Fundamental Rights Protection in the European Union – Edited by Jan Barcz

• Published date: 01 March 2011
• Author: Jiří Zemánek
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00548_3.x
• Date: 01 March 2011

eulj_548275..286

BOOK REVIEWS

Conf‌licts of Rights in the European Union. A Theory of Supranational Adjudication.By

Aida Torres Pérez. Oxford: Oxford University Press, 2009. xiv +208 pp. Hb. £50.00.

The book’s main aim is to propose and defend a theory on how fundamental rights

should be adjudicated by supranational courts (especially the European Court of

Justice (ECJ)) in the EU. The author claims that the ECJ asks national courts to replace

their fundamental rights standards with the European ones and that this request must

be justif‌ied. It is suggested that the process of judicial adjudication cannot be a hier-

archical one (ie according to the principle of supremacy), but should rather be based on

mutual dialogue between national courts and the EU courts. The main reason behind

the theory is that such a dialogue is the most viable option in order for the ECJ to gain

legitimacy in the eyes of national courts and governments, especially when fundamental

rights in Europe are adjudicated in a pluralistic framework. Therefore, the book builds

up on theoretical background (constitutional pluralism, federalism, legitimacy, state

authority, etc) in order to construct a new theory of supranational adjudication of

fundamental rights in the EU.

The book is divided into three main parts. The f‌irst and second parts deal with the

complexity of judicial rights protection in Europe in a pluralistic framework. To this

end, the author discusses fundamental rights protection awarded by national courts,

the European Court of Human Rights and the EU courts. Comparative analysis of

federalism in the USA versus supremacy in the EU and their impact on fundamental

rights adjudication is analysed in part two of the book, where the author discusses

fundamental rights from a new perspective, raising such questions as what the grounds

of supranational uniformity are and whether this uniformity can be justif‌ied against

national Member State autonomy.

Having laid out the background of the problem, the author then goes to the root of

the theory of adjudication of fundamental rights conf‌licts in Europe, which is based on

judicial dialogue and comparative judicial reasoning that enables legitimacy of the ECJ

in the eyes of national courts. A great deal of attention is allocated to judicial dialogue,

which, as the author claims, is the solution for the ECJ’s authority when interpreting

fundamental rights where the ECJ has to convince national courts (as well as EU

citizens and institutions) of the authority of interpretation of the rights in question.

From the very beginning the reader is presented with very carefully worded and

logically laid out arguments. The arguments (as well as all the parts of the book) are

closely connected to each other and logically linked, which shows the clarity of thought

and integrity of the whole publication. The terms used in the book are clearly def‌ined

either at the very beginning (eg fundamental rights) or at the beginning of each chapter

where they are used. These are the greatest of the book’s strengths—the author says

only what is necessary in order to build a robust normative theory, leaving many of the

details in the footnotes. Good use of deductive reasoning (tackling the arguments

‘against’ f‌irst; grounding the new arguments ‘for’ afterwards) only supports this

assumption. Presentation and style are very ref‌ined, which makes the book easy to read

and to follow.

European Law Journal, Vol. 17, No. 2, March 2011, pp. 275–285.

© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA