The Judgment in Akerberg – A Paradigm of Circular Reasoning
Martin Angelov
University of Groningen - Faculty of Law
June 14, 2013
Abstract:
Concerns over the material scope of the Charter of Fundamental Rights of the European Union (CFR) have been consistently growing since its solemn proclamation in 2000. Fears of the increased jurisdictional scope of the Court of Justice of the European Union placed Article 51(1) CFR at the center of academic attention, particularly after the official incorporation of the Charter as a binding source of primary law in 2009 . Despite the wide attention paid to the issue in the legal and academic circles, clarifications from the Court on the meaning of “implementing Union law” have been rather limited until the Akerberg judgment of February 2013. There, the Court extended the scope of the arguably strict wording of Article 51(1) and held that “implementing Union law” shall be read, as the official Explanations to the Charter provide, “within the scope of Union law” . In an attempt to put this landmark ruling into perspective, this article, first, briefly discusses the academic debates prior to and after the proclamation of the Charter, and second, analyzes a preceding decision in N.S. where the Court provided an implicit guidance on the proper interpretation of the scope ratione materiae of the Charter.
In investigating the Court’s reasoning related to the scope of Article 51(1) CFR in Akerberg, this article finally examines whether the CJEU attempts to reclaim the jurisdictional contours it used to possess prior to the incorporation of the Charter, when the Court enjoyed a wide discretion evident in its practice of running a comparative survey of rights protected by, inter alia, the constitutional traditions of Member States. Notwithstanding the clarification that the Court provided as to the proper way of interpretation of Article 51(1) CFR, this article respectfully submits and presents that the judgment lacked proper logical links between apparently conflicting arguments and is essentially based on circular reasoning. This article’s strong criticism of the Court’s approach in Akerberg is based on three major points: (i) the overt use of strong words instead of arguments and logical links; (ii) the problematic use of the indistinct fundamental rights-based case law as a justification for deviating from the language of the Charter which was itself created to make those very same fundamental rights more visible; (iii) the evidently circular logic applied in justifying the link between widened scope of Article 51(1) CFR, the case law on fundamental rights and the explanations.
In investigating the Court’s reasoning related to the scope of Article 51(1) CFR in Akerberg, this article finally examines whether the CJEU attempts to reclaim the jurisdictional contours it used to possess prior to the incorporation of the Charter, when the Court enjoyed a wide discretion evident in its practice of running a comparative survey of rights protected by, inter alia, the constitutional traditions of Member States. Notwithstanding the clarification that the Court provided as to the proper way of interpretation of Article 51(1) CFR, this article respectfully submits and presents that the judgment lacked proper logical links between apparently conflicting arguments and is essentially based on circular reasoning. This article’s strong criticism of the Court’s approach in Akerberg is based on three major points: (i) the overt use of strong words instead of arguments and logical links; (ii) the problematic use of the indistinct fundamental rights-based case law as a justification for deviating from the language of the Charter which was itself created to make those very same fundamental rights more visible; (iii) the evidently circular logic applied in justifying the link between widened scope of Article 51(1) CFR, the case law on fundamental rights and the explanations.
Number of Pages in PDF File: 15
Keywords: Akerberg, Human rights,Charter of fundamental rights, European Union, Explanations, European law
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323857
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