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

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

DANIEL AUGENSTEIN*

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 inter-pretation 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 disagree-ment. 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.

I. INTRODUCTION

DESPITE THE BOLD language of Article 2 of the Treaty on European Union (TEU) that re-presents the Union as ‘founded on the values of respect for human dignity, freedom, democracy, equality, the rule of

law and respect for human rights’, there is little doubt that the main engine

* I am grateful to the participants in my seminar at the Cambridge Centre for European Legal Studies and to two anonymous referees for their generous and insightful comments on earlier drafts of the chapter.

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of European integration has been, and continues to be, an economic one. In the early days of the European Community, economic integration was considered both an end in itself and a means to the end of political stability, as reflected for example in Article 2 EEC Treaty 1958 that envisaged the establishment of a common market to ‘promote … closer relations between the States belonging to it’. The telos of economic integration also furnished the building blocks of the EU’s constitutional architecture. It was the goal of establishing ‘a common market, the functioning of which is of direct concern to interested parties in the Community’ that justified elevating the Treaty above an international agreement to directly confer rights upon indi-viduals as ‘part of their legal heritage’.1 Over the following three decades, the realisation of the EU’s fundamental market freedoms—the freedom of movement of capital, goods, services and people—came to dominate the European political agenda and helped to consolidate the European legal order vis-a-vis the Member States.2 At the same time, the expansionist ten-dencies of EU market integration—competence creep, functional spill-overs and the like—drove the new Maastricht agenda of ‘creating an ever closer union among the peoples of Europe’ (Article 1 TEU) that was to spur the EU’s transition from economic policy to constitutional polity. Thus, and notwithstanding the broader political vision espoused by the Lisbon Treaty, the integration of Member States and their citizens through the market casts a long shadow on today’s European Union.

If fundamental freedoms have long been at the heart of European inte-gration, fundamental rights made their legal appearance on the European stage much later and in a less majestic manner. Ever since their discovery as ‘general principles of Community law’ by the Court of Justice of the European Union (CJEU), EU fundamental rights have been subject to sustained critique—a critique that has not fallen silent with the reforms brought about by the Lisbon Treaty.3 After Lisbon, respect for human rights as a ‘founding value’ of the Union (Article 2 TEU) is more deeply inscribed into the treaties; the Charter of Fundamental Rights has become legally binding on pair with the treaties (Article 6(1) TEU); and the EU is mandated to accede the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6(2) TEU). Nevertheless, given the ad hoc and incremental development of fundamental rights in the EU legal order, their uncertain conceptual underpinnings and their contested

1 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

2 See, eg, Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649, where the Court held that ‘free movement of goods ... constitutes one of the fundamental rules of the Community’.

3 See, eg, S Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 11 Human Rights Law Review 645.

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scope,4 it seems unlikely that the solemn proclamation of values and the legal entrenchment of rights alone could transform the EU into a genuine human rights organisation.

The thrust of my argument in this contribution is that the problems which beset EU fundamental rights law can be traced to the fact that whereas the fundamental market freedoms have proven remarkably suc-cessful in integrating the European polity, fundamental rights do not integrate particularly well. To revert to Dehousse and Weiler’s famous agent/object distinction,5 fundamental rights are neither an attractive instrument to integrate the Member States nor are they easily integrated into the European legal order. The reason is that fundamental rights are fundamental not only for the individual rights holder but also for the self-understanding of the polity as a whole. Hence, if the functionalist logic of EU market integration served to smooth over differences between Member States’ national constitutional traditions, the Union’s attempt to reinvent itself as a human rights organisation was bound to throw up deeper politi-cal questions about its supra-national pedigree. I contend that as a result of bolstering the EU’s weak claim to supra-national political authority with a strong case for economic integration, the internal market operates not sim-ply as a constraining factor in the effective realisation of EU fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. The argument proceeds as follows: section II considers how the authoritative determination of disagreements about fundamental rights touches on the self-understanding of the polity. Section III draws on Joseph Weiler’s distinction between fundamental rights and fundamental boundaries to elaborate the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fun-damental rights law under conditions of disagreement. Section IV links the discussion of fundamental rights and fundamental boundaries to the often alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of this contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the internal market—with an analysis of pertinent case law. Finally, 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.

4 See further below, section IV.5 R Dehousse and JHH Weiler, ‘The Legal Dimension’ in W Wallace (ed), The Dynamics of

European Integration (London, Continuum, 1990) 242.

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II. DISAGREEMENTS ABOUT FUNDAMENTAL RIGHTS

What is sometimes overlooked in the burgeoning literature on conflicts of fundamental rights between European and national legal orders is that these rights are also and already contested within each of these legal orders. People disagree about the proper ambit of rights (eg, what interests are protected by freedom of ‘religion’?), the best interpretation of their limita-tion clauses (eg, what is entailed in the protection of ‘public order’?) and about their most beneficial arrangement in case of conflict (eg, what is the relationship between freedom of expression and privacy?).

The implications of disagreements about rights for constitutional democ-racies are one of the perennial themes of Jeremy Waldron’s work that he develops, inter alia, in his well-known debate with Ronald Dworkin about whether ‘Britain needs a Bill of Rights’.6 While, according to Waldron, much of the attractiveness of rights-talk lies in ‘insisting that certain basics are to be secured and certain atrocities prohibited, come what may’, the implied simplicity and self-evidence of rights is deeply misleading.7 Under conditions of political pluralism, people (including philosophers) continue to disagree about the proper meaning, content and limitations of fundamental rights: ‘Any 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.’8 The insight that people disagree about rights lies at the heart of two main charges Waldron raises against proponents of rights-based constitutionalism. First, they undermine their own premises about the autonomy and dignity of individual rights bearers by placing their particular conception of rights beyond the reach of democratic debate (‘self-assurance’), which, in turn, evinces a lack of confidence that this particular conception can muster general support amongst their fellow citizens (‘mistrust’). Second, by downplaying the relevance of disagreement, proponents of rights-based constitutionalism also dodge the problem of authority—a Hobbesian point that Waldron makes lucidly:

It is no good saying, for example, that when people disagree about rights, the person who should prevail is the person who offers the best conception of rights. Each person regards her own view as better than any of the others; so this rule

6 J Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 OJLS 18; R Dworkin, ‘Does Britain Need a Bill of Rights?’ in his Freedom’s Law (Harvard, Harvard University Press, 1997) 352; see further J Waldron, Law and Disagreement (Oxford, Clarendon Press, 1999). The context of the debate was the incorporation of the substantive provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms into British domestic law via the Human Rights Act 1998.

