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Adjudicating Conflicts of Fundamental Rights in Europe♣
Abstract--This review article discusses the problem of institutional competition between European Courts with regards to fundamental rights claims. It argues that Torres Perez’s book –Conflicts of Rights in the EU- A theory of Supranational Adjudication—misleadingly characterizes the notion of conflicts of rights as a problem of institutional coordination. Moreover, the article argues that the practice of adjudication of Fundamental Rights in Europe cannot be legitimized as such as it is in need of deep rethinking and more transparent regulation. Disagreements about rights across different systems of protection cannot be dealt with by appealing to the ability of judges to engage in a dialogue in order to avoid confrontation. Adjudication on fundamental rights is not a moment of dialogue between courts but a moment of deliberation about issues of fundamental importance to right holders. To guarantee that those decisions are taken responsibly it is necessary to call for a reform of the practice towards a more coherent, well- ordered architecture of European fundamental rights.
Rights conflict in many different ways. The more European courts extend the scope and
content of rights the likelier we are to observe competing claims advanced by litigants. Moreover, the greater the number of conflicts read in by the courts, the greater their claim to legitimate authority in solving them. The book under review attempts to offer a normative justification of the authority of the courts in adjudicating issues of fundamental rights. The problem is that in Europe there are several overlapping schemes of protection of rights and more importantly several courts claiming authority over the same cases. The challenge is to show on one hand that each court has a claim to legitimate authority while on the other that there is no serious conflict between these courts while they exercise their powers.
In Europe there are 27 different national bills of rights, one supranational charter of rights for the EU and an international treaty for the protection of rights that covers 46 European states (the European Convention of Human Rights). These three levels of protection are partly independent and partly overlapping: sometime the same case is brought before the national court, the ECJ and the ECHR. Several cases could illustrate the competition between courts. For example, consider a very symbolic issue, the abortion saga in Grogan involving the ECHR, the ECJ and the Irish Constitutional Court.1
Given these preliminary remarks, the title of the book –Conflicts of Rights in the EU– is a little misleading. Torres Perez does not deal extensively with actual cases of conflicts of rights such as the clash between free speech and privacy. Instead she focuses on the authority of the
♣ A review of A Torres Perez, Conflicts of Rights in the EU- A Theory of Supranational Adjudication, (OUP,
Oxford 2009) ♦ Many thanks to Giuseppe Martinico for organizing a workshop at the Scuola Superiore Sant’Anna, Pisa on the
book. 1 The abortion saga in Ireland concerned the right to circulate information about abortion abroad. While the Irish
Constitution prohibits abortion, it was unclear whether it could also prohibit circulation of information or services. The Irish constitutional court asserted a blanket ban on information. The ECHR found a violation of the right to free expression. The advocate general at the ECJ suggested instead that although abortion was a service, Ireland had an interest in banning information. The ECJ avoided the confrontation with the ECHR by declaring itself incompetent given the lack of an economic link between British clinics and Irish students. A new chapter of the Irish abortion saga is being written as the ECHR decides on the claim of three women (ABC) who, after becoming pregnant in Ireland, decide to travel to the UK for abortion where they face considerable health issues. ABC claim that the Irish ban on abortion creates health issues for vulnerable women and should therefore be overruled.
courts (in particular of the ECJ) to adjudicate on issues of fundamental rights. I believe nonetheless that the actual issue of conflicts of rights cannot be set aside and should be dealt with before we can engage on the question of adjudication of fundamental rights. The link between the two question is not contingent, but a matter of necessity. It is crucial to know what conflicts of rights are before we can decide upon them.
This review will examine the issue of conflicts of rights from a conceptual viewpoint in section 1. It will then explore the question of adjudication of those conflicts in section 2. Section 3 will deal with the relationship between national and supranational courts when deciding issues of fundamental rights. Section 4 assesses the accuracy of legal pluralism to explain the way in which fundamental rights issues are adjudicated upon. Section 5 questions the use of comparative constitutional law as an aid to the construction of a common understanding of fundamental rights in Europe. Section 6 concludes.
