This Commentary on the Charter of Fundamental Rights of the European Union revisits and updates the Portuguese version published in 2013. Following the best academic practices, several scholars of recognised scientific knowledge – of varying ages and worldviews – were asked to and gave us the honour of contributing. The result is a comprehensive article-by-article commentary to the Charter. Each author is fully responsible for the content of his/her commentary and one author’s opinions do not bind nor necessarily reflect the opinions of the remaining authors or of the editors. Coherence, consistency, and continuity of this work is guaranteed by the thematic organisation of the Charter. When selecting authors, the editors favoured scholars of European Union law, experts in the substantive fields of the article in question, and renowned experts on fundamental rights. In the context of “interconstitutionality” (or multi-level constitutionalism), a cornerstone of protection of fundamental rights in the European Union – which implies “reflexive interaction” between constitutional norms from different sources – there must necessarily be room for diverse perspectives. The various references to the Portuguese legal framework in the commentaries included in this work offer readers of multiple nationalities (including the ones from outside of the European Union) an opportunity to understand how the Portuguese legal community envisages European integration and fundamental rights. It also provides, in our view, an alternative and often overlooked viewpoint to the Anglo-Saxon or German-centred perspectives that are more common in similar commentaries. The Portuguese edition of this Commentary on the Charter was a groundbreaking initiative – one that, ten years later, seems to have stood the test of time. Certainly, the circumstances are different – and, in our view, this is a new publication that builds on the work of its 2013 predecessor. This is because, although the original idea of the editors was to create a translation of the 2013 edition, a significant number of authors opted to introduce relevant updates to their original commentaries (particularly addressing the considerable activity of the Court of Justice of the European Union since 2013). In this context, it is imperative to express our gratitude to the widows of the late Professors António Manuel Hespanha and Jorge Leite – who generously authorised the publication of their commentaries expunged from outdated excerpts. For the commentaries whose text was not changed or updated from the 2013 edition, we are confident that they are as pertinent and insightful today as they were in 2013. Furthermore, for certain articles of the Charter where the editors deemed that it would be relevant (for example, because significant changes occurred in the European Union’s legal framework), this edition also features various completely new commentaries, drafted from the ground up for the English edition by authors that did not participate in the 2013 work. Reports from the European institutions show that there is still a long way to go in the implementation of the Charter. Inadequate implementation at national level frequently weakens its coherence and effectiveness. Despite clarifications by the Court of Justice of the European Union, legal practice reveals that understanding when and how the Charter should be applied is still a challenge. Here the role of European legal scholars in the defence of fundamental rights is crucial, as they are uniquely placed to be able to use all the tools that the European Union legal framework makes available to ensure the effective application of the Charter. There are, indeed, a few more tools in the Charter’s toolbox than there were in 2013. The Court of Justice of the European Union has recognised the direct effect of the rule in Article 47 of the Charter – which allows an individual to rely directly on the effective judicial protection of European Union law before national courts (Egenberger, Case C-414/16, ECLI:EU:C:2018:257, par. 78). In 2022, the same Court recognised the direct effect of the rule in Article 19(1), 2nd subparagraph of the Treaty on European Union, according to which Member States are to provide sufficient remedies to ensure effective judicial protection in the fields covered by European Union law (M.F. v J.M, Case C-508/19, ECLI:EU:C:2022:201, par. 74), which makes it possible to rely on that provision in order to set aside national rules which hinder the effective judicial protection of European Union law. We are confident that this Commentary on the Charter can become an instrument of support for the European legal community, whether in academia, private practice or government, as well as a source of inspiration for the broad universe of people who have to interpret and apply European Union constitutional law. This objective is the underlying reason for publishing this work in English and in open access. By making it freely available to the widest possible range of people, we hope that it can contribute to the full exercise of fundamental rights in the European Union.
Publisher University of Minho | School of Law
Authors Silveira, Alessandra | Coelho, Larissa Araújo | Costa, Maria Inês | Cabral, Tiago Sérgio Alves
Year 2024
Available for download.
