What is the Added Value of the Concept of the 'Essence' of EU Fundamental Rights?

German Law Journal 2019

16 Pages Posted: 19 Mar 2021

See all articles by Mark Dawson

Mark Dawson

Hertie School of Governance

Orla Lynskey

London School of Economics - Law School

Elise Muir

KU Leuven, Department for International and European Law

Date Written: 2019

Abstract

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 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 EUmust 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.

Keywords: EU law; fundamental rights; essence of rights

Suggested Citation

Dawson, Mark and Lynskey, Orla and Muir, Elise, What is the Added Value of the Concept of the 'Essence' of EU Fundamental Rights? (2019). German Law Journal 2019, Available at SSRN: https://ssrn.com/abstract=3782603

Mark Dawson

Hertie School of Governance ( email )

Quartier 110
Friedrichstraße 180
Berlin, 10117
Germany

Orla Lynskey

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Elise Muir (Contact Author)

KU Leuven, Department for International and European Law ( email )

Oude Markt 13
Leuven, Vlaams-Brabant 3000
Belgium

HOME PAGE: http://https://www.law.kuleuven.be/eur/en

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