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Cambridge Yearbook of European Legal Studies, page 1 of 37
doi: 10. 1017/cel.2015.8
© Centre for European Legal Studies, Faculty of Law, University of Cambridge
Composing Europe's Fundamental Rights
Area: A Case for Discursive Pluralism
Louise HALLESKOV STORGAARD*
Department of Law, University of Aarhus
Abstract
This article offers a perspective on how the objective of a strong and coherent European
protection standard pursued by the fundamental rights amendments of the Lisbon Treaty
can be achieved, as it proposes a discursive pluralistic framework to understand and
guide the relationship between the EU Court of Justice and the European Court of
Human Rights. It is argued that this framework - which is suggested as an alternative to
the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13
and its Charter-based case law - has a firm doctrinal, case law and normative basis. The
article ends by addressing three of the most pertinent challenges to European
fundamental rights protection through the prism of the proposed framework.
Keywords: European Union, European Convention on Human Rights, Charter of Fundamental
Rights, Opinion 2/13, pluralism, fundamental rights
I. EUROPEAN FUNDAMENTAL RIGHTS PROTECTION AT A
CROSSROADS
The entry into force of the EU Charter of Fundamental Rights (the EUCFR/the
Charter) and the Treaty obligation for the EU to accede to the European Convention
on Human Rights (the ECHR/the Convention) are human rights milestones; they
have been close to four decades in the making,' and have been launched with the
intention of buttressing the Union's human rights credibility as well as strengthening
the overall protection standard in Europe and the coherence of the Union's fundamental
rights system and that of the ECHR system (the human rights regime established
by the ECHR under international law).2 That this in fact will be the outcome is,
* I am grateful for the input received from Professor Xavier Groussot and for the comments of the
editors and reviewer of CYELS.
1 The ideas of an EU Charter and the EU acceding to the ECHR have featured on the EU agenda
since the late 1970s; in 1977 the joint declaration by the European Parliament, the Council and the
Commission on fundamental rights ([1977] OJ C103/1) was adopted and in 1979 an unsuccessful
proposal for the EU to accede to the ECHR was tabled by the Commission (COM (79) 2010 final).
2 Final report of Working Group 11 'Incorporation of the Charter/Accession to the ECHR', which was
established by European Convention on the Future of Europe, CONV 354/02, 22 October 2002, pp 4-7
and 11 13 in particular; Recital 4 of the Charter; 'Explanations Relating to the Charter of Fundamental
Rights' [2007] OJ C303/17, concerning Article 52(3) EUCFR; Recital 1 of the Draft Explanatory
Report to the Draft Agreement on the accession of the European Union to the Convention for the](ViewImageLocal?handle=hein.intyb/camyel0017&div=1&collection=&method=preview&ext=.png&size=3)