Abstract
AbstractThis Article introduces our Special Issue by posing a central question: What is the added value of the increasing prominence of the concept of the “essence” of fundamental rights in EU law? It will address this larger question in four steps: First, by examining the function of the concept in EU law and the methods for its derivation; second, by summarizing how its application diverges across EU—and international—law; third, by outlining some enduring difficulties with the essence concept; and finally, by reflecting on its future role in EU law, including its impact on other sites of legal authority—such as domestic fundamental rights, the political institutions of the EU, and international human rights law. As the other articles of this issue demonstrate, while there is not yet a coherent approach to deriving and understanding the essence of rights across the fundamental rights the EU must protects, the essence concept plays an increasingly significant role in demarcating the boundaries between the EU’s legal and political orders and between overlapping sites of legal authority. Recent developments—such as the rule of law “crises”—are likely to further amplify the importance of “essence” to EU law practice and scholarship.
Highlights
Mark Dawson[1], Orla Lynskey[2] and Elise Muir[3]. This Article introduces our Special Issue by posing a central question: What is the added value of the increasing prominence of the concept of the “essence” of fundamental rights in EU law? It will address this larger question in four steps: First, by examining the function of the concept in EU law and the methods for its derivation; second, by summarizing how its application diverges across EU—and international—law; third, by outlining some enduring difficulties with the essence concept; and by reflecting on its future role in EU law, including its impact on other sites of legal authority—such as domestic fundamental rights, the political institutions of the EU, and international human rights law
Key questions regarding the concept of essence still need to be addressed: What are the origins of its “constitutionalization”? How does one define the “essence” of a fundamental right? What are the functions of the concept in the EU legal order? And what added value—if any—does such a concept bring? These questions constitute the core research agenda of this special issue
What emerges from these articles is a mix of approaches to defining the content and functions of the “essence” of rights.[13]. In light of this differentiation, we seek to explore the way the Court has articulated these various approaches to identify—or exclude—an interference with the concept of essence.[14]. This being so, we offer some critical reflections on the benefits and challenges of incorporating this concept in the EU legal order[15] before concluding by reflecting upon its potential future implications.[16]
Summary
Tridimas and Gentille suggest that in order to identify the essence of a right —which encompasses the “essential attributes of an entitlement that define its nature as a distinct right”—this interpretation must be guided by the specific objectives of the right and its placement and significance in the overall system of fundamental rights protection.[17] This approach could, it appears, be either inductive or deductive. It presents another methodological choice between an institutional—or objective—and a subjective approach. Czech Republic,[25] Article 17 of the European Convention on Human Rights (“ECHR”) was construed by Judge Serghides to support the conclusion that “under no circumstances is the role of an exception to a right under the Convention to render the right ineffective, still less to extinguish it, and no one, including the State, can invoke an exception in order to destroy a right.”[26]
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