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Human Rights in the EU

Central Issues
1) The status of Human rights within the EU has changed
dramatically since the Communities were founded in the
1950s. While the draft European Political Community Treaty
in 1953 would have made the European Convention on
Human Rights part of the law of the new Communities, this
Treaty was never adopted due to France’s rejection of the
closely linked Defence Community Treaty in 1954. More than
fifty years later, however, human rights have returned to
occupy a central position within the EU legal order, ranking
along with the Treaty provisions as primary norms of EU law.
2) At least three formal sources for EU human rights law are
today listed in Article 6 TEU. The first is the EU Charter of
Fundamental Rights, which was proclaimed in 200, and
upgraded to the same binding legal status as the Treaties by
the Lisbon Treaty in 2009. The second is the ECHR, which
has long been treated by the ECJ as a ‘special source of
inspiration’ for EU human rights. The third is the ‘general
principles of EU law’, a body of legal principles, including
human rights, which have been articulated and developed by
the national treaties signed by the Member States. The ECJ
has, however, recently made it clear that it views the Charter
as the ‘principle basis’ on which the EU Courts will ensure
that human rights are observed.
3) The EU has gradually integrated human rights concerns into
a range of its policies. The main internally-oriented policy of
this kind is the body of anti-discrimination law, which has
expanded significantly in recent years and also the
developing field of data protection and privacy. In EU
external relations, human rights have featured more
prominently. The EU actively promotes its ‘human rights and
democratization’ policy in many countries around the world
and uses human rights clauses in its international trade and
development policies.
4) Apart from the adoption of the Charter of Rights, there have
been several other important institutional initiatives in the
human rights field, including the establishment in 1999 of a
sanction mechanism for serious and persistent breaches of
human rights human rights in Article 7 TEU, and the
establishment of an EU Fundamental Rights Agency in 2007.

5) Critics, however, have questioned whether the EU attention
to human rights protection amounts to more than high
rhetoric, or self serving instrumentalism. It has been
suggested that the EU needs to rethink its human rights
policies if it is not to continue losing influence in a changing
international political environment.
Introduction
It was not until the 1970s that human rights concerns gained
formal recognition by the European Community including by the
ECJ and the Member States. The most significant developments
came in the 1990s with the adoption of the Maastricht and
Amsterdam Treaties and then drafting of the Charter of Rights. Yet
the legacy of the EEC’s roots in the common market project
remains significant since, despite its constantly changing and
expanding nature, the EU’s dominant focus remains economic, and
then debate over the appropriate scope of its human rights role
remains contested even after the important changes introduced by
the Lisbon Treaty.
The constitutional framework of the EU body boasts an impressive
array of human rights provisions. The Treaties declare that the EU
is founded on respect for human rights, they give binding effect to
the Charter of Fundamental Rights and Freedoms, and envisage EU
accession to the ECHR. The Treaties require all candidate Member
States to adhere to these values and they include a sanction
mechanism for existing Member States, which seriously and
persistently violate such rights. The centerpiece of the EU’s human
rights framework is now Article 6 TEU, which provides:
1. ‘The Union recognizes the rights, freedoms and principles set
out in the Charter of Fundamental Rights of the European
Union of 7 December 2000, as adapted at Strasbourg, on 12
December 2007, which shall have the same legal value as the
Treaties.’

The ECJ discovers the General Principles of EU Law
In a series of cases which came before the ECJ in the 1950s and
1960s, the Court initially resisted attempts by litigants to invoke
rights and principles recognized by domestic law (such as
legitimate expectations, proportionality, and natural justice) and
was unwilling to treat them as part of the Community’s legal order,
even where they were fundamental principles common to the legal

