La charte des droits fondamentaux, source de renouveau constitutionnel européen?

After 20 years of existence and ten years of having legally binding force, it is now time to take stock of the actual role of the Charter of Fundamental Rights of the European Union. Is the Charter a source of constitutional renewal in Europe? That is the ambitious, yet extremely compelling, question that Anastasia Iliopoulou-Penot and Lamprini Xenou posed at the French Assemblée nationale, the contributions to which are compiled in this book, La Charte des droits fondamentaux, source de renouveau constitutionnel européen? (Bruylant, 2020).

More precisely, this book provides answers to existential and early questions that the drafters of the Charter raised: Is the insertion of a new catalogue of fundamental rights, specific to the EU legal order, necessary and how does it integrate within the puzzling multilevel European system of fundamental rights protection? What role does the Charter embody within the EU ‘architecture’? That of the classic and expected negative role of a fundamental rights instrument, essentially limiting EU actions? Or/and that of positively shaping an EU collective identity, specific to its legal order and autonomous from that of others capable of unifying Europeans around common values?

After enlightening introductory remarks by the authors, who skilfully pinpoint the constitutional input of the Charter and highlight the tensions that it generated – or exacerbated – the book is structured on the basis of a subtle spatial and theoretical distinction. Assuming a pluralist perspective, Part I examines the Charter in its multi-level European context and puts the EU claim for autonomy through fundamental rights in perspective with the appropriation of the Charter by orbiting legal orders. Adopting a bold federal perspective, Part II places the Charter within the EU’s own architecture, in particular with regard to its role vis-à-vis EU institutions, Member States and individuals.

The book is extremely valuable in that it retraces the circulation of standards of protection and values that the Charter conveys by confronting various perspectives within the European space.

The authors collectively propose a concise and enriching evaluation of the Charter’s role: the added value of an umpteenth catalogue of fundamental rights may lie in its dissemination within the European space and reappropriation by judges all across Europe, intensifying judicial dialogue and fostering convergence in fundamental rights protection. Furthermore, more than just a negative trump card limiting EU action, this book reveals that, within the EU architecture, the Charter also plays a constitutive role in forging a new European collective identity. It ought not to remain an instrument reserved for EU and national judges, but it is destined to be deployed by individuals and ‘densified’ by EU political institutions. Testimony of the emergence of a constitutional dialogue between the European judiciary and legislature, the courteous clash during the conference between former President of the Court of Justice, V. Skouris, and J.-P. Jacqué, Honorary Director General at the Council of the EU, concerning the Digital Rights Ireland case deserves to be mentioned.

However, the findings of this book are necessarily and appropriately nuanced. Contributors rightly shed light on the limits and remaining challenges of the Charter as a living constitutional instrument: the articulation between competing standards of protection, the delineation of the scope of application of the Charter, the potential horizontal direct effect of its provisions, its ambiguous role in the fight against the rule of law backsliding in the EU, etc. There are many unsolved issues that must be given great attention in the nearest future.

Although we could have expected a right-by-right analysis of the recent case law of the Court, the book stands out and is welcome for its interactive approach to the impact of the Charter. From this perspective, the book exhaustively tackles the constitutional issues triggered by ten years of Charter’s application. This book is therefore a must-read for all lawyers and researchers who wish to keep an eye on the Charter in its multi-level context and provides food for further research.

As a final remark, this book has also the merit of joining two oft-considered distinct, if not opposed, academic worlds – the French and the Anglo-Saxon. Thanks to this conference and book, the authors have successfully proved that academic frontiers between France and the rest of Europe are no longer impermeable, as some may argue is still the case today.

In light of the outstanding collective work done in this book, we can only but look forward to hearing what the two authors have to say about the Charter in ten years.