Periodic Reporting for period 4 - RESHUFFLE (RESHUFFLING OUR UNDERSTANDING OF FUNDAMENTAL RIGHTS LAW IN EUROPE)
Período documentado: 2024-08-01 hasta 2025-07-31
Say an employer dismisses a Muslim employee because she refuses to remove her headscarf. Should employers be allowed to do that? The focus of this project is not on the answer, but on who has the final say: who shapes fundamental rights at the European level?
In the past, the answer was simple: the Council of Europe (comprising 46 member states, 27 of which are member states of the European Union) has been the continent’s leading human rights organization since World War II. Yet, in the past two decades, a distinct organization has also explicitly been shaping fundamental rights at European level: the European Union. Rather than only following the Council of Europe’s lead, the European Union is now issuing its own sets of instruments addressing fundamental rights concerns, such as the directive that protects persons against discrimination on grounds of religion at the workplace. This example is only the tip of the iceberg, a considerable amount of instruments of European Union law nowadays shape the protection at fundamental right at European Union. One could refer to the directives on the rights of defendants in criminal proceedings for examples.
What are the pros and cons of this reshuffling of the system for the protection of fundamental rights in Europe? Is the European Union, initially conceived as a project for economic integration, fully equipped to take on a leading role in matters of fundamental rights protection? How does European Union fundamental rights law interact with the corresponding law of the Council of Europe? How do litigants and judges find their way through this maze of sources of law at European level? How can the European Union address challenges to the standards that it seeks to set, as illustrated by heated debates on asylum seekers’ rights or the rights of same sex partners in certain member states? These are the questions that this project aimed to answer.
For that purpose, RESHUFFLE has been structured around four complementary sub-projects. Firstly, we explored how the European Union takes upon its new role in matters of fundamental rights protection when compared to an international human rights organization, such as the Council of Europe itself. Secondly, we looked at how the European Union deals with contestation of fundamental rights protection at European level when compared to Federal States, such as the U.S.A. or Canada. These comparative lenses shed light on the strengths and weaknesses of the European Union's approach to fundamental rights protection, analyzed in light of its own distinctive institutional features. Thirdly, we investigated the extent to which the emerging bulk of European Union fundamental rights law influences the work of the European Court for Human Rights in its mandate to protect fundamental rights. Finally, we enquired into the way judges at national level make use - or fail to make use - of European Union fundamental rights law. These last two sub-projects enabled us to critically assess the interplay between the key three layers of authority in the field of fundamental rights in Europe: at national, at European Union level and at the Council of Europe.
In the past, the answer was simple: the Council of Europe (comprising 46 member states, 27 of which are member states of the European Union) has been the continent’s leading human rights organization since World War II. Yet, in the past two decades, a distinct organization has also explicitly been shaping fundamental rights at European level: the European Union. Rather than only following the Council of Europe’s lead, the European Union is now issuing its own sets of instruments addressing fundamental rights concerns, such as the directive that protects persons against discrimination on grounds of religion at the workplace. This example is only the tip of the iceberg, a considerable amount of instruments of European Union law nowadays shape the protection at fundamental right at European Union. One could refer to the directives on the rights of defendants in criminal proceedings for examples.
What are the pros and cons of this reshuffling of the system for the protection of fundamental rights in Europe? Is the European Union, initially conceived as a project for economic integration, fully equipped to take on a leading role in matters of fundamental rights protection? How does European Union fundamental rights law interact with the corresponding law of the Council of Europe? How do litigants and judges find their way through this maze of sources of law at European level? How can the European Union address challenges to the standards that it seeks to set, as illustrated by heated debates on asylum seekers’ rights or the rights of same sex partners in certain member states? These are the questions that this project aimed to answer.
For that purpose, RESHUFFLE has been structured around four complementary sub-projects. Firstly, we explored how the European Union takes upon its new role in matters of fundamental rights protection when compared to an international human rights organization, such as the Council of Europe itself. Secondly, we looked at how the European Union deals with contestation of fundamental rights protection at European level when compared to Federal States, such as the U.S.A. or Canada. These comparative lenses shed light on the strengths and weaknesses of the European Union's approach to fundamental rights protection, analyzed in light of its own distinctive institutional features. Thirdly, we investigated the extent to which the emerging bulk of European Union fundamental rights law influences the work of the European Court for Human Rights in its mandate to protect fundamental rights. Finally, we enquired into the way judges at national level make use - or fail to make use - of European Union fundamental rights law. These last two sub-projects enabled us to critically assess the interplay between the key three layers of authority in the field of fundamental rights in Europe: at national, at European Union level and at the Council of Europe.
Four researchers have been entrusted with the responsibility of carrying on each of the four sub-projects.
Two post-doctoral researchers were in charge of comparative studies. Dr Rizcallah prepared a monograph on the way the EU legal system articulates its approach to fundamental rights, in particular when compared to a traditional human rights organization (The European Union and Human Rights. Understanding a Singular Regional Player, Hart, 2026). Dr Scarcello wrote a monograph on the relationship between the growing role of fundamental rights' protection at EU level and contestation in Federal systems such as the USA and Canada (Contestatory Federalism and Rights: Resisting Incorporation in the US, Canada, and the EU, OUP, 2026).
Two doctoral researchers were responsible for the enquiries into how European Union Fundamental rights law interacts with the law of the Council of Europe as well as national law. Mr Davio completed a PhD on the influence of EU fundamental rights standards on the case law of the European Court for Human Rights of the Council of Europe (EU Fundamental Rights: A Source of Special Significance for the European Court of Human Rights, Larcier Intersentia, 2026). Ms van der Meulen completed a doctorate on how national judges handle the diversity of sources of fundamental rights protection now available to them, with a special focus on EU fundamental rights law (National Courts as EU Fundamental Rights Courts, Asser Press Springer, 2026).
The Principal Investigator has monitored the parallel progress of each of the four sub-projects and created a dynamic research environment. She disseminated knowledge of the project and its output, and stimulated further research in the field. Drawing lessons from the four sub-projects, she points at two key findings in her final publications.
First, she stresses that the activities of EU legislative institutions largely shape (i) the scope of EU fundamental rights law, (ii) the ways in which EU fundamental rights can be articulated with other sources of fundamental rights protection, and (iii) whether EU law can accommodate - or not - various forms of contestation. Muir therefore calls for greater attention being paid to the quality of the EU legislative process and enhancing awareness on the implications of EU legislation in matters of fundamental rights protection. See: 'The construction of EU fundamental rights law by the Court of Justice of the European Union and the EU legislator' (with F.X. Millet), Collected Courses of the Academy of European Law, OUP, 2026; 'Triangulating the composite system for the protection of European fundamental rights: in the shadow of Article 6 TEU', MJECL, 2025; 'Winds of Treaty change? Taking fundamental rights in the EU yet more seriously', MJECL, 2024. For broader dissemination see: 'Enhancing Fundamental Rights Protection: Proposals for Ex Ante Review of EU Legislation (PEARL)' (under Muir's direction, VerfBlog, 4/11/2024) and 'EU’s fundamental rights framework and policy' (Podcast, EU Law Live, 29/4/2025).
Second, Muir notes that the tools and procedures available before the Court of Justice of the European Union deserve renewed attention. Many were not developed with the specific intent to protect fundamental rights; yet today, they can often play such a role. She further calls for greater attention being paid to the potential complementarities between these tools and procedures, and those available before the European Court for Human Rights. See: Activating Human and Fundamental Rights Before the European Courts (with S. Garben & I. Govaere as eds, Hart, 2026); especially Chapters 1 & 21. These reflections have been extensively discussed with academics and practitioners in the context of a high level conference co-organised with the College of Europe (Bruges, 7-8/3/2024).
All peer-reviewed publications, and the five books mentioned above in particular, will have been made available to the public in Open Access by end of 2026.
Two post-doctoral researchers were in charge of comparative studies. Dr Rizcallah prepared a monograph on the way the EU legal system articulates its approach to fundamental rights, in particular when compared to a traditional human rights organization (The European Union and Human Rights. Understanding a Singular Regional Player, Hart, 2026). Dr Scarcello wrote a monograph on the relationship between the growing role of fundamental rights' protection at EU level and contestation in Federal systems such as the USA and Canada (Contestatory Federalism and Rights: Resisting Incorporation in the US, Canada, and the EU, OUP, 2026).
Two doctoral researchers were responsible for the enquiries into how European Union Fundamental rights law interacts with the law of the Council of Europe as well as national law. Mr Davio completed a PhD on the influence of EU fundamental rights standards on the case law of the European Court for Human Rights of the Council of Europe (EU Fundamental Rights: A Source of Special Significance for the European Court of Human Rights, Larcier Intersentia, 2026). Ms van der Meulen completed a doctorate on how national judges handle the diversity of sources of fundamental rights protection now available to them, with a special focus on EU fundamental rights law (National Courts as EU Fundamental Rights Courts, Asser Press Springer, 2026).
The Principal Investigator has monitored the parallel progress of each of the four sub-projects and created a dynamic research environment. She disseminated knowledge of the project and its output, and stimulated further research in the field. Drawing lessons from the four sub-projects, she points at two key findings in her final publications.
First, she stresses that the activities of EU legislative institutions largely shape (i) the scope of EU fundamental rights law, (ii) the ways in which EU fundamental rights can be articulated with other sources of fundamental rights protection, and (iii) whether EU law can accommodate - or not - various forms of contestation. Muir therefore calls for greater attention being paid to the quality of the EU legislative process and enhancing awareness on the implications of EU legislation in matters of fundamental rights protection. See: 'The construction of EU fundamental rights law by the Court of Justice of the European Union and the EU legislator' (with F.X. Millet), Collected Courses of the Academy of European Law, OUP, 2026; 'Triangulating the composite system for the protection of European fundamental rights: in the shadow of Article 6 TEU', MJECL, 2025; 'Winds of Treaty change? Taking fundamental rights in the EU yet more seriously', MJECL, 2024. For broader dissemination see: 'Enhancing Fundamental Rights Protection: Proposals for Ex Ante Review of EU Legislation (PEARL)' (under Muir's direction, VerfBlog, 4/11/2024) and 'EU’s fundamental rights framework and policy' (Podcast, EU Law Live, 29/4/2025).
Second, Muir notes that the tools and procedures available before the Court of Justice of the European Union deserve renewed attention. Many were not developed with the specific intent to protect fundamental rights; yet today, they can often play such a role. She further calls for greater attention being paid to the potential complementarities between these tools and procedures, and those available before the European Court for Human Rights. See: Activating Human and Fundamental Rights Before the European Courts (with S. Garben & I. Govaere as eds, Hart, 2026); especially Chapters 1 & 21. These reflections have been extensively discussed with academics and practitioners in the context of a high level conference co-organised with the College of Europe (Bruges, 7-8/3/2024).
All peer-reviewed publications, and the five books mentioned above in particular, will have been made available to the public in Open Access by end of 2026.
See 'Work performed from the beginning of the project to the end of the period covered by the report and main results achieved so far' (above).