the Court announced a change in attitude. stating that it reserved the right to hold fundamental . however. then. the German Federal Constitutional Court accepted the supremacy of EU law because. In 1969. This was. The German Court in its judgment referred to the fact that the European Community lacked ‘a codified catalogue of fundamental rights’. since the restriction on the freedom to trade was not disproportionate to the general interest advanced by the deposit system. When the case returned to the German court. The ECJ concluded that there had been no infringement of the rights claimed.’ In Stauder the ECJ thus affirmed the recognition of the general principles of EU law. Stauder Case The applicant alleged that the fundamental right to human dignity was violated by the domestic implementation of an EU provision concerning a subsidized butter scheme for welfare recipients. Having construed the EU measure in a manner consistent with protection of human dignity. The situation was finally resolved in Solange II. including protection for fundamental human rights. The German Federal Constitutional Court would therefore not accept the supremacy of Community law where there was a conflict between a fundamental right protected by the German constitution and EC law. the ECJ declared that it ‘contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community Law and protected by the Court. the national court concluded that the principle of proportionality enshrined in German constitutional law had indeed been violated by the EU deposit system. This approach was elaborated upon in the famous Internationale Handesgesellschaft case. In Frontini v Ministero dell Finanze. however. In this case. in the Stauder case.systems of most or all Member States. by this date. a serious challenge to the authority of the Court of Justice and to the Community legal order. The German Court said it would accept the supremacy of EU law ‘as long as’ (‘solange’) rights were adequately protected by the Community legal order. in which the German Constitutional Court was asked to set aside an EU measure concerning forfeiture of an export-license deposit which was alleged to conflict with German constitutional rights and principles such as economic liberty and proportionality. the Court of Justice had incorporated adequate fundamental rights protection into the Community legal order. the Italian Constitutional Court accepted the supremacy of Community law only conditionally.

This idea of the ECHR as a ‘floor’ rather than a ceiling for EU human rights law has been maintained by Article 52(3) of the EU Charter of Fundamental Rights which specifies that the meaning and scope of those Charter rights. This was evident in the Hauer case. while simultaneously stressing that the source of these principles is not entirely independent of the legal cultures and traditions of the Member States: Nold v Commission It may be noteworthy that Article 6(3) TEU today. to cite any specific constitutional provisions. the fear of compromising the doctrinal supremacy of EU law by appearing to defer to a particular national constitutional provision has animated the ECJ’s case law ever since Costa v ENEL. which correspond to rights guaranteed by the ECHR is to be the same as those laid down by ECHR. where an EU regulation restricting the applicant’s right to plant vines on her . the ECJ continued to emphasize the autonomy of EU general principles of law. notably.’ National Constitutional Traditions It has not been a general practice of the ECJ. The ECHR as a source of special significance for EU Law Prior to the enactment of the EU Charter of Rights. in that it is more difficult for the ECJ to assert a ‘common’ approach where a particular right does not appear in every national constitution. but that ‘this provision shall not prevent Union law providing more extensive protection. which codifies the ECJ’s case law on the general principles of law. The reasons are to some extent obvious. the main international instrument for the protection of human rights drawn upon by the ECJ as a ‘special source of inspiration’ for the general principles of EU law was the European Convention on Human Rights. expressly refers to ECHR. mentions only the ECHR and national constitutional traditions as sources of inspiration. whereas an instrument like the ECHR is intended to reflect the collectively shared commitments of all member states. or that its provisions were formally incorporated into EU law. and the ECJ routinely cites the significance of ECHR as a key source of inspiration for the general principles of EU law. and omits express reference to other international human rights instruments. Although. the ECJ never ruled that the ECHR was formally binding upon the EU.rights protected by the Italian constitution to be supreme over Community law. Nevertheless. The ECJ develops the general principles of EU Law After the Handelsgesellschaft ruling. Article 6 TEU. Further.

In AM & S. the ECJ refused to extend the EU general principle of legal profession privilege beyond the context of independent lawyers. The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would be damaging the substantive unity and efficacy of Community law. for the ECJ to treat such a right as part of the general principles of EU law. The Court even emphasized that fundamental rights form an integral part of the general principles of the law and in safeguarding those rights draws inspiration from constitutional traditions common to the Member States. Human Rights based Challenges to EU Action . In Omega Spielhallen. or whether recognition as a fundamental right by even one Member State should suffice (the so-called ‘maximum standard’ approach). The ECJ stated that the question of a possible infringement of fundamental rights by a measure of Community institutions can only be judged in the light of Community Law itself. the CFI was dismissive of the ‘maximum standard’ approach. the ECJ abstracted from the strong and particular conception of human dignity within German law to a more general concept of human dignity. A further question arises as to when these ‘common constitutional traditions’ are cited as a source for EU human rights principles is whether the Court should confer EU recognition only on those rights shared by all (or most) states. since the Court took the view that there was no ‘developing trend’ or ‘uniform tendency’ in this direction across the Member States such as to justify widening the EU’s general principles. concerning the right to remain silent in the context of competition proceedings.land prompted the referring German Federal Administrative Court to declare that an EU regulation which was incompatible with German fundamental constitutional rights would not be applied. Note: This is in line with Internationale Handelsgesellschaft case. In Werke case. Almost three decades later in AKZO. which could be said to be shared by all Member States. not all of the Member States were happy with the Court’s derivation of a principle of lawyer-client confidentiality from a comparative survey of the laws of the Member States. despite the fact that a number of Member States have since extended the privilege to in-house lawyers.

