External Judicial Review and Fundamental Rights in the EU: A Place in the Sun for the Court of Justice. EU Diplomacy Paper 02/2016

Some recent decisions of the highest court in the European Union (EU) verge on the hypocritical: on the one hand, the Court of Justice of the EU (CJEU) criticises the United Nations Security Council on the grounds of insufficient human rights protection, while, on the other hand, the Court rejects oversight of its own human rights standards by a specialised human rights court, the European Court of Human Rights. The construal of the Court of Justice’s approach to external judicial review – in one case of its own legal order, in another of the international – requires to carefully balance multiple considerations. As such, the Court’s judgments in Opinion 2/13 and Kadi offer significant insights into the character of the institution. What they reveal is a court caught between competing legal principles in an international environment of contested legal authority. This paper contrasts the case law of the Court of Justice on the EU’s accession to the European Convention on Human Rights and Fundamental Freedoms with the Kadi saga in order to tease out new details about the three-fold relationship between fundamental rights, international law and the autonomy of EU law. More precisely, it enquires to what extent the Court’s approach to fundamental rights is consistent in the two cases. The paper argues that the CJEU has in its pursuit of autonomy created an inconsistency in its case law to the detriment of fundamental rights