The ‘Due Process’ Rights as a Part of the EU’s Acquis Communautaire: A Challenge for the EU (Potential) Candidate States?
Nasiya Daminova*
I. Introduction
The so-called ‘due process’ rights captured by Articles 47-50 of the Charter of Fundamental Rights of the European Union (the CFREU, the EU Charter)1 are of fundamental importance to the European Union’s democratic society, occupying a central place among the EU common values enshrined by Articles 2 and 6 of the Treaty on the European Union. Their object and purpose fastens the principle of the rule of law, upon which such a society is based and built, thus reflecting an important part of the EU member states’ common heritage.2
* PhD in European Law (Scuola Superiore Sant’Anna, 2018), LL.M. in European Law (Stockholm University, 2014), e-mail: [email protected]. An earlier draft of this paper was presented at the EUCOPAS Workshop: ‘Being a member of the EU: pros & cons’ (Sciences Po, 19-20 January 2017). The author would like to thank Neliana Rodean, Hager Ben Jaffel, Marie Walter and other workshop participants, as well as the anonymous reviewers for their thoughtful and constructive comments. Any errors that remain are my sole responsibility of course. 1 In that sense see, e.g., Marco Borraccetti, ‘Fair Trial, Due Process and Rights of Defence in the EU Legal Order’ in Giacomo Di Federico (ed), The EU Charter of Fundamental Rights: From Declaration to Binding Instrument (2010) 95; Dara Robinson, ‘Due Process and the Right to a Fair Trial’ in Bríd Moriarty and Eva Massa (eds), Human Rights Law (2012) 260; Rebecca Money-Kyrle, ‘Legal Standing in Collective Redress Actions for Breach of EU Rights: Facilitating or Frustrating Common Standards and Access to Justice?’ in Burkhard Hess, Maria Bergström and Eva Storskrubb (eds), EU Civil Justice: Current Issues and Future Outlook (2016) 223. 2 Christoph Grabenwarter and Katharina Pabel, ‘Commentary on Article 6 TEU’ in Hermann-Josef Blanke and Stelio Mangiameli (eds), The Treaty on European Union: A Commentary (2013) 287, at 333-337.
Austrian Review of International and European Law 21: 101-130, 2016. © 2019 Koninklijke Brill NV. 102 Austrian Review of International and European Law
The ‘due process’ rights are the EU law procedural provisions most frequently invoked by the parties at the national courts of the EU member states, as well as before the Court of Justice of the European Union (the Luxembourg Court, the CJEU).3 It is hardly surprising that this group of rights takes a prominent place in the EU enlargement process as a part of the EU’s acquis communautaire.4 In 2012, the European Commission adopted a new ‘Enlargement Stra- tegy’ prioritizing the reforms on fundamental rights and freedoms.5 The Commission decided that, from 2012 onwards, the accession negotiations shall commence with Chapters 23 ‘Judiciary and fundamental rights’ and 24 ‘Justice, freedom and security’ of the EU’s acquis communautaire, in order to demonstrate that the rule of law and the EU individual’s protection are now considered among the main objectives of the enlargement strategy.6 Importantly, Chapter 23 ‘Judiciary and fundamental rights’ has a special emphasis on such aims of the EU membership as maintaining and developing the Union as an area of freedom, security and justice (AFSJ), high standards of administration of justice and respect for fundamental rights, as guaranteed by the acquis and by the EU Charter. These Chapters of the EU’s acquis shall be transposed into the national legal order as a precondition to EU membership via the Association Agreements (Turkey) or the Stabilization and Associa- tion Agreements (Western Balkan states, i.e. Albania, the former Yugoslav Republic of Macedonia, Montenegro, Serbia, Bosnia and Herzegovina).7 As
3 Handbook on European law relating to access to justice (European Union Agency for Fundamental Rights, 1 June 2016)