The Court has begun to take these claims seriously and to cite and engage with the case law of the European Court of Human Rights in evaluating the compatibility of EU laws with human rights provisions. over specific Community measures. This approach has characterized many of the cases concerning property and economic rights since. the ECJ emphasized that in the dispute at hand the rights to property and to a trade or profession were far from absolute and that limitations were justified by the EU’s overall objectives. In Kadi I and Kadi II. the ECJ and the CFI have struck down EU laws for violating right to property and fair hearing. A typical case is Booker Aquaculture. however. there has been limited success in challenging EU legislation. In Schecke. In many other contexts. too. Overall there has been a greater degree of success in challenging individual administrative acts of the Commission or other EU actors. in the event of a conflict. EU judicial processes have also occasionally been challenged for their compatibility with fundamental procedural rights. the ECJ ruled that the publication rules for an EU agricultural subsidies regime violated EU data privacy rights and the right of privacy.The ECJ in recent years has heard a growing number of challenges to EU legislation in which violation of human rights has been pleaded as a ground. the Court has declared that ‘general principles of law’ would take precedence. Note: Please refer to the Article [The Kadi Case – Constitutional Core Values and International Law – Finding the Balance?] Challenges to EU Administrative Action . Nonetheless. while the Court has remained broadly differential in its review of EU legislation outside the antiterrorism domain. under the EU Charter and the ECHR. It is in the field of anti-terrorism in the post 9/11 era. that the ECJ in recent years has become active and has been prepared to strike down a range of EU laws for disproportionately violating individual rights. despite its increasing engagement with human rights arguments. Challenges to EU Action Although in Nold. the number of cases in which the Court has actually annulled the EU legislation being challenged remains with some dramatic exceptions in the antiterrorism field relatively low. in which the Court ruled that an EU Directive on the control of fish diseases which failed to require compensation for the compulsory destruction of diseased fish by national authorities did not constitute a disproportionate restriction on the right to property.

and has required the EU institutions to amend several of their practices. This development remains contentious. The relatively early case of Hoechst involved a challenge by the applicant company to various decisions of the Commission ordering an investigation into its affairs in the context of suspected anticompetitive practices. the various situations in which EU fundamental rights have been held to be binding on Member States are: . did extend to business premises. and affected parties have repeatedly called upon the Court to limit and control their exercise by reference to fundamental legal principles. Human Rights-Based Challenges to Member State Action The ECJ has ruled that fundamental rights are binding not only on the EU institutions but also on the Member States when they are acting within the scope of application of EU law. the right to private and family life: Commission v Roodhuijzen. and had overlooked existing case law of the ECtHR (European Court of Human Rights). Staff Cases In a range of staff and recruitment cases the ECJ has accepted arguments based on pleas such as violation of freedom of expression: Connolly v Commission. including the authority to investigate and make searches. not only because it is not always clear when and where states are acting ‘within the scope of application’ of EU law. The judgment was criticized on the ground that the Court too rapidly dismissed the argument that the Commission’s power of search contravened the right to privacy of the dwelling. as well as to impose severe financial penalties. but also more generally because some Member States are resistant to the idea of the ECJ determining standards of human rights protection to be applied to them. The Court found on the facts of the case that there had been no breach by the Commission of any of the principles invoked by the applicants. as clarified in subsequent ECtHR case. Two such contexts in which such challenges have been made are staff disputes and competition proceedings. freedom of religion: Prais v Council . but the ECJ later accepted that Article 8 ECHR.Rights-based challenges to EU administrative action have also regularly been made. and non-discrimination: PX v Commission. which is protected in the ECHR. Competition Proceedings The Commission’s powers in competition proceedings are very wide.

