Fundamental rights in the EU after Kadi and Al Barakaat

European Law Journal

Volumn 16, Issue 5, 2010, Pages 551-577

  Isiksel, Türküler ^a  

^a Columbia University ^*  (United States)

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EID: 77956054219     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2010.00522.x     Document Type: Article

References (173)

1. ECJ, Joined Cases C-402/05P and C-415/05P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351.
2. At the time of writing, reference to 'EC' or 'Community law' was still current in the court's official documents as well as much of the legal theory community, even though the Community has been formally subsumed within the EU with the entry into force of the Lisbon Treaty. With this change in mind, the article refers for the most part to the 'EU', except when distinguishing between the Community and the EU becomes necessary for reasons of historical or legal accuracy, and follows the court's usage in regard to Kadi.
3. Notable interventions directly concerning the ECJ's Kadi ruling include G. de Búrca, The European Court of Justice and the International Legal Order after Kadi, Fordham Law Legal Studies Research Paper No 1321313 (2009); also forthcoming in 51 Harvard International Law Journal, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1321313
4. W.T. Eijsbouts and L. Besselink, '"The Law of Laws" - Overcoming Pluralism', (2008) 4 European Constitutional Law Review 395.
5. S. Griller, 'International Law, Human Rights and the European Community's Autonomous Legal Order: Notes on the European Court of Justice Decision in Kadi', (2008) 4 European Constitutional Law Review 52
6. D. Halberstam and E. Stein, 'The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order', (2009) 46 Common Market Law Review 1.
7. B. Kunoy and A. Dawes, 'Plate Tectonics in Luxembourg: The ménage à trois between EC law, International Law and the European Convention on Human Rights Following the UN Sanctions Cases', (2009) 46 Common Market Law Review 73. An equally great amount of scholarly attention has been paid to the Court of First Instance's Kadi and Yusuf and Al Barakaat rulings, virtually all of which is critical.
8. See, notably, J. Almqvist, 'A Human Rights Critique of European Judicial Review. Counter-Terrorism Sanctions', (2008) 57 International and Comparative Law Quarterly 30.
9. M. Bulterman, 'Fundamental Rights and the United Nations Financial Sanction Regime: The Kadi and Yusuf Judgments of the Court of First Instance of the European Communities', (2006) 19 Leiden Journal of International Law 753.
10. C. Eckes, 'Judicial Review of European Anti-Terrorism Measures - The Yusuf and Kadi Judgments of the Court of First Instance', (2008) 14 European Law Journal 74
11. P. Eeckhout, 'Community Terrorism Listing, Fundamental Rights, and UN Security Council Resolution. In Search of the Right Fit', (2007) 3 European Constitutional Law Review 183.
12. J. Hoffman, 'Terrorism Blacklisting: Putting European Human Rights Guarantees to the Test', (2008) 15 Constellations 543.
13. This question is addressed briefly by Halberstam and Stein, op cit n 3 supra, at 62-63.
14. de Búrca, op cit n 3 supra.
15. J.H.H. Weiler, 'The Transformation of Europe', (1991) 100 Yale Law Journal 2403 at 2417.
16. For leading versions of what we might call the 'standard account'
17. K. Alter, Establishing the Supremacy of European Law (Oxford University Press, 2001), esp at 88-96
18. F. Mancini and D. T. Keeling, 'Democracy and the European Court of Justice', (1994) 57 Modern Law Review 17.
19. A. Stone Sweet, The Judicial Construction of Europe (Oxford University Press, 2004).
20. J.H.H. Weiler, 'Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities', (1986) 61 Washington Law Review 1103 esp at 1111-1119.
21. ECJ, Case 1/58, Friedrich Stork and Cie v High Authority of the ECSC [1959] ECR 17.
22. ibid, para 4(a).
23. Stone Sweet, op cit n7 supra, at 68.
24. Case 2 BVL 52/71, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratstelle für Getreide und Füttermittel (Decision of 29 May 1974) 37 BVerfGE 271, [1974] CMLR 540.
