Adjudicating Conflicts of Fundamental Rights in Europe

Abstract

This review article discusses the problem of institutional competition between European Courts with regards to fundamental rights claims. It argues that Torres Perez’s book - 'Conflicts of Rights in the EU: A theory of Supranational Adjudication' - misleadingly characterizes the notion of conflicts of rights as a problem of institutional coordination. Moreover, the article argues that the practice of adjudication of Fundamental Rights in Europe cannot be legitimized as such as it is in need of deep rethinking and more transparent regulation. Disagreements about rights across different systems of protection cannot be dealt with by appealing to the ability of judges to engage in a dialogue in order to avoid confrontation. Adjudication on fundamental rights is not a moment of dialogue between courts but a moment of deliberation about issues of fundamental importance to right holders. To guarantee that those decisions are taken responsibly it is necessary to call for a reform of the practice towards a more coherent, well-ordered architecture of European fundamental rights.