Constitutional Traditions Common to the Member States in CJEU Jurisprudence: A Genesis

The relationship between the legal orders of the EU and the Member States is not only defined in the Treaties but also through a variety of finer, less imposing manners in which spheres of legal influence (rather than areas of competence strictu sensu) of the EU and the Member States interact. Focusing on fundamental rights jurisprudence and the “constitutional traditions common to the Member States” standard, this paper provides a historical narrative on the role constitutional traditions of Member States (CCTs) have played in the evolution of fundamental rights in EU law through the jurisprudence of the CJEU. It argues that before the proclamation of the Charter in December 2000, CCTs played a crucial part in bringing rights to the fore of Community law – it was through comparative considerations and references to CCTs that fundamental rights were invented by the Court.