This Commentary on the Charter of Fundamental Rights of the European Union revisits and updates the Portuguese version published in 2013. Following the best academic practices, several scholars of recognised scientific knowledge – of varying ages and worldviews – were asked to and gave us the honour of contributing. The result is a comprehensive article-by-article commentary to the Charter. Each author is fully responsible for the content of his/her commentary and one author’s opinions do not bind nor necessarily reflect the opinions of the remaining authors or of the editors. Coherence, consistency, and continuity of this work is guaranteed by the thematic organisation of the Charter. When selecting authors, the editors favoured scholars of European Union law, experts in the substantive fields of the article in question, and renowned experts on fundamental rights. In the context of “interconstitutionality” (or multi-level constitutionalism), a cornerstone of protection of fundamental rights in the European Union – which implies “reflexive interaction” between constitutional norms from different sources – there must necessarily be room for diverse perspectives. The various references to the Portuguese legal framework in the commentaries included in this work offer readers of multiple nationalities (including the ones from outside of the European Union) an opportunity to understand how the Portuguese legal community envisages European integration and fundamental rights. It also provides, in our view, an alternative and often overlooked viewpoint to the Anglo-Saxon or German-centred perspectives that are more common in similar commentaries. The Portuguese edition of this Commentary on the Charter was a groundbreaking initiative – one that, ten years later, seems to have stood the test of time. Certainly, the circumstances are different – and, in our view, this is a new publication that builds on the work of its 2013 predecessor. This is because, although the original idea of the editors was to create a translation of the 2013 edition, a significant number of authors opted to introduce relevant updates to their original commentaries (particularly addressing the considerable activity of the Court of Justice of the European Union since 2013). In this context, it is imperative to express our gratitude to the widows of the late Professors António Manuel Hespanha and Jorge Leite – who generously authorised the publication of their commentaries expunged from outdated excerpts. For the commentaries whose text was not changed or updated from the 2013 edition, we are confident that they are as pertinent and insightful today as they were in 2013. Furthermore, for certain articles of the Charter where the editors deemed that it would be relevant (for example, because significant changes occurred in the European Union’s legal framework), this edition also features various completely new commentaries, drafted from the ground up for the English edition by authors that did not participate in the 2013 work. Reports from the European institutions show that there is still a long way to go in the implementation of the Charter. Inadequate implementation at national level frequently weakens its coherence and effectiveness. Despite clarifications by the Court of Justice of the European Union, legal practice reveals that understanding when and how the Charter should be applied is still a challenge. Here the role of European legal scholars in the defence of fundamental rights is crucial, as they are uniquely placed to be able to use all the tools that the European Union legal framework makes available to ensure the effective application of the Charter. There are, indeed, a few more tools in the Charter’s toolbox than there were in 2013. The Court of Justice of the European Union has recognised the direct effect of the rule in Article 47 of the Charter – which allows an individual to rely directly on the effective judicial protection of European Union law before national courts (Egenberger, Case C-414/16, ECLI:EU:C:2018:257, par. 78). In 2022, the same Court recognised the direct effect of the rule in Article 19(1), 2nd subparagraph of the Treaty on European Union, according to which Member States are to provide sufficient remedies to ensure effective judicial protection in the fields covered by European Union law (M.F. v J.M, Case C-508/19, ECLI:EU:C:2022:201, par. 74), which makes it possible to rely on that provision in order to set aside national rules which hinder the effective judicial protection of European Union law. We are confident that this Commentary on the Charter can become an instrument of support for the European legal community, whether in academia, private practice or government, as well as a source of inspiration for the broad universe of people who have to interpret and apply European Union constitutional law. This objective is the underlying reason for publishing this work in English and in open access. By making it freely available to the widest possible range of people, we hope that it can contribute to the full exercise of fundamental rights in the European Union.
Publisher University of Minho | School of Law
Authors Silveira, Alessandra | Coelho, Larissa Araújo | Costa, Maria Inês | Cabral, Tiago Sérgio Alves
Year 2024
Available for download.