1. Conflicts of Rights
The first problem with conflicts of rights is the very definition of rights.2 If we define them in terms of interests, conflicts will be ubiquitous. If we define them in terms of choices, conflicts will be very limited as the point of rights as choices is to exercise them so as to enhance one’s own sphere of autonomy while at the same time respecting everyone else’s. From a legal viewpoint, many limit themselves to a circular definition which does not advance very much our understanding: Fundamental rights are those rights that the legal system recognizes as such.3 Torres Perez adds that they generally are norms entrenched in constitutions and have superior hierarchical status over other norms produced by the state.4 Armed with such a definition of fundamental rights, it would seem normal to treat conflicts of rights as conflicts between norms, where one norm makes a behavior permissible, while another norm can be interpreted as denying permissibility. It is then a matter of deciding which norm prevails over another.
Torres-Perez, however, decides to take a different look at the problem: ‘the key question is not just about the selection of the applicable norm, but rather about the source of the ECJ’s legitimacy in adjudicating fundamental rights.’5 From this initial formulation it seems that there are two issues –one concerning applicable norms and the other concerning the power of the court to adjudicate—but it quickly becomes clear that Torres-Perez is much more interested in the institutional issue: does the ECJ have legitimate authority to rule on fundamental rights?6 The issue of conflicts of rights becomes secondary and this is regrettable as it is in itself worth being examined. The book is really about the power contest in relation to fundamental rights adjudication in the EU, and not about the problem of conflicting standards of rights.
When dealing with conflicting rights it is necessary to distinguish between a conceptual and an institutional question. The conceptual question is the following: what constitute a conflict of rights? The institutional question is: Who decides an issue of conflict? At the conceptual level, the conflict can be defined as the situation in which one norm makes it permissible to do x, while
2 For an extensive discussion of the conceptual and practical issues involved in conflicts of rights see L Zucca,
Constitutional Dilemmas- Conflicts of Fundamental Legal Rights in Europe and the USA, Oxford: OUP, 2007 3 Torres Perez, Conflicts of Rights in the EU- A Theory of Supranational Adjudication, (OUP, Oxford 2009) 4 Ibid 9. 5 Ibid 25. 6 Torres Perez holds at page 97: “In cases of potential conflict, one should no longer insist on selecting the
applicable norm […]. Rather, the main inquiry should focus on the legitimacy of the European Court of Justice’s claim of authority in adjudicating EU fundamental rights.”
another norm states that it is not the case that x is permissible. To illustrate the this conceptual point, we can take the abortion saga The conflict is between the right of the mother to decide about what to do with her own body and the right of life of the foetus. The former makes it permissible for the mother to decide to abort while the latter denies that permission on the basis that it would violate a fundamental interest of the foetus.7 The institutional aspect of the conflict is about who decides the case between the Irish Constitutional Court, the ECHR, and possibly the ECJ. How can a supranational or an international court claim the right to decide such a delicate issue that depends on a complex balancing of values at the local level?
Both issues are very interesting, but I do believe that it is necessary to answer the conceptual issue first (what are conflicts), before one can address the other successfully. The conceptual issue is very complex: Is the conflict between two bright line rules that do not leave room for compromise or is it between principles that require to be balanced in order to be accommodated? Of course, the legal problem is tightly linked with a moral quandary: Do fundamental rights encapsulate absolute values or are they about competing interests that vary according to circumstances? Torres Perez does not focus on those questions because she is more interested in the political implication of the institutional issues. In order to answer to that question she puts forward a normative thesis with the aim of grounding the legitimate authority of the ECJ to adjudicate on issues of fundamental rights. In her own words, she wants to offer a theory of supranational adjudication.
2. A theory of supranational adjudication
A theory of adjudication is hardly self-standing. In order to come up with a theory about whom should be the umpire, and how it should adjudicate, one should first set out what are the rules of the game. It may be that the master rule says the game is whatever the umpire decides it is. But this still require an external authority that formulates the master rule before the game begins. In the legal context, adjudication is the last stage of a complex process of decision- making, where norms are produced by democratically elected bodies, they are enforced by executive agents and adjudicated upon by competent judicial institutions.
The story of fundamental rights is more complicated of course, but it does not escape the need for answering the following question: where do these fundamental rights come from? As we saw before Torres Perez does not deal with this issue and this undermines the cogency of any normative justification of adjudication. At the very least, a theory of adjudication should be complemented by a theory of the grounds of fundamental rights, without which a theory of supranational adjudication would end up justifying the work of the court as both producer and adjudicator of fundamental rights.
