The Implementation of the EU Charter of Fundamental Rights through the OpenMethod of Coordination

In the European Union, where the institutions of the Union only may exercisethe powers which are attributed to them by the Member States, theimplementation of fundamental rights essentially takes place at state level.This essay analyses the limits of such a decentralized implementation of thefundamental rights identified in the Charter of Fundamental Rights as valueswhich the Member States have in common, and it presents the open method ofcoordination as a way to move beyond these limits without implying furthertransferrals of powers from the Member States to the Union. A first part of theessay recalls the current understanding of the relationship between theprotection of fundamental rights within the Union and the question ofcompetences (I.). Second, the essay proposes an alternative view of thatrelationship, based on the intuition that an undertaking by the Union torespect fundamental rights may imply, in specific cases, a positive obligationto act for the fulfilment of fundamental rights (II.). Third, it identifies thedifferent functions of an open method of coordination in the implementation ofthe EU Charter of Fundamental Rights (III.). In fields where the competencesare shared between the Member States and the Union, the open method ofcoordination may be seen as a searching mechanism to identify where aninitiative of the Union may be required, because of the externalities, bothpositive and negative, which the actions of each Member State produces on allthe other States, with which they share a common area of freedom, security andjustice an area in which, in particular, the free movement of persons and thefree provision of services are guaranteed and in which competition is to befree and undistorted. Moreover, the open method of coordination could be anadequate means of better reconciling the requirements of market (economic)freedoms constitutive of the internal market with fundamental rights,especially social rights, which the Member States are bound to protect andimplement under their jurisdiction. Lastly, the open method of coordinationcould be seen as an encouragement to mutual learning, as the solutionspreferred in certain Member States may inspire the adoption of similarsolutions in other Member States, especially where such replication avoids therisk that the implementation of fundamental rights at the level of each Staterecreate obstacles within the internal market or impede the cooperation betweenthe Member States in the area of freedom, security and justice.