Article 2 of the Treaty on European Union clearly states that the EU is founded upon the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. The EU institutions abide by these values in every action, and the Member States are expected to do the same when implementing EU law. EU membership is not open to states that are seen in conflict with these values. The historical context and material consideration for the importance of the protection of fundamental rights, as well as the development of human rights mechanisms in the EU are examined below.
The Necessity of Fundamental Rights Protection in the European Union
The history of Europe is a history of efforts toward the protection of fundamental rights (Borchardt 2016). The ancient Greek philosophers Socrates, Plato and Aristotle talked of natural rights. Thomas Hobbes (1588-1679) developed a contractualist theory of legal positivism, and John Locke (1632-1704) argued that the legitimacy of the king depended on his ability to protect the life, liberty, and property of the people. Jean-Jacques Rousseau (1712-1778) talked of the absolute, inviolable “general will” which represents the common interests of citizens of a nation. Europe also witnessed a declaration of human rights at every significant historical moment. The Magna Carta, the earliest declaration of human rights in Europe, emerged in 1215 after the English King was defeated at the Battle of Bouvines. The English Bill of Rights was signed in 1689 after the Glorious Revolution. And, the French National Assembly adopted the Déclaration des droits de l’homme et du citoyen de 1789 during the French Revolution.
The European narrative of human rights does not remain in the past only but thrives at present also. Every member state of the European Union shares in this heritage of fundamental rights, as enshrined in the national constitution (Borchardt 2016). Naturally, the European Union, being a union of the European nations sharing the common values, stands for the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights (Art. 2 TEU). Indeed, the coming together of the first six nations under the banner of the European Coal and Steel Community, and subsequently 28 into the European Union, can be seen as another crucial moment in European history which mandates another milestone in the protection of human rights.
Throughout history, a declaration of fundamental rights served a twofold function: limiting the power of the government and obliging the government to treat its people as free individuals (Pernice 2008). With a new form of governance in place, it was necessary for the European Union to clearly define its relationship with its citizens and its roles and responsibilities within that relationship. An EU declaration of human rights, which would specify the terms of the social contract and therefore take on a constitutional character, would have been necessary (Pernice 2003). Such a declaration, whether written or unwritten, would serve four purposes: enabling the people living in the EU to enjoy the rights enshrined, building mutual trust between the Member States, building public confidence in EU policies, and improving credibility of EU external action on human rights (see Commission Communication – COM(2010 537 final)).
Evolution of Fundamental Rights Protection in the European Union
When the earliest form of the European Union emerged in the 1950s, the founding treaties made no explicit mention of fundamental rights. Following the Costa v ENEL case (Case 6/64), the European Court of Justice developed the doctrine of supremacy of EU law within the scope of Union competence (Craig & de Burca 2015). However, all actions relating to fundamental rights were rejected because the ECJ regarded them as subject to national constitutional law. The Stauder case in 1969 (Case 29/69) was a turning point. The ECJ ruled that EU law must be upheld to protect the dignity of the applicant. Subsequently, the Court developed a body of human rights-related caselaw. Since the EU had adopted no treaty or charter enumerating fundamental rights, the Court had to reply on ‘unwritten general principles of EU law’ which were derived from the common traditions of national law of the Member States. Coupled with the doctrine of supremacy of EU law, the ECJ continued to decree that the law deriving from the Union Treaty, including in the area of fundamental rights, cannot be overridden by rules of national law, as in Internationale Handelsgesellschaft (Case 11/70).
In the 1970s, the ECJ further developed this concept of general principles of EU law. In Nold (Case 4/73), the Court identified two primary sources of inspiration for the general principles of EU law, namely the international human rights agreements to which the Member States are parties and the common national constitutional traditions. In Hauer (Case 44/79), the ECJ placed a higher weight on the common constitutional traditions of the Member States along with the Member States’ collective commitment to the European Convention on Human Rights. This stance of the ECJ was explicitly supported by the European Parliament, the Council and the Commission. The joint declaration in 1977 (OJ C103/1) stated that the EU institutions would enforce human rights protection as derived from the constitutions of the Member States and the ECHR.
