September 22
2021
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The European Union and Human Rights

Jan Wouters and Michal Ovádek

review by

Michal Kianička

In one book review, Michal Bobek divided books on EU law into two categories – bibles and cookbooks, seeing both as extremely valuable, but different. I like this concept, but I see the main difference between those two categories in purpose and style, rather than in audience or (in case of bibles less critical) view of the jurisprudence of the Court of Justice of the European Union (CJEU). In fact, good EU law bibles resemble good travel guides – they give the reader the insight about the territory to be visited, describing its history, pointing out the most valuable sights, and warning before hazards and cultural missteps, providing a solid foundation for her or his own research and exploration.

Having this in mind, Jan Wouters and Michal Ovádek’s book The European Union and Human Rights is an excellent travel guide. It leads the reader on the human rights’ path across the whole territory of EU law. A landscape that is just as colourful as the book’s cover, featuring an outstanding, almost hundred year-old painting from Wassily Kandinsky. It deals with the emergence, institutional players, concepts and language, and legal framework related to fundamental rights and their protection in the EU. It also provides guidance on the relevance of fundamental rights in and for several EU law areas, such as competition enforcement, migration, or trade policy. The authors included plenty of carefully selected excerpts from law, case law, academic writings, and other resources. There are also some useful graphics. Everything necessary for its use as a reference book is included too – an index, table of cases, and table of legislation, including international instruments.

It is thus with good reason that FRA’s Director Michael O’Flaherty described the book in its preface as ‘a masterful text that takes on the entire field and delivers a broad, clear overview of the terrain’. On the other hand, he was also right that ‘the authors had to make choices and not every aspect of the EU’s human and fundamental rights practice is reflected’. Even those aspects included are not and could not be covered exhaustively (as they are suitable for monographs on their own) and the authors are open on that, as in case of the relationship between fundamental rights on the one hand and the rule of law and democracy on the other (p. 80).

Obviously, the domain explored by the book is not a calm destination, but rather a fragmented and dynamically developing land, comprising both past stumbles and contemporary challenges. The reader may have her or his own opinion on some points of content and structure, but this might well be a question of personal preference. For example, the analytical part of the chapter on competition could go beyond the question of enforcement and the parties’ procedural rights, and include examples of cases where the parties quoted fundamental rights (or at least related principles) in substance, such as the protection of health and of the environment in the State aid case concerning the construction of the nuclear power plant in the UK (Austria v Commission, T-356/15 and C-594/18 P). The jurisprudence of the CJEU also offers other instances, where various aspects of EU (fundamental rights) law blended into an interesting mixture and which could have been discussed, such as the case series about European citizens’ initiatives on national and linguistic minorities (for example Izsák and Dabis v Commission, T-529/13 and  C-420/16 P). Considering the palette of issues they covered (for instance prohibition of discrimination, EU cohesion policy, but also the tool supposed to significantly strengthen the democratic dimension of the EU), they appear to be a great study material related to the EU and human rights. Differences in opinion about the content are nonetheless proof of the width and topicality of the discussion, rather than of any objective deficiencies. In fact, the idea of immaturity belongs to the leitmotifs of the publication, making clear that there is still a lot left open and to be done regarding the EU’s fundamental rights dimension. The specific problem is what the authors describe as ‘the gap between rhetoric and action’ (p. 77), so the difference between what the EU proclaims to stand for and what it then does. Further to that, some of the covered topics belong to both mentioned categories – shades of the past, as well as fears of the future, such as the accession of the EU to the ECHR.

Nevertheless, the book offers the reader a nice and comfortable journey, quick and enriching, rather than a long, bumpy, and unpleasant ride.

It is easy to navigate, and the chapters are self-standing pieces, although they cross-refer to each other, and some concepts reappear throughout the book. The latter not only shows how consistently the authors approached the topic, but also bears evidence of some horizontally present models and the book does a great job of highlighting this. One example would be the idea of equivalent protection and the related Solange approach, traceable not only to the German Federal Constitutional Court (BVerfG), but also to European Court of Human Rights and even the EU law itself (for example, p. 9, 181, and 254).

Written in a very clear and likeable style, the text is mostly perfectly understandable on its own, without really having to read the included accompanying materials. Still, this should not be understood as advice to automatically skip them, as they provide great added value. While a particular reader may not need them at all in one chapter, she or he may readily welcome them in the other, depending for example on her or his background and prior knowledge, or on the reasons for and circumstances present when consulting the book. It is thus a pity that on some rare occasions, the text was unintentionally merged with the grey shaded frame containing the supporting material, but a careful reader should recognise this, and it can be rectified in reprints or even next editions. Together with that, other technical, slightly disturbing details are also worth adjusting, for example the unnatural text alignment of subparagraphs in cited legal provisions and the mention of colours when referring to a table printed in black and white. In any case, these are just technicalities, certainly not outweighing the overall quality of the book’s content.

Therefore, to conclude, and joining again Director O’Flaherty, the authors ought to be  congratulated for their superb work and commend the publication to everyone interested in the gains and pitfalls of the protection of human rights in, by, and maybe even against the EU.

 

Michal Kianička is a former member of the Slovak EU litigation team (2010-2020).

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