Erosion of Constitutional Rights in EU Law: Mapping Blind Spots in the EU Law Discourse

Anneli Albi

In a recent article, the applicant documented comparative case law in a number of areas - from the single market to the Data Retention Directive, European Arrest Warrant, ESM Treaty and constitutional review - where constitutional rights and rule of law safeguards have been levelled downwards in the context of implementation of EU law in different Member States. Beyond that paper, however, the decline of constitutional rights protection has not hitherto received wider scholarly attention. The discourse tends to almost exclusively focus on the ECHR and the EU Charter of Fundamental Rights.The proposed paper aims to explore why the issue of a decline of constitutional rights has by and large been overlooked by the discourse. It will do so by revisiting research in the field of epistemology of EU law, building in particular on the following four themes. The first concerns research (eg by Vauchez, Kjaer) that explores the move away from the study of comparative constitutional law to a focus on the sui generis, autonomous nature of EU law. The second is the dominance of English as the leading language in European human rights and EU law, which is increasing the importance of case law and changing the style of legal analysis (Somek). Indeed, a recent BBC article raised the question 'Are we "losing knowledge" because of the growing dominance of English as the language of higher education and research?' (13 January 2016). The third line of analysis builds on Kukovec's 'centre and periphery' research, which has shown how the way issues are framed for discussion in EU law makes it difficult to notice and address distributional consequences for the periphery. The final theme concerns the literature's tendency to reduce the protection of national constitutions to questions of sovereignty and Euroscepticism, while neglecting some of the classic constitutional values.





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