7 Waldron, ‘Rights-Based Critique’ (n 6) 29.8 Ibid 30.


for settling on a social choice in the face of a disagreement is going to reproduce exactly the disagreement that called for the rule in the first place. The theory of authority must identify some view as the one to prevail, on criteria other than those which are the source of the original disagreement.9

This does not, however, mean that disagreements about rights were reduc-ible to conflicts of authority. Rather, competing conceptions of rights remain relevant in justifying their authoritative determination once the issue of authority has been settled. As Waldron puts it, ‘the question of what counts as a good decision does not disappear the moment we answer the question “who decides?”’.10 It will thus not do to say, with Dworkin, that the whole point of rights is to ‘trump’ the decisions of democratic majorities. For ‘if we say, in a context where people disagree about rights, that rights may “trump” a majority decision, it is incumbent on us to say which of the competing conceptions of rights is to do the trumping, and how that is to be determined’.11

My concern in this contribution is not whether Dworkin’s conception of constitutional ‘rights as trumps’ can successfully meet Waldron’s demo-cratic challenge. In any case, a debate that turns on the relationship between democracy and rights in the nation state (in the present case the UK) cannot be mapped one-to-one onto the supra-national European polity. On the one hand, the EU continues to face significant challenges to its democratic cre-dentials (think of its ‘democratic deficit’ or the notorious ‘no demos’ thesis) that for some stand in the way of its further constitutionalisation.12 On the other hand, it was built around a common market rather than a shared political commitment to fundamental rights, a predicament that still mani-fests itself in many of today’s debates about the shortcomings of the EU qua human rights polity.13 Thus, instead of examining the relationship between rights and democracy in the EU,14 I want to draw attention to a shared

9 Ibid 32.10 Ibid.11 Ibid 33.12 Suffice to recall the debate on European constitutionalism between Jürgen Habermas and

Dieter Grimm. See D Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Journal 282; J Habermas, ‘Remarks on Dieter Grimm’s “Does Europe Need a Constitution?”’ (1995) 1 European Law Journal (1995) 303; and J Habermas, ‘Why Europe Needs a Constitution’ (2001) 11 New Left Review 5.

13 See, eg, A von Bogdandy, ‘The European Union as a Human Rights Organisation? Human Rights and the Core of the European Union’ (2000) 37 CML Rev 1307; and more recently A Williams, The Ethos of Europe (Cambridge, Cambridge University Press, 2010). For a differentiated account of the evolution of fundamental rights in the European polity, see G De Búrca, ‘The Road Not Taken: The EU as a Global Human Rights Actor’ (2011) 105 American Journal of International Law 649.

14 For an excellent discussion of Waldron’s democratic challenge to rights-based con-stitutionalism in the EU context, see N Walker, ‘Human Rights in a Postnational Order: Reconciling Political and Constitutional Pluralism’ in T Campbell, KD Ewing and A Tomkins (eds), Sceptical Essays on Human Rights (Oxford, Oxford University Press, 2001) 119.

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premise of the ‘statist’ Waldron–Dworkin debate in order to shed some light on the distinctive nature of its supra-national fundamental rights law. No matter how disagreements about rights ought to be resolved, for both Waldron and Dworkin, they are resolved in relation to a political collective (a ‘people’) individuated in a state legal order. This displays disagreements about fundamental rights as political disagreements that are resolved within the boundaries of a legally constituted space.15 Moreover, the way in which Waldron depicts the relationship between rights and authority makes clear that the authoritative resolution of disagreements about rights is decisive for determining the concrete substantive meaning and content of any given fundamental right in any given state legal order. In his writings on human rights, Dworkin makes a cognate point:

Nevertheless, we must now notice that nations differ strikingly about which political rights to recognise in that way. Even those nations that belong to the same political culture as our own disagree with us in important matters. In Britain and several other European nations, for example, people have a legal right not to be publicly insulated because of their race; that right is protected by laws making ‘hate speech’ a crime. In the United States, on the contrary, people have a consti-tutional right publicly to insult anyone they like, by denigrating that person’s race or any other group to which he belongs, so long as they do not provoke a riot or incite others to criminal acts.16

In such and similar cases of what Dworkin terms ‘good-faith differences’, all we can expect is that governments act consistently, that is, that they do not treat anyone in a way that contradicts their own understanding of the values embedded in their constitution.17 Thus, for both Waldron and Dworkin, disagreements about fundamental rights are settled in and for discrete state polities. This renders fundamental rights determinate within each state polity and gives rise to (legitimately) diverging standards of fundamental rights protection between these state polities.

III. FUNDAMENTAL RIGHTS AND FUNDAMENTAL BOUNDARIES

The interrelation of authority and rights determinacy in the state legal order outlined above takes on a particular significance in a European Union that continues to navigate between its international roots and its constitutional ambitions. I shall not even attempt to do justice here to the rich literature

15 Ingolf Pernice is amongst those who have pointed to the political origins and rationale of fundamental rights in the European integration process leading up to the EU Charter. See I Pernice, ‘The Treaty of Lisbon and Fundamental Rights: Walter Hallstein-Institut Paper 7/08’ in S Griller and J Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (New York, Springer, 2008).

16 R Dworkin, Is Democracy Possible Here? (Princeton, Princeton University Press, 2008) 32.17 Ibid 36, 43–45.


depicting the European Sonderweg of legal integration paved by the CJEU’s early discovery of the principles of supremacy and direct effect.18 As Williams notes, one complication that arises for EU fundamental rights ‘revolves around the degree to which [the European] institutions assume responsibil-ity akin to that possessed by a state, with all the constitutional implications attached, or to that of an international organisation’.19 What interests me for the present purposes is that once the received distinction between the ‘national-constitutional’ and the ‘international’ becomes blurred, different authoritative determinations of fundamental rights overlap and compete in the same ‘supra-national’ European legal space. The ensuing difficulties in determining the substance of EU fundamental rights law in relation to the Member States are nicely illustrated by Joseph Weiler’s account of the relationship between fundamental rights and fundamental boundaries.20 Like Dworkin, Weiler begins by noting that ‘the definition of fundamental human rights differs from polity to polity’, which reflects ‘fundamental societal choices [that] form an important part in the different identities of polities and societies’.21 This embeddedness of fundamental rights in con-crete legal-political orders is explained with reference to the fundamental boundaries of the polity: ‘If fundamental rights are about the autonomy and self-determination of the individual, fundamental boundaries are about the autonomy and self-determination of communities.’22 The interrelation of fundamental rights and fundamental boundaries, finally, espouses the core identity of the polity. To rebut the appearance of communitarianism, it is not the case that fundamental boundaries would a priori delimit the scope of fundamental rights. Rather, political disagreements about funda-mental rights are authoritatively resolved in relation to the fundamental boundaries of the polity. In this sense, fundamental rights and fundamental boundaries operate on each other: fundamental rights are both determined by and contribute to the determination of fundamental boundaries. Take again the example of freedom of expression: an individual’s claim that his or her fundamental right to freedom of expression was violated is judged in relation to the fundamental boundaries of a concrete legal-political order, as reflected in its embedded understanding of, say, ‘public morals’ or ‘public order’. If this claim is successful, it transforms these very fundamental boundaries and issues in a new self-understanding of what the polity takes freedom of expression to be about.

18 Van Gend en Loos (n 1); Case 6/64 Flamino Costa v ENEL [1964] ECR 585.19 Williams (n 13) 111.20 JHH Weiler, ‘Fundamental Rights and Fundamental Boundaries: On the Conflict of

Standards and Values in the Protection of Human Rights in the European Legal Space’ in his The Constitution of Europe (Cambridge, Cambridge University Press, 1999) 102.