25. F.P. Ruggieri Laderchi, 'Report on Italy', in A.-M. Slaughter, A. Stone Sweet and J. Weiler (eds), The European Courts and National Courts (Hart Publishing, 1998).
26. Case 29/69, Stauder v City of Ulm [1969] ECR 419.
27. Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125.
28. ibid, para 4.
29. See the case that has come to be know as Solange II, namely Wünsche Handelsgesellschaft Bundesverfassungsgericht 2, 197/83; [1986] 3 CMLR 225: 'As long as the European Communities, in particular European Court case law, generally ensure effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safe-guard the essential content of fundamental rights, the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany, and it will no longer review such legislation by the standard of the fundamental rights contained in the Basic Law'.
30. J. Coppel and A. O'Neill, 'The European Court of Justice: Taking Rights Seriously?', (1992) 12 Legal Studies 227, at 243.
31. J. Weiler and N. Lockhart's justly celebrated response to Coppel and O'Neill: J. H. H. Weiler and N. J. S. Lockhart, '"Taking Rights Seriously" Seriously: The European Court and its Fundamental Rights Jurisprudence' Parts I and 2, (1995) 32 Common Market Law Review 61 and 579.
32. M. Koskenniemi, 'The Effect of Rights on Political Culture', in P. Alston, M. Bustelo and J. Heenan (eds), The EU and Human Rights (Oxford University Press, 1999).
33. Case 26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.
34. The court's de facto incorporation of rights guarantees into Community law was subsequently codified in Art 6(2) of the Treaty on European Union, which holds that 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.
35. The locus classicus for the rights-based theory of constitutionalism is R. Dworkin's Taking Rights Seriously (Harvard University Press, 1977).
36. Bruce Ackerman prefers to call this the 'foundationalist' model of constitutionalism precisely because the constitution is assumed to have individual rights guarantees at its very core. See B. Ackerman, We the People: Foundations (Belknap Press, 1991). Robert Nozick's famous thought experiment is an example precisely of this paradigm of a constitutionalism built from the ground-up on the principle of respect for individual rights. Nozick's project is to show how one can move from the state of nature to the minimal state without violating the rights of any individual. See R. Nozick, Anarchy, State and Utopia (Basic Books, 1974).
37. Note that 'fundamental rights' are used here to mean the traditional constitutional guarantees of civil and political rights. In contrast to these rights, which are rooted in values of life, liberty and human dignity, the court has from the very inception of the Communities protected a series of rights it confusingly terms 'fundamental freedoms', namely, the four freedoms of movement of persons, goods, services and capital. Unlike fundamental rights proper, the four freedoms are architectonically central to the Community legal order: were they to go unobserved, as the court repeatedly points out, the effectiveness and uniformity of the Community legal edifice would be gravely compromised.
38. A. von Bogdandy, 'The European Union as a Human Rights Organisation? Human Rights and the Core of the European Union', (2000) 37 Common Market Law Review 1307.
39. ibid, at 1308.
40. The most important of these are UN Security Council Resolutions 1267 (1999), 1333 (2000), 1390 (2002) and 1452 (2002).
41. CFI, Case T-315/01, Kadi v Council and Commission [2005] ECR II-3649.
42. CFI, Case T-306/01, Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533.
43. CFI Kadi, n 27 supra, para 214, and ibid, para 265.
44. For critiques of the Court of First Instance's ruling on jus cogens, see especially, Bulterman, op cit n 3 supra, at 768-769.
45. ECJ, Kadi and Al Barakaat, n 1 supra, para 287.
46. ibid, para 278.
47. ibid, para 281.
48. For instance, Piet Eeckhout writes that 'The individual is increasingly a subject of international law, and must thus be guaranteed certain fundamental rights through effective judicial protection'. See Eeckhout, op cit n 3 supra, at 205. See also Almqvist, op cit n 3 supra, esp 307-309; Hoffman, op cit n 3 supra.
