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THE CFREU AND THE ISSUE OF VALUES
The CFREU as a Source of Fundamental Rights
No reflection on the values of the European Union can be undertaken without a thorough analysis of the CFREU. As indicated by Kenner, 18 there is an obvious overlap between the CFREU and the Constitutional Treaty in identifying the values concerned. The overlap is twofold. First, Article 2 TEU stresses the value of ‘respect for human rights’, whereas the CFREU contains a catalogue of ‘fundamental rights’. The semantic difference between both categories is slightly puzzling. Furthermore, within the CFREU a relationship between fundamental rights and major concepts is established by way of rubricae under which fundamental rights are allocated.
Soviet Rights-Talk in the Post-Stalin Era
Прав тот, у кого больше прав .
Right is he who has more rights.
“The problem with Soviet legal history,” Martin Malia once quipped, “is that there’s not enough of it.” The remark was meant to register the pervasiveness, among elites and masses alike, of extra-legal ways of doings things, the apparent irrelevance of Soviet law to Soviet practices, and the particular Bolshevik contempt (sanctioned by Marx, Lenin, and others) for the “bourgeois” notion of the rule of law . Soviet law, in this widely shared view, functioned primarily as a façade for domestic and foreign spectators, behind which the real mechanisms of power operated. Implicit in this approach is an assumption of bad faith: those laws, or at least some laws, were not meant to be actionable and instead served a purely ideological function. It is a critique whose pedigree reaches back at least to Max Weber’s attack on the “pseudoconstitutionalism” of tsarist Russia following the revolution of 1905.
Values and Objectives
Article 2 TEU on the Union’s values is not only a political and symbolic statement. It has concrete legal effects.1
To date, relatively little consideration has been given to the added value of the Treaty establishing a Constitution for Europe or the Lisbon Treaty with regard to what is generally called the ‘social dimension’ of the European Union.2 It needs to be viewed in conjunction with the two earlier parts of the Constitution and, at present, with Articles 2, 3 and 6 of the TEU. These provisions deal with the values and objectives of the Union and define how the Union relates to fundamental rights. The question is whether this new way of framing largely unchanged competences puts the social dimension of the European Union in a different light. In this contribution, I want to explore whether the distinction, as well as the relation between values and objectives, might provoke a shift in the ‘balance’ between fundamental (social) rights and fundamental economic freedoms.
The General Framework or Primacy of the Social Dimension (Principles)
TOWARDS AN HUMAN-DEVELOPMENTAL INTERPRETATION OF THE EU’S ECONOMIC CONSTITUTION
Human-developmental Goals and the Lisbon Treaty
To see labour law in developmental terms would by no means be an entirely novel approach in the context of EU social policy. Significant elements of the existing corpus of EU labour law can be understood using this model. The substantial body of equal treatment law which originated in the equal pay provisions of the Treaty of Rome and was later broadened to include a much wider range of prohibited grounds of discrimination provides one example.51 It is in this context that the use of the capability approach to justify a social rights-based interpretation of discrimination law has already entered the discourse of the Court.52 There is considerable scope for the further operationalization of the capability approach at the level of juridical analysis.