Reflections on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights

• Author: Stelios Andreadakis,Sonia Morano‐Foadi
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00568.x
• Date: 01 September 2011
• Published date: 01 September 2011

eulj_568595..610

Ref‌lections on the Architecture of the EU

after the Treaty of Lisbon: The European

Judicial Approach to Fundamental Rights

Sonia Morano-Foadi* and Stelios Andreadakis*

Abstract: This paper, based on an overarching project, focuses on the role of the Court of

Justice of the EU (CJEU) (also known as the Luxembourg Court) in shaping legal

integration in Europe. The entry into force of the Lisbon Treaty, the new legally binding

nature of the EU Charter of Fundamental Rights and the future EU’s accession to the

European Convention for the Protection of Human Rights and Fundamental Freedoms

(ECHR) bring signif‌icant changes to the fundamental rights discourse within the Euro-

pean Union. These developments allow the enhancement of human rights protection within

the EU. Based on empirical data collected through interviews with the Court of Justice’s

judges and Advocates General and recent case-law, the paper offers original insights into

the post-Lisbon era of regional integration and ref‌lects on the impact of the Charter on the

CJEU jurisprudence.

I Introduction

The post-Lisbon era is characterised by two developmental stages. The f‌irst stage is

inf‌luenced by, on the one hand, the Charter of Fundamental Rights having binding

nature, as set by Article 6(1) Treaty of the European Union (TEU), and, on the other

hand, by the extension of the Court of Justice’s (CJEU) jurisdiction in areas such as

asylum, immigration, judicial cooperation in civil affairs and criminal matters. This

stage is the focus of the present contribution. Its impact is already evident, and its

effects to fostering regional integration are already visible. The second stage, which is

dominated by the debate over the future EU’s accession to the ECHR (Article 6(2)

TEU), goes beyond the scope of the present article.

* Sonia Morano-Foadi, Reader in Law and Director of the Centre for legal research and Policy Studies,

School of Law, Oxford Brookes University, Oxford, UK and Dr. Stelios Andreadakis, Lecturer in Law,

School of Law, Oxford Brookes University, Oxford, UK.

The authors wish to thank the judges and Advocates General of the Court of Justice of the European

Union for offering their precious time and invaluable views during the interviews conducted on 13–15th

December 2010 in Luxembourg. The authors would also like to thank Ms Lucia Brieskova for her work

as a research assistant in the project entitled ‘Ref‌lections on the Architecture of the European Union after

the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights’, which was internally

funded by the School of Social Sciences and Law, Oxford Brookes University in 2009/2010. The authors

are also indebted to Prof Lucy Vickers and Prof Oreste Pollicino for their valuable insights on early drafts

of this paper. They, however, take sole responsibility for its contents.

European Law Journal, Vol. 17, No. 5, September 2011, pp. 595–610.

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

and 350 Main Street, Malden, MA 02148, USA

In particular, this work critically assesses the pivotal role of the CJEU in advancing the

European legal integration in the after Lisbon era. Although the achievement of proper

integration should by no means be considered in isolation, the CJEU can be considered

as the catalyst for integration within the EU. This institution has been extremely active

in following ‘a vigorous policy of legal integration, particularly in the f‌irst decades of the

Community’s existence,’1giving substance to the ‘framework’ Treaties, expanding Union

competences, enhancing the effectiveness of Union law2and developing the principle of

supremacy, the doctrine of direct effect and the general principles of Union law. It has

been described, on the one hand, as ‘a hero who has greatly advanced the cause of

integration’3and, on the other hand, as the ‘European lawyer’s hobbyhorse.’4

Informed by the CJEU’s historical activism, the paper poses the question whether

regional integration in the post-Lisbon era will be enhanced as a consequence of the

strengthening of fundamental rights’ protection. By comparing the f‌indings of an

ongoing empirical research led by the authors with the recent post-Lisbon judicial

developments, the paper attempts to assess the Court’s relationship to the institution-

alisation of fundamental rights in the post-Lisbon era. In particular, it questions

whether conferring legal nature to the EU Charter of Fundamental Rights gives more

formal scope to the Court to advance the process of integration.

Although the Lisbon Treaty’s drafters might not have intended to inaugurate a new

stage of integration based on rights, the preamble to the consolidated version of the

Treaty on the Functioning of the EU (TFEU) underlines the commitment towards an

‘ever closer Union among the peoples of Europe’ and states the aim to mark ‘a new stage

in the process of European integration.’ It then recalls that to pursue such a goal, the EU

is inspired by the principle of liberty, democracy, respect for human rights and funda-

mental freedoms and by the rule of law.

Member States (MSs), including those applying to join the Union, are required to

respect fundamental rights, as enumerated in the EU Charter of Fundamental Rights,

and the CJEU has jurisdiction in matters dealt within. The Charter contains rights that

correspond, to a certain extent, to those guaranteed by the ECHR adopted under the

auspices of the Council of Europe. It is addressed ‘to the institutions and bodies of the

Union’ and to MSs ‘only when they are implementing Union law’ (Article 51(1)).

1E. Vos, Regional Integration Through Dispute Settlement: The European Union Experience Regional

Integration Through Dispute Settlement: The European Union Experience (2005) Working Paper

no. 2005–2007, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=977450 (accessed 8 June

2011). See also P. Pescatore, ‘The Doctrine of Direct Effect: An Infant Disease of Community Law’

(1983) 8 European Law Review 155–177, 157.

2G. de Búrca, ‘The European Court of Justice and the Evolution of EU Law’, in T. Börzel and R.

Cichowski (eds), The State of the European Union, Law, Politics and Society (OUP, Oxford, 2003), 48–75;

M. Dougan, National Remedies before the Court of Justice (Hart Publishing, Oxford, 2004); M. Claes, The

National Courts’ Mandate in the European Constitution (Hart Publishing, Oxford, 2005); G. De Búrca and

J.H.H. Weiler (eds), The European Court of Justice (OUP, Oxford, 2001); A. Dashwood and A. Johnston

(eds), The Future of the Judicial System of the European Union (Hart Publishing, Oxford, 2001); A. Arnull,

The European Union and its Court of Justice (OUP, Oxford, 1999); M. Maduro Poiares, We the Court

(Hart Publishing, Oxford, 1998); R. Dehousse, The European Court of Justice (Macmillan, Basingstoke,

1998); H. Rasmussen, The European Court of Justice (Gadjura, Copenhagen, 1998), A.M. Slaughter,

A. Stone Sweet and J.H.H. Weiler (eds), The European Court and National Courts (Hart Publishing,

Oxford, 1998).

3K. Alter and S. Meunier-Aitsahalia, ‘Judicial Politics in the European Community’, (1994) 26 Compara-

tive Political Studies, 535–561, 535–536.

4T. Koopmans, ‘The Future of the Court of Justice of the European Communities’, (1991) 11 Yearbook of

European Law 15.

European Law Journal Volume 17

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