Abstract
This article seeks to explore whether the EU system of fundamental rights protection allows
room for constitutional pluralism. By looking at recent developments in the case law of the
Court of Justice of the European Union (the Court of Justice), it is submitted that the Court
has answered that question in the affirmative, thereby respecting the diversity of the cultures
and traditions of the peoples of Europe as well as their national identities. The application
of the Charter does not rule out a cumulative application of fundamental rights. That being
said, pluralism is not absolute, but must be weighed against the indivisible and universal
values on which the European Union is founded.
Logically, the question that arises is how we order pluralism. In this regard, I shall argue that
it is not for the Court of Justice to decide when an EU uniform standard of fundamental
rights protection is to replace (or coexist with) national standards. That decision is for the
EU political institutions to adopt, since they enjoy the necessary democratic legitimacy to
determine the circumstances under which the exercise of a fundamental right is to be limited
for reasons of public interest.
However, this deference to the EU political branches does not mean that EU legislative
decisions are immune from judicial review. On the contrary, cases such as Schwarz and
Digital Rights demonstrate that the Court of Justice is firmly committed to examining whether
those legislative choices comply with primary EU law, and notably with the Charter.
In this regard, when interpreting the provisions of the Charter, the Court of Justice – in dialogue
with national courts and, in particular, constitutional courts – operates as the guarantor
of the rule of law within the EU, of which fundamental rights are part and parcel. It is thus
for those courts to make sure that each and every EU citizen enjoys a sphere of individual
liberty which must, as defined by the Charter, remain free from public interferences.
Go to article