49. See de Búrca, op cit n 3 supra; Halberstam and Stein, op cit n 3 supra.
50. Paradigmatically, Stefan Griller writes, with certain reservations, that 'the respective Security Council resolutions and especially the mechanism of upholding the listing of individuals violate basic guarantees of a fair trial and of a judicial review mechanism, as well as the right to respect for property. Consequently, the ECJ was right in reversing the judgment of the CFI and in annulling the transposing EC regulation'. See Griller, op cit n 3 supra, at 552-553.
51. de Búrca, op cit n 3 supra, at 45. In their recent analysis of the court's approach to international law obligations, Kunoy and Dawes cite a similar argument made by Martti Koskenniemi, who has described the ECJ's perspective as 'solipsistic', 'imperialistic' and smacking of 'European self-centredness': M. Koskenniemi, 'International Law: Constitutionalism, Managerialism and the Ethos of Legal Education', (2007) 1 European Journal of Legal Studies, cited in Kunoy and Dawes, op cit n 3 supra, at 85.
52. de Búrca, ibid, at 6 and 36-38. See, in this connection, A. Stone Sweet, 'Constitutionalism, Legal Pluralism, and International Regimes', (2009) 16 Indiana Journal of Global Legal Studies 621
53. N. Walker, 'Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders', (2008) 6 International Journal of Constitutional Law 37.
54. P. Schiff Berman, 'Global Legal Pluralism', (2007) 80 Southern California Law Review 115.
55. A. Wiener, 'Contested Meanings of Norms: A Research Framework', (2007) 5 Comparative European Politics 1
56. N. Krisch, 'The Pluralism of Global Administrative Law', (2006) 17 European Journal of International Law 247.
57. de Búrca, ibid, at 44.
58. For an erudite reconstruction of the jurisprudence behind the Court of First Instance's jus cogens argument, which is also the most flattering review of the Court of First Instance's ruling on this point among accounts with which I am familiar, see Halberstam and Stein, op cit n 3 supra, at 51-53 and 64-65.
59. de Búrca, op cit n 3 supra, at 22.
60. ECJ, Kadi and Al Barakaat, n 1 supra, para 287 (emphasis added).
61. de Búrca, op cit n 3 supra, at 46.
62. E. Burke, Reflections on the Revolution in France [1790], in C. C. O'Brien (ed) (Penguin, 2004), at 118.
63. Halberstam and Stein, op cit n 3 supra, at 64.
64. ECJ, Kadi and Al Barakaat, n 1 supra, at para 308.
65. Interestingly, this construction is similar to the way in which many EU Member State constitutions delineate the authority of EU law within their legal systems, namely by means of a special provision which prohibits the signing away of certain guarantees by acceding an international organisation. The most famous expression of this position is the GFCC's Brunner decision, where the GFCC held: '[T]he Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them': Brunner v the European Union Treaty (1994) 33 ILM 388, para 49. Other examples include Art 20 of the Danish Constitution (Danish Supreme Court, Carlsen and Others v Rasmussen [1999] 3 CMLR 854), Art 11 of the Italian Constitution as interpreted by the Italian Constitutional Court (see Frontini v Ministero delle Finanze, 27 December 1973; and S.p.a. Fragd v Amministrazione delle Finanze, 21 April 1989); Art 93 of the Spanish Constitution, interpreted by the Spanish Constitutional Court as allowing for the transfer of powers to an international organisation (in this case the EU) 'only . . . to the extent that European law is compatible with the fundamental principles of the social and democratic State, subject to the rule of law, established by the national Constitution': DTC 1/2004, 13 December 2004. For reflections on the difficulties of applying the terminology of monism and dualism to the complex landscape of European law
66. A. von Bogdandy, 'Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law', (2008) 6 International Journal of Constitutional Law 397, at 397-398.
67. But see Samantha Besson's judicious warning against fully analogising the relationship between EU law and international law with that between EU law and Member State law
68. S. Besson 'European Legal Pluralism after Kadi', (2009), 5 European Constitutional Law Review 237, particularly 239-240.
