A Tale of Two Europes: Fundamental Rights in the Constitutional Order of the European Union

With the entry into force of the Treaty of Lisbon at the end of 2009, fundamental rights have taken on a more prominent constitutional role in the European Union (EU), marking the culmination of decades of rights-based developments. Most notably, the Charter of Fundamental Rights, a charter which contains both civil and social rights side-by-side, was ostensibly granted legal value equal to that of the treaties. Yet historically EU integration has been premised on an economic constitution based around liberal economic principles. Furthermore, across Europe there is a variety of different approaches to rights issues. The question must be asked, then, what role do fundamental rights actually play in the EU today? This analysis is informed by a critical constructivist framework which emphasises that it is the way in which fundamental rights have been constructed that affects the role of rights and how this process of construction is influenced by the institutional framework and presence of dominant economic paradigms in the EU. It is argued that fundamental rights are primarily understood as civil rights of equal value to liberal economic principles and applicable only where the ECJ has jurisdiction. Social rights have been afforded a secondary status and the scope of rights has not extended to the political institutions of the EU when acting outside of the jurisdiction of the ECJ, namely in the context of the governance of the Eurozone. This has constrained the ability of rights developments to contribute towards a European constitutional order that adequately balances competing civil, social, and economic concerns. The argument is developed in two stages. First, the historical development of rights up until the watershed moment of the Charter of Fundamental Rights gaining legal value is analysed. Second, three case studies analysing the political application of civil, social, and equality rights are examined to draw out the implications of how rights are understood.