Some authors claim that all we need is a theory of interpretation of fundamental rights.8 But this is not to say that the grounds of law and of fundamental rights do not matter. To the contrary, those theories of interpretation claims to be fully fledged legal theories about the grounds of law and fundamental rights since law and rights are regarded as matters of interpretation. Torres Perez’s theory of adjudication would have to make similar claims in order to be viable. That is to say, it would have to claim that law and fundamental rights are essentially a matter of adjudication. Needless to say, such a thesis would be a fundamental blow to the idea
7 Assuming that we can attribute an interest to the foetus 8 See for example George Letsas, A Theory of Interpretation of the ECHR, OUP 2008.
that all laws have a democratic source as it essentially claims that the game is whatever the adjudicator says it is. But it does not even attempt to do so and as a consequence it leaves unanswered the question of the grounds of fundamental rights at the supranational level. Is it a realist theory, a positivist or a natural law theory of the grounds of fundamental rights? This is not made explicit in the book even if it is necessary to know this in order to be able to evaluate the job of the relevant institution in recognizing (discovering?) fundamental rights and articulating them.
3. Legitimate Authority and Judicial Dialogue
Torres-Perez aims to offer a normative political justification for the authority of the ECJ to adjudicate on fundamental rights. The first problem that one faces is that there is no textual support for this endeavour. The ECJ jurisprudence on fundamental rights is purely case based as EU treaties did not include any bill of rights at the outset. The Charter of rights has only become binding on the 1st of December 2009, so it can at best be regarded as an ex post facto legal recognition of a practice of rights adjudication. So where does the authority of the ECJ come from? In conventional legal terms, it comes from a constitutional revolution operated by the court in the 60’s and 70’s. During this period the court created single-handedly a body of constitutional principles that bind all the other EU institutions. Torres-Perez, however, wants to suggest that the ECJ derives its authority over fundamental rights from the dialogic relationship with national constitutional courts (in particular German and Italian courts) which challenged the ECJ to come up with a fundamental rights jurisprudence. The idea is that the jurisprudential creation of rights is justified by the constant negotiations of national courts that would otherwise withdraw their support.
The second problem has to do with the supranational character of the ECJ. Fundamental rights, according to Torres Perez, ‘reveal the essential values of a given polity and receive the highest level of protection.’9 Because each polity strikes different balances of values, then it is normal to doubt whether the ECJ is well positioned to give a different interpretation to those national compromises. For Torres Perez the answer to this problem lies once again on the ability of the ECJ to engage in a dialogue with national courts in order to work out the best possible accommodation. I will come back shortly to the idea of dialogue, but first I need to make a few comments on the very possibility of developing a theory of supranational adjudication.
The suggestion here is that dialogue is a sound normative ground for legitimacy, understood in the book as the justification of legitimate authority to adjudicate on fundamental rights. Constitutional and Democratic theories already rely on the notion of dialogue as a source of legitimacy of representative institutions as Torres Perez points out.10 Legislators engage in the broadest possible dialogue in order to reach compromise decisions that are backed up by the largest portion of the population. Dialogue in this context makes sense: in a community, the point of representative institution is to engage in an exchange of reasons so as to reach the best possible result that can be shared by everyone. In other words, dialogue serves the function of giving reasons for backing up the production of norms for everyone.
But Torres Perez argues that we should not pay too much attention to applicable norms in the context of fundamental rights adjudication. In the quest of a theory of supranational adjudication, as we saw, she severs adjudication from norm production. The problem is that in the realm of
9 Ibid 9 10 Ibid 103
adjudication dialogue is much less easy to justify. Adjudication is about exercising the power to decide between competing courses of actions. It is the end product of decision making. Dialogue as defined above is the starting point for decision making. First we exchange reasons, then we come up with a compromise rule, then we try to apply the rule to the specific case. In this last stage interpretation may be required so that to make application more straightforward. Adjudication flows from all this and ends the long process of decision-making. If anything, it seems to me, adjudication means putting an end to dialogue at least as far as the case at hand is concerned. At first sight at least, the metaphor of dialogue appears to be at odds with the practice of adjudication.