69. ECJ, Internationale Handelsgesellschaft, n 14 supra.
70. In Simmenthal II, the court found the Italian constitutional prohibition on judicial review of statute by ordinary courts to be incompatible with Community law. It held: 'Accordingly any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law': Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629, at para 22 (emphasis added).
71. In Foto-Frost, the ECJ held in this connection that 'national courts have no jurisdiction themselves to declare that measures taken by Community institutions are invalid': Case 314/85, Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199.
72. See Stone Sweet, op cit n 7 supra, at 84-85; also M. de S.-O.-l'E. Lasser, Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy (Oxford University Press, 2004), at 225.
73. For the idea of 'international citizenship', good and bad
74. J. Williams, 'Good International Citizenship', in N. Dowers and J. Williams (eds), Global Citizenship: A Critical Introduction (Taylor and Francis, 2002).
75. Coppel and O'Neill, op cit n 17 supra, at 243. But see Weiler and Lockhart's response, op cit n 17 supra.
76. See n 11 supra. A comprehensive historical analysis of the 'Solange method' is given in N. Lavranos, 'Towards a Solange-Method between International Courts and Tribunals?', in T. Broude and Y. Shany (eds), The Shifting Allocation of Authority in International Law (Hart Publishing, 2008).
77. See, for instance, Halberstam and Stein, op cit n 3 supra, at 68.
78. E.-U. Petersmann, 'Do Judges Meet their Constitutional Obligations to Settle Disputes in Conformity with "Principles of Justice and International Law"?', (2007) 1 European Journal of Legal Studies 1, at 34 and 21. He expresses this view in an earlier article
79. E.-U. Petersmann, 'Limits of WTO Jurisprudence: Comments from an International Law and Human Rights Perspective', in T. Cottier and P. C. Mavroidis (eds), The Role of the Judge in International Trade Regulation: Experience and Lessons for the WTO (University of Michigan Press, 2003), at 83.
80. ECJ, Kadi and Al Barakaat, n 1 supra, para 256.
81. Opinion of Advocate General Poiares Maduro, Case C-402/05P, Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, delivered 16 January 2008, at 54.
82. Alter, op cit n 7 supra, at 91.
83. Decision BVerfG, 2 BvE 2/08 of 30 June 2009, para 240.
84. ibid, para 240.
85. Eeckhout, op cit n 3 supra, at 205.
86. Eijsbouts and Besselink, op cit n 3 supra.
87. ibid, at 397 (emphasis added).
88. ibid, 398.
89. In a prominent 1986 study, German jurist J. A. Frowein foresaw a 'dialectical development' among three legal orders, namely, Member States, the EC and the ECHR, as a consequence of fundamental rights adjudication. For Frowein, Solange I was definitely an instance of such dialectical development but by no means the sole possible one. Rather than confine his focus to liminal or meta-constitutional confrontations, as much of the contemporary literature on the relationship between different judicial levels tends to do, Frowein studied more mundane but more prevalent aspects of judicial cross-pollination, and the collaborative and gradual evolution of particular norms and constitutional principles. See J. Abr. Frowein, 'Fundamental Human Rights as a Vehicle of Legal Integration in Europe', in M. Cappelletti, M. Seccombe and J. Weiler (eds), Integration through Law. Europe and the American Federal Experience, Vol I (Walter de Gruyter, 1986), at 302.
90. As evidence of the GFCC's invitation to dialogue, de Búrca cites a neglected passage of Solange I: 'The binding of the Federal Republic of Germany (and of all Member States) by the Treaty is not, according to the meaning and spirit of the Treaties, one-sided, but also binds the Community which they establish to carry out its part in order to resolve the conflict here assumed, that is, to seek a system which is compatible with an entrenched precept of the constitutional law of the Federal Republic of Germany. Invoking such a conflict is, therefore, not in itself a violation of the Treaty, but sets in motion inside the European organs the Treaty mechanism which resolves the conflict on a political level'; cited in de Búrca, op cit n 3 supra, at 47 (emphasis added).