21 Ibid.22 Ibid 104.

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The upshot of Weiler’s subsequent analysis of the interrelation of fundamental rights and fundamental boundaries in the supra-national European polity is that the boundedness of fundamental rights in the Member States legal orders prevents the CJEU from adopting a pan-European (maxi-mum/minimum) standard of human rights protection as derived from their national constitutional traditions.23 EU fundamental rights must safeguard the unity of European law within the Member States legal orders, while at the same time respecting their diverse national constitutional traditions. As the CJEU held in Internationale Handelsgesellschaft, ‘recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law’. Accordingly, ‘the validity of such measures can only be judged in the light of Community law ... [as] an independent source of law’.24 If a main rationale for incorporating fundamental rights into the EU legal order was to assert the autonomy of European law vis-a-vis the Member States, this entailed the development of autonomous fundamental rights standards as derived from EU law itself—circularity as usual.25 It follows that disagreements about EU fun-damental rights must be resolved ‘within the framework of the structure and the objectives of the Community’.26 My concern with this approach is that the proclaimed autonomy of EU fundamental rights law is anything but straightforward. It is not reducible to a negative claim that (from the perspective of the EU legal order) national-constitutional human rights standards cannot invalidate EU law. Rather, it must provide a positive determination of what the EU—qua supra-national polity—takes funda-mental rights to be about in the face of persistent disagreement concerning their substantive meaning and scope. If, following Waldron and Dworkin, disagreements about rights are authoritatively resolved in relation to the fundamental boundary of a discrete polity which, in turn, renders funda-mental rights determinate within this polity, an autonomous interpretation of EU fundamental rights cannot be divorced from a substantive account

23 On the maximum/minimum standard conundrum, see, eg, L Besselink, ‘Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union’ (1998) 35 CML Rev 629; B de Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’ in P Alston, M Bustelo and J Heenan (eds), The EU and Human Rights (Oxford, Oxford University Press, 1999) 859; M Avbelj, ‘European Court of Justice and the Question of Value Choices’ (2004) 06/04 Jean Monnet Working Paper; A Torres Pérez, Conflicts of Rights in the European Union (Oxford, Oxford University Press, 2009); and further below, section V.

24 Case 11/70 Internationale Handelsgesellschaft v Einfuhr und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.

25 On the CJEU’s circular reasoning in bootstrapping the principles of supremacy and direct effect in Van Gend en Loos and Costa, see H Lindahl, ‘The Paradox of Constituent Power: The Ambiguous Self-Constitution of the European Union’, (2007) 20 Ratio Juris 485.

26 Internationale Handelsgesellschaft (n 24).


of the fundamental boundary of the European polity. More simply, what constitutes the fundamental boundary of the European polity that renders fundamental rights determinate as a matter of EU law?

According to Weiler, we should conceive of the EU ‘as a polity with its own separate identity and constitutional sensibilities which has to define ... its own core values even if these cannot be dissociated entirely from the context in which the Community is situated’.27 However, it is precisely this ‘context’ in which the EU is situated that creates difficulties: the autonomy of EU fundamental rights law must be distinguished from, and defended against, the Union’s diverse national constitutional human rights traditions. Yet rather than expressing the ‘separate identity’ of the European polity, EU fundamental rights appear primarily defined with reference to what they lack. It is somewhat trite to note how little thought we give to what is entailed in an ‘autonomous’ interpretation of, say, French or Slovenian fun-damental rights law. Yet the important point is that while the correlation of fundamental rights and fundamental boundaries espouses the core identities of the Member States polities, it is the absence of a European equivalent to a national constitutional tradition that engenders the very debate about the autonomous interpretation of EU fundamental rights law. This is not to suggest that we could not make sense of an ‘EU constitutional tradition’, nor is it to propose an essentialist reading of what makes Europe’s national constitutions traditional.28 It is merely to point to an asymmetry between the EU and its Member States that structures the CJEU’s interpretation of fundamental rights on the basis of the European legal order as an ‘inde-pendent source of law’. An important consequence of this asymmetry is that conflicts of authority between the EU and the Member States (‘who decides?’) perpetuate themselves in difficulties to determine the autono-mous substance of EU fundamental rights law under conditions of political disagreement (‘what counts as a good decision?’).

IV. A PATCHWORK OF RIGHTS IN AN INTEGRATED MARKET

A good way to illustrate how conflicts of authority spill over into problems of substance is the well-known predicament with delimiting the jurisdictional scope of EU fundamental rights law in relation to the Member States. As Alston and Weiler remarked in the late 1990s, empowering the Community in the field of human rights could run the risk of the ‘wholesale destruction

27 Weiler (n 20) 117.28 See, eg, Weiler’s assessment that ‘defending the constitutional identity of the state and

its core values turns out in many cases to be a defence of some hermeneutic foible adopted by five judges voting against four’: JHH Weiler, ‘In Defence of the Status Quo: Europe’s Constitutional Sonderweg’ in JHH Weiler and M Wind (eds), European Constitutionalism Beyond the State (Cambridge, Cambridge University Press, 2003) 7, 17.

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of the jurisdictional boundaries between the Community and the Member States’.29 Over the past 15 years, EU polity building has certainly witnessed an increasing awareness of the need to complement and constrain the steady growth of EU powers with a robust vindication of fundamental rights at the European level—a development that reached its provisional climax with the entering into force of the Treaty of Lisbon in December 2009. Nevertheless, as the Union continues to lack ‘any general powers to enact rules on human rights’,30 Articles 6(1) TEU and 51(2) EU Charter bind their application to the material scope of EU law: fundamental rights shall neither ‘extend in any way the competences of the Union as defined in the Treaties’, nor shall they ‘establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties’. There are reasons to be doubtful whether this de lege delimitation of competences and powers will succeed in putting a hold to the further de facto expansion of EU funda-mental rights law into Member States domains.31 The EU Charter ostensibly fails to clarify their jurisdictional reach. While the Charter text limits their application to EU institutions and Member States ‘implementing’ European law,32 the official explanations suggest that Member States shall be bound by EU fundamental rights law whenever ‘they act in the context of Community law’, thus including situations in which they derogate from EU fundamental freedoms.33 Perhaps unsurprisingly, the CJEU favours a wide interpretation of Article 51 EU Charter according to which the Charter must be complied with whenever national legislation falls ‘within the scope’ of EU law, mean-ing that ‘the applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter’.34 Moreover, it would appear that should the Court ever run out of Charter rights, it can still find refuge in Article 6(3) TEU, which maintains a reference to fundamental rights as ‘general principles of the Union’s law’.

For many observers, this jurisdictional jigsaw has also impaired the substance of EU fundamental rights law, whose main drivers were less a genuine political commitment on the part of the European institutions than private litigation and a mutual empowerment of European and national courts vis-a-vis Member State governments. The former resulted in a piece-meal approach to fundamental rights protection, reflected in the ‘mismatch’

29 P Alston and JHH Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights’ in P Alston, M Bustelo and J Heenan (eds), The EU and Human Rights (Oxford, Oxford University Press, 1999) 3, 23.

