Disagreement—Commonality—Autonomy: EU Fundamental Rights in the Internal Market

Abstract

The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

Not just User Control in the General Data Protection Regulation

“…The CJEU pays less and less attention to the internal market dimension [13,68]. Although the EU can still be characterized as a separate legal order by virtue of its pursuit of 'the market-driven integration of nation states into a supra-national entity', it also 'increasingly commits itself to the political project of protecting fundamental rights' [69]. Lynskey [13] points to Article 16 TFEU as freeing data protection law from its internal market constraints.…”

“…As noted by Waldron [75], '[a]ny theory of rights will face disagreements about the interests it identifies as rights, and the terms in which it identifies them. Those disagreements will in turn be vehicles for controversies about the proper balance to be struck between some individual interest and some countervailing social considerations' [69]. This gives the concern over paternalism in data protection law a particular sting, as it affects not only the forms of freedom and autonomy which an individual can legitimately enjoy, but also, in particular, her say regarding the substance of fundamental rights protection in her polity.…”

EU Law as a Creative Process

“…Although there has been and still is a rich debate about the nature of the ECJ, it is now relatively uncontroversial to state that the ECJ is the EU's constitutional court, or at least that it performs its tasks like a (federal) constitutional court, 137 'building a coherent legal system, ensuring the vertical as well as horizontal division of powers, and protecting individual rights', and doing so by referring to EU primary law as its standard of review, 138 as well as performing the task of ensuring uniform application of the law by lower courts, which is more of a 'supreme court' task. 139 In the EU legal order, the Treaties form the EU's constitutional charter (the ECJ also refers to them as such), 140 and the ECJ is its ultimate interpreter and guarantor, and competent to declare legislation unconstitutional. Furthermore, as observed by Hinarejos, the protection of fundamental rights has been an important milestone in the evolution of the ECJ as a constitutional court.…”

“…143 She thus connects coherence with fairness or justice, which is an underdiscussed issue in EU law, 144 and also with the value of integrity, i.e. the quality of 140 the judgments, which she claims can be achieved 'in large part by the articulation and insightfulness of its reasoning'. 145 In Nic Shuibhne's theory of constitutional responsibility, attention is also paid to interpretative imagination, as well as judicial intuition.…”

“…139 Although the term 'human rights discourse' is thrown around quite liberally in academic literature, once we start investigating what authors mean by this notion, things start to get very complex indeed. 140 At a minimum, human rights discourse starts with the actual recognition that there are such things as human rights that have legal value and that are worthy of protection, and that may compete with other legal rights. Such recognition may be not only in legal texts but also in academic, political and journalistic publications.…”