Legitimacy and the charter of fundamental rights post-lisbon

Abstract

Has the incorporation of the Charter of Fundamental Rights into the Lisbon Treaty strengthened our reasons for accepting the powers entrusted to the European Union?-The Charter of Fundamental Rights was adopted and later transformed into primary law in order to enhance the legitimacy of the EU. This echoed a critique of the gradually expanding powers of the EU, including the expanding reach of the right to free movement, more supranational decision-making procedures, and new Union powers in novel policy areas such as the area of justice and home affairs. One line of criticism held that the wide powers of the Union were not balanced with a sufficient level of democratic control and effective protection against abuse. The Lisbon Treaty sought to enhance legitimacy in three ways: Decision-making processes were to some extent democratised; the Member States agreed that the Union shall accede to the ECHR; and the Charter was transformed into primary law. There is a partly competing perspective that posits that the EU's legitimacy may depend more on its ability to facilitate effective problem-solving of acute public policy issues, including migration, terror, and economic crises. In this chapter, we analyse to what extent the transformation of the Charter into primary law has already succeeded, and may continue to succeed, in providing better reasons for accepting the powers entrusted to the EU. In this context, we provide, first, an analysis of certain questions regarding the interpretation and application of the Charter, questions which are key to assessing what changes to EU law the said transformation has led to and may lead to, as compared to older epochs of EU law, when fundamental rights were based on unwritten law. In the final assessment, we argue that the answer to the legitimacy question depends on the extent to which European courts will allow Member States flexibility regarding how fundamental rights are protected in different institutional environments. Effective problemsolving may require the ability to adapt different solutions to various locations and to different situations, based upon the weighing of diverse interests.