It is common ground that a bill of constitutional rights regulates the relationship between individual and the state. Fundamental rights create negative obligations for the state – duties not to interfere with life, liberty, conscience, speech, privacy etc. To what extent, if at all, though, do fundamental rights also have a bearing on relations between individuals? Can they also obligate the state to actively promote liberty in society? Are they focused merely on state abuse but silent on social inequality – or can they be mobilized as vehicles for social justice? Undeniably, constitutionally-sensitive conflicts routinely arise, e.g., between capital and labour; between financial service providers and vulnerable consumers; between vulnerable groups themselves, and so on. However, the “constitutionalisation” of private law relationships has not always been seen as an unmixed blessing. A first concern is that the expansion of substantive constitutional norms beyond the negative basic liberties eliminates the domain of private law and private autonomy that is an essential characteristic of liberal societies. A second concern is that constitutionalisation transfers substantial regulatory authority from democratic legislatures to constitutional courts. This chapter argues that that neither of these two concerns necessarily arises in connection with the doctrine of (indirect) horizontal effect.

Constitutions set out fundamental principles of political morality that bind institutional action and assign strong political rights to individuals. At surface level, the principle of proportionality is a methodological device. It operates as a doctrinal heading under which courts scrutinize state interference with individual liberty and assess the scope of their own authority. According to the orthodox understanding of proportionality, this scrutiny takes the form of balancing rights against public interest, which raises questions about the legitimacy of judicial review. This chapter argues that, contrary to the orthodox view, proportionality is primarily about the normative foundations of constitutional rights and the duty of courts to pursue, through principled legal reasoning, the moral truth about individual rights. On this rival account of proportionality, rights are equality-based moral norms constraining state action and no actual balancing takes place by courts. If we are to take seriously both the idea of fundamental rights and the principle of proportionality, we must abandon the misleading metaphor of balancing and the problems of incommensurability and judicial scepticism to which it leads.

The right to freedom of thought occupies a dubious position in Brazil. It completely lacks explicit constitutional or legal protection, despite a strong implicit recognition through derivative freedoms like expression, press and privacy. This research addresses this paradox, examining constitutional and legal frameworks, scholarly jurisprudence, significant court cases, and international treaties to delineate Freedom of Thought’s status in Brazil. It also considers recent legislative initiatives and the challenges that regulating misinformation poses for the right. The findings indicate that the right to Freedom of Thought functions as a vital juris-philosophical criterion in Brazil, underpinning various fundamental rights and playing a key role in the Supreme Court’s legal hermeneutics. Nevertheless, the absence of explicit protection leads to several limitations in its safeguard. First, it lacks a clear definition of its content and a precise delimitation of what it entails. It is also not acknowledged as a standalone right, being often conflated with other rights. Finally, its legal interpretation fluctuates with Brazil’s unstable case law. Remarkably, the internal dimension of Freedom of Thought remains largely unprotected and overlooked. The research underscores the need for explicit constitutional amendments and clearer legislative definitions to safeguard the right comprehensively, ensuring consistent legal recognition and protection in Brazil.

In spring 2024, the European Union formally adopted the AI Act, aimed at creating a comprehensive legal regime to regulate AI systems. In so doing, the Union sought to maintain a harmonized and competitive single market for AI in Europe while demonstrating its commitment to protect core EU values against AI’s adverse effects. In this chapter, we question whether this new regulation will succeed in translating its noble aspirations into meaningful and effective protection for people whose lives are affected by AI systems. By critically examining the proposed conceptual vehicles and regulatory architecture upon which the AI Act relies, we argue there are good reasons for skepticism, as many of its key operative provisions delegate critical regulatory tasks to AI providers themselves, without adequate oversight or redress mechanisms. Despite its laudable intentions, the AI Act may deliver far less than it promises.

Chapter 2. The removal of James II from the throne in 1688 and the settlement of the crown jointly on William and Mary gave rise to an extensive debate about the legitimacy of the new regime. Many wrote to celebrate the ending of arbitrary rule. Some commentators (notably James Tyrrell) focused on the final securing of the fundamental rights of the people in the manner promised by the ancient constitution of England. But others (notably John Locke) preferred to appeal to the natural rights of the people as the only sound basis for guaranteeing freedom under government. At the same time, however, many rejected the settlement of 1688. The Jacobites objected that William and Mary were merely usurpers, while in the course of the 1690s a group of ‘commonwealth’ writers began to argue that the crown and executive were failing to keep their promise to outlaw the use of arbitrary power. The chapter concludes by discussing the contributions of Molesworth, Trenchard and Toland to the development of ‘commonwealth’ claims about the policies that will need to be followed if the freedom of the people from subjection and dependence is to be secured.

The Conclusion describes how, while the handbook started with the main technological and legal challenges regarding collection of digital evidence, the research shows that even though the challenges are shared by legal systems across the globe, the answers are not. Legal solutions to similar problems are fragmented, disparate and often unsatisfactory. Even if technology-neutral solutions are preferable to make sure hard-fought EU legislation and international agreements can stand the test of time, the legal reality appears to be quite different. Despite positive recent legal developments at EU and international levels, future approximation of national approaches seems highly desirable to enable LEAs to conduct effective criminal investigations to protect society and its citizens from new criminal phenomena. At the same time, protection of citizens’ fundamental rights should be reinforced, not just at the national level but in a cross-border context, considering that many criminal investigations now reach beyond national borders. Global initiatives are, however, hampered by tensions between democratic and non-democratic states, making a one-size-fits-all solution inadequate.

