New Challenges for Pluralist Adjudication after Lisbon: The Protection of Fundamental Rights in a Ius Commune Europaeum
| Published date | 01 June 2012 |
| Author | Peter Van Elsuwege |
| DOI | 10.1177/016934411203000204 |
| Date | 01 June 2012 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 30/2, 195–217, 2012.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 195
NEW CHALLENGES FOR PLURALIST
ADJUDICATION AFTER LISBON:
THE PROTECTION OF FUNDAMENTAL
RIGHTS IN A IUS COMMUNE EUROPAEUM
P V E*
Abstract
With the introduction of a legally binding Charte r of Fundamental Rights and the
envisaged accession of the European Union (EU) to the European Convention for the
Protection of Human Rights and Fundamental Freedom s (ECHR), the Treaty of Lisbon
signi cantly a ects the legal system for the protection of fundamental r ights in Europe.
It is argued that those innovations reinforce the integration between di erent legal
suborders at the national, European Union and pan-European level into a common
constitutional space. Simultaneou sly, it creates new challenges for pluralist adjudication
on the part of the national constitutional courts, the Court of Justice of the European
Union and the European Court of Human Rights. Arguably, the ambiguous scope of
application of the Charter of Fundamental Rights, the uncertain implications of EU
membership to the ECHR and the increasing overlap between national and European
fundamental rights complicate the protection of human rights in the European legal
order.
Keywords: Char ter of Fundamental Rights; Convention of Human Rights; Eu ropean
constitutional plural ism; European Union; Lisbon Treaty
1. INTRODUCTION
e protection of fu ndamental rights is a long-term concern within t he legal order of
the European Union (EU). It is well-known that in t he absence of general provisions
* Professor of Europea n Law, Ghent University (Jea n Monnet Centre of Excel lence) and Post-Doctoral
Research Fellow of t he Research Foundation – F landers (FWO).
Peter Van Elsuwege
196 Intersentia
on fundamental rights in the founding Treaties,1 and as a reaction to the Solange
judgments of the German Constitutional Cour t,2 the European Court of Justice
– now Court of Justice of the European Union (CJEU) – acknowledged that those
rights cons titute ‘general pri nciples of Communit y (now Union) law’.3 e developing
case law of the CJEU prompted steps by other inst itutions and the Member States to
incorporate references to funda mental rights in policy documents and binding legal
instruments. Ever y amendment of the Treaties increased t he visibility of t he EU’s
fundamental rights commitment.4 e Treaty of Lisbon forms the latest step in this
gradual process with the integration of the Charter of Fundamenta l Rights into EU
primary law and t he envisaged accession of the Eu ropean Union to the European
Convention for the Protection of Human Rights a nd Fundamental Freedoms (ECHR).
ese legal developments further move the protection of fundamental rights to the
core of the Union.5
Article 6 of the Treaty on European Union (TEU) clari es that the protection of
fundamental r ights in the EU is not based upon a single document but rat her consists
of di erent, yet partly overlapping, layers, including t he Charter of Funda mental
e interact ion between the three levels of fundamental r ights protection o ers
an interesting test case for the e ective functioni ng of constitutional pluralism.
According to this fashionable t heory, there is no hierarchy between closely integrated
national and supranational lega l subsystems.6 Each highest court with in a subsystem
– national constitutional cou rts, the CJEU and the European C ourt of Human Rights
(ECtHR) – derives authority and acts legitimately under its own basic docu ments ,7
1 With the except ion of provisions prohibiti ng discrim ination on ground s of nationalit y (Art. 18
TFEU, ex Art.12 EC , Art.7 EEC) and requir ing equal pay for men and women (Art .157 TFEU, ex
Art.141 EC, Art .119 EEC).
2 Judgment of 29May 1974 (Solange I), BVerfG E, 37, 271; Judgment of 22October 1986 (Solange II),
BverfGE, 73, 339.
3 See, for example, Case 29/69, Stauder/Ulm [1969] ECR 419, at para. 7; Case 11/70, Internationa le
Handelsgesellscha [1970] ECR 1125, at para. 4; Case 4/73, Nol d [1974] ECR 491, at para. 13; Cas e
44/79, Hauer, ECR [1979], 3727, at para. 15; Opinion 2/94 [1996] ECR I-1759, at para. 33.
4 Spaventa, E. ‘Federa lisation Versus Centralisat ion: Te nsions in Fundamental Right s Discourse in
the EU’, in: Dougan M. a nd Currie S. (eds.), 50 Years of the European Treaties. Looking B ack and
inking Forward, Hart, O xford, 2009, pp. 343–364, at p.3 43.
5 On the place of fu ndamental ri ghts withi n the Union, see, for example, Von Bogdandy, A., ‘ e
European Union as a Huma n Rights Organizat ion? Human Rights and the Core of t he European
Union’, Common Mar ket Law Review, Vol. 37, No. 6, 2000, pp. 1307–1338.
6 Walker, N., ‘ e Idea of Constitutional Pluralism’, Modern Law Review, Vol. 65, No. 3, 2002,
pp. 317–359; Torrez Perez, A., Con icts of Rights in the European Union. A eory of Supranational
Adjudication, Oxford Universit y Press, Oxford, 20 09, p.69.
7 Vosskuhle, A., ‘Mult ilevel Cooperat ion of the European C onstitutiona l Courts. De r Europäische
Verfassungsgerichtsverbund’, European Constitutional Law Review, Vol. 6, No. 2, 2010, pp. 175–198,
at p.175.
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