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Over the past few decades, European countries have witnessed a proliferation of legal norms concerning marginalised individuals and minorities who increasingly invoke them in front of courts to assert their rights and claim protection. The present volume explores the relationship between law, rights and social mobilisation in Europe. It specifically enquires into the extent and ways in which legal processes and entitlements are mobilised by less privileged social actors to advance their rights claims and pursue social change. Most distinctly, it explores such processes in the context of the multi-level European system, characterised by the existence of multiple legal and judicial arenas at the national, subnational and supranational/transnational level. In such a complex system of law and governance in Europe, concepts like legal opportunity structures, as well as the factors shaping them need to be reconceptualised. How does the multi-level European context distinctly shape the nature and salience of rights, as well as their mobilisation by individuals and minority actors?
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.
The Court inhabits a ‘political space’ to which it is called upon to respond. This points to its need to develop cooperative relationships not only with courts but also with political actors (such as national governments and the EU legislature) and even to directly address and explain decisions to EU citizens themselves. This book is aimed at answering the question of ‘How does the CJEU position itself as a political as well as a legal actor?’ with a view to better understanding the work of the Court and addressing its contestation. For that purpose, we explore in this introductory chapter what is meant by judicial ‘activism’ and judicial ‘politics’, before examining the different varieties of judicial politics our authors have shown an interest in. This will pave the way to drawing some lessons on the factors to take into account when seeking to address and respond to contestation of the work of the Court.