Abstract
There is nothing innovative in the EU Charter of Fundamental Rights from the perspective of damages. Unlike regional human rights instruments elsewhere, it contains no express provision obliging member governments to compensate those who suffer loss that is attributable to its breach. This paper considers the provisions of the Charter in the light of the concept of “individual rights” as it is understood in EU damages law, so that some preliminary conclusion can be drawn on the extent to which the Charter is amenable to satisfaction of this first hurdle for liability. It goes on to consider the Court’s case law on “discretion” and “seriousness of breach” so that an assessment can be made of the types of Charter breach that might meet this second element. The paper also takes into account comparative material, and considers whether the case law of some of the world’s leading federations might assist in developing principles grounded in EU law to broaden access to damages for breach of the Charter. The paper closes with an assessment of whether there is any scope for reflecting, in future damages case law, the position of fundamental rights as a cornerstone principle of Union constitutionalism, and opening up the conditions of liability, if only to quarantee compliance with the remedial standards required by Articles 6(1) and 13 of the ECHR.
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This paper is based on a presentation given at the conference State Liability 20 years after Francovich, organised by ERA on 1–2 December 2011 in Trier. I am indebted to my colleagues Pekka Aalto, Catherine Blanchin and Liisa Holopainen in the preparation of this paper, and to Laura Koponen of Waselius & Wist, Attorneys-at-law, Helsinki. I would also like to acknowledge the book Public Liability in EU Law: Brasserie, Bergaderm and Beyond (Hart Publishing, 2011), by Pekka Aalto, from which I drew amply in preparing this research, and the Law Faculty of the University of New South Wales in Sydney, Australia. A Senior Visiting Fellowship taken with the Faculty in 2009 enabled me to commence exploring the question of damages liability in Commonwealth countries for breach of fundamental rights, so that they could be compared with the EU principles. All views expressed are those of the author alone, and responsibility for the text lies with her.
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Ward, A. Damages under the EU Charter of Fundamental Rights. ERA Forum 12, 589–611 (2012). https://doi.org/10.1007/s12027-011-0239-3
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DOI: https://doi.org/10.1007/s12027-011-0239-3