FUNDAMENTAL RIGHTS AND FREEDOMS AS BACKDROP FOR CONCEPTUALIZING CONSTITUTIONALITY OF THE EU

Abstract

Constitutionality of the EU has been conceptualized over the course of the past several
decades on the heels of the case law of the Court of Justice of the European Union. In the
course of the past decade and a half, that intellectual undertaking relied substantially on the
subject matter of fundamental rights and freedoms. That area thus started serving as the
irreplaceable backdrop against which the doctrine on autonomy of EU law, as the cornerstone
of constitutionality of the EU, has continued to develop itself. Most prominent milestones of
the described development were the CJEU judgments in the seminal Kadi case of 2008, the
opinion on accession of the EU to the ECHR, the judgments in cases Melloni and Fransson
of 2013, and in Tarrico I and Tarrico II cases in 2015 and 2017, respectively. Fundamental
rights and freedoms under EU law served in said cases as grounds for most varying purposes
– from invalidating Member States' obligations under EU law to affording primacy to
secondary EU law over Member States' constitutional provisions on basic rights and
freedoms of their citizens. Prioritization of the aim of affirming EU constitutionality by virtue
of CJEU case law by addressing the fundamental rights and freedoms has been made possible
by relatively constructive participation of the Member States’ national courts in the judicial
dialogue with the CJEU. That aim may be fulfilled only if it remains clear to all stakeholders
that the constitutionalization of the EU will ultimately lead to even stronger protection of
fundamental rights across the EU.