Lecture 22.11.2011
Fundamental Rights
Fundamental Rights
- Fundamental Rights not mentioned in the original Treaty
- Possible rebellion by German courts in the 1960s
- 1969 – Stauder v City of Ulm: fundamental human rights are recognised as a general principle of EU law.
- 1970 Internationale Handelsgesellschaft (and SOLANGE I)
- Exports required export license
- Deposit could be forfeit
- Proportionality principle invoked
o Appropriate
o Necessary (least burdensome)
- Internationale Handelsgesellschaft 1970:
- Respect for fundamental rights forms an integral part of the general principles of law protected by the Court
of Justice
- Goes further that Stauder case:
o Internationale Handelsgesellschaft states that the concept of human rights applied by the court,
while deriving its validity solely from European Union law, is nevertheless ‘inspired’ by national
constitutional traditions
A further step was taken in Nold v Commission
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Nold v Commission 1974:
Fundamental rights form an integral part of the general principles of law
Goes beyond the Handelsgesellschaft case in two respects: (1) a European Union measure in conflict with
fundamental rights will be annulled; (2) a new source of ‘inspiration’ for these rights – international treaties
ECJ: rights are merely ‘inspired’ by the philosophical concepts underlying the national provisions
There is no rule of law that a particular right will be accepted as fundamental by the European Court just
because it is protected in the constitutions of some of the Member States, or even a majority of them
SPUC v Grogan, case C-159/90, [1991] ECR I-4685
Controversial right
Accepted that abortion clinics perform a service for the purpose of EU law
Sources of inspiration for an EU concept of fundamental rights:
o National legislation
o International treaties:
 European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR)
 European Social Charter
 Convention 111 of the International Labour Organization
Political support: 1977
Joint declaration by the Parliament, Council and Commission
The importance they attached to fundamental rights
1989 the European Parliament adopted its own Declaration of Fundamental Rights and Freedoms.
Article 6(2) TEU
General references to fundamental rights in the Preambles to the Single European Act and the Treaty on
European Union
European Convention on Human Rights
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1979, the Commission proposed that the European Union should formally adhere to the ECHR
This proposal was renewed in 1990
Council: is it legally possible for the European Union to become a party to the ECHR?
Treaty of Lisbon finally gives the green light:
As amended, article 6(2) TU now provides for the European Union to accede to the ECHR
Article 6(3) TEU
So, in future two: general principles of law and the ECHR as a binding instrument