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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 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.
What role does the Court of Justice of the EU (CJEU) and EU law play in elaborating the rights and principles embodied by the Universal Declaration of Human Rights (UDHR)? Over the last 20 years, human (or ‘fundamental’) rights have become a constant part of the way the CJEU interprets and applies EU law. In a period where fundamental rights and values are increasingly under threat both globally and in Europe, judicial institutions remain an important last bastion of protection. Commenting on Judge Rosas’ (2007) observation that the CJEU is not in fact a human rights Court, three critical questions are derived: The first question is the most related to this special issue. What does the development of the CJEU—an institution with human rights responsibilities—mean for general international human rights law? The second takes up Judge Rosas’ observation that the CJEU, unlike the Strasbourg Court, has extensive judicial responsibilities beyond human rights. What does the development of EU human rights law mean for EU law more broadly? Finally, if Judge Rosas is right that the CJEU is not a human rights Court, what does that mean for its relationship to the European Court of Human Rights (ECtHR) and the other organs of the Council of Europe? In answer to this last question, the article cautiously advances the argument that the very fact that the CJEU is not a human rights Court implies a more robust role than Judge Rosas suggests for external review of EU law by international human rights bodies.
Transforming into what?: New Governance in the EU and the “Managerial Sensibility” in Modern Law
(2010)
As part of his account of "fragmentation" in international law, Martti Koskenniemi has described the advance of a "managerial sensibility" in modern law. This sensibility incorporates two claims—first, the increasing differentiation of international rules; and second, a tendency to see law not as an end in itself, but as a managerial technique. It is not difficult to apply both tenets of managerialism to the practice of "new governance." On the one hand, methods like the Open Method of Coordination (OMC) attest to a feeling that law is too distanced a register to capture the kinds of detailed intervention that EU regulation requires, leading to differentiation between policy fields. On the other hand, this has been carried out in order to "specialize," allowing overall targets to be reached through narrow administrative elites. Managerialism is present in processes like the OMC both as a differentiation of legal procedures, and as a view of rules as "flexible" in service of the evolving goals and self-image of a particular policy community. While this managerial ethos would seem suitable for a particular vision of the EU polity—the depoliticized regulatory state—it is increasingly problematic. As the principle vehicle for the delivery of the Lisbon strategy, determining the indicators and objectives of the OMC is a far from technical task. What appears and has been marketed as a "micro-politics" of expert based benchmarking has the potential to invoke larger strategic questions for the EU while simultaneously placing them out of public view. In response, new avenues for politicizing new governance or for opening its principle procedures and indicators up to critical evaluation and scrutiny (including to a non-expert public) may be needed. While this is no easy task, this Article will explore two modest proposals—first, the scrutiny role of the European Parliament, and second, the development of the European Ombudsman as an avenue to provide non-judicial means for addressing problems of intransparency and accountability in EU governance. In both cases, while a full politicization of the method may be difficult, a partial strategy may be an important first step in reconciling new governance procedures with the democratic values upon which the Treaties of the EU claim to be based.
This article examines the development of judicialization literature in the EU arguing that – in spite of the obvious advantages of interdisciplinary collaboration – scholarship on judicialization in law and political science is drafting apart in the 21st Century. While early political science research on the European Courts found theoretical inspiration in legal research, law and political science have increasingly diverging epistemological and methodological starting points. As the article argues, using prominent papers, this results in both disciplines producing partial accounts of judicial change with limited external validity. The article concludes by offering routes to improving the inter-disciplinary foundations of judicialization research.
This article analyses the evolving relationship in the EU between “new governance” methods and law, arguing that this relationship can be seen in three distinct “waves” of activity. While the last few years have seen a relative decline in the level of academic and institutional interest in new governance processes, recent developments, such as the renewal of the Lisbon “2020” strategy, and accusations of “judicial activism” laid at the door of the European Courts, suggest a renewed role for new governance mechanisms. The article will argue for a “third wave” of governance research based on interaction between the policy elaborating function of new governance and the procedural role of the European Courts in providing due process and other rights. This emerging third wave — and its limits — suggest an emerging research agenda for EU lawyers and political scientists based not on the opposition, but the complementarity, of new governance and legal institutions.
The article examines the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs) in the European Union via National Action Plans (NAPs). We argue that some of the shortcomings currently observed in the implementation process could effectively be addressed through the Open Method of Coordination (OMC) – a governance instrument already used by the European Union (EU) in other policy domains. The article sketches out the polycentric global governance approach envisaged by the UNGPs and discusses the institutional and policy background of their implementation in the EU. It provides an assessment of EU member states’ NAPs on business and human rights, as benchmarked against international NAP guidance, before relating experiences with the existing NAP process to the policy background and rationale of the OMC and considering the conditions for employing the OMC in the business and human rights domain. Building on a recent opinion of the EU Fundamental Rights Agency, the article concludes with a concrete proposal for developing an OMC on business and human rights in the EU.