30 Opinion 2/94 [1996] ECR I-1759 [27].31 See A Knook, ‘The Court, the Charter, and the Vertical Division of Powers in the

European Union’ (2005) 42 CML Rev 367.32 Article 51(1) EU Charter, the so-called ‘Wachauf’ situation.33 Explanations relating to the Charter of Fundamental Rights of the European Union

[2007] OJ C303/17, art 51.34 Case C-617/10 Åklagaren v Hans Åkerberg Fransson (ECJ, 26 February 2013) [21].


between the range and depth of EU powers and the marginal number of fundamental rights cases brought.35 The latter gave rise to reasoned suspicions that the true telos of EU fundamental rights protection was less individual well-being than a power struggle between institutional actors. As Mancini noted in the early days of the development of EU fundamental rights, while their introduction into the EC legal order was ‘the most strik-ing contribution the Court has made to the development of a constitution of Europe’, their protection was ‘forced on the Court by the outside, by the German, and, later, the Italian constitutional courts’.36 At the same time, the recognition of fundamental rights as general principles of Community law not only served to pacify Member States’ judiciaries but also shielded the unity of the internal market against the diversity of Europe’s national constitutional human rights traditions. In many ways, the CJEU’s early dictum in Hauer still holds true today:

The question of a possible infringement of fundamental rights by a measure of Community institutions can only be judged in the light of Community law itself. The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would, by damaging the sub-stantive unity and efficacy of Community law, lead inevitably to the destruction of the unity of the common market and the jeopardizing of the cohesion of the Community.37

Thus tying EU fundamental rights to the internal market, the CJEU has been accused of instrumentalising them to extend its jurisdiction and accelerate the EU’s economic integration:

Evidently it is economic integration, to be achieved through the acts of Community institutions, which the court sees as its fundamental priority. In adopting and adapting the slogan of protection of human rights the court has seized the moral high ground. However, the high rhetoric of human rights protec-tion can be seen as no more than a vehicle for the court to extend the scope and impact of European law.38

The charge of instrumentalism certainly involves some second-guessing of the Court’s motives and has not gone uncontested.39 Moreover, detach-ing the interpretation of EU fundamental rights as general principles of Community law from the legal framework of the Common Market would

35 Von Bogdandy (n 13) 1321.36 F Mancini, ‘The Making of a Constitution for Europe’ (1989) 26 CML Rev 595.37 Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727 [14].38 J Coppel and A O’Neil, ‘The European Court of Justice: Taking Rights Seriously?’ (1992)

12 Legal Studies 227, 245.39 See the lengthy response by JHH Weiler and N Lockhart, ‘“Taking Rights Seriously”

Seriously: The European Court and its Fundamental Rights Jurisprudence’ (1995) 32 CML Rev 51 (Part I), 579 (Part II).


have a fortiori exposed the Court to critiques of judicial activism.40 Against this background, Andrew Williams’ more modest ‘preservation thesis’ may come closer to the truth. According to Williams, the respect of fundamental rights ‘is necessary if the EU is to avoid fundamental challenges through law. The scope of their application is to be determined by the preservation of the EU and, in particular, the constructed internal market’.41 From this perspective, the market contingency of EU fundamental rights is not simply a result of their instrumentalisation by the Court, but is inbuilt into the very structure of the supra-national EU legal order. A more recent line of cases in the area of labour protection has fuelled new concerns that fundamental freedoms have come to dominate fundamental rights, with some commen-tators associating the CJEU’s jurisprudence with the infamous ‘Lochner era’ of the US Supreme Court.42 If nothing else, these concerns may be read as a late confirmation of Coppel and O’Neil’s thesis that the CJEU has failed to develop a robust substantive account of EU fundamental rights law43 and instead, pace Williams, engages in a human rights discourse ‘based on consequence rather than value’.44

What transpires from these critiques is a structural link between conflicts of authority in the European legal space and the ‘market-friendly’ inter-pretation of EU fundamental rights law that results from the attempt to reconcile the market-driven integration of nation states with the human rights ambitions of a supra-national polity. Faced with morally and politi-cally charged issues contested within and between the Member States, it appears—if nothing else—prudent for the CJEU to adopt an overtly narrow economic interpretation that does not (directly) ‘substitute its assessment for that of the legislature in those Member States where the activities in question are practised legally’.45 Yet below this prudential surface lies the substantive problem of providing an autonomous account of EU fundamen-tal rights that would not be rooted in market values. This problem, in turn, is insufficiently accounted for by complaints about judicial free-market activism. Given the economic and supra-national nature of the European polity, the internal market is not simply a constraining factor in the effective realisation of fundamental rights, but provides the very foundation for their autonomous determination in the EU legal order.

In the following two sections, I shall flesh out this ‘market contingency’ of EU fundamental rights by considering the relationship between their

40 I am grateful to an anonymous reviewer for bringing this point to my attention.41 Williams (n 13) 267.42 D Nicol, ‘Europe’s Lochner Moment’ (2011) 2 Public Law 308, with reference to

Lochner v New York (1905) 198 US 45.43 Coppel and O’Neil (n 38).44 Williams (n 13) 267.45 Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen

Grogan [1991] ECR I-4685 [20].


proclaimed autonomy and, seriatim, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Member States’ national constitutional human rights traditions. Article 6 TEU provides that:

(1) The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties. …

(3) Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

No matter how the CJEU will further develop the systematic relationship between the EU Charter and general principles,46 its interpretation of EU fundamental rights will continue to draw on the ECHR and Member States’ constitutional traditions. That is to say, even if, with its legal codification, the EU Charter has become the Court’s primary formal reference point, the substantive meaning and scope of EU fundamental rights cannot be entirely divorced from these other sources. One reason is that the EU Charter was meant to codify the CJEU’s previous case law on fundamental rights as general principles of Community law.47 More importantly, Article 52 requires that the EU Charter be interpreted in accordance with the European Convention and ‘in harmony’ with the constitutional traditions common to the Member States.

V. FROM COMMONALITY TO AUTONOMY (I): THE EU AND THE ECHR

Article 52(3) EU Charter provides that:

[I]nsofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

This corresponds to the prevailing view according to which the European Convention merely establishes a common minimum standard or ‘floor’ of

46 See, eg, L Besselink, ‘The Protection of Fundamental Rights Post-Lisbon: The Interaction between the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and National Constitutions’, in Reports of the FIDE Congress, Tallinn (2012) 1, 10–16. Available at: www.fide2012.eu/index.php?doc_id=94.

47 In its Preamble, the EU Charter ‘reaffirms … the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on the European Union, the Community Treaties … and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights’.


human rights protection as reflected in Article 53 ECHR. At the same time, Article 53 EU Charter prohibits an interpretation of the Charter which would restrict or adversely affect human rights as recognised, inter alia, by the ECHR and Member States’ constitutions. Irrespective of the pending accession of the EU to the European Convention,48 it is doubtful whether reliance on an ECHR-type minimum standard approach can contribute much to determining the autonomous substance of EU fundamental rights law. On the one hand, ‘borrowing’ from the ECHR can hardly qualify as ‘autonomous’. On the other hand, the proclaimed autonomy of EU fundamental rights law transforms any ECHR ‘minimum’ standard into an authoritative standard that circumscribes the ‘floor’ and ‘ceiling’ of their protection in relation to the Member States.49 This problem reflects a deeper systemic tension between the two European courts’ approaches to national diversity. In a nutshell, where states disagree about the proper ‘meaning and scope’ of fundamental rights, the European Court of Human Rights (ECtHR) generates commonality by accommodating national diversity as a matter of Convention law. The CJEU’s interpretation of EU fundamental rights, by contrast, stresses their autonomy as a prerequisite of their uniform application as a matter of EU law. Thus, in the recent case of Melloni, the CJEU could not accept a national court’s interpretation of Article 53 EU Charter which would authorise a Member State ‘to apply the standard of protection of fundamental rights guaranteed by its constitu-tion when that standard is higher than that deriving from the Charter and, where necessary, to give it priority over the application of provisions of EU law’.50 Why? Because such an interpretation would ‘allow a Member State to disapply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State constitution’.51 This not only casts further doubts on the legal relevance of Article 53 EU Charter in the relationship between the EU and its Member States,52 it also calls into question the coherence of attempts to derive the autonomous substance of EU fundamental rights law from the European Convention.