Torres Perez, however, claims that there is a special type of dialogue that takes place between courts at different levels of governance in Europe: it may be called judicial dialogue to use a fancy expression. It is unclear what exactly judicial dialogue includes and what is just informal exchange between judges. To make it more concrete, consider this scenario: in EU law national courts often halts their proceedings to ask a preliminary question to the ECJ. In these cases Torres Perez acknowledges that: ‘the ECJ is in charge of interpreting the applicable EU norm, while state courts decide the case at hand.’11 Torres Perez is quick to add that there is more to this picture than meet the eye. The ECJ does not confine itself to the interpretation of the applicable norm, but goes well beyond. Indeed in matters of fundamental rights there is no applicable EU norm to interpret. The ECJ has to determine first what fundamental rights it intends to apply and then check for compatibility with the national constitution. The problem is that rather than a judicial dialogue in view of adjudication, this process is more akin to an exchange between an institution that produces norms and one that applies them.
Some scholars argue that judicial dialogue in the form of preliminary questions is too little to ground legitimacy. First, it does not happen as a conversation at large between all the courts of Europe, but is always tied to one specific case coming from a given country. Secondly, constitutional courts never use the mechanism of preliminary questions and therefore the majority of constitutional issues are not dealt with through this type of dialogue. I believe that Torres Perez is right in pointing out that both points are exaggerated. The ECJ has used this procedure to make ex-cathedra pronouncement on the grounds and scope of fundamental rights. Moreover, it does not take a constitutional court for embarking in a constitutional journey unless one uses a strict institutional criterion.
I would rather suggest that judicial dialogue is already too much in particular in matters of fundamental rights. Since the first fundamental rights cases in the late 60’s, the court has developed its own constitutional reservoir of fundamental rights without textual support. More recently, it has used those rights to strike balances with its own commitment in terms of economic freedoms.12 It went even further when it reviewed the constitutionality of the Security Council counter-terrorist measures.13 Judicial dialogue in matters of rights seems a pretext for extending the jurisdiction of the court, rather than a normative basis for its authority.
The single most important reason for Torres Perez to embrace dialogue as a normative justification for the authority of the ECJ in adjudicating rights is the fact of pluralism at the
11 Ibid 134 12 Case C-112/00 Schmidberger, Internationale Transporte und Planzüge 13 Joined Cases C-402/05 P and C-415/05 P Yassin Abdul Kadi and AlBarakaat International Foundation v
Council of the European Union
European level. Disagreements about rights are endemic and this we already knew. What is new in the European context is that there are plural legal systems at different level of governance that claim through their courts authority over rights based claims in the same cases. The question is whether any of these courts can claim ultimate authority over specific claims but this seems to be barred by the very fact that each system has the right to rule and no system has the right to prevail over others. In order to assess this claim we have to understand better the nature of the so-called pluralism.
4. Pluralism and rights
Torres Perez correctly points out that in Europe there are many competing sources of rights that are independent and yet overlapping in so far that they may be applied to the same set of facts in order to resolve the same case. This is a double problem as pointed out already. Firstly, there is an institutional problem: who is the ultimate authority on those cases? Secondly, there is a conceptual problem: what constitutes a conflict of rights? At a slightly more practical level, that question translates into the issue of which rights are applicable ---those embedded in national constitutions, the ECHR, or the Charter? The conceptual and institutional questions must be kept separate as their connection is source of confusion.
Legal pluralism puts forward a thesis about the varieties of sources constituting the social practice of law. The advocates of judicial dialogue put forward a thesis about the power of courts. The former aims to be a descriptive theory about the grounds of law and fundamental rights. The latter approach aims at offering a normative justification for the ECJ’s power in matters of rights. The latter is dependent on the former in so far that judicial dialogue becomes necessary if and when legal systems do not give any guidance as to the hierarchy of norms both internally and externally. One additional problem with fundamental rights is that they have rarely been organized hierarchically within their very family. If a right is fundamental then it does not have any superior by definition. So for obvious reasons this problem is amplified if we compare fundamental rights from different legal systems.
Legal Pluralism claims that the legal systems in the EU are not organized in a hierarchical fashion. Instead some claim that legal systems in the EU are organized in a way that each legal system has an equal claim to legitimate authority in particular in matters of rights. Instead of a vertical organization of norms, there is a horizontal parity. This thesis about the authority of norms clearly affects the institutional side of the problem: whichever court has to adjudicate on a conflict between formally equal rights will face considerable problems if pressed to elect one right over another. The escape route for this conundrum is the idea of judicial dialogue. This allows scholars to claim that supranational institutions do not have to re-create a judicially made hierarchy of norms backing rights. Instead they can shape the landscape of fundamental rights by engaging in a constructive dialogue with other courts.