when acting as ‘agents’ of the EU. public interest. implementing or enforcing EU measures. The respondents claimed that the grant of an exclusive right to broadcast infringed Article 10 of the ECHR. to act and to legislate in a way which respects the rights set out in ECH. where the Court described provisions of Directive 64/221. as well as the free . as specific expressions of the general principles enshrined in the ECHR. which limited the restrictions Member States could impose on the free movement of workers. which were part of EU law when they adopted measures derogating from EU law.) When applying provisions of EU legislation. when interpreting and implementing EU law. which bind the EU in its actions. In this second stage of development. ) Secondly. Member States are bound by the general principles of EU law. After some initial uncertainty in the case law. Member States are bound by the general principles of EU law. However. This was first articulated by the ECJ in the case of Rutili in 1975. ERT v Dimotiki ERT was a broadcasting company to which the Greek government had granted an exclusive right to transmit television and radio programmes. which are based on protection for human rights. by all of the same general principles and fundamental rights. in which the ECJ ruled that Member States are bound when implementing EU law. freedom of expression. ) The previous category concerned situations in which Member States were implementing EU measures. the ECJ in ERT clarified its stance and declared that it had a duty to ensure that Member States adequately respected fundamental rights. even when the EU measures do not themselves embody the particular rights claimed: Rutili and Johnston The position was clearly outlined in Wachauf case. or other grounds. the ECJ ruled that the Member States are required. It took action against two respondents who had set up a television station in competition with them. Member States are also sometimes permitted by the Treaty or by analogous principles developed by the ECJ to derogate from or restrict EC rules on public policy.

and to the Member States only when they are implementing Union law’ it seems that the Charter has not in fact narrowed or changed the previous case law of the Court. where national rules fall within the scope of European Union law they may be reviewed by the Court of Justice to ensure their compatibility with the fundamental rights protected by Union law. or derogating from European Union law. despite the narrow wordings of Article 51 of the Charter of Fundamental Rights. In the sensitive field of immigration. The subsequent Familiapress case clarified that even where a Member State does not rely on one of the Treaty based derogations. The Court of Justice held that ‘the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 52 and 62 TFEU. which declares that: ‘the provisions of this Charter are addressed to the institutions. the latter measures will be assessed by the ECJ for compatibility with fundamental rights. offices and agencies of the Union…. but instead on the broader range of ‘public interest justifications’. ERT. This Article has been given an interpretive effect by Article 6(1) TEU and Article 52(7) of the Charter. ERT relied on derogations from free movement under Articles 52 and 62 TFEU.movement of services and competition rules. there has been a steady stream of rulings concerning the right to family life where the states have relied on the public policy or public interest . making it clear that the actions of the Member States when giving effect to. was relying on derogations granted by the Treaty and therefore the matter was within the scope of EU law. developed by the ECJ for nondiscrimination or ‘indistinctly applicable’ national measures. This is an important principle. using the wider term ‘binding on the Member States when they act within the scope of EU law.’ and cite the ERT case in support of this. the observance of which is ensured by the Court’. bodies. only if they are compatible with the fundamental rights. Here. The Court of Justice ruled that although it had no jurisdiction to examine the compatibility of national rules with the ECHR. Further. will also be subject to scrutiny for compliance with EU fundamental rights and general principles.

Council and Commission in 1977. Having declared that protection for human dignity was also a general principle of EU law. In cases such as MRAX. In Omega Spielhallen. and acknowledged human rights as part of the ‘general principles EU law’ this move rapidly gained approval. Baumbast. constitute general principles of EU law. The ECJ agreed that the public policy derogation in Article 52 TFEU permitted the prohibition of commercial exploitation of such games on the basis of the protection of human dignity. .derogation to expel a migrant who was covered by EU law or to refuse some other family benefit. and later through a series of non-binding initiatives and resolutions which included a Declaration of Fundamental Rights and Freedom by the European Parliament in 1989. provides (i) that fundamental rights. the Court has also confirmed that the protection of human rights in itself constitutes a legitimate interest. the ECJ upheld the national restriction as a proportionate and necessary one. controversially. and a Community Charter of Fundamental Social Rights signed by eleven of the twelve Member States in 1989. the Court and the Advocates General emphasized the requirement on states to take adequate account of the impact of their proposed actions on the right to family life. as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States. Human rights eventually found their way back into the EU Treaties with the changes introduced by the Maastricht. It did so initially through a joint declaration of the Parliament. which will justify a restriction on EU free movement rules. as protected by Article 8 ECHR. Once the Court changed its stance. which was specifically protected by the German constitution. the ECJ upheld Austria’s claim that the precise ground for its derogation from EU free movement rules was the protection of fundamental rights. and (ii) that the EU is to accede to the ECHR. In Schmidberger. which simulated the killing of human beings. The Inclusion of Human Rights in the Treaty Framework There was no mention of human rights in the ECSC. Ruiz Zambrano. Article 6 TEU. Less. Germany successfully pleaded the protection of human dignity as a ground for restricting the marketing in Germany of laser games. Nice and finally Lisbon Treaties. Amsterdam. Euratom or EEC Treaty in the 1950s and the Court was initially reluctant to entertain rights-based claims against EU law. however.

