June 18
2021

The EU Charter of Fundamental Rights in the Member States

Michal Bobek and Jeremias Adams-Prassl (Eds.)

review by

Yann Lorans

It is now common knowledge that fundamental rights are increasingly put at the forefront of the European integration process. However, in the aftermath of the 10th anniversary of the Charter of Fundamental Rights of the European Union’s elevation to EU primary law status, few authors have shed light on the resonance of this new catalogue of rights within national settings. Both editors of the book The EU Charter of Fundamental Rights in the Member States, Advocate General Michal Bobek and Professor Jeremias Adams-Prassl undertook such enterprise in this high-level and methodologically thorough piece of work.

National rapporteurs, neatly composed of academics, practitioners, and judges, were asked to make both qualitative and quantitative inquiries into how the Charter has been grasped within 15 selected Member States (Austria, Belgium, Bulgaria, Czech Republic, Slovakia, France, Germany, Hungary, Ireland, Italy, the Netherlands, Poland, Portugal, Slovenia, Spain) as well as England and Wales, over the past 10 years. This part, as well as the empirical analysis of preliminary rulings involving the Charter, which aim at bringing realism into the actual impact of the Charter both within national contexts and with regard to their relationship with the Court of Justice, are arguably the strongest added value of the book. However, this book is much more than just a juxtaposition of national reports offering blunt data on the use and mobilisation of the Charter by national authorities. The country-specific reports constitute the foundations of high-level substantive, transversal, and normative reflections on the place of the Charter within the polyphony of fundamental rights protection in Europe, as well as on the proper relationship between national and European systems of fundamental rights protection. This cross-fertilisation offers a precious and deep understanding of current constitutional issues concerning, for instance, the scope of application of the Charter or the tensions over the applicable standard of protection.

Dense. Overwhelming. Consistent. Abundant. Stunning. That is how we could depict the brilliant work proposed by Advocate General Bobek and Professor Adams-Prassl, and the 28 high-level contributions. Those terms are also the antonyms of the concluding words used by the editors to qualify the outcome of this vast inquiry into the engagement with the Charter by Member States. The conclusions that we can draw are indeed shaded and somehow disconcerting: Member States only timidly appear to take the Charter into account in their legal orders. Nevertheless, this book shows that results which are at first glance unsatisfactory do not mean that the research was unsuccessful, let alone unnecessary. On the absolute contrary. The fact that the vast majority of Member States do not take the Charter into account tells us a great deal about its impact beyond the European Union microcosm. If the general conclusion is that Member States are not willing to properly engage with the Charter, the devil is in the detail, and one cannot neglect the striking national specificities that are highlighted. In fact, while some Member States only refer to the Charter in a cumulative way with national or ECHR rights, others energetically engage with the Charter. Noteworthy is the Austrian Constitutional Court’s elevation of the Charter as a standard of national constitutional review, followed, a few years ago, by the German Federal Constitutional Tribunal. These particularities allow one to map out a typology of national engagement with the Charter, which valuably informs us of the state of the relationship and tensions between the EU and its Member States in the field of fundamental rights. The overall lack of enthusiasm vis-à-vis the Charter by Member States also indicates that the Charter is probably not a catalogue of rights destined to be cultivated at national level, but rather a tool for EU legitimation by intensifying fundamental rights review of EU action and giving concrete shape to EU common values. At the same time, these troubling outcomes paradoxically show us that any study of EU fundamental rights cannot be validly undertaken without taking into account the position of the Member States towards them.

In this sense, this outstanding work should be of great interest for national and European scholars, practitioners, and judges willing to better understand the circulation of the Charter in Europe as a whole. It should also serve as a beacon of realism for any researcher who might be over enthusiastic about the Charter and its contributions to the European constitutional space. Finally, the methodological soundness of the overall piece – mixing comparative, quantitative, qualitative, and normative approaches – is a model methodology that every young scholar, like me, should draw inspiration from.

 

Yann Lorans is a PhD Researcher and Teaching Assistant at Université Paris-Est Créteil and KU Leuven. His PhD topic is the Judiciary and Legislature of the EU in the Protection of Fundamental Rights.

 

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