From low- to high-intensity review in the protection of EU fundamental rights

Abstract

The CJEU often reviews the validity of EU legislation for compliance with fundamental rights standards. Prior to the entry into force of the Lisbon Treaty, the CJEU's approach to fundamental rights review was characterized by a low-intensity standard of review. Since the elevation of the Charter to primary law status, the CJEU has come to subject EU legislation to far more rigorous levels of scrutiny. This paper critically evaluates the methodology utilized by the CJEU to determine whether low- or high-intensity proportionality review is deployed in cases where EU legislation limits fundamental rights. This question has yet to receive detailed consideration in the literature. Looking to the future of EU fundamental rights, the paper rejects the idea that the nature of the right can determine whether a restriction placed upon that right is subject to low- or high-intensity review. There are practical and normative grounds for rejecting this approach. Instead, the paper argues that the intensity of review should be modulated on the basis of the severity of the interference with the right in question. It is thus seriousness of interference and not the nature of the right in question which determines the applicable standard of review.