in particular. the EU. in particular. points out that since the EU cannot be considered to be a State. the Court observes first of all that. the negotiations resulted in agreement on the draft accession instruments. In that case. that the accession agreement must fulfill certain conditions so as. dated 18 December 2014 the Court. such accession must take into account the particular characteristics of the EU. provides. In that context. the Commission asked the Court of Justice to give its Opinion on the compatibility of the draft agreement with EU law. would be binding upon the institutions of the EU and on its Member States.As regards such accession. the ECHR. like any other Contracting Party. Reinforce the credibility of the EU’s human rights system and EU external policy. The Commission was designated as negotiator. to make provision for preserving the specific characteristics of the EU and EU law and to ensure that accession of the EU does not affect its competences or the powers of its institutions. The EU and its institutions would thus be subject to the control mechanisms provided for by the ECHR and. as a result of accession. to the decisions and judgments of the European Court of Human Rights (‘the ECtHR’). Protocol No 8. like any other international agreement concluded by the EU. Accession to ECHR according to the European Commission will:     Help develop a common culture of fundamental rights in the EU. Ensure that there is a harmonious development of case law of the European Court Justice and the European Court of Human Rights. and would therefore form an integral part of EU law. the Council adopted a decision on 4 June 2010 authorizing the opening of negotiations for an accession agreement. however. . Upon the recommendation of the Commission. on 4 July 2013. Show that the EU puts its weight behind the Strasbourg system of fundamental rights protection. On 5 April 2013. would be subject to external control to ensure the observance of the rights and freedoms provided for by the ECHR. In its Opinion 2/13. which is precisely what is required by the conditions to which accession is subject under the Treaties themselves. Having clarified this. pursuant to Article 218(11) TFEU. after noting that the problem of the lack of any legal basis for the EU’s accession to the ECHR has been resolved by the Treaty of Lisbon.

The Court considers that the approach adopted in the draft agreement. permits the highest courts and tribunals of the Member States to request the ECtHR to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms guaranteed by the ECHR or the protocols thereto. the ECHR should be coordinated with the Charter. the interpretation of the ECHR provided by the ECtHR would be binding on the EU and all its institutions and that. it states that that cannot be the case as regards the interpretation of EU law. specifically disregards the intrinsic nature of the EU. provided by the Court itself. In particular. in so far as the ECHR gives the Contracting Parties the power to lay down higher standards of protection than those guaranteed by the ECHR. the agreement envisaged contains no provision to prevent such a development. However. the Member States have accepted that their relations are governed by EU law to the exclusion of any other law. unity and effectiveness of EU law are not compromised. which is to treat the EU as a State and to give it a role identical in every respect to that of any other Contracting Party. the mechanism established by that protocol could affect the autonomy and . even though EU law imposes an obligation of mutual trust between those Member States. accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.The Court notes that it is admittedly inherent in the very concept of external control that. the power granted to Member States by the ECHR must be limited to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy. the ECHR would require each Member State to check that the other Member States had observed fundamental rights. Where the rights recognised by the Charter correspond to those guaranteed by the ECHR. this approach does not take account of the fact that. as regards the matters covered by the transfer of powers to the EU. on the one hand. The Court notes that Protocol No 16 to the ECHR. However. the ECHR would form an integral part of EU law. The Court finds that there is no provision in the draft agreement to ensure such coordination. Given that. In those circumstances. In requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Parties which are not members of the EU but also in their relations with each other. The Court points out in particular that. the interpretation by the Court of Justice of a right recognised by the ECHR would not be binding on the ECtHR. on the other. including the Charter. signed on 2 October 2013. in the event of accession.

