ABSTRACT
This chapter examines how the foundations of the authority of European Union (EU) fundamental rights are presented in the caselaw of the Court of Justice of the EU (CJEU) and in EU legal doctrine. The CJEU has assumed responsibility for determining the interpretation of EU fundamental rights, and requires member states to abide by that interpretation whenever they act within the scope of EU law. The mythical or fictional nature of the claim that fundamental rights were already present in the original legal structure of the EEC is confirmed by an examination of the original EEC Treaty. In effect, the CJEU has claimed the power to interpret EU fundamental rights autonomously from how human rights are understood in the deep structure of the member states legal orders. F. Scharpf put forward a convincing argument that there is, in EU law, an in-built ‘double selectivity’ that shapes the flow of litigation that is presented to the CJEU.