91. Consider political philosopher Christian Bay on civil disobedience, which he uses to 'refer to any act or process of public defiance of a law or policy enforced by established governmental authorities, insofar as the action is premeditated, understood by the actor(s) to be illegal or of contested legality, carried out and persisted in for limited public ends, and by way of carefully chosen and limited means'. By 'public ends', I take Bay to mean ends that are not tailored solely to the advantage of the disobedient, but have at least a prima facie claim to fairness. See C. Bay, 'Civil Disobedience: Prerequisite for Democracy in Mass Society', in J. G. Murphy (ed.), Civil Disobedience and Violence (Wadsworth Publishing Company, 1971), at 76.
92. The requirement that reasons be expressed in a manner that all could potentially agree to draws on Habermas's discursive theory of moral argumentation. For an overview, see J. Habermas, Moral Consciousness and Communicative Action (trans. C. Lenhardt and S. W. Nicholsen) (MIT Press, 1990).
93. I am using this concept in the sense developed by Joseph Weiler. See J. H. H. Weiler, 'European Neo-Constitutionalism: In Search of Foundations for the European Constitutional Order', in R. Bellamy and D. Castiglione (eds), Constitutionalism in Transformation (Blackwell Publishers, 1996), at 120.
94. Advocate General Maduro gave a recent account of this constitutional dialogue in Case C-127/07, Société Arcelor Atlantique et Lorraine v Premier Ministre, opinion delivered on 21 May 2008, at para 17. For an enlightening account of the kinds of dialogue that the ECJ enjoys with other courts, tribunals and adjudicative bodies, see A. Rosas, 'The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue', (2007) 1 European Journal of Legal Studies, available at http://www.ejls.eu/2/24UK.pdf.
95. ECJ, Kadi and Al Barakaat, n 1 supra, para 294.
96. ibid, para 304.
97. See n 20 supra.
98. See, among others, A. Linklater, The Transformation of Political Community (University of South Carolina Press, 1998)
99. N. Dower, 'The Idea of Global Citizenship - A Sympathetic Assessment', (2000) 4 Global Society 553.
100. S. Benhabib, Another Cosmopolitanism (Oxford University Press, 2006).
101. M.P. Maduro, We The Court: The European Court of Justice and the European Economic Constitution (Hart Publishing, 1998), at 9.
102. ECJ, Kadi and Al Barakaat, n 1 supra, para 60.
103. See paras 51-68 and 158-236 of the ECJ's Kadi and Al Barakaat judgment, n 1 supra, where the court grapples with the question of whether the Community had the competence to adopt the contested measures given that Arts 60 and 301 EC authorise the adoption of sanctions against third countries, but not explicitly against individuals.
104. See n 34 supra.
105. This was precisely what the court had in mind when it held, in its famous Les Verts ruling, that 'The European Economic Community is a community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question of whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty . . . Natural and legal persons are thus protected against the application to them of general measures which they cannot contest directly before the Court by reason of the special conditions of admissibility laid down in the second paragraph of Art 173 of the Treaty': Case 294/83, Partie Ecologiste 'Les Verts' v Parliament [1986] ECR 01339, para 23.
106. ECJ, Kadi and Al Barakaat, n 1 supra, para 281 (emphasis added).
107. ibid, para 334.
108. ibid, paras 305-309.
109. Bay, op cit n 69 supra, at 78.
110. de Búrca, op cit n 3 supra, at 27.
111. See n 19 supra.
112. See n 13 supra.
113. ECJ, Kadi and Al Barakaat, n 1 supra, para 301.
114. ibid, para 304.
115. GFCC, Wünsche Handelsgesellschaft, n 16 supra.
116. ECtHR, Application No 45036/98, Bosphorus Hava Yollari Turizm Ve Ticaret Sirketi v Ireland, 30 June 2005, Reports of Judgments and Decisions 2005-VI.
117. Note that the ECJ has claimed unconditional supremacy for Community law vis-à-vis the laws of Member States. By contrast, its assertion of the supremacy of the 'constitutional principles' of Community law vis-à-vis international law is remarkably restrained.