the ECtHR would be required to assess the rules of EU law governing the division of powers between the EU and its Member States as well as the criteria for the attribution of their acts or omissions. according to the draft agreement. the co-respondent mechanism has the aim of ensuring that proceedings brought before the ECtHR by non-Member States and individual applications are correctly addressed to Member States and/or the EU as appropriate. they must prove that the conditions for their participation in the procedure are met. In addition. It cannot be ruled out that a request for an advisory opinion made pursuant to Protocol No 16 by a national court or tribunal could trigger the procedure for the ‘prior involvement’ of the Court. notably where rights guaranteed by the Charter correspond to rights secured by the ECHR.6 thus creating a risk that the preliminary ruling procedure might be circumvented. Consequently. The draft agreement still allows for the possibility that the EU or Member States might submit an application to the ECtHR concerning an alleged violation of the ECHR by a Member State or the EU in relation to EU law. proceedings before the Court are not to be regarded as a means of dispute settlement which the Contracting Parties have agreed to forgo in accordance with the ECHR is not sufficient to preserve the Court’s exclusive jurisdiction. The draft agreement provides that a Contracting Party is to become a co-respondent either by accepting an invitation from the ECtHR or by decision of the ECtHR upon the request of that Contracting Party. or between Member States and the EU. In carrying out such a review. The very existence of such a possibility undermines the requirements of the TEU Treaty. in the draft agreement. If the EU or Member States request leave to intervene as co-respondents in a case before the ECtHR. Next. In those circumstances. the Court has exclusive jurisdiction in any dispute between the Member States and between those Member States and the EU regarding compliance with the ECHR. The fact that. The ECtHR could adopt a final decision in that respect which would be binding both on the Member States and on . regarding the application of the ECHR in the context of EU law. The Court considers that the draft agreement fails to make any provision in respect of the relationship between those two mechanisms. the Court recalls that the FEU Treaty provides that Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for by the Treaties. with the ECtHR deciding on that request in the light of the plausibility of the reasons given.effectiveness of the preliminary ruling procedure provided for by the FEU Treaty. the draft agreement could be compatible with the TEU Treaty only if the ECtHR’s jurisdiction were expressly excluded for disputes between Member States. where EU law is at issue.

for want of jurisdiction. Consequently. and. that. Limiting the scope of that procedure solely to questions of validity adversely affects the competences of the EU and the powers of the Court. Therefore. if not. the EU is fully and systematically informed. It notes. can only be explained by reference to EU law alone. The Court also expresses its view on the procedure for the prior involvement of the Court. Secondly. the Court concludes that the draft agreement on the accession of the European Union to the ECHR is not compatible with EU law. on the basis of accession as provided for by the draft agreement. to that end. the Court observes that the draft agreement excludes the possibility of bringing a matter before the Court in order for it to rule on a question of interpretation of secondary law by means of that procedure. Lastly. It notes that. as such. To permit the ECtHR to adopt such a decision would risk adversely affecting the division of powers between the EU and its Member States. that institution’s decision having to bind the ECtHR. as EU law now stands.the EU. in any case pending before the ECtHR. notably those whose legality the Court cannot. the draft agreement fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts. In the light of the problems identified. as regards compliance with the rights guaranteed by the ECHR. certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court. first. the Court analyses the specific characteristics of EU law as regards judicial review in matters of the common foreign and security policy (‘CFSP’). review in the light of fundamental rights. the exclusive judicial review of those acts. that procedure should be set up in such a way as to ensure that.law of the Court. . the question whether the Court has already given a ruling on the same question of law as that at issue in the proceedings before the ECtHR can be resolved only by the competent EU institution. the ECtHR would be empowered to rule on the compatibility with the ECHR of certain acts. so that the competent institution is able to assess whether the Court has already given a ruling on the question at issue and. actions or omissions performed in the context of the CFSP. That situation is inherent to the way in which the Court’s powers are structured by the Treaties. actions or omissions on the part of the EU in the area of the CFSP. to arrange for the prior involvement procedure to be initiated. Such a situation would effectively entrust. actions or omissions on the part of the EU to a non-EU body. To permit the ECtHR to rule on such a question would be tantamount to conferring on it jurisdiction to interpret the case. Nevertheless.

