Multiple Political Identities: Revisiting the ‘Maximum Standard’

Leonard F. M. Besselink 

University of Amsterdam - Amsterdam Centre for European Law and Governance
June 15, 2012

Citizenship and Solidarity in the European Union – From the Charter of Fundamental Rights to the Crisis, the State of the Art, Alessandra Silveira, ed., Peter Lang, 2013 
Abstract:      
This paper discusses the meaning of Art. 53 of the EU Charter of Fundamental Rights - which would seem to give priority to those fundamental rights which provide higher protection - from the perspective of fundamental rights as the expression of political and constitutional identity.

In doing so, it revisits the matter as it was discussed by the author in an earlier papers (written as far back as 1997) in light of the development of constitutional relations between EU and Member State constitutional orders.

Fundamental rights have the essential task to regulate power exercised by competent authorities. It sets boundaries to and conditions the particular way in which a polity wishes to undertake public action in accordance with democratically established priorities in the general interest. Whereas in the normal course of decision-making a collision of decisions can be resolved on the basis of principles of effectiveness and uniform effect which inform the principle of primacy, and of the ancient techniques of judicial interpretation (higher over lower, specific over general, later over earlier, public over private, etc.) the matter becomes different if the conflict concerns the fundamental conditions under which public authority is to be exercised. Principles which apply in the normal course of matters may no longer apply. Issues of identity enter into play. Multiple citizenship reaches its limits when political identities collide.

Looking at fundamental rights collisions as constitutional and political collisions, can be objected against for ‘preferring’ member state constitutions over the EU constitutional orders. Being that as it may, it reflects the present stage of European integration. Member State polities have not been overcome as sources of democratic political legitimacy. It is not a concern that we do not have enough fundamental rights at EU level or reductionist concepts of fundamental rights, which brings the author to his conclusions. Few rights are absolute. And most rights can be understood as themselves encapsulating a balancing of the place of individual rights within political communities against the public action in the general interest.

Mobilization of citizens beyond the state is possible under an instrument like the EU Charter as it does indeed form part of a European political identity, but the reality is that this identiey may find its limits when identities collide.

Number of Pages in PDF File: 11

Keywords: EU law, constitutional law, Art. 53 EU Charter, fundamental rights, Melloni

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2244383