118. ECtHR, Application No 71412/01, Behrami and Behrami v France, 2 May 2007.
119. ECtHR, Application No 78166/01, Saramati v France, Germany and Norway 2 May 2007.
120. The Treaty of Lisbon removes the criterion of 'individual concern' contained in Art 230 EC which the ECJ has interpreted extremely narrowly, with the effect of dooming virtually all attempts to enable individual access to supranational judiciary (see especially Case 25/62, Plaumann and Co v Commission of the European Economic Community [1962] ECR 126). Accordingly, whereas the old Art 230 EC required that a regulatory act be of 'individual concern' to applicants so as to give them standing to challenge it, the new Art 263 TFEU removes that phrase and will only require that an applicant be 'directly concerned' and that the legislation in question require no implementing measures. See Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, [2007] OJ C306/42, Art 2, para 214.
121. Paul Craig and Gráinne de Búrca criticise the court's test of standing in unusually strong terms, arguing that 'The "possibility" of locus standi is like a mirage in the desert, ever receding and never capable of being grasped': P. Craig and G. de Búrca, EU Law: Text, Cases, and Materials (Oxford University Press, 4th edn, 2008), at 512. Remarkably, Advocate General Jacobs gave a comprehensive critique of the ECJ's standing doctrine and an equally comprehensive blueprint for broadening it. In Union de Pequeños Agricultores v Council, he urged the court to relax the standard of 'individual concern' contained in Art 230 EC so as to grant standing to individuals where a Community measure 'has, or is liable to have, a substantial adverse effect on his interests'. His recommendation was not adopted by the court. See Opinion of Advocate General Jacobs delivered on 21 March 2002, Case C-50/00P, Unión de Pequeños Agricultores v Council of the European Union, para 102.
122. See n 61 supra, para 240.
123. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), [2002] OJ L190/1.
124. For a diligent overview of each of these challenges
125. J. Komárek, 'European Constitutionalism and the European Arrest Warrant: In Search of the Limits of "Contrapunctual Principles"', (2007) 44 Common Market Law Review 9.
126. It should be noted that many of these decisions were coloured by concerns over national and constitutional sovereignty, in addition to regard for the protection of basic rights.
127. J.H.H. Weiler, 'In Defence of the Status Quo: Europe's Constitutional Sonderweg', in J. H. H. Weiler and M. Wind (eds), European Constitutionalism Beyond the State (Cambridge University Press, 2003), at 15. A forebear of the principle of constitutional tolerance in Weiler's thought is the idea of a 'constitutional conversation'; see Weiler, op cit n 71, supra, at 120.
128. For a comprehensive analysis of the gusto with which the constitutional courts of some of the new Member States have taken up the Solange rhetoric, see W. Sadurski, 'Solange, Chapter 3: Constitutional Courts in Central Europe', (2008) 14 European Law Journal 1.
129. In this connection, see S. Alegre and M. Marisa. Leaf, 'Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study - The European Arrest Warrant', (2004) 10 European Law Journal 200. In its long-awaited but underwhelming response to the misgivings of national courts, the ECJ disappointed many by curtly dismissing any notion that the European Arrest Warrant might give rise to fundamental rights concerns. See Case C-303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-03633. Critical initial evaluations include F. Geyer, 'Case Note: European Arrest Warrant', (2008) 4 European Constitutional Law Review 149. Even more critical is D. Sarmiento, 'The European Arrest Warrant and the Quest for Constitutional Coherence', (2008) 6 International Journal of Constitutional Law 171. That said, there have been notable attempts to shore up fundamental rights safeguards in connection with the EU's growing involvement in justice and criminal law matters. Most important in this regard is the Commission's 2003 Green Paper on 'Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union', which presents a thorough-going assessment of the minimum standards that should be adopted in this area. Brussels, COM (2003) 75 final (19 February 2003).
130. For insider's wisdom on rekindling a three-way dialogue between the national constitutional courts, the ECJ, and the ECtHR
131. L. Garlicki, 'The Cooperation of Courts. The Role of Supranational Jurisdictions in Europe', (2008) 6 International Journal of Constitutional Law 509.