48 Which raises a set of distinct institutional problems I cannot discuss here. See, eg, S Douglas-Scott, ‘The Court of Justice of the European Union and the European Court of Human Rights after Lisbon’ in S De Vries, U Bernitz and S Weatherill (eds), The Protection of Fundamental Rights in the EU After Lisbon (Oxford, Hart Publishing, 2013) 153.

49 See, eg, Torres Pérez (n 23) 36–7.50 Case C-399/11 Stefano Melloni v Ministerio Fiscal (ECJ, 26 February 2013) [56].51 Ibid [58].52 See already B Liisberg, ‘Does the EU Charter of Fundamental Rights Threaten the

Supremacy of Community Law?’ (2001) Jean Monnet Working Paper 04/01. According to Liisberg, art 53 merely serves the twofold political purpose of re-stating the supremacy of EU law while at the same time assuring Member States that EU fundamental rights law will not replace their national constitutional human rights traditions.


Let me explain. It has often been noted that where fundamental rights conflict across jurisdictional boundaries, it can be difficult (to say the least) to determine which legal order provides the higher standard of protection—a problem that once again relates to the way in which under conditions of political disagreement, fundamental rights are authoritatively determined in relation to the fundamental boundaries of the polity. What is less often recognised is that the same predicament also besets attempts to determine a common minimum standard of protection. Take the much-discussed ‘judi-cial dialogue’ between the German Federal Constitutional Court (GFCC) and the ECtHR in the Von Hannover saga.53 The issue at hand concerned the relationship between the princess’ right to have her privacy protected and the freedom of expression of the press to publish certain photographs showing scenes from her daily life—not exactly a ‘hard case’, or at least not harder than most. The GFCC, reluctant to discriminate between ‘political’ and ‘commercial’ speech, found in favour of the press. The ECtHR, by contrast, considered that the photographs did not contribute much to mat-ters of legitimate public interest and ranked the princess’ right to privacy over freedom of expression. After the GFCC had reappraised its approach to privacy, the ECtHR held that given that the ‘balancing exercise’ by the German authorities complied ‘with the criteria laid down in the Court’s case law, the Court would require strong reasons to substitute its view for that of the domestic courts’.54 Three points are important to note: first, whether one thinks that the German or the ECHR system provides the ‘higher’ or ‘lower’ standard of protection crucially depends on one’s view of the relationship between ‘political’ and ‘commercial’ speech, as well as of the most beneficial arrangement of the values attached to privacy and freedom of expression. Moreover, as I tried to show in the previous sections, such views will be contested within each polity and resulting dis-agreements will be resolved differently between different polities. Second, the proportionality principle does not help to determine what constitutes a ‘higher’ or ‘lower’ standard of human rights protection in the relationship between discrete legal-political orders. Whatever is being ‘balanced’ is bal-anced in the context of the fundamental boundary of a particular polity that provides the substantive background for the authoritative determination of what ‘we’ are to understand by freedom of expression, privacy and so on. Thirdly, and consequently, what comes to the rescue of the princess is not a

53 In order of appearance: BVerfG (German Federal Constitutional Court), Caroline von Monaco II, Judgment of 15 December 1999, 1 BvR 653/96; Case of von Hannover v Germany App No 59320/00 (ECtHR (Third Section), 24 June 2004); BVerfG, Caroline von Monaco III, Judgment of 26 February 2008, 1 BvR 1626/07; Case of von Hannover v Germany (No 2) App Nos 40660/08 and 60641/08 (ECtHR (Grand Chamber), 7 February 2012).

54 Case of von Hannover v Germany (No 2) (n 53) [107].


higher human rights standard, but a judicial adjustment of value constella-tions across the fundamental boundaries of different legal orders.

Accordingly, I contend that a better view of what the ECtHR does under the veil of implementing a ‘common minimum standard’ of protection is to generate commonality between Member States of the Convention by incorporating—to a greater or lesser extent—national diversity into Convention law. This is the upshot of the well-known interplay between the Court’s ‘comparative method’, the margin of appreciation doctrine and the proportionality principle:55 where a majority of Convention states appears to converge on a particular interpretation of any given human right, the Court’s proportionality scrutiny enhances as the margin of appreciation of the remaining states shrinks. Conversely, where Convention states diverge on a contentious issue, the Court’s proportionality test is informed by a wide margin of appreciation that accommodates diverse national interpretations of the same Convention right. The CJEU’s interpretation of EU fundamental rights law, by contrast, builds on perceived existing com-monalities between Member States—an approach which is antagonistic to accommodating national diversity. As in Melloni, the recognition of diverse national human rights standards within EU law would threaten its uniform application across the Member States. In this sense, the CJEU’s appeal to autonomy functions as a hermeneutic device to insulate the unity of the European legal order from the diversity of Member States’ national consti-tutional traditions.

Compare by way of example the ECtHR’s judgment in Open Door with the CJEU’s judgment in Grogan that both centre on the relationship between freedom of expression and the right to life.56 Irish pregnancy coun-selling agencies had complained about restrictions imposed by Irish law on providing information about the availability of lawful abortion services in third countries. The Irish Supreme Court’s resolution of the putative conflict between freedom of expression and the right to life of the unborn was unequivocal:

The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40.3.3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the

55 See, eg, A Stone Sweet, ‘On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court’ (2009) Yale Law School Faculty Scholarship Series Paper 71, 6. Stone Sweet, however, believes that this approach results in higher standards of protection across the board.

56 Case of Open Door and Dublin Well Woman v Ireland App Nos 14234/88 and 14235/88 (ECtHR, 29 October 1992); Grogan (n 45).


state which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn.57

Accordingly, the Irish government contended before the ECtHR that the applicants’ right to impart and receive information (Article 10 ECHR) was outweighed by the state’s duty to protect the life of the unborn (Article 2 ECHR). It was not for the European Court to impose a different view on Ireland that would derogate from the higher standard of protection pro-vided by the Irish Constitution (Article 53 ECHR) and destroy the core of the right to life of the unborn (Article 17 ECHR).58 The ECtHR sidestepped the thorny questions whether the protection of Article 2 ECHR extends to the foetus or whether the Convention entails a right to abortion. Instead, it confined itself to verifying that the government’s restrictions on freedom of expression were necessary in a democratic society for the ‘protection of morals’ (Article 10(2) ECHR). In this context, the Court ‘acknowledges that the national authorities enjoy a wide margin of appreciation in mat-ters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life’.59 Having thus accom-modated diverse national ‘beliefs’ about the rights of the unborn via the limitation clause of Article 10(2) ECHR, the Court proceeds with a purely formal proportionality analysis: the Irish ban on pregnancy counselling was disproportionate because it failed to reach its purported aim, as informa-tion about abortion facilities outside Ireland was also available from other sources; and because it was too broad and indiscriminate, as it failed to take into account the different needs of different women at different stages of their pregnancy.

