It’s about Human Rights, Stupid!

Thanks to Prof. Halberstam for trying to shift the debate away from the critique of the Opinion 2/13 to a more constructive discussion on the way forward and trying to present the Opinion from a different, resolutely constitutional, perspective.

Prof. Halberstam’s assessment of the Opinion 2/13 is based on the premise that the EU’s constitutional order is, as he put it, a “deep federal-type structure”. This federalist approach to Opinion 2/13 (and the autonomy of EU law) appears to be influenced by US constitutional experience and thinking. It neglects some important features of Europe’s multi-layered human rights protection system as well as the EU’s own constitutional order. Unlike the USA, the EU is not (yet) a federal state. It is composed of sovereign nations which have transferred only some of their competences to supranational institutions. The EU Treaty itself imposes the duty to respect the national identities of Member States inherent in their constitutional and political structures (Article 4(2) TEU). Respect for pluralism is crucial when it comes to fundamental rights protection.

In opinion 2/13, the CJEU appears to be more concerned about primacy than about pluralism or substantive rights. It applies the principle of absolute primacy of EU law to the EU Charter of Fundamental Rights, not only in relation to ECHR rights but also to those guaranteed under national constitutions. It is, however, doubtful that Member States ever intended to give such a far-reaching meaning to the EU Charter. As Prof. Kirchhof recently demonstrated, Article 51 (1) of the EU Charter merely makes the Charter rights applicable, it does not contain a rule about which rights should have precedence over the others (“Kollisionsregel”) in situations where Charter rights and rights guaranteed under national constitutions apply in parallel ...

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