Fundamental Rights: An Unsettling EU Competence

Abstract

For many years, fundamental rights were primarily protected in the European Union (EU) legal order in a negative way; EU institutions and Member States should not infringe fundamental rights when acting within the scope of EU law. However, since the Treaties of Amsterdam and Lisbon, the EU has gained greater competences to develop fundamental rights standards, and new mechanisms for the protection of these standards have emerged. Although these new instruments enhance the mandate of the EU regarding fundamental rights protection, they also trigger a number of important questions. They are capable of calling into question, to an unprecedented extent, sensitive domestic policy areas through a rights-based process of Europeanization. Furthermore, the EU regime for the protection of fundamental rights is increasingly difficult to contain within the limits of the traditional principle of attributed competences that was initially designed to circumscribe the process of European integration. Both types of questioning trigger significant resistances at the EU as well as national level.