HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

time, it is a concept not defined by European law. 7 Although it lacks a formal legal definition, it encompasses certain core elements. Thus, it is clear that an essential part of this concept is the need for an effective judicial review. The EU law enforcement is strongly decentralised and dependent on national legal means. 8 Even if effective judicial protection is not seen as a core value of the rule of law principle, we must conclude that without this independent and impartial justice, the principle of the rule of law cannot be fulfilled. The principle of the rule of law would be fundamentally hollowed out without the means to fulfil it. Regarding effective judicial review, we can distinguish two sides of legal protection. The first aspect guarantees protection against acts of Union institutions; CJEU developed this concept in the crucial case of Les Verts 9 , in which CJEU denied the absence of effective judicial review in political party funding in the European Parliament and first established that the European Union based on the rule of law 10 . The second aspect lays down protection against Member States; this understanding proceeded from the principle of sincere cooperation expressed in Article 4(3) TEU. 11 Member states must primarily fulfil an obligation that requires their courts as they are defined by Union law, specifically in the way of a case law referring to Article 267 of the Treaty on the Functioning of the European Union (TFEU) and Article 47 of the Charter, to uphold standards determined by these provisions. 12 In this article, I use the term “ effective judicial protection ” to refer to the member states responsibility to fulfil this obligation. 1.2 Relationship between Article 19 TEU and Article 47 Charter A key issue in this article is the relationship between Article 47 of the Charter and Article 19 TEU. As was mentioned above, Article 19 TEU guarantees the principle of effective judicial protection. On the other hand, Article 47 of the Charter guarantees the fundamental rights connected to an effective remedy and a fair trial. This article is composed of multiple connected rights. For example, it states that everyone has the right to an effective remedy before a tribunal if their rights or freedoms are violated. A key aspect in the relationship to Article 19 TEU is the right to a fair and public 7 PECH, L. The rule of law as a well established and well defined principle of EU law. Hague journal on the rule of law 2022, Vol 14, No 2–3, p. 107–138. 8 LENAERTS, K. New horizons for the rule of law within the EU. German law journal 2020, Vol 21, No 1, p. 29. 9 Judgement – Les Verts, case 294/83 ECLI:EU:C:1986:166 10 Ibid. § 23 11 KLAMERT, M. – SCHIMA, B., c. d. , Effective legal protection 12 KOPA BONČKOVÁ, H. “Článek 19” In TOMÁŠEK, M. – ŠMEJKAL, V. Smlouva o fungování EU ; Smlouva o EU ; Listina základních práv EU: komentář. Praha: Wolters Kluwer, 2022.; LENAERTS, K. The role of the EU Charter in Member states. In BOBEK, M. – PRASSL, J. The EU charter of fundamental rights in the member states. Oxford: HART, 2020

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