Here, I would like to illustrate a problem about this thesis that has to do with a conflict between two paramount concerns of justice that pull in opposite directions. On the one hand, we have an obvious concern for substantive justice as a matter of individual rights; on the other we have a concern for procedural justice that has to do with the legitimate authority of the decision- maker. To simplify this picture, I will attribute the concern for substantive justice to individual claimants who are interested in winning the case while I will attribute the concern for procedural justice to legal scholars and judges.
The problem is that individual claimants want to see the end of their judicial odyssey through Europe and more importantly they want to see justice to be done. Individual claimants care
passionately about their conception of justice (woman wants the right to abortion- others wants the right of the foetus to be upheld). Who wins this difficult contest between values? If they go all the way to Strasbourg or Luxembourg, is it going to be enough to say that their just claim can only be adjudicated locally? Does it reinforce the legitimacy of the court to say: you have suffered an injustice, but there is nothing we can do as we are supranational institutions?
There is no easy way out of this conundrum, but it seems to me that the debate can be advanced by distinguishing two issues. One is the issue of value pluralism and the other is the issue of legal (or constitutional) pluralism. Value pluralism in morality suggests that there are incommensurable values (life/autonomy) and that we cannot decide which one prevails without sacrificing the other. In these cases, there is no balancing to be done, no ground for reasonable compromise. Either way someone will feel that something of value has been lost. This explains why disagreement is so bitter and never-ending at times.
Legal pluralism argues instead that there are several sources of authority to which we can appeal in order to reach a decision about values and that no source can be regarded as the ultimate authority. So disagreement not only happens within one system, but also happens between systems. This is a novel scenario, but the issue is whether it is a stable state of things or whether the architecture of EFR is in a flux leading to more conventional forms of adjudication of rights. Normatively, it is about knowing whether it is desirable to have an open system of authority. It is true that substantive justice does not always have to prevail over procedural justice, but one has to have very strong reasons to let substantive justice be trumped by other concerns of institutional nature.
Disagreement about rights has a lot to do with value pluralism at the moral level. One would think that law is there to mitigate the most detrimental effect of that disagreement by creating a coherent framework within which authority can be exercised in a clear and transparent way. Authority limits value pluralism but in turn it gives everyone a good measure of guidance as to permissible behaviors and predictability as to future litigations. Legal pluralism, however, would like to mirror the moral maze at the level of rights and their potential for clashing one against another. So instead of helping to obviate the problem of moral disagreement on matters of conflicting rights, legal pluralism aggravates the instances and the sites of possible disagreement. Not only that, it also claims that there is no single institutions predisposed to authoritatively adjudicate on those issues. Of course, this cannot possibly be the case, as any case calls for a decision, but it is now suggested that the decision is arrived at through a dialogic procedure that promotes collaboration. This last suggestion is in itself suspicious as it conflates the moment of deliberation with the moment of decision. While the former can be wholly dialogic and plural, the latter always takes the form of a monologic statement through the production of a norm.
Legal pluralism shifts the interest away from norms onto powers; courts are in a position to adjudicate and yet they constantly have to prove that they have the right to do so. This is likely to be a never ending slippery slope unless it can be showed that courts exercise their power on the basis of norms that have been laid down prior to their exercise of power. In other words, value pluralism at the moral level calls for a stable and clear framework of authority at the legal level in order to deliver compromises about rights in conflict. Normatively, legal pluralism is not desirable as it does not help to cope with value pluralism-- if anything it worsens its negative implications.
Legal pluralism is only correct descriptively in so far that it depicts an unstable and fluid arrangement between competing legal systems at the European level. This arrangement however is likely to move towards more efficient systems of distribution of powers and less prone to
normative conflicts. But Torres Perez still wants to suggest that on matters of rights we move towards convergence though judicial dialogue complemented by comparative constitutional law.
5. Comparative analysis
Torres Perez attempts to flesh out the sources and methods of the ECL adjudication on matters of rights by appealing to the idea of comparative constitutional law.14 To understand the role of comparative analysis, it is important to stress the double role of the ECJ: ‘to pay due deference to state constitutions while building a common understanding through the comparative method.’15 There is clear tension here between self-restraint (in terms of respect for constitutional diversity) and activism (in terms of building a common understanding).