The most outstanding milestone in the development of human rights protection in the EU took place in 2007 with the adoption of the Charter of Fundamental Rights. Stating in its Preamble, “the peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values,” the Charter reinforces the social contract nature of the Union and serves as a new constitution of sovereignty (Barkin 1998). The CFR is listed in Article 6 TEU as one of the three sources of EU human rights law, the other two being the general principles of EU law (common traditions of national constitutions) and the ECHR. Even with the attachment of Protocol No. 30 which provides an opt-out for the UK and Poland, the effectiveness of the CFR is seen as untainted because firstly, the CJEU has developed a rather robust body of case law, and secondly, the EU legislation has evolved to integrate the substance of the CFR.
The Charter of Fundamental Rights has brought human rights concerns to the forefront of EU law. Article 19 TFEU expresses the importance of the EU’s actions against all forms of discrimination. Several provisions of the TFEU are allocated to advocate the equal treatment of citizens regardless of nationality, gender, race, etc., the freedom of movement of goods, the freedom of movement of persons, the right of establishment, the freedom to provide services, the freedom of competition, the equal pay for men and women, the right of association, the right to petition, and the protection of business and professional secrecy (Borchardt 2016). The CFR provides policy guidelines for limiting the legislative, executive, and judicial powers of the EU while ensuring the freedom and rights of the EU citizen.
The CFR is binding on EU institutions in all their actions and on the Member States when they are implementing EU law (Pernice 2008). In Melloni (Case C-399/11), the Court ruled that national standards may be applied, however, only when the primacy, unity, and effectiveness of EU law are not affected. In Fransson (Case C-617/10), the Court further asserted, “the applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.” However, it must be noted that the ECJ has adopted neither a universal standard (highest level of protection) nor a lowest common denominator approach of human rights protection. Instead, it has been taking a rather pragmatic case-by-case approach (Craig & de Burca 2015).
The role of the ECHR in the EU must be examined as well. While all EU Member States are parties of the ECHR, the EU is not. This means that a case of human rights violation against the EU cannot be brought up to the European Court of Human Rights. Although Article 6(2) declares that the EU should accede to the ECHR, the CJEU has deemed the EU incompetent of such accession in current condition (Opinion 2/94 and Opinion 2/13). There has been deference by the CJEU to the ECtHR, which in turn has increasingly been accommodating EU law as well. However, the CJEU remains very concerned to protect the autonomy of the EU legal order. The Fundamental Rights Agency was established in 2007, but it has been critiqued that the FRA is not given the power to monitor the Member States to sanction against them in cases of human rights violation (Craig & de Burca 2015).
The European Union draws on a rich history of standing up for freedom, democracy, and the rule of law. The common constitutional traditions of the Member States and the principles advocated by international human rights agreements to which the Member States are parties have been recognised as general principles of EU human rights law. The adoption of the Charter of Fundamental Rights served as an essential milestone in the EU’s history of human rights protection. Relevant human rights principles have been integrated into mainstream EU law. Although the EU is yet to accede to the European Convention on Human Rights, significant developments have been made.
- Barkin, J. Samuel (1998): The Evolution of the Constitution of Sovereignty and the Emergence of Human Rights Norms, in Journal of International Studies. Vol. 27, No. 2: Millennium, pp 229-252
- Borchardt, Klaus-Dieter (2016): The ABC of EU Law: European Union, pp 30-35.
- Craig, Paul and de Burca, Grainne (2015): EU Law: Text, Cases, and Materials. 6th edition: Oxford University Press, pp 380-428.
- Pernice, Ingolf (2003): The Charter of Fundamental Rights in the Constitution of the European Union, in Deidre Curtin, Stefan Griller, Sacha Prechal and Bruno de Witte (eds.): The Emerging Constitution of the European Union
- Pernice, Ingolf (2008): The Treaty of Lisbon and Fundamental Rights, in The Lisbon Treaty
Table of Cases
- Costa v ENEL (Case 6/64)  ECR 585
- Stauder v City of Ulm (Case 29/69)  ECR 419
- Internationale Handelsgesellschaft (Case 11/70)  ECR 1125
- Nold v Commission (Case 4/73)  ECR 491
- Hauer v Land Rheinland-Pfalz (Case 44/79)  ECR 3727
- Melloni (Stefano) v Ministerio Fiscal (Case C-399/11) EU:C:2013:107
- Åklagaren v Hans Åkerberg Fransson (Case C-617/10) EU:C:2013:105
- Opinion 2/94 Accession of the Community to the European Human Rights Convention  ECR I-1759
- Opinion 2/13 EU Accession to the ECHR EU:C:2014:2454