On the Recognition of Fundamental Rights within the EU, the extent to which fundamental rights bind the Member States and the impact that the binding Charter of rights might have in this area.
The human rights policies of the EU are overwhelmed by a paradox, as argued by Alston and Weiler. On one hand the Union is an active defender of human rights in both its internal and external affairs, and on the other hand, it lacks comprehensive and coherent policy at either level and serious doubts exist whether the institutions of the EU possess sufficient legal competence in relation to a wide range of human rights issues arising within the framework of Community policies.
Political initiatives by the EU institutions over the last few decades to introduce human rights protection into the EC/EU have centered on two methods: accession to the European Convention on Human Rights or the adoption of a separate EC bill of rights. While keeping alive the debate on human rights in the EC/EU, they have stumbled through lack of an adequate legal basis for accession to the ECHR on the one hand, but also due to a lack of consensus among the Member States on the principle or the form of EU human rights guarantees on the other.
Human rights were not mentioned specifically in the Treaty of Rome, although the Treaty affirms the Member States’ willingness to “preserve and strengthen peace and liberty”, to improve living and working conditions and to abolish discrimination on the grounds of nationality among citizens of the Member States (Article 7). It also created freedom of movement and establishment for EEC citizens (Articles 48-58), equal treatment for men and women in the workplace (Article 119) and equal treatment for immigrant workers (Article 51). In the Court’s own view that the Treaty of Rