The Implementation of Fundamental Rights Through the Open Method of Coordination

In the European Union, where the institutions of the Union only may exercise the powers which are attributed to them by the Member States, the implementation of fundamental rights essentially takes place at state level. This essay analyses the limits of such a decentralized implementation of the fundamental rights identified in the Charter of Fundamental Rights, and it presents the open method of coordination as a way to move beyond these limits without implying further transferals of powers from the Member States to the Union. A first part of the essay recalls the current understanding of the relationship between the protection of fundamental rights within the Union and the question of competences (I.). Second, the essay proposes an alternative view of that relationship, based on the intuition that an undertaking by the Union to respect fundamental rights may imply, in specific cases, a positive obligation to act for the fulfillment of fundamental rights (II.). Third, it identifies the different functions of an open method of coordination in the implementation of the EU Charter of Fundamental Rights (III.). In fields where the competences are shared between the Member States and the Union, the open method of coordination may be seen as a searching mechanism to identify where an initiative of the Union may be required, because of the externalities, both positive and negative, which the actions of each Member State produces on all the other States, with which they share a common area of freedom, security and justice. It also could be an adequate 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 and implement under their jurisdiction. Lastly, the open method of coordination could be seen as an encouragement to mutual learning, as the solutions preferred in certain Member States may inspire the adoption of similar solutions in other Member States, especially where such replication avoids the risk that the implementation of fundamental rights at the level of each State recreate obstacles within the internal market or impede the cooperation between the Member States in the area of freedom, security and justice