Edited by Martin Trybus and Luca Rubini
Chapter 11: The Charter of Fundamental Rights in the Treaty on European Union
Martin Borowski 1. INTRODUCTION In an ideal world, one would be able to determine, in an ideal discourse, which interests of the individual ought to prevail over competing interests and goods. As Jürgen Habermas puts it, each of us would be as much author as addressee of the law.1 We do not, however, live in an ideal world. That the democratic process in the real world does not effectively protect the interests of the individual under all circumstances is an undeniable fact of modern history. As a reaction to this unfortunate state of affairs, most European states have recorded fundamental rights in their constitutions. Against this backdrop, the fact that the initial versions of the European treaties did not record fundamental rights, let alone include a ‘bill of rights’, appears to be a grave error. This error has now, at last, been corrected by the incorporation of the ‘Charter of Fundamental Rights of the European Union’ (CFR or Charter in what follows)2 into the Treaty on European Union (TEU),3 thereby rendering the Charter an integral part of the written primary law of the Union.4 This chapter is devoted to an outline 1 According to Jürgen Habermas the ‘idea of self-legislation by citizens … requires that those subject to law as its addressees can at the same time understand themselves as authors of law’, Habermas, Jürgen (1996), Between Facts and Norms, William Rehg (trans), Cambridge: Polity, 120. This leitmotif surfaces several times in Habermas’s treatise, see furthermore...
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