Fundamentally Flawed: The CJEU’s Jurisprudence on Fundamental Rights and Fundamental Freedoms

Abstract

This Article uses major and recent CJEU labor law case as a springboard to examine and critique the CJEU’s doctrinal frameworks, conceptual constructs and decision-making practice. It analyzes the institutional, legal, political and other consequences of the CJEU’s Viking judgment as a means of critiquing the Court’s increasingly profligate yet systematic approach to fundamental rights and freedoms. The resulting description claims that the European legal order is increasingly characterized by omnipresent layers of powerful judges who explicitly “balance” fundamental rights and freedoms to resolve hotly contested social issues, even when those issues manifest themselves as private law disputes. The Article explains how the imposition of the CJEU’s “fundamentalist” framework impacts powerfully upon, and increasingly threatens, the domestic labor law regimes of Europe. The Article leverages this example to advance several general critiques of the Court’s increasingly dominant “fundamentalist” approach. The Court’s approach fails to treat fundamental rights as fundamental in any meaningful sense. It tramples unnecessarily on important institutional and jurisdictional distinctions, mistakenly redistributing competences not only between Member States and the European Union, but also within the Member States themselves. Finally, the Court’s approach increasingly subsumes all domestic institutions and individuals under a single, undifferentiated and ultimately simplistic normative schema that preempts many of the institutional structures and solutions that might - and in many cases, recently did - skillfully govern significant portions of the European legal field.