Should we “harmonize” fundamental rights in the EU? Some reflections about minimum standards and fundamental rights protection in the EU composite constitutional system

Abstract

This article takes the non-discrimination directives as an “excuse” to reflect on how we should deal with EU fundamental rights in the composite constitutional spaces of the European Union and its Member States. It starts by highlighting some of the problems with fundamental rights protection in the EU, to then look at the non-discrimination directives. It shows that even when there is a stronger fundamental rights claim by the EU, as there is when it has exercised fundamental rights legislative competence, it is very difficult to devise a coherent interpretative framework in the fundamental rights field. The article then relates this problem to the more general issue of applicability of the Charter to the discretion of Member States when implementing EU law; it advocates leaving a wider margin of appreciation to national authorities and treating the Charter, in those cases when the Treaty does not otherwise apply, as a minimum safety net.