Fundamental Rights
• The respect for human dignity, freedom,
equality and human rights are the values
on which the EU is founded.
• There are three sources of rules protecting
the f.r. 1) The Charter of F.R. of the EU, 2)
the European Convention for the
protection of H.R. and the F.F. and 3) the
constitutional traditions common to the
M.S.
1. The protection of F.R. and the
ECJ
• The original treaties contained no system
of f.r. protection. The limited scope of the
EEC Treaty, with its focus on establishing
a common market, provided limited
opportunities for possible conflicts.
• The early case law of the Court of Justice
refused to accept that the EU institutions
had violated some rights protected in
national constitutions.
• The recognition of supremacy by Van Gend en Loos and
Costa/ENEL, changed this position. Since any EU legal
provision took precedence over national laws, the
national protection could no longer be used to safeguard
f.r..
• In Stauder case, 1969, the ECJ said that any Decision of
the Commission would not prejudice the f.r. enshrined in
the general principles of EC law and protected by the
Court.
• In Internationale Handelsgesellshaft, 1970, the ECJ said
that the protection of f.r., whilst inspired by the
constitutional traditions common to the MS, must be
ensured within the framework of the structure and
objective of the Union.
• Relying on national constitutional traditions and
international human rights treaties, the ECJ has
recognized a number of categories of different
rights.
• Civil rights: the right to respect for family and
private life, protection of the child, freedom of
religion, freedom of trade union activity, freedom
of expression, protection of personal data.
• Economic rights: the right to trade, the right to
own property, the right to carry out en economic
activity.
• Rights of defense: the right to an effective
judicial remedy, the presumption of innocence,
the right to be informed in a criminal trial of the
nature and cause of accusation against one, the
right to legal assistance, the right to be heard in
one’s own defense before any measure is
imposed and the protection from selfincrimination.
• General principles of law: the principle of nondiscrimination, proportionality, legitimate
expectations, and non-retroactivity.
The F.R. doctrine
• Human rights have since the Second World War
acquired symbolic pre-eminence as an instrument for
polity legitimization.
• They are a particularly powerful symbol in the context of
European integration. Even if the common market brings
many benefits to the citizens of Europe, these are not
sufficient to legitimize EU to exercise constitutional
authority over them.
• Moreover, they induce national constitutional courts to
accept the supremacy of EU law. By 1986, in Solange II,
the German Constitutional Court reversed its approach
to the review of EU acts in the light of an appropriate
protection of F.R.
2. The charter of EU F.R
• The charter emerged out of a two-fold impetus:
on the one hand, there was a desire to protect
social rights, on the other, there was agreement
that the f.r. should not be hidden away in the
case law of the ECJ but should be more visible.
• The charter sets out its rights and principles
under six headings (Rights to human dignity,
Freedoms, Equality, Solidarity, Citizens’ rights,
Justice).
• Few of these rights are absolute and many are
conditioned by exceptions.
• (article 52.1) Any limitation on the exercise of these
rights must be provided for by law and respect the
essence of them. Subject to the principle of
proportionality, limitations may be only if they are
necessary and meet objectives of general interest
recognized by the EU or the need to protect the rights
and freedoms of others.
• There is a number of noteworthy features. First, the
Charter incorporates a wide array of rights (civil,
economic, social, but protection of cultural and
ecological interest as well). It can be seen as ambitious
and nuanced in what it considers humans need for a
good life.
• Secondly, in the field of social rights, in particular, certain
key rights are missing. The right to nationality, the right to
decent pay, the right to work and the right to housing are
all not included. Certain other rights, for example, the
right to marry, the right to protection against unfair
dismissal, the right to social security and health care, are
to be recognized only in accordance with the national
rules.
• Thirdly, the Charter introduces a distinction between
rights and principles. A principle (the principle of
sustainable development) requires protection only after
the implementation of relative legislative acts. Courts are
not well-suited to determining the substance of wideranging socio-economic or environmental rights.