After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?

Date01 June 2013
AuthorGráinne de Búrca
Published date01 June 2013
Subject MatterArticle
168 20 MJ 2 (2013)
G  B*1
is article e xamines the engagement by the Court of Justice of the European Union (CJEU)
with the EU Charter of Fundamental Rights over the period since the Charter was made
formally binding by the Lisbon Treaty in 2009. A survey of the output of the Cour t during
that time reveals a sharp ri se in the number of cases in which a provision of the Charter was
cited or argued before the Court. Fur ther, the Court has engaged substantively with and given
prominence to the Charter argument in a g rowing number of these cases. In other words, the
incidence of human rights adjudication before the CJEU has been signi cantly augmented
by the adoption of the Charter as a binding legal instrument.  e article considers the
implications for the Court of Justice of the g rowing demand for it to function in certain cases
as a human rights adjudicator. More particularly, it questions whether the long-standing
judicial style and approach of the Cour t – its self-referential, formulaic and o en minimalist
style of reasoning – is appropriate to thi s expanded role.  e article argues that the nature and
context of the increasing number of human r ights claims being made before the Cour t call
for greater openness on the part of the CJEU to the u se of international and comparative law
and to the possibility of third party intervention s. Further, and particularly given the evident
unwillingness of the CJEU to countenance the practice of separate concurring or dissenting
opinions, the Court should, par ticularly in cases involving human rights claims, rethink its
increasingly frequent practi ce of dispensing with the Opinion of an Advocate General.
Keywords: Char ter; CJEU, comparative law; ECHR; human rights
* Professor, NYU Law Sc hool. Earlier versions of t his paper were given at a c onference organiz ed by
the Danish Pre sidency of the EU Counc il and the Fund amental Rig hts Agency in Copen hagen in
March 2012, and at a sem inar at Oxford Univer sity Law Facult y in October 2012. I am gratefu l for
the comments received from participants at both the conference and the seminar. Warm thanks are
particu larly due to Roberto Chena l and Michael Schwar z for their excellent resea rch assistance, a nd to
Bruno de Witte for hi s advice.
A er the EU Charter of Funda mental Rights:
e Court of Justice as a Human R ights Adjudicator?
20 MJ 2 (2013) 169
e Char ter of Fundamental Rights, which was  rst dra ed and adopted in 2000,
has been a legally bindi ng instrument of EU law since late 20 09, binding both the EU
institutions and t he Member States when they act within the scope of EU law.1 Between
that time and the end of 2012, the Court of Justice has made reference to or drawn on
provisions of the Charter of Rights in at least 122 judgments, and t he General Court
(previously the Court of First Instance) in at least 37 judgments.2 In 27 of these 122
judgments, the CJEU engaged substa ntially wit h arguments based on one or more
provisions of the Charter, while in 7 of its 37 judgments t he General Court did so.3 Even
prior to the Charter gai ning binding force, the Court – as well as many of its Advocates
General – had made reference to its provisions on quite a number of occasions, 4 but that
number has risen very sign i cantly since t he Charter acquired legal e ect.
Moreover, the growth of the Court’s role as a human rights adjudicator is not just a
function of the comi ng into force of the Charter w ith a binding set of EU human rights
commitments for the Cour t to enforce, but also a consequence of the continued expa nsion
of the scope of EU law and policy. A signi cant part of the EU’s legislative corpus now
covers areas such as immig ration and asylum, secur ity and privacy, alongside many of the
more traditional  elds of EU polic y including competition and marke t regulation.  e EU,
in other words, despite its recent economic woes, is a powerfu l and pervasive law-making
entity with the capacity to impinge on  elds of human freedom and welfare in many
respects. Furt her, the coming into force of the Charter has widened the CJEU’s human
rights role not just by multiplying t he rights provisions which it is empowered to enforce,
1 For discussion of wh at lies withi n the scope of EU law for Char ter purposes , and what the phra se
‘implementing Un ion law’ in Article51 of the Ch arter means, se e e.g. G. de Búrca, ‘ e Dr a ing of the
European Union Cha rter of Fundament al Rights’, 26European Law Review 1 (2001), p.136; L. Besselink,
‘ e Member States, the nat ional constitut ions, and the scop e of the Charter ’, 8 Maastricht Journal
of European and Comparative Law 1 (2001), p.68. For more recent analyses of the CJEU’s approach
to this question , see L. Pech, ‘Bet ween Judicial Min imalism a nd avoidance:  e Cou rt of Justice’s
Sidestepping of Fundamental Constitutional Issues in Römer and Dominguez’, 49 Common Market
Law Review 1 (2012), p.1–40; K . Lenaerts, ‘Exploring t he Limits of the EU Charter of Funda mental
Rights’, 8European Constitutional Law Review 3 (2012), p.375–403; A. Rosa s, ‘When is the EU Char ter
of Fundamental Rights applicable at national Level?’, 19 Jurisprudence 4 (2012), p.1271. For a recent
important r uling by the Gra nd Chamber of the Court of Justic e on the question, see C ase C-617/10
Åklagaren v. Hans Åke rberg Fransson, Judgment of 2 6February 2013, not yet reported .
2 ese nu mbers are based on a search of t he case law from 1December 2 009 until 31December 2012,
using the Cour t’s Curia website database, and usi ng a range of search terms intended to capt ure all
relevant cases . It is possible that there are other ca ses which were not detected by thi s search, but the
analysis i n this articl e is based on the 122 Cour t of Justice cases a nd 37 General Court c ases which were
returned by it.
3 In the remain ing 95 cases, the Court of Just ice referred to the Charter mai nly in a passing manner,
while the Gener al Court did so in t he 30 remaining ca ses in which the Cha rter was cited.
4 See e.g. J. Morijn, ‘Judicia l References to the Charter of Funda mental Right s: First Exper iences and
Possible Prospects’, w _morjin.pdf (las t visited 26March 2013).

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