Constitutional Reasoning in the European Union and the Charter of Fundamental Rights: In Search of Public Justification

This article argues that the CJEU's use of the EU Charter of Fundamental Rights in situations falling within the scope of EU law needs to be supplemented by clearer constitutional reasoning about the role of fundamental rights in the public order of the European Union. The article demonstrates, through an analysis of the Charter's drafting context, that the primary function of this instrument is to highlight the centrality of a set of public goods in the EU, rather than merely to add to the number of individual rights to which EU law gives rise. It is then argued that, in order for this function to be fulfilled, an interpretation of fundamental rights is required that both acknowledges their constitutional value as distinct from other sources of rights protection in the Union and offers adequate reasons for the application of the Charter standard. The idea of public justification provides a suitable starting point, particularly in situations of conflict with national laws, because it would give rise to a much-needed judicial debate about what the best standard of fundamental rights protection would be for the Union. However, such an interpretation of the Charter is currently lacking from the case law which, instead, utilizes problematic forms of constitutional and quasi-constitutional discourse, through continued reliance on a conception of rights as tools of enforcement of EU law, which it had advanced in its earlier case law. While this type of reasoning was well suited to the idea of the EU as a social market economy, it structurally precludes the re-imagination of rights as collectively authored claims about good government under the Charter framework.