A Federal Question Doctrine for EU Fundamental Rights Law: Making Sense of Articles 51 and 53 of the Charter of Fundamental Rights

Abstract

The EU Charter of Fundamental Rights (Charter) has attracted both praise and criticism. The specific critique is that there is no way of knowing where the stopping point for the Court of Justice of the EU (CJEU) reaching into national law is. On one level, this is the problem of how easily the jurisdiction of the CJEU in fundamental rights cases is triggered: it is addressed by Article 51 of the Charter and the sometimes very controversial case law thereunder. On another level, however, the question becomes what room is left for rights protected under national or international law, even if the CJEU may have jurisdiction over the matter. This is addressed by Article 53 of the Charter, which, unfortunately, does not receive sufficient attention in the case law. Accordingly, there does not appear much, if any, room for deviation from the EU standard. This is due to the fact that, somewhat counterintuitively, EU fundamental rights law is often perceived as dealing with powers rather than rights. Using US law as a point of comparison, it will be argued that the focus needs to shift back to rights, which must lie at the heart of a more comprehensive EU fundamental rights doctrine. The argument will proceed as follows: first, I will explain the lack of coherence in EU fundamental rights law, which is in particular due to an unsatisfactory trade-off between a competency-based approach and a pure rights rationale. Second, I will argue that a more fruitful interaction between Article 51 of the Charter (dealing with EU jurisdiction), and Article 53 (dealing with standards of rights protection) would improve this trade-off. Third, I will show that re-focusing on rights would make room for a more coherent and comprehensive EU fundamental rights doctrine that would also fit into EU internal market, citizenship, and private law.