Minimum harmonisation after Alemo-Herron: the Janus face of the EU fundamental rights review

While Alemo-Herron v Parkwood Leisure Ltd (case C-426/11) has obtained much criticism in recent months, one fundamental constitutional question has passed-by unnoticed. In Alemo Herron the Court of Justice expanded the scope of EU fundamental rights review in the field of minimum harmonisation to include, in particular, member states action that goes beyond the EU minimum rules. This expansion of EU fundamental rights review is bound to unsettle the division of powers both horizontally (between the EU institutions) and vertically (between the EU and the member states), and at the same time, perhaps counter-intuitively, poses a significant danger for the level of social and environmental protection in Europe.