In Grogan—decided prior to Open Door—the CJEU adopted a very dif-ferent interpretative strategy of avoidance. Via a preliminary reference from Ireland, the Court was, inter alia, asked to rule on whether the medical termination of pregnancy, performed in accordance with the law of the state where it is carried out, constitutes a service within the meaning of Article 60 EEC Treaty (now Article 56 TFEU). Again, it was submitted to the Court that abortion was ‘grossly immoral’ and involved ‘the destruction of life of a human being, namely the unborn child’.60 At first, the CJEU appears to

57 Judgment of the Irish Supreme Court of 16 March 1988, as cited in Open Door (n 56) [19].58 Ibid [54], [65].59 Ibid [68]; see further the case of Vo v France App No 53924/00 (ECtHR, 8 July 2004),

where the ECtHR concludes that ‘the issue of when the right to life begins comes within the margin of appreciation … [because] there is no European consensus on the scientific and legal definition of the beginning of life’ ([82]). In a more recent case, the majority of the Court avoided finding the Irish prohibition of abortion in direct violation of Article 8 ECHR by emphasising the freedom of movement that Irish women have under EU law to seek abortions in third countries. See A, B and C v Ireland App No 25579/05 (ECtHR (Grand Chamber), 16 December 2010).

60 Grogan (n 45) [19].


dismiss the legal relevance of the submission altogether: ‘whatever the merits of those arguments on a moral plane, they cannot influence the answer to the national court’s … question’.61 Of course, such a neat separation of law and morality won’t do, given that from the perspective of the Irish legal order, what is at stake is not simply a moral issue, but the ‘direct destruc-tion of the constitutionally guaranteed right to life of [the] unborn child’.62 The Court acknowledges as much when it subsequently relinquishes any substantive evaluation of what is considered ‘lawful’ in the Member States for the purposes of Article 60 EEC Treaty: ‘It is not for the Court to substi-tute its assessment for that of the legislature in those Member States where the activities in question are practiced legally’.63 This, however, means that national (moral/legal) diversity is irrelevant in determining what constitutes a service under European law. So long as the relevant activity is practised legally somewhere in the Union,64 EU law kicks in provided that the inter-nal market conditions (a commercial activity with a cross-border element) are met. In Grogan, the CJEU found the former condition wanting: while ‘the medical termination of pregnancy … constitutes a service within the meaning of Article 60 of the Treaty’,65 Grogan could not benefit from the protection of the fundamental market freedoms because he lacked economic motivation. Instead, he was ‘left with’ his fundamental rights, the protec-tion of which, however, fell outside the scope of EU law.

Admittedly, the comparison between the two decisions is somewhat uneven given that Grogan was not decided on its merits. Yet this should not distract from the way in which the internal market regime shapes the CJEU’s approach to fundamental rights. On the one hand, EU fundamental rights are contingent on the exercise of fundamental freedoms. And consid-ering that fundamental rights are to reveal something ‘fundamental’ about the European polity endowed with a ‘separate identity’,66 it is somewhat telling that for Grogan, their protection turned on whether he had asked ‘money for value’. Yet, on the other hand, it is difficult to see how the CJEU could move beyond this market paradigm without surrendering its claim to autonomy vis-a-vis the ECHR and the Member States. Having disqualified national fundamental rights standards as criteria for assessing the ‘lawful-ness’ of a service under EU law tout court, the Court’s examination of the ‘meaning and scope’ of EU fundamental rights needs to fall back on to the

61 Ibid [20].62 Judgment of the Irish Supreme Court of 16 March 1988, as cited in Open Door (n 56).63 Grogan (n 45) [20].64 According to the Court’s rather obscure reasoning in Josemans, an activity (the marketing

of cannabis products in the Netherlands) cannot be considered a service under EU law if it is prohibited in all Member States. See Case C-137/09 Marc Michel Josemans v Burgemeester van Maastricht [2010] ECR I-13019.

65 Grogan (n 45) [21].66 Weiler (n 20) 117.


internal market. Accordingly, what renders EU fundamental rights determinate under conditions of disagreement is not an appeal to substantive convergence between diverse national constitutional traditions (the ECtHR’s ‘compara-tive method’), but a concern with the unity of the European legal order that is defended as a functional imperative of market integration.

VI. FROM COMMONALITY TO AUTONOMY (II): THE EU AND THE MEMBER STATES

While in its early case law the CJEU found ‘inspiration’ in the constitutional traditions ‘common’ to the Member States, Article 52(4) EU Charter now requires the Court to interpret EU fundamental rights ‘in harmony with those traditions’. It is often noted that the invocation of national constitutional traditions has added precious little to the Court’s substantive interpretation of EU fundamental rights law.67 The underlying reason is once again the EU’s ‘unity in diversity’ conundrum. As Craig and de Búrca note, while ‘the idea of “common constitutional traditions” as a foundation for the general principles of EU law is an attractive one in principle, it is unquestionably true that the differences between specific national conceptions of particular human rights are often great’. Moreover, even where a particular right is recognised in all Member States, ‘it seems inevitable that there will be no consensus as to how that right should be interpreted and “translated” into a general principle of EU law’.68 Accordingly, once the Court moves from the abstract recognition of a fundamental right ‘common’ to the Member States to its concrete interpretation as a matter of EU law, the unity of the European legal order risks falling prey to national diversities.

Where Member States differ as regards the existence or scope of particular rights, the CJEU, in its pre-Charter case law, either refused to recognise these rights as a matter of EU law69 or reinterpreted them as general prin-ciples ‘common’ to the Member States. In Omega, the Court was asked to rule on the compatibility of a human dignity-based prohibition of laser games involving simulated killings in Germany with the EU fundamental freedom to provide services. The Court abstracted from the particular conception of human dignity entrenched in the German constitution to a

67 See, eg, Besselink (n 46) 47.68 P Craig and G de Búrca, EU Law: Text, Cases, Materials, 5th edn (Cambridge,

Cambridge University Press, 2011) 371.69 See, eg, Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859 [17]. The

CJEU refused to extend the protection of Article 8 ECHR to business premises ‘because there are not inconsiderable divergences between the legal systems of the Member States in regard to the nature and degree of protection afforded’. The required ‘commonality’ was later supplied by the ECtHR in Niemitz v Germany App No 13710/88 (ECtHR, 16 December 1992), and the CJEU changed its approach accordingly; see Case C-94/00 Roquettes Frères SA v Commission [2002] ECR I-9011.


more general concept of human dignity that was said to be shared among all Member States and inherent in the EU legal order itself:

[T]he Community legal order undeniably strives to ensure human dignity as a general principle of law. There can therefore be no doubt that the objective of protecting human dignity is compatible with Community law, it being immaterial in that respect that, in Germany, the principle of respect for human dignity has a particular status as an independent fundamental right.70

While this brings Omega under the purview of EU fundamental rights, it does little to substantiate the autonomous interpretation of human dignity as a matter of EU law. Remarkably, the Court’s proportionality analysis emphatically does not draw on a ‘common’ conception of human dignity that could function as a ‘general criterion for assessing the proportionality of any national measure which restricts the exercise of an economic activity’.71 Instead, what is being ‘balanced’ in scrutinising the German prohibition order is, on the one hand, ‘the level of protection of human dignity which the national constitution seeks to guarantee in the territory of the Federal Republic of Germany’ (emphasis added) and, on the other hand, the EU fundamental market freedoms.72 Hence, whereas in Grogan funda-mental freedoms delimit the CJEU’s human rights jurisdiction, in Omega they directly shape, via the proportionality principle, the Court’s substan-tive interpretation of human dignity as a matter of EU law. Disagreements about the meaning and scope of human dignity in the EU legal order are not resolved on the basis of perceived commonalities between the Member States, but against the backdrop of the internal market as the fundamental boundary of the European polity.