There is no official or universal definition for the concept of ‘family’. The absence of EU legislative competence in the substantive family law field means that there is no ‘EU family law’. Thus it is the individual EU legal instruments in different policy areas and the jurisprudence of the Court of Justice of the EU that demarcate, on an ad-hoc basis, the contours of the concept of ‘family’ and of related concepts for the purposes of EU law. The chapter argues that in recent years, increasing focus has been directed towards the way EU law addresses diverse family constellations in its laws and policies and how it manages the interaction of different national family law regimes in situations which fall within the scope of application of EU law. It is explained that the EU legislature and, especially, the Court have been faced with a plethora of complicated questions involving family-related matters and – as a result – with the unenviable task of carving out a solution that can be tolerated by all Member States. After identifying some pertinent questions, the chapter proceeds to explain how the chapters in this volume engage with these issues.

This chapter begins by explaining that family rights have been protected under EU law long before the adoption of the Charter. In particular, the chapter argues that the Court of Justice of the EU consolidated the protection of family life through a free movement rationale, guided by the need to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty. The chapter then focuses on investigating how family rights are protected under EU law today. The authors first analyse the horizontal provisions of the EU Charter of Fundamental Rights and how they can affect both the extent of protection and the substance of family rights. Subsequently, they look at how family rights have appeared in the Court’s case law. Finally, the authors consider the interaction of family rights with the EU citizenship provisions. Exploring the connection between fundamental rights, free movement and EU citizenship, the chapter concludes by signalling the timid use of Charter provisions to advance the protection of family life.

This chapter explores the action for damages as a remedy for fundamental rights violations committed by the EU. Especially considering the shortcomings of the other direct avenues to the CJEU, this mechanism is essential to ensure full compliance with the right to an effective remedy within the EU legal order. Its potential lies in its accessibility to individuals as well as its substantive flexibility that leaves significant room for the CJEU to craft a liability regime suitable to the EU. Yet the action for damages is currently not very effective as a fundamental rights remedy. This is largely due to two factors: the Court’s insistence on the sufficiently serious breach test and the limits to the establishment and enforcement of joint liability. To ensure full compliance with the right to an effective remedy, the CJEU may rely on Article 47 of the Charter and the approaches adopted in national liability laws to develop a fundamental rights specific regime for damages liability. Alternatively, a fundamental rights specific liability regime may also be achieved through secondary legislation.

The contribution offers a critical appraisal of the individual’s (in)access to justice when his or her fundamental rights have been violated during direct enforcement action by EU law enforcement authorities. Based on three case studies – ESMA, DG COMPETITION, OLAF – we argue that direct enforcement, and the shared activities and joint decisions of EU and national authorities it entails, have been ‘squeezed’ into the existing system of separated controls between the EU and the Member State legal orders. This brings with it challenges regarding the control over public power which may affect ‘access to’ and ‘justice’. The main argument of our contribution then is that in the current EU-constellation, courts are – contrary to what is generally assumed – not always, or in any case not necessarily, best-suited for remedying fundamental rights violations and providing the protection the individual needs. Therefore, the co-existing judicial and non-judicial remedies can address each other’s gaps and ultimately ensure a fully-fledged protection of fundamental rights if designed properly and aligned with each other and with national law.

This chapter illustrates how soft law can have very real implications for the fundamental rights position of individuals. While the existence of an interference is often treated implicitly in the case law of the ECtHR and the CJEU, the chapter argues that interferences can result from soft law acts. For the EU this means that recourse to soft law does not in itself preclude the application of the Charter. How soft law may concretely interfere with fundamental rights is illustrated with a couple of examples from different policy areas. Having shown the possible fundamental rights implications of soft law, the chapter turns to remedies. Here the limitations of the EU’s system of judicial remedies is highlighted and the potential of non-judicial remedies is explored.

In contemporary European law, it has become increasingly evident that EU law is not implemented according to the traditional distinction between direct and indirect administration, but through various forms of cooperation between national and EU authorities, as well as between national authorities themselves. These cooperative mechanisms generate so-called ‘composite procedures’, that is, administrative decision-making processes which involve administrative authorities belonging to more than one legal system for the implementation of EU law. This phenomenon has generated increasing scholar attention with attempts at offering taxonomies, labels, analyses of composite procedures in different EU policy fields, or insights regarding the question of access to justice. This chapter studies a less explored angle in this debate: the question of the remedies available to redress possible fundamental rights violations occurring in the context of the composite procedures. It first provides a categorisation of composite procedures, together with an examination of possible fundamental rights violations. The chapter then outlines the available remedies in selected scenarios, identifying possible gaps. The chapter will show that, while composite procedures are capable of violating both substantive and procedural EU fundamental rights, the current system of remedies seems to be ill-suited to provide effective remedies in multi-jurisdictional decision-making processes.