The relationship between the Judiciary and the Legislature of the European Union in the context of fundamental rights review of EU legislative acts De relatie tussen de rechterlijke macht en de wetgevende macht van de Europese Unie met betrekking tot de rechterlijke toetsing van EU wetgevingshandelingen in het licht van fundamentele rechten

This thesis examines the evolution in the legal reasoning of the European Court of Justice (ECJ) when it reviews the validity of Union legislative acts with regard to fundamental rights. The relevance of this research lies in the potential creation of confusion in the case-law of the European Union with regard to standard of review as well as the empowerment and the gain of political influence of the ECJ on the decision-making of the legislator. The purpose of this research is thus to question the legitimacy of the Court's judicial reasoning in constitutional review and to envisage possible justifications for such a judicial intervention in the democratic process of the Union.

To that end, the Part I will examine the legal framework within which this control takes place. From a theoretical point of view, it will be necessary to distinguish the nature of the European Union from that of all other forms of power organization existing, especially the State, in order to understand the specificities of validity control. This step will therefore allow to adapt the theoretical reflections concerning the legitimacy of judicial review, division of powers – in particular between the legislature and the judiciary – and the role and special meaning of fundamental rights in the context of the constitutional reality of the EU. From a practical point of view, it will be necessary to understand the judicial developments in fundamental rights review in the light of the redefinition of the legal categorisation between legislative acts and non-legislative acts by the Treaty of Lisbon (Article 289(3) TFEU) and the changes brought by the Charter of Fundamental Rights of the European Union. This part will therefore aim at inscribing the fundamental rights review within the case-law of the ECJ. This part could raise a certain awareness on the need to limit the over-constitutionalization of Union law, rendering legal developments on integration too rigid or almost impossible, thus stalling the development of new objectives in the Union.

In Part II, we will elaborate on the execution of this review which must be approached in the light of the conclusions set out in Part I. We will insist here on the evolution of the Court’s reasoning, in particular the intensification of its review in situations where an infringement to fundamental rights is too serious. To that end, it will be necessary to visualize the developments of the case-law in this field from the creation of general principles of Union law to the coming into force of the CFR. An attempt will be made to rationalize the constituent elements of judicial review of fundamental rights in order to highlight and overcome the lack of clarity in the case-law. Comparative analysis will also be undertaken at various levels: 1) between the control exercised over legislative acts and the control exercised over other Union acts and national legislation in relation to fundamental rights; 2) between the control exercised on the basis of the Charter and that exercised on the basis of the general principles of European Union law. These comparisons will provide an essential normative basis for a critical analysis of the legal reasoning of the Court. It is the implementation of the principle of proportionality which will form the central research object of this part, since it is, by its malleability, revealing trends in jurisprudence. The doctrine of margin of appreciation will also be central insofar as it affects the intensity of judicial review and illustrates in legal terms the establishment of power relations between the Union institutions.

In Part III, I would like to consider the consequences of these evolutions of the case-law on the process of defining fundamental rights at the legislative level. Attention will therefore be given to the impact of the case-law of the Court on the balance of powers between the ECJ and the legislator of the Union. To that purpose, a quantitative study can be envisaged to analyse, on the one hand, the extent to which the jurisprudence affecting legislative interpretation or even annulling an entire legislative act is taken into consideration by the Union legislature and, on the other hand, to what extent this power may exceed the jurisprudence of the Court. The concluding critics of this thesis would be that the vertical vision of fundamental rights, viewed as immutable norms limiting the powers of institutions, could and should evolve towards a more horizontal (or rather transversal) view of these rights in which limitations, redefinition and realization of fundamental rights should be the result of a deliberative democratic process within the Union. This view would be based on the need to politicise the Union decision-making process and on the idea that a certain evolution of rights is necessary in order to respond effectively to contemporary issues. Monitoring the validity of Union legislative acts with regard to fundamental rights would therefore be seen as a vehicle for politicizing fundamental rights in the Union.