132. The protection of fundamental rights has already found a niche in the EU's institutional structure besides the judicature in the form of the newly minted Agency for Fundamental Rights. Established further to Art 308, it has legal personality and is charged with the task of roviding Union institutions and Member States 'with information, assistance and expertise on fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights'. Like the Charter, the Agency is supposed to 'act only within the scope of application of Community law'. See Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L53/1.
133. ECJ, Case C-124/95, The Queen ex parte Centro-Com Srl v HM Treasury and the Bank of England [1997] ECR I-114.
134. ibid, para 61.
135. P. Eeckhout, External Relations of the European Union. Legal and Constitutional Foundations (Oxford University Press, 2004), at 347.
136. ECJ, Kadi and Al Barakaat, n 1 supra, para 304 (emphasis added).
137. Importantly, the argument that fundamental rights have climbed to a higher rung of constitutional paramountcy in comparison to market rules has to be qualified to allow for the diversity of the entitlements bundled into the category of fundamental rights. Most importantly, although the comparison between Kadi and Centro-Com suggests that the ECJ construes classic civil rights as being more fundamental to the supranational legal order than market objectives, the recent Laval and Viking decisions of the ECJ give the impression that the court is more willing to qualify social rights in the event of a clash with market freedoms. These decisions have drawn justifiable criticism for privileging supranational market freedoms at the expense of the solidaristic institutions of Member States. See, among many others
138. N. Reich, 'Free Movement v. Social Rights in an Enlarged Union: The Laval and Viking Cases before the ECJ', (2008) 9 German Law Journal 125.
139. C. Joerges and F. Rödl, 'Informal Politics and Formalised Law: Reflections after the Judgments of the ECJ in Viking and Laval', (2009) 15 European Law Journal 1, at 17-18.
140. A. Hinarejos, 'Laval and Viking: The Right to Collective Action versus EU Fundamental Freedoms', (2008), 8 Human Rights Law Review 714.
141. For a full account of the concept of market constitutionalism
142. C. Joerges, What is Left of the European Economic Constitution?, EUI Working Papers, Law No 13 (2004). Also, Maduro, op cit n 77 supra.
143. Stone Sweet, op cit n 7 supra.
144. Among the leading accounts of this course of development are
145. E. Stein, 'Lawyers, Judges, and the Making of a Transnational Constitution', (1981) 75 American Journal of International Law 1.
146. Joseph. H. H. Weiler, 'The Transformation of Europe', (1991) 100 Yale Law Journal 240
147. A.-M. Burley and W. Mattli, 'Europe Before the Court', (1993) 47 International Organisation 41
148. W. Sandholtz and A. Stone Sweet, European Integration and Supranational Governance (Oxford University Press, 1998); Stone Sweet, op cit n 7 supra.
149. R.A. Cichowski, The European Court and Civil Society: Litigation, Mobilization, and Governance (Cambridge University Press, 2007)
150. D. Kelemen, 'The Americanisation of European Law? Adversarial Legalism à la européenne', (2008) 7 European Political Science 32.
151. ECJ, Case C-112/00, Schmidberger v Austria [2003] ECR I-5659, para 77.
152. ECJ, Case C-36/02, Omega [2004] ECR I-9609.
153. See para 77 of the Schmidberger decision for a clear articulation of this direct conflict.
154. ECJ, Omega, n 116 supra, para 35.
155. ibid, para 36.
156. ECJ, Schmidberger, n 115 supra, para 80.
157. Opinion of Advocate General Poiares Maduro, Case C-380/05, Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorita per le Garanzie nelle Comunicazioni, delivered on 12 September 2007, paras 18-21.
158. von Bogdandy, op cit n 24 supra
159. Maduro, n 121 supra, para 19.
160. ibid, para 19.