The list of values on which the EU is founded has been expanded somewhat. By comparison. amongst other things ‘contribute to peace. Parliament. Article 7 TEU. the provisions of the ECHR will eventually become formally binding on the EU following the EU’s accession to the ECHR. non-discrimination. including the rights of persons belonging to minorities. The novel Convention process by which the Charter was adopted. the rule of law and respect for human rights. empowers the Council to suspend some of the voting and other rights of a Member State which is found by the European Council to be responsible for a serious and persistent breach of the principle in Article 2. The EU Charter of Fundamental Rights The Charter of Fundamental Rights was first drawn up in 19992000. It was finally incorporated as Part II of the three- . These values are common to the Member States in a society in which pluralism. The Charter was then solemnly proclaimed by the Commission. security. free and fair trade.’ Furthermore. and thirdly. eradication of poverty and the protection of human rights.’ Article 3(5) declares that the EU shall. the sustainable development of the Earth. solidarity and equality between women and men prevail. Secondly. equality. the provisions of the Charter of Rights and the general principles of EU law are currently binding provisions of EU law enjoying the same status as provisions of the EU Treaties. and Council and politically approved by the Member States at the Nice European Council summit in December 2000. solidarity and mutual respect among people. and is now expressed in Article 2 TEU: ‘The Union is founded on the values of respect for human dignity. following an initiative of the European Council to the achievements of the EU in this field. the ECHR is one of the main sources of inspiration for the general principles of EU law. freedom. justice. in particular the rights of the child. democracy.The provisions of ECHR are therefore relevant to EU in three ways at present:    Those provisions of the Charter which are based on provisions of ECHR are to have the same ‘meaning’ as the principles of ECHR. tolerance. produced a draft Charter in less than a year.

Now. based ‘on the constitutional traditions common to the Member States and on Articles 6 and 13 of the ECHR’. is Advocate General Tizzano’s Opinion in R v Secretary of State for Trade and Industry ex parte BECTU [2001] The Court of Justice relied on the Charter in a judgment for the first time in European Parliament v Council [2006] In Laval un Partneri Ltd v Svenska Court of Justice held that the right to take collective action (to strike). Article 6 TEU unequivocally grants it the same legal status as the Treaties themselves. must be recognised as a fundamental right. The Charter is applicable (as are the rights currently derived from case law) to the institutions of the EU and the Member States when implementing EU Law.part constitutional Treaty following the Convention on the Future of Europe in 2003-2004 and the subsequent IGC which adopted the Constitutional Treaty. Advocates General and eventually even by the ECJ until it was finally ratified by the Lisbon Treaty. . in December 2009. The CFI stated that this right had been developed by the Court of Justice. but continued that ‘the right to an effective remedy for everyone whose rights and freedoms guaranteed by the law of the Union are violated has been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000’. in which the CFI criticised the existing tests for locus standi (standing – the right to bring an action for judicial review) for individual applicants under Article 263 TFEU. The Court of Justice overruled the CFI’s judgment in this case Commission v Jégo-Quéré [2004]. although the text of the Charter is not incorporated into the EU Treaties. A noteworthy Opinion of an Advocate General relying on the Charter of Fundamental Rights as a basis for his decision. The non-ratification of the Constitutional Treaty in 2005 prolonged the Charter’s ambiguous legal status although it was cited regularly by the CFI. stating that the test was not in accordance with the established EU law right to an effective remedy before the courts. An example is Jégo-Quéré. The Court of First Instance (CFI) also cited the Charter to support its judgments in a number of cases. reaffirmed by the Charter of Fundamental Rights and Freedoms.

such as liberty. These include the rights of EU citizenship in Articles 20-25 TFEU. the right to engage in work. the Charter is divided into seven chapters. association. Britain and Poland negotiated a Protocol to the Treaties which on its face purports to limit the impact of the Charter in those states. The various rights are grouped into six distinct chapters. Following its lofty preamble in the name of the ‘peoples of Europe’.  Chapter four on solidarity contains certain labour rights and reflects some of the provisions of the European Social Charter. Content The mandate originally given by the European Council to the body which first drafted the Charter of Rights was to consolidate and render visible the EU’s existing ‘obligation to respect fundamental rights’ rather then to create anything new. the Charter contains several innovative provisions. freedom from torture. such as the right to education. and the final chapter contains the so-called horizontal clauses or general provisions. However.  The third chapter covers provisions on equality. such as those relating to gender. slavery.  Chapter five contains ‘citizen’s rights’ which are not universal but are guaranteed only to EU citizens. and the sources on which the drafting body should draw were indicated. children’s rights and respect for cultural diversity.  The second chapter on freedoms also concentrates on the basic civil and political liberties to be found in ECHR. property. and there are also notable omissions. expression. private and family life but contains in addition certain fundamental social rights. however. such as a prohibition on reproductive human cloning. for example protection for the rights of minorities. and execution are contained in the first chapter. such as right to protection of data and the freedom to conduct a business.  The foundational rights such as the right to life.At the time of the Lisbon Treaty. This chapter contains a mixture of fundamental provisions such as the prohibition on child labour and the right to fair and just working conditions. as well as a number of provisions which have gained particular prominence in the EU context. . which have already been integrated into EU law. and the right to asylum.

