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Project
Specters of Competence Creep. EU Fundamental Rights Beyond Conferral and National Sovereignty? (FWOTM1315)
Fundamental rights have always held a peculiar place in the EU legal order. Absent in the early
Treaties of the 1950s, they were only implicitly protected by the Court of Justice (ECJ) as general
principles of law in the following decades. That changed in 2009, when the EU Charter of
Fundamental Rights was granted primary law status and became legally binding. During the Charter’s
drafting process, however, some Member States feared that the ECJ would use the Charter to break
into the realm of national competence. To prevent such ‘competence creep’, they inserted certain
‘containment clauses’, limiting the application of EU fundamental rights to national measures. This
research examines whether and how these clauses have limited the Charter’s scope of application.
Have the Member States successfully curbed competence creep? Or, conversely, have their red lines
been circumvented? To that end, this research aims to establish a test to assess competence creep
from a legal perspective, something which has been lacking in legal doctrine. It will do so with
reference to the legal principles of conferral of powers and national sovereignty. Subsequently, this
research seeks to offer a typology for national measures falling within the Charter’s scope. In
general, this research will uncover the constitutional effects of the EU’s fundamental rights regime,
while providing guidance to courts and law practitioners on the proper application of the Charter
Treaties of the 1950s, they were only implicitly protected by the Court of Justice (ECJ) as general
principles of law in the following decades. That changed in 2009, when the EU Charter of
Fundamental Rights was granted primary law status and became legally binding. During the Charter’s
drafting process, however, some Member States feared that the ECJ would use the Charter to break
into the realm of national competence. To prevent such ‘competence creep’, they inserted certain
‘containment clauses’, limiting the application of EU fundamental rights to national measures. This
research examines whether and how these clauses have limited the Charter’s scope of application.
Have the Member States successfully curbed competence creep? Or, conversely, have their red lines
been circumvented? To that end, this research aims to establish a test to assess competence creep
from a legal perspective, something which has been lacking in legal doctrine. It will do so with
reference to the legal principles of conferral of powers and national sovereignty. Subsequently, this
research seeks to offer a typology for national measures falling within the Charter’s scope. In
general, this research will uncover the constitutional effects of the EU’s fundamental rights regime,
while providing guidance to courts and law practitioners on the proper application of the Charter
Date:1 Nov 2025 → Today
Keywords:Division of competences, EU fundamental rights, National sovereignty
Disciplines:European law, Constitutional law