EU fundamental rights and judicial reasoning: Towards a theory of human rights adjudication for the European Union

The Court of Justice of the European Union faces a wide variety of human rights decisions. In common with national courts, it has to ensure that the actions of the European Union administration and legislature comply with human rights. These human rights are found in the general principles of Community law, including, inter alia, those of the European Convention of Human Rights, in addition to the EU Charter of Fundamental Rights and Freedoms. When doing so, the CJEU may find that it is judging not only the actions of the institutions of the European Union, but also actions of the administration and legislature of the Member States as they implement provisions of EU law, or act as agents of the EU administering EU law. In addition, the CJEU will adjudicate on actions of the Member States when they are acting within the sphere of European Union law. This can occur when Member States derogate from other provisions of EU law on the grounds of protecting human rights, or where Member States fail to implement European Union law provisions that either directly or indirectly protect human rights. This diverse nature of the human rights jurisdiction of the CJEU poses unique problems for human rights adjudication in the EU. The Court is at one and the same time protecting human rights from abuse by its own measures and policing the activities of its Member States. Moreover, the lines between these roles are blurred. For the CJEU to provide a human-rights compatible interpretation of the provisions of a Directive, for example, not only restricts the actions of the EU legislature, but also limits the actions of Member States. In addition, when the CJEU takes on the role of policing the actions of Member States, it does so within the context of the ECHR, given that all Member States, and potentially soon the EU itself, are signatories to the ECHR and the provisions of the ECHR are sources of general principles of Community law as well as being mirrored in the first Chapter of the Charter. Yet for the CJEU to perform the same function as the European Court of Human Rights would lead to replication of roles, as well as cause problems for the CJEU’s assertion of the supremacy of directly effective EU law over national law which would appear to run contrary to the margin of appreciation granted by the ECtHR to its signatory States. This chapter aims to provide the groundwork for developing a theory of human rights adjudication for the CJEU, looking specifically at the complexities that arise when deciding cases that require control over actions of Member States. It builds on consensus found in the literature calling for the need for the CJEU to be sensitive to competing requirements of consensus and divergence in the protection of human rights, drawing on the constitutional pluralism underpinning the EU. It will first explain the need for both uniformity and diversity in human rights protections in the EU. It will then explain how these needs can best be met through a dialogue theory of human rights adjudication, with Article 267 facilitating the provision of varying degrees of authority to determine rights-issues to either the CJEU or the national courts. The final section discusses the factors that should influence whether a rights-issue is more suited for resolution by the CJEU or national authorities, building on Weiler’s theory and explaining its precise application through a series of examples drawn from recent case law.