Comparative law should therefore help to build a common understanding. This sounds odd though, as comparative law’s main aim is generally understood to be the understanding of diversity rather than the construction of a common understanding. Comparative law has various functions: the most prominent are the following: understanding, critique and reform, in this given order. The main point of comparative law is to understand another system by way of comparison with one’s own. This presupposes independence, albeit relative, of two given systems. If the system is the same, then we cannot say we are trying to understand diversity. The second function is critical: diversity can be something to aspire or reject: either way we will do self- criticism based on someone else’s practices or other-regarding criticism based on our own practices. Finally, comparative law can inform in a cautious and tentative way some technological improvement of either one’s own system or someone else’s. As we know though, legal transplants and reforms are always very tricky and it is far from established that if a legal solution works for a system it will work for another one.
To suggest that comparative law can help building a common understanding is also self- defeating: if fully successful (if common understanding were achieved) then comparative law would cease to have a point and a function. There would not be anything to compare anymore. It is puzzling that a discipline whose point is to understand diversity should promote instead convergence and uniformity.
In the EU, CCL is meant to complement the dialogic model. It seems to be the concrete part of the same process as T-P claims that it serves exactly the same values: participation and reasoned quality of decisions.16 It is held to be valuable as it takes into account ‘as many viewpoints as possible (how many?).’17 This process changes the nature of adjudication as we normally understand it and transforms it into ‘a form of collective deliberation.’18
The implementation leaves many questions open: if rights mirror value choices—then whose value choice is the court supposed to opt for when there is relentless disagreement about them? Is it the lowest denominator or is it the higher? There is no easy answer to that as any choice would upset the fundamental balance of values that each state has reached for itself. So it’s not about maximum or minimum, but it’s about having a coherent set of plural values the satisfaction of
14 Incidentally, we notice here a shift from adjudication to interpretation (141). Yet, there is no recommendation
as to any specific interpretation 15 Torres Perez (n 3) 142. 16 Ibid 152 17 Ibid 153 18 Ibid 153
which is a matter of striking continuous compromises while hoping that no single compromise jeopardize one of those values.
But then we are back to square one –the tension between diversity and common understanding—which leaves open a central problem: who strikes that compromise? Torres Perez suggests that the ECJ should live a margin of appreciation/deference to national courts, while striving to operate a synthesis about diverging interpretations of rights. At this point we are caught in catch 22 type of position. Either one recognizes that local compromises better reflect choices of values or one recognizes that it is better to map a consensus internationally which in turn will have a normative role to play in the interpretation of rights. It may be that in certain areas this is possible. But it is particularly in different areas of conflicts of rights where advances cannot be made in an incremental way. Take the Irish saga of abortion: either we respect the balance struck at the national level or we argue that the balance is tilted in the wrong way. If that is the case, then issues of substantive justice will have to prevail over issues of procedural justice. Comparative law has little or no role to play here. It can well track a consensus on the permissibility of abortion (the vast majority of EU countries allows it), but this does not give a reason to the court to overlook the decision taken in Ireland.
Torres Perez has written a timely book that engages with the emerging order of European
fundamental rights. European courts at the national and supranational levels struggle to assert their authority over claims of the utmost importance. The practice of EFR as we observe it is in a state of flux as it goes through momentous changes such as the reform of European Court of Human Rights prompted by the ratification of Protocol 14, the coming into force of the Charter of Fundamental Rights and the accession of the EU to the ECHR.
This review offered some thoughts on the two main arguments defended in the book. The first claim is that legal pluralism is an accurate and attractive depiction of the practice of adjudication of fundamental rights in Europe. The second claim is that given the fact of legal pluralism, European courts should engage in judicial dialogue in order to avoid major confrontations while adjudicating on the same cases involving rights. I am not convinced that legal pluralism accurately describes the way in which European fundamental rights work. Nor am I convinced by the suggestion that courts should engage in judicial dialogue in order to solve disagreement about rights. The virtue of the book, however, is to present a concise and sharp picture of the debates as they stand at the moment. The book provides a useful snapshot of the discursive practice of European fundamental rights at the institutional level. It serves as a starting point for more investigation and more debates on vexed institutional issues. A well-ordered and coherent practice of fundamental rights in Europe is for the moment a mirage and as a consequence any attempt to make sense of it is bound to mirror a multifaceted and complex picture that can be read in different ways. But this is not a reason to justify the status quo and legitimize the role of the courts at all price. Instead we should press for a more coherent, more transparent and better regulated practice of fundamental rights in Europe.