161. And indeed, Advocate General Maduro presented his model as descended from the vision Advocate General Jacobs expressed in Konstantinidis, in which Jacobs famously urged the court towards a capacious understanding of the status and rights of Member State nationals not just as market actors but as European citizens. See Opinion of Advocate General Jacobs, Case C-168/91, Christos Konstantinidis v Stadt Altensteig-Standesamt [1993] ECR I-1191. On this point, see L. Besselink and J.-H. Reestman, 'The Relative Autonomy of the EU Human Rights Standard', (2008), 4 European Constitutional Law Review 199, at 202.; J, Shaw, The Transformation of Citizenship in the European Union (Cambridge University Press, 2007), at 46.
162. [2000] OJ C364/01.
163. See Title VII, Art 51: '(1) The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. (2) The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties'. Additionally, Art 276 TFEU pointedly excludes the acts of the police and law enforcement agencies of Member States from the scope of review of the ECJ.
164. S. Besson, 'The European Union and Human Rights: Towards a Post-National Human Rights Institution?', (2006) 6 Human Rights Law Review 323. Miguel Maduro also recognises the indeterminacy of the Charter's purpose, pointing out that 'The intellectual and political project was to write a Charter of Fundamental Rights and not simply a document with the set of rights necessary for the protection of individuals vis à vis the powers of the EU': M. P. Maduro, 'The Double Constitutional Life of the Charter of Fundamental Rights of the European Union', in T. K. Hervey and J. Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights - A Legal Perspective (Hart Publishing, 2003), at 290.
165. See n 114 supra.
166. von Bogdandy, op cit n 24 supra.
167. Besson, op cit n 128 supra; P. Alston and J. H. H. Weiler, 'An 'Ever Closer Union' in Need of a Human Rights Policy: The European Union and Human Rights', in P. Alston (ed), The EU and Human Rights (Oxford University Press, 1999).
168. M. Cartabia, 'Europe and Rights: Taking Dialogue Seriously', (2009) 5 European Constitutional Law Review 5, at 20.
169. E.-U. Petersmann, 'Time for a United Nations "Global Compact" for Integrating Human Rights into the Law of Worldwide Organisations: Lessons from European Integration', (2001) 13 European Journal of International Law 621.
170. von Bodgandy, op cit n 24 supra. Other sceptical interventions include Maduro, op cit n 128 supra. As always, Joseph Weiler was one of the earliest to observe the constitutional difficulties associated with an expansion of the EU's human rights functions, although he has come to advocate just such an expansion. See Weiler, op cit n 7 supra, at 1136-1137. Compare with Alston and Weiler, op cit n 131 supra.
171. Weiler, op cit n 7 supra, at 1136-1137; Maduro, op cit n 128 supra, at 290.
172. Maduro's cognizance of this problem leads him to propose a halfway-house solution, namely that the ECJ should keep an eye out for systemic violations of fundamental rights that may impair a Member State's overall ability to fulfil their supranational obligations. See Opinion of the Advocate General, Case C-380/05, Centro Europa 7 [2008] ECR I-349, delivered 12 September 2007, para 20.
173. As Joseph Weiler expressed it in his classic essay, 'Fin-de-Siècle Europe', '[a] central plank of the project of European integration may be seen, then, as an attempt to control the excesses of the modern nation-state in Europe, especially, but not only, its propensity to violent conflict and the inability of the international system to constrain that propensity': J. H. H. Weiler, The Constitution of Europe (Cambridge University Press, 1999), at 250. Joerges and Neyer have framed this point in constitutional terms: 'the legitimacy of governance within constitutional states is flawed in so far as it remains inevitably one-sided and parochial or selfish. The taming of the nation-state through democratic constitutions has its limits. If and because democracies presuppose and represent collective identities, they have very few mechanisms ensuring that "foreign" identities and their interests be taken into account within their decision-making processes . . . Thus, the non-discrimination guarantee of Article 6 can be read as aiming at compensating the particularism of national basic rights . . . The constitutionalisation of such principles is in line with the ideals embodied in democratic constitutions and legal supranationalism can thus be understood as complementing common features of national constitutionalist traditions': C. Joerges and J. Neyer, 'From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalisation of Comitology', (1997) 3 European Law Journal 273, at 294.