The Development of the European System of Human and Fundamental Rights in the Current Economic and Political Context

• Published date: 01 January 2016
• DOI: http://doi.org/10.1111/eulj.12170
• Date: 01 January 2016

The Development of the European System of

Human and Fundamental Rights in the

Current Economic and Political Context

Gaëtan Cliquennois* and Elisabeth Lambert Abdelgawad**

There is a considerable wealth of legal and politico-scientif‌ic research on both the

substantive standards and the institutional mechanisms which make up the three pillars

of the European system of fundamental rights, i.e. national constitutions, the European

Convention of Human Rights (ECHR) and European Union Treaties. A good deal of

the literature has focused on each of the two supranational levels. As a result, both the

consistency of the normative output in the form of the case law of the European Court

of Human Rights (hereafter, ECtHR) and the Court of Justice of the European Union

(CJEU),

1

and the impact that such output has had on national substantive standards

is very well known.

2

It seems to be generally accepted that the ECtHR and the CJEU

have developed European standards by mobilising the key documents by reference to

which they review state action (respectively, the European Convention of Human Rights

and the Charter of Fundamental Rights of the European Union, the latter hereafter the

Charter). Such standards are said to ref‌lect at the same time the fundamental objectives

pursued by the ECHR and the Charter and the contextual constraints imposed upon

the Courts.

3

There is an emerging trend in the literature, led by authors assessing the

* Researcher at the CNRS, University of Strasbourg, Societies, Actors and Governmentin Europe (SAGE),

5 avenue du Général Rouvillois, F-67083 Strasbourg Cedex, France.

** Research Director at the CNRS, University of Strasbourg, Societies, Actors and Government in Europe

(SAGE), UMR7363 4 Rue Blaise Pascal, 67081 Strasbourg, France.

1

M. A. Jacob, Precedents and Case-Based Reasoning in the European Court of Justice: Unf‌inished Business

(Cambridge University Press, 2014); M. Waibel, ‘Demystifying the Art of Interpretation’, (2011) 2

European Journal of InternationalLaw 571–588; A. Orakhelashvili, The Interpretation of Acts and Rules in

Public International Law (Oxford Universit y Press, 2008).

2

E. Bates, The Evolution of the European Convention on Human Rights: From its inception to the Creation

of Permanent Court of Human Rights (Oxford University Press, 2010); D. Chalmers, G. Davies

and G. Monti, European Union law: cases and materials (Cambridge University Press, 2010); G.

de Búrca and P. Craig, EU Law: Text, Cases, and Materials (Oxford University Press, new edition,

forthcoming in 2016), G. de Búrca and J. Weiler (eds.), The European Court of Justice (Oxford Uni-

versity Press, 2001); H. Keller and A. Stone Sweet, A Europe of Rights: The Impact of the ECHR

on National Legal Systems (Oxford University Press, 2008); E. Lambert, ‘The Court as a part of the

Council of Europe: The Parliamentary Assembly and the Committee of Ministers’, in A. Føllesdal,

B. Peters and G. Ulfstein (eds.) Constituting Europe: The European Court of Human Rights in a Na-

tional, European and Global Context (Cambridge University Press, 2013), 263–300; P. Popelier, C.V.

de Heyning and P.V. Nuffel, Human Rights Protection in the European Legal Order: the Interaction

between the European and the National Courts (Intersentia, 2011).

3

A. Torres Pérez, Conf‌licts of Rights in the European Union. A Theory of Supranational Adjudication

(Oxford University Press, 2009).

European Law Journal, Vol. 22, No. 1, January 2016, pp. 2–8.

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