conscience and religion. such as the right to a fair trial. religious and linguistic diversity. freedom of assembly. integration of persons with disabilities. prohibition on cloning or eugenics.  non-discrimination on. freedom of thought. freedom to choose an occupation and right to engage in work. religion or belief or political opinion. right to marry and found a family. prohibition of slavery or forced labour. right to property. entitled Justice. disability. and the familiar EU right to an effective remedy. freedom of expression and information. ethnic or social origin. birth. includes several of the rights of the defence. freedom to conduct a business. sex. Freedoms (Articles 6–19)              right to liberty and security. cultural. right to education. genetic features. . the presumption of innocence. the principle of legality and proportionality of penalties. right to asylum. freedom of the arts and sciences. language. prohibition of torture or inhuman and degrading treatment. protection of personal data. Rights recognised in the Charter of Fundamental Rights Rights to human dignity (Articles 1–5)      right to life. sexual orientation. integrity of the person. Equality (Articles 20–26)  equality before the law. respect for private and family life. race.  rights of the elderly.  equality between men and women. colour. Chapter six.

but to the Member States only when they are ‘implementing’ Union law.’ and respecting the .  freedom of movement and residence. its addressees. protection in the event of unfair dismissal.  right to good administration. which relate to the scope and applicability of the Charter.  right to refer matters to European Parliament and petition Ombudsman. fair and just working conditions. indicates that the Charter is addressed to the various institutions and agencies of the EU. principle of non-retroactivity and proportionality. right to social security. Article 51(1). observe the principles and promote the application thereof in accordance with their respective powers. protection of the family.  right to access to documents. right to placement services. right not to be tried or punished twice for same offence. its relationship to other legal instruments. Citizens’ rights  right to vote and stand in municipal and European Parliament elections. access to services of general economic interest. high level of environmental and consumer protection. prohibition on child labour. further specifies that the EU and the Member States ‘respect the rights.Solidarity            workers’ right to information and consultation.  right to diplomatic protection. right to healthcare. The Horizontal Clauses The final chapter seven contains the general clauses. Justice     right to an effective remedy and a fair trial. right of collective bargaining. presumption of innocence. Article 51. and then ‘standard’ of protection.

’ This seems intended to avoid any potential differences in the interpretation of similarly worded provisions of the Charter and of the EU Treaties. which draws on the jurisprudence of both the ECHR and the ECJ. while not preventing the EU from developing more extensive protection than is provided for under the Convention: ‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. other international human rights instruments. Article 52(3). Article . the meaning and scope of those rights shall be the same as those laid down by the said Convention. most notably the citizenship provisions. This provision shall not prevent Union law providing more extensive protection. There is a tension between the obligation to ‘promote’ the rights in the Charter and the repeated emphasis on the limits of EU’s powers. national constitutional provisions. The tricky relationship between the ECHR. stipulates that the provisions of the Charter derived from national constitutional traditions should be interpreted in harmony with those traditions. contains a general ‘derogation’ clause indicating the nature of the restrictions on Charter rights which will be acceptable Any limitation on the exercise of rights and freedoms contained in the Charter must be ‘provided for by law’ and must respect the essence of those rights and freedoms. Article 52(1). which appears also in Article 51(2). providing that rights recognized by the Charter ‘for which provisions is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties. Limitations must meet the requirements of proportionality and must be ‘necessary and genuinely meet objectives of general interest recognized by the Union’.limits of the EU’s powers under the Treaties. relates specifically to the ECHR and is clearly intended to promote harmony between the provisions of the European Convention and those of the Charter. Paragraph 6 complements this by stipulating that ‘full account’ should be taken of national laws and practices as specified in the Charter. which asserts that the Charter does not create any new power or task for the EU nor modify any existing task. or the need to protect the rights and freedoms of others. Article 52(4). Article 52(2).’ The Lisbon Treaty added four further paragraphs to Article 52 of the Charter. addresses the question of overlap between existing provisions of EU law and the provisions of the Charter. and the Charter is addressed in Articles 52(3) and 53.

52(7) together with Article 6(1) TEU. give some legal weight to the explanatory memorandum to the Charter which was drafted by the secretariat. .