ECJ Fundamental Rights Jurisprudence between Member States’ Prerogatives and Citizens’ Autonomy

Abstract

This working paper is the revised version of a talk during a conference "The European Court of Justice and Member States' Autonomy" at the European University Institute in Florence. It provides an analysis of the European Court of Justice's Fundamental Rights Jurisprudence with focused on the potential of Member States to maintain any positive regulatory role in supporting citizens' autonomy on the one hand, and on the impact of the Court's case law on citizens' opportunities to actually enjoy human rights within societies (substantive autonomy). The paper first sketches the notion of autonomy which is proposed as base of fundamental rights protection and promotion within a social reality characterized by not democratically legitimated dominance based on wealth and economic power. It proceeds to contextualize ECJ case law on fundamental rights. This section starts with a quantitative appetizer, which will formalize some assumptions and test them on a total of 150 cases before the European judiciary. The paper then offers a more conceptual recount around fundamental rights to equality and non-discrimination on the one hand and around fundamental rights of workers to actively shape employment and labor relations on the other hand. In conclusion some suggestions are made of how ECJ fundamental rights doctrine could develop more positively in order to moderate diverging interests of different parts of the citizenry in protecting fundamental rights.

Note: A final version has been published in The European Court of Justice and the Autonomy of the Member States (Hans Micklitz & Bruno de Witte eds), Antwerp/Oxford: Intersentia, 2012, p 227-258.

Keywords: EU fundamental rights, European court of justice, EU constitutionalism, non-discrimination, industrial relations and courts