencies of the Constitutional Court and those of the ordinary tribunals.

            Keywords: domestic norms, European norms, European Convention on Human Rights, Charter of Fundamental Rights, competences of the Constitutional Court