Fundamental Rights and Legal Wrongs: The Two Sides of the Same EU Coin

Published date01 January 2016
Date01 January 2016
Fundamental Rights and Legal Wrongs: The
Two Sides of the Same EU Coin
Damian Chalmers* and Sarah Trotter**
Abstract: This article argues that the relationship of EU fundamental rights to the rest of
EU law can only be understood if the former are seen as an integral part of a general
vision of what EU law is about. This vision conceives EU law as concerned to secure
the government of a European political economy. In turn, it has come to shape the inter-
pretation and incidence of EU fundamental rights with the latter conceived as a central
tool for incorporating the individual into and asserting her place within the government
of the European political economy. A paradox has therefore emerged. EU fundamental
rights have become ever more pervasive in EU law, and it is couched more frequently in
their terms, but these same fundamental rights seem ineffectual to deal with the suffering
caused by events such as the crisis.
I Introduction
The onset of the sovereign debt crisis coincided with the formal incorporation of the
EU Charter of Fundamental Rights (the Charter) into EU law by the Treaty of Lis-
bon in December 2009. If the former has dominated the subsequent politics and eco-
nomics of the EU, the Charter would seem, on its face, to have had equally profound
effects on the legal sphere. Between 1 December 2009 and 31 December 2014, it was
cited no less than 353 times by the Court of Justice and has been deployed in many
salient cases.
Yet, scratch beyond these headlines and its transformative effects seem
limited. It is rarely successfully used as a source of EU legislative review,
and its inf‌lu-
ence on EU institutional practice is unclear.
Attempts to widen its remit led to an
embarrassing retreat in the face of opposition from the German Constitutional Court.
It is the crisis, however, that has left the Charter most exposed. It has seemed almost an
irrelevance with its being left to national constitutional courts using national
* Damian Chalmers is Professor of European Union Law at the London School of Economics and Political
**Sarah Trotter is PhD Student at the London School of Economics and Political Science.
Case C-617/10 Åkerberg Fransson, EU:C:2013:105; Case C-300/11 ZZ, EU:C:2013:363; Joined cases
C-584/10 P, C-593/10 P and C-595/10 P Kadi, EU:C:2013:518; Case C-293/12 Digital Rights Ireland,
Only two directives have been struck down for violation with the Charter. Case C-236/09 Test-Achats, EU:
C:2011:100; Case C-293/12 Digital Rights Ireland, EU:C:2014:238.
On the (uncertain) material difference made by the Charter, European Commission, Annual Report on the
Application of the EU Charter of Fundamental Rights, 2014, available at
On the attempt in Case C-617/10 Åkerberg Fransson, EU:C:2013:1 to extend the remit of the Charter over
national measures see BvR 1215/07 Counterterrorism Database, Judgment of 24 April 2014.
European Law Journal, Vol. 22, No. 1, January 2016, pp. p. 939.
© 2016 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
constitutions to protect fundamental rights.
A trite responsemight be that the Charterand
the crisis have occupied different legal worlds. This is a deeply unsatisfactory answer as,
with the effects of both being pervasive, one would have expected more interchange than
has been the case. More profoundly, fundamental rights are used to imbue legal orders
with a sense of coherence, authority and moral pedigree. All this would be lost if there
was an ad hoc approachto which f‌ields of EU activity are governedby fundamental rights.
Our starting point is that EU law has been established as a legal order,which
carries with it a claim to possess these qualities of coherence, authority and moral
pedigree. To meet this claim, a vision of what EU law is about has been established
with fundamental rights a constitutive part of it. Interpretation of EU law in the
light of this vision allows these claims to be addressed as it relates individual laws
to one another, sets out reasons for obeying EU law and sets out what is good
and right about the EU.
What is contained in this vision? EU law follows a tradition, present since the early
Mediaeval period, in which this vision integrates three elements: a collective way of life,
a means for ordering this way of life and an ethos for socialising individuals into this
way of life and disposing them to follow the system of order in place. The way of life
is that of a European political economy composed of a multiplicity of spheres of
activity, which allow life to be more than merely survival. The method of ordering is
a governmental one concerned to nurture these spheres of activity, secure their long-
term development and ensure that they are in equilibrium. The ethos is one in which
through following EU law individuals can better their lives. Fundamental rights are
an integral part of this vision as they incorporate the individual into this order and
allow her position to be asserted within it by establishing autonomy for her there, setting
out dimensions to this autonomy and securing a value for this autonomy.
EU law relies,consequently,on a representationof EU fundamental rightsas an integral
part of government of the European political economy. This has shaped their interpreta-
tion and remit, often highly problematically. The Charter intensif‌ied this process in a num-
ber of ways. It integrated them far more tightly into this governmental order sothat their
claims were increasingly tied to the demands of EU government. Alongside this, it led to
their being conceived as about realising collective goods with a corresponding
instrumentalisation and relativizing of many entitlements. Finally, it shifted the burden
for protecting fundamental rights away from administrative actors onto private actors as
the latter have become perceived as increasingly central to the government of the European
political economy. All these trends raise challenging issues, but, it will be concluded, all
direct the Charter away from addressing the suffering provoked by the sovereign debt crisis.
II An EU Stabilitas
Two leitmotifs dominate analysis of EU fundamental rights law. One is cynicism. EU
fundamental rights law, on this account, uses the rhetorical appeal of fundamental
rights to push forward European integration and extend the reach of Union institu-
tional power. Such an argument does not foster the analysis of why fundamental rights
Case 2 BvR 1390/12 et al. ESM Treaty (Temporary Injunctions), Judgment of 12 September 2012 (German
Constitutional Court); Acordão 187/2013, State Budget 2012, Diário da República, 1.ª série N.° 78 22 April
2013; Acordão 413/2014 State Budget 2014, Judgment of 30May 2014 (both Portuguese Constitutional Tribunal);
8 Cte 1906/2014 Olom EYDAP, Judgment of 4 June2014; CTE 2192/2014, Salaries of Military Personnel,Judg-
ment of 23 June 2014; 2 BvR 2728/13 ESM/ECB, Judgment of 7 February 2014 (both Greek Council of State).
Fundamental Rights and Legal WrongsJanuary 2016
© 2016 John Wiley & Sons Ltd10

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