European fundamental rights and private litigations: judicial dialogue and judicial governance

Abstract

This chapter focuses on the dialogue between the Court of Justice of the European Union and national courts in the adjudication of private litigations where fundamental rights come into play. It starts from the assumption that the assessment and balancing of conflicting rights, interests and policies by national and supranational courts constitutes a form of judicial governance. Taking two cases as examples (Angonese and Sturgeon), this chapter identifies and discusses patterns of conflict, judicial dialogue, and judicial governance. Firstly, this chapter takes position in the academic dialogue on judicial governance. Secondly, it assesses the conflicts between different fundamental rights, interests and policies at stake in the two cases. Thirdly, it analyses the dialogue between the European and the national courts in dealing with these conflicts. Fourthly, it relates the judicial dialogue in the Angonese case to the wider cross-national judicial dialogue on the horizontal effect of fundamental rights. Fifthly, it draws some brief comparative conclusions on judicial governance in the two cases.