Common constitutional traditions in the age of the European bill(s) of rights: Chronicle of a (somewhat prematurely) death foretold

Abstract

What is the role of common constitutional traditions today in the era of the codification of rights in Europe? Or indeed, following the entry into force of the Charter of Fundamental Rights of the European Union (hereafter: the Charter) does it still make sense at all to consider such a notion to be relevant or even useful? This paper will attempt to provide a response to these questions. The questions appear to be legitimate given that, according to many commentators, one of the most obvious consequences of the codification of rights in Europe has been a progressive marginalisation, or even the sidelining, of common constitutional traditions, and more importantly of the general principles of EU law. In fact, such traditions and principles have ended up playing an exclusively supplementary and ancillary role vis-a-vis a Charter with constitutional status and binding force, which it is argued has (finally) vested the Union with self-sufficiency in the area of fundamental rights, thereby significantly reducing (if not eliminating) the need to have recourse both to traditions and to principles. In attempting to articulate a complete response to these initial questions it will be necessary to focus - albeit, inevitably, without the necessary detailed discussion - on the role played by common constitutional traditions in the European integration process prior to the codification of fundamental rights in Europe.