If Article 52(4) EU Charter is thus of little avail in substantiating EU fundamental rights standards, it plays an important negative role in delimiting the CJEU’s interpretative autonomy. Absent commonality, the Court is bound to pay due tribute to national diversity. This is the upshot of Article 53 EU Charter, and Article 4(2) TEU that requires the Union to ‘respect’ Member States’ ‘national identities, inherent in their funda-mental structures, political and constitutional’.73 Accordingly, whereas in Omega the Court conjures an EU conception of human dignity to justify German exceptionalism, the bulk of case law concerns the compatibility with EU fundamental rights of derogations from fundamental freedoms

70 Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeister der Bundestadt Bonn [2004] ECR I-9609 [34].

71 Ibid [37].72 Ibid, [39].73 See further Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien

[2010] ECR I-13693, where the Court explicitly acknowledges a Member State’s constitu-tional identity as a limit to EU law.


that are justified on the basis of national public policy and human rights standards.74 Weatherill sums up the Court’s approach:

The more sensitive and the more remote from commercial considerations the mat-ters advanced in the context of justification of trade barriers are, the more generous the Court is to the available scope for justification and also to the breadth of the margin of appreciation enjoyed by the regulator—sometimes too, but not always, the more sensitive it is to the authority of the national court to make the final judgment on whether the challenged practices are in fact justified.75

However, the CJEU granting Member States exceptions from EU free move-ment law on the basis of national public policy and fundamental rights standards, and deferring for that purpose to the decisions of Member State authorities and judiciaries, contributes nothing to substantiating the autonomy of EU fundamental rights law itself. At the same time, whether or not such exceptions are granted, and deference conceded, must be decided autonomously by the CJEU on the basis of the EU legal order. As the Court says in ERT, where a Member State relies on EU law to justify

[R]ules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights … the observance of which is ensured by the Court.76

In Schmidberger, Austria directly relied on fundamental rights—freedom of expression and assembly—to justify a temporary closure of roads between Austria and Italy for an environmental demonstration. The CJEU thus had to:

[R]econcile the requirements of the protection of fundamental rights in the Community with those arising from a fundamental freedom enshrined in the Treaty and, more particularly, the question of the respective scope of freedom of expression and freedom of assembly … and of the free movement of goods, where the former is relied upon as a justification for the latter.77

Indeed. Yet instead of carving out the substance of freedom of expression and assembly as a matter of EU law, the Court immediately proceeds to

74 Pursuant to the CJEU’s ERT ruling, Member States are bound by EU fundamental rights when they claim national public policy exceptions to EU fundamental freedoms. See Case C-260/89 Elliniki Radiophonia Tileorasse AE (ERT) v Dimotiki Etaria Pliroforissis and Sotirios Kouvelas [1991] ECR I-2925. Whereas the following examples focus on ERT-type sit-uations, the broader conceptual point—that EU fundamental rights are rendered determinate and consistent in relation to the internal market as the fundamental boundary of the European polity—arguably also applies to cases in which the CJEU scrutinises the fundamental rights compatibility of EU law itself.

75 S Weatherill, ‘From Economic Rights to Fundamental Rights’ in De Vries, Bernitz and Weatherill (n 48) 11, 24.

76 ERT (n 74) [43].77 Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Austria

[2003] ECR I-5659 [77].


consider whether ‘a fair balance was struck’ between the conflicting ‘interests’ at play. While the national authorities were accorded a ‘wide margin of appreciation’, it was ultimately for the CJEU to decide ‘whether the restric-tions placed upon intra-Community trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, the protection of fundamental rights’.78 Schmidberger is revealing in a number of regards. Not only is the protection of EU fundamental rights contingent on the exercise of fundamental freedoms, but fundamental rights also operate as exceptions to fundamental freedoms. This entails a reversal of the rule/exception logic as compared to the national constitutional traditions and the ECHR. While for the purposes of the latter, economic interests need to be justified in the light of fundamental rights, the opposite holds true as a matter of EU law. This may cast some further doubts on the fundamental importance of fundamental rights in the European legal order.79 Yet, more importantly, it renders EU fundamental rights determinate by placing them in relation to the EU’s fundamental market freedoms. Imagine if Schmidberger’s case had not been dealt with under Community law, but under Austrian con-stitutional law or the ECHR—both systems of human rights protection to which the very notion of a ‘fundamental freedom of movement of goods’ is alien! My concern here is not with outcome of the case, but with the way different courts—with different tasks related to different legal orders—may arrive at that outcome. On its professed self-understanding, the CJEU has to resolve the disagreement about the ‘meaning and scope’ of freedom of expression and assembly autonomously, in the light of the European legal order as an ‘independent source of law’. The Court does so—predictably, inevitably—by embedding fundamental rights in the internal market as the fundamental boundary of the European polity.

The intrinsic connection between an autonomous account of EU fun-damental rights law and the internal market is perhaps most visible in the CJEU’s judgments in Viking and Laval.80 Both cases revolved around the question whether the applicant undertakings’ fundamental freedoms had been unduly restricted by trade union collective action as protected by Article 28 EU Charter. Unlike the EU Charter, which only provides for

78 Ibid [81], [82].79 As Brown remarks, ‘using the language of prima facie breach or restriction of economic

rights suggests that, even if the restriction is ultimately justified, it remains something which is at its heart “wrong”, but tolerated. This sits rather uneasily with the state’s usually para-mount constitutional obligation to protect human rights’: C Brown, ‘Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v Austria, Judgment of 12 June 2003 Full Court’ (2003) 40 CML Rev 1499, 1508.

80 Case C-438/05 International Transport and Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779; Case C-341/05 Laval and Partneri Ltd v Svenska Byggnadsarbetareförbundet and others [2007] ECR I-11767.


the indirect protection of fundamental rights between private parties,81 fundamental market freedoms have direct horizontal effect. This is, the Court says in Viking, necessary to protect the unity of the internal market:

[T]he abolition, as between Member States, of obstacles to freedom of move-ment for persons and freedom to provide services would be compromised if the abolition of state barriers could be neutralised by obstacles resulting from the exercise, by associations or organisations not governed by public law, of their legal autonomy.82

This leads to a situation in which the trade union—a non-state actor—needs to justify the exercise of its right to collective action as a direct constraint of the market freedom of a corporate citizen. As a consequence, fundamental rights come to operate as a putative justification for the restriction of private free movement rights under EU law rather than as a ‘constitutional’ yard-stick of the legality of EU law itself.83 This structural asymmetry between fundamental rights and fundamental freedoms once again perpetuates itself in the Court’s substantive proportionality analysis. If, in a judgment com-parable on the facts, the ECtHR ruled that exceptions to the lawfulness of strike action had to be construed narrowly,84 the CJEU found that EU fundamental rights could not justify the restriction of Viking’s freedom of establishment because the collective action was disproportionate.

Viking and Laval shed light on the broader consequences for funda-mental rights protection of the EU’s attempt to bolster its weak claim to supra-national political authority with a strong case for market integration. As Danny Nicol says, human and corporate citizens become portrayed as ‘rights-bearing market actors rather than members of a political community’, concerned with the advancement ‘of their individual rights through litigation rather than of the collective interest through political action’.85 Yet to simply blame this on a perceived market ideology of the Court somewhat misses the point. What is at stake here is the systemic conditions for an autonomous interpretation of EU fundamental rights law. Where, as in Viking and Laval, the invocation of commonalities between the Member States is a far cry from the reality of diverging national models of social pro-tection across the Union, it is the unity of the internal market that renders

81 That is, it imposes obligations on public authorities to protect fundamental rights in the relationship between non-state actors. This indirect horizontal protection of fundamental rights needs to be distinguished from the direct application of human rights standards in the private sphere via EU legislation. See Case C-144/04 Mangold v Rüdiger Helm [2005] ECR I-9981 and, more recently, Case C-555/07 Seda Kücüdeveci v Swedex GmbH & Co KG [2010] ECR I-00365.

82 Viking (n 80) [57].83 Similarly, see A Hinarejos, ‘Laval and Viking: The Right to Collective Action versus EU

Fundamental Freedoms’ (2008) 8 Human Rights Law Review 714, 725.84 Case of Demir and Baykara v Turkey App No 34503/97 (ECtHR, 12 November 2008).85 Nicol (n 42) 324.


fundamental rights determinate as a matter of EU law. The broader point is, once again, that commonality in the face of diversity cannot ground a claim to autonomy as distinctiveness. The CJEU bridges this gap between commonality and autonomy with an appeal to uniformity as a functional imperative of economic integration that displays the internal market as the fundamental boundary of the European polity.

VII. EU FUNDAMENTAL RIGHTS LAW AND THE POLITICS OF THE MARKET

With the adoption of the EU Charter, the fundamental market freedoms were incorporated into the body of EU fundamental rights law.86 For some, this joining of the ‘fundamentals’ is justified for the fact that both aim at protecting individual interests against state power.87 Whatever the merits of such arguments, they should not distract from way in which fundamental freedoms and fundamental rights operate on each other. The foregoing analysis suggests that this operation is structured by fundamental rights’ contingency on and subordination to fundamental freedoms, as well as by a subversion of their constitutional logic in the internal market. Moreover, I tried to show how these predicaments with EU fundamental rights law can be traced to the systemic conditions of their autonomous interpretation in the European supra-national market polity. What renders the interpreta-tion of EU fundamental rights autonomous in relation to Europe’s diverse national constitutional traditions are precisely the formal (jurisdictional) and substantive (proportionality) constraints imposed upon them by the fundamental market freedoms.

Part of what makes the EU ‘sui generis’ is the market-driven integration of nation states into a supra-national entity that increasingly commits itself to the political project of protecting fundamental rights. On the one hand, enhancing EU fundamental rights protection may be mandated by the ramifications of the expansionist tendencies of European market integra-tion on the Member States and their citizenries. Yet, on the other hand, by their very nature, fundamental rights mandate a kind of protection that cuts across the neat division of competences between the Union and the Member States and that thus exhibits an expansionist tendency in its own right. As Alston and Weiler note, because human rights ‘directly affect all activities of public authorities and … also touch upon many areas of social activities of individuals’, promoting their protection within EU law may come at the

86 Article 15(2) EU Charter provides that ‘Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State’; pursuant to art 45 EU Charter, ‘Every citizen of the Union has the right to move and reside freely within the territory of the Member States’.

87 Besselink (n 46) 19.


price of further encroaching on domains reserved to the Member States, thus ‘trampl[ing] over the equally important democratic and constitutional principles of limited governance and attributed powers’.88 Finally, the kind of political integration mandated by fundamental rights proves much harder to swallow for the Member States than ‘mere’ functionalist appeals to market imperatives—especially considering that, unlike traditional federal states, the introduction of fundamental rights into the European polity was driven by Member State concerns with a lack of protection at the ‘central’ (EU) level, which, in turn, justified their resistance to a European judicial colonisation of their national constitutional human rights traditions.

For Douglas-Scott, the Court’s task post-Lisbon is ‘to move beyond an instrumental, ad hoc, market-led mentality towards a mature conception of fundamental rights as goods in themselves’.89 Yet under conditions of politi-cal disagreement about rights that are resolved differently in relation to the fundamental boundaries of discrete polities, it is difficult to see how such a conception of EU fundamental rights law as ‘goods in themselves’ could be divorced from the internal market. This does not necessarily preclude the evolution of the European polity into a genuine ‘post-national human rights institution’90 with a robust value-based ‘institutional ethos’ that transcends the narrow confines of economic and technocratic rationality.91 Yet it would appear that this process is not accomplished by the proclamation of values and the legal entrenchment of rights. In the teeth of all institutional reform from Maastricht to Lisbon, the post-war decision to integrate the European ‘family of nations’ by economic rather than democratic means casts a long shadow on the political credentials of the EU today. Any attempt to bring the EU ‘closer to its citizens’ is constantly threatened by the instrumentalist logic of an economic integration that works through the juridification of the internal market and that puts too much of its money on output legitimacy.92 The result—a domination of European politics by mar-ket imperatives—is most keenly felt in the responses to the present ‘Euro’ currency crisis that oscillate between the internalisation of economic risks and the externalisation of political accountability: Greece is nowadays both everywhere and nowhere at home in the Union.

88 Alston and Weiler (n 29) 23.89 Douglas-Scott (n 3) 681.90 S Besson, ‘The European Union and Human Rights: Towards a Post-National Human

Rights Institution?’ (2006) 6 Human Rights Law Review 323.91 Williams (n 13) ch 8.92 For the relationship between market-driven legal integration and depoliticisation in

the EU, see S Veitch, ‘Juridification, Integration, De-politicisation’ in D Augenstein (ed), Integration through Law Revisited: The Making of the European Polity (Farnham, Ashgate, 2012) 85.


Against this background, it would appear that part of what is needed to ‘regenerate’ Europe93 is a political transformation of the internal market as the fundamental boundary of the European polity by means of fundamen-tal rights. In the 1990s, Joseph Weiler famously remarked that ‘a “single European market” is a concept which still has the power to stir. But it is also a “single European market”. It is not simply a technocratic program to remove the remaining obstacles to the free movement of all factors of production. It is at the same time a highly politicised choice of ethos, ide-ology, and political culture: the culture of “the market”’.94 Post-Lisbon, the question that arises is whether the EU will continue to be dominated by an economic concern with fundamental rights in the common market or whether fundamental rights will succeed in giving voice to a genuine political debate about what is entailed in having a market in common. Two factors would appear to be decisive here: a continuing insistence on the old Marxian insight that the real-life manifestations of the capitalist endeavour to divorce the economy from politics is based on a contrived conceptual distinction, as what counts as ‘economic’ is itself a political question; and a recovery of the political thrust of fundamental rights law in the supra-national market polity.

93 See http://regenerationeurope.eu/.94 JHH Weiler, ‘The Transformation of Europe’ in his The Constitution of Europe (n 20) 1, 89.

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

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