Gerstenberg, O; (2020) Fundamental Rights and Democratic Sovereignty in the EU: The Role of the Charter of Fundamental Rights of the EU (CFREU) in Regulating the European Social Market Economy. Yearbook of European Law , 39 pp. 199-227. 10.1093/yel/yeaa008.

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Abstract

The EU, in its present configuration, has often been accused of a persistent and deep structural bias in favour of economic integration to the detriment of the democratic and social values of its Member States. In response to that accusation, can the Charter of Fundamental Rights of the EU (CFREU) come to the rescue and be mobilized, ultimately before a judicially-activist Court of Justice of the EU (CJEU), as a vehicle of social justice, in an effort to correct bias and to counter-balance the expansive economic liberties of the European single market? Exploring this question is a timely topic given a clearly discernable new constitutional turn in the jurisprudence of the CJEU’s Grand Chamber, especially now under the current presidency of Koen Lenaerts. The ‘Lenaerts-Court’, as this article will argue, has embarked on a new EU fundamental-rights jurisprudence, visibly aimed at strengthening the dignitarian-social dimension of EU integration and at adding flesh to the bones of the commitment to a European social market economy in Article 3(3) of the Treaty of European Union (TEU). Yet proposals in support of greater reliance on the substantive, but open-textured, provisions of the CFREU, in the pursuit of a ‘fair balance’ between the EU’s economic and dignitarian-social dimensions, immediately run into democratic-minded concerns about sovereignty passing from the Member States to the courts, and ultimately to the CJEU itself. The persistent worry is that democratic sovereignty over constitutionally sensitive—but morally and politically divisive—choices is being turned into a ‘sovereignty of law’—in ways that not only risk foreclosure of democratic debate over yet unsettled key societal matters but gives up democratic legitimation as a central element of modern constitutionalism (‘over-constitutionalisation’, Dieter Grimm). Thus, the CJEU is being simultaneously criticized for its alleged economic bias and for its efforts to overcome that bias. In an effort to address—and disarm—this democratic-minded concern, this article argues that judicial emphasis on the CFREU’s dignitarian-social values need not per se lead to the consequence of over-constitutionalisation. Rather, this article proposes to look at the Grand Chamber’s new fundamental-rights jurisprudence in the single-market context as creating a framework for plural and inclusive democratic deliberation on key societal choices and values. To that end, the article proposes a new reading of the Grand Chamber’s jurisprudence on the efficacy of fundamental rights in the economic sphere and, in particular, on the horizontal direct effect of CFREU rights.

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