The Luxembourg Court Faced with the COVID-19 Pandemic: The Example of ‘Due Process’ Rights

Daminova, Nasiya (2024) The Luxembourg Court Faced with the COVID-19 Pandemic: The Example of ‘Due Process’ Rights. MTA LAW WORKING PAPERS (11). pp. 1-31. ISSN 2064-4515

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Abstract

The so-called ‘due process’ rights captured by Arts. 47-50 CFREU are crucial for proper functioning of the European Union’s internal market and of the EU’s Area of Freedom, Security and Justice. At the same time, they are often applied in conjunction with other CFREU rights drafted specifically for the Union’s legal order (Arts. 15-17), which led to a significant autonomy of standards of the Human Rights protection in this area. The global COVID-19 pandemic caused by the novel Coronavirus SARS-CoV-2 (2020-2022) added complexity to the overall situation, requiring the CJEU to develop new proportionality tests within the context of a public health emergency. This contribution attempts to analyse if and how the Coronavirus pandemic influenced the way the CFREU ‘due process’ provisions are applied and interpreted by the Luxembourg Court, given their vital importance for the enforcement of all other substantive rights captured by the EU Charter of Fundamental Rights. The main argument presented is that this body of law can be conventionally divided into five categories: (1) ‘EU’s Competition, Public Procurement and State Aid’, (2) ‘EU’s Economic Policy Governance’, (3) ‘Area of Freedom Security & Justice’, (4) ‘EU’s Environmental Laws and Policies’ and the (5) ‘Rule of Law Backsliding’ – with the sector-specific legal reasoning based on the Title VI ‘Justice’ CFREU provisions. It will be stated that this case-law reflects general trends in the Luxembourg Court’s jurisprudence – such as, for instance, the systemic interpretation of the Title VI ‘Justice’ CFREU as a whole - but also adds novelty to the existing CJEU’s proportionality tests due to the specificity of the legal background, namely the assessment of the COVID-19 legislation or the pandemic-related restrictions.

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