Il Diritto dell'Unione EuropeaEISSN 2465-2474 / ISSN 1125-8551
G. Giappichelli Editore


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Some Thoughts on the State of the European Union as a Rights-Based Legal Order (di Koen Lenaerts)


This contribution supports the contention that neither national diversity nor European unity is absolute. The EU must be respectful of both, given that neither suffices to explain the European integration project as a whole. In this regard, it is argued that striking the right balance between European unity and national diversity has largely been achieved through the judicial protection of the individual rights contained in EU law.

Given that the EU has placed a high priority on respect for the rights of individuals, it is to be seen as a rights-based legal order. However, EU rights are frequently not absolute, but may be subject to limitations. Those limitations must be determined by means of a consensus reached either at the constitutional level or the legislative level, depending on the origin and nature of the rights concerned. This means, in essence, that, subject to the overarching constitutional rules that govern the EU legal order, it is ultimately for the EU political process to strike the right balance between European unity and national diversity. That is so because the principle of representative democracy is a touchstone of the EU’s legal and political system.


Articoli Correlati: ordine legale


I. Introduction. - II. The EU and individual rights - III. Limitations on individual rights - IV. Concluding remark - NOTE

I. Introduction.

The EU’s official motto “United in diversity” conveys the message that European integration is governed by two opposing, albeit complementary, dynamics. On the one hand, we Europeans are very different. We all come from Member States each of which has a strong identity. We speak different languages; we have different cultures, and we have, through the centuries, established different traditions. As art. 3(3) TEU states, the EU “shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced” [1]. The EU is thus committed to respecting pluralism, understood as the capacity of each national society to remain free to evolve differently according to its own values. On the other hand, in order for the European integration project to succeed, pluralism cannot be absolute. This is so because, “the peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values” [2]. In spite of our differences, we Europeans agree that the EU must be founded on the indivisible, universal values of human dignity, freedom, equality and solidarity. We also agree that the EU must be based on the principles of democracy and the rule of law. This means that compliance with those founding pan-Euro­pean values may sometimes make it necessary to set aside certain aspects of national diversity. A commonality of values inevitably implies some degree of unity. The survival of the EU requires that what brings us together must remain stronger than what pulls us apart. It follows that neither unity, nor diversity, is absolute. The EU must be respectful of both, given that neither suffices to explain the European integration project as a whole. The question that thus arises is how “integration through law” [3] has reached that goal of bringing the peoples of Europe closer whilst, at the same time, respecting the separate identities of the EU’s 28 Member States. The purpose of this article is to show that the answer to that question is, in essence, that the EU has placed a high priority on respect for the rights of individuals. Striking the right balance between European unity and national diversity has largely been achieved through the judicial protection of the individual rights contained in EU law. In this regard, it is divided into three parts. Part II seeks to explain [continua ..]

II. The EU and individual rights

Let us begin by going back to the moment when the idea of directly effective EU rights became a living truth. On 5 February 1963, the European Court of Justice delivered its seminal judgment in the van Gend en Loos case [4], whose 50th Anniversary was celebrated last year. Allow me to quote in full what is probably the most famous passage ever written in a judgment of the European Court of Justice: “the [European Union] constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, [EU] law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage” [5]. Due to its foundational constitutional significance, van Gend en Loos has often been compared to Marbury v. Madison [6]. Paraphrasing the words of Rita E. Hauser, van Gend en Loos constitutes a “breakthrough in traditional doctrines of international law which in the past have prohibited a serious concern with individual rights” [7]. Indeed, by heralding the doctrine of direct effect, that ruling demonstrated that the EU is a rights-based legal order. The very essence of EU law is the principle that the individual rights it creates are directly enforceable before national courts and prevail over conflicting national norms. For every EU right, there must also be a judicial remedy, an idea that has been expressly confirmed by art. 19 TEU and art. 47 of the Charter of Fundamental Rights of the European Union (the “EU Charter”).  [8] It is on this constitutional axiom that the entire EU system of judicial protection is based [9]. The EU Treaties grant rights to individuals that are directly effective and that create for them a sphere of personal self-determination free from government interference. For example, by virtue of the EU Treaty provisions on citizenship, every citizen has the right to move and reside freely within the territory of the Member States. They also have the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, whether or not they are nationals of that State. In the same [continua ..]

III. Limitations on individual rights

With the exception of the rights set out in art.s 1 to 5 of the EU Charter [19], individual rights are not absolute, but may be subject to limitations. It is through those limitations that an appropriate balance is struck between the twin objectives of European unity and national diversity. Compliance with the principle of democracy requires that balance to be the result of a legislative consensus. At EU level, legislative consensus is an integral part of the political process. In the present context that expression should be understood broadly as covering not only EU norms that are adopted unanimously by the Council, but all secondary EU legislation that is adopted in accordance with the procedural requirements laid down in this respect in the founding EU Treaties. It is for the Member States – which are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens – and for the Peoples of Europe – which are directly represented at Union level in the European Parliament – to decide whether national diversity should yield to European unity and, if so, to what extent.   A.Compliance with constitutional consensus. It goes without saying that the “legislative consensus” must comply with the “constitutional consensus”. Where norms that form part of the EU legislative consensus are relevant, the role of the European Court of Justice is thus limited to verifying that the level of protection accorded to an individual right, as it has been framed by the EU political process, complies with that constitutional consensus. Two examples may illustrate this point. In 2004, the EU adopted Regulation No 2252/2004 in order to harmonize the security features and biometrics in passports of the Member States [20]. In particular, it provides that two fingerprints of the passport holder are to be taken and stored in a highly secure chip contained in the passport. In Schwarz [21], the European Court of Justice was called upon to decide whether that requirement was compatible with the fundamental right to privacy and with the right to the protection of personal data enshrined respectively in art.s 7 and 8 of the EU Charter. It replied in the affirmative. Whilst the taking and storing of fingerprints constituted a limitation on those fundamental rights, [continua ..]

IV. Concluding remark

 European values which are the result of a constitutional consensus are embedded in primary EU law. It is essentially for the political process to determine when, and indeed whether, those norms – which require the unanimous consent of the Member States and, where appropriate, of their citizens – should be adopted. The existence or absence of an EU legislative consensus provides an answer to the question whether the Member States are developing at the same pace and in the same manner or whether national societies are evolving in accordance with their own scales of values. That being said, national diversity and EU legislative consensus must both comply with values which are regarded as pan-European, i.e. those that are the object of a constitutional consensus at EU level.