During each workshop participants discussed, on the basis of a comparative methodology, various techniques of judicial cooperation, analyzed examples of conflicts of norms and conflicting interpretations thereof by different national courts and their impact on fundamental right protection. Workshops were intended as laboratory of judicial cooperation referring to obstacles and problems that judges may find in their daily practice (different languages, varied judicial techniques and practices, various forms of attachment to national identity).
Each workshop generated pilot proposals that judges may consider in their daily practice. Their findings were included in the Evaluation of each workshop and the comments were taken into consideration when preparing materials for subsequent workshops.
Workshop 1 - Non-Discrimination
Florence, 27-28 May 2013
The principle of non-discrimination is a foundational principle of the EU legal order and the ECHR. Non-discrimination operates both in EU law and in the ECHR on the basis of an exhaustive list of grounds, but in the two systems it guarantees enjoyment of different set of treatments (rights). At the same time, the principle of non-discrimination is laid down in the domestic legal orders of the Member States as a constitutional principle.Consequently, the principle of non-discrimination provides an optimal vantage point to study the instances of judicial cooperation between the three layers of courts, namely: national courts, the CJEU and the ECtHR.
In this area, judicial dialogue (in its different forms) could be seen as useful tool to approach complex cases and to find practical ways of delivering justice for the following reasons:
- The multiplicity of legal sources applicable.
- The different scope of application of these norms.
- The diverse set of fundamental rights concerned. Non-discrimination is a meta-right, which ensures the equal enjoyment of some other right or benefit.
- Inclusion of non-discrimination in the EU Treaties, in the EU Charter of Fundamental Rights and among the EU general principles entails a strong presumption of horizontal direct effect of the principle in the area of EU law.
Workshop 2 - Fair Trial and Effective Judicial Remedies
Florence, 4-5 October 2013
The right to fair trial has a particularly broad scope, we would like to focus on the most recent and problematic case law in the area of migration and the European Arrest Warrant. Both of these areas provide a substantial context for the right to fair trial, and given the normative and jurisprudential development of past years, they prove to be of particular relevance for individuals in the Member States of the EU.
Workshop 3 - Freedom of Expression
Florence, 31 January - 1 February 2014
Freedom of expression provides a perfect case-study of judicial dialogue oriented substantial right which, unlike non-discrimination, is originated in the national rather than supra-national contexts:
- Freedom of expression operates in a range that is limited on one side by general clauses and, on the other side, by other conflicting rights. This calls for a de-centralized definition of balancing assessments, including proportionality and necessity.
- Freedom of expression is inherently linked with national cultural traditions. The balance struck in a specific case might be deemed inacceptable by different national constituencies. Using deference devices and margin of appreciation supra-national courts have to preserve their authority providing at the same time guidance for future cases.
- Freedom of expression rights often come with a default clause of flexibility, even in domestic law. This multiplies the set of grounds on which exceptions to this right can be based, and the possibility to question these exceptions on grounds of different tests and right-related cultures.