EU Fundamental Rights and National Democracies : Complementary or Contradictory?

Abstract: The question asked in this thesis is: what is the impact on the democratic legitimacy of the legal orders of the member states of the EU, where the meaning of EU fundamental rights is determined by the Court of Justice of the EU. It begins by developing a theoretical framework which reconstructs the deep structure of the law of the member states, in order to understand the ground of legitimacy for national law. It concludes that the legitimacy of national law is tied to the democratic processes through which those subject to the law can contest the authority of that law. Human rights are the institutional mechanisms which make that contestation possible. Human Rights therefore are conditions of democracy. Further, human rights are legal norms which themselves are the subject of disagreement, therefore they need to be elaborated through democratic processes. The thesis argues that the European Convention on Human Rights ‘fits’ this understanding of human rights - the Convention and the ECtHR are best conceived as subsidiary supervisory mechanisms by which all the states which are parties to the Convention support each other in the observance of rights which form part of the deep structure of their own domestic laws, and which are the conditions for the democratic nature of their national legal orders.The thesis then uses that theoretical framework as a normative standards in order to conducts an assessment of the demands that the EU makes of the member states in respect of fundamental rights. It focuses on three aspects of the EU fundamental rights practice - the point of EU fundamental rights, the foundations of EU fundamental rights, and the citizen of the EU, as a bearer of rights. It observes that there are important differences between national human rights and EU fundamental rights in all three aspects.The thesis concludes that the demands which EU fundamental rights place on member states have the potential to undermine the ability of the member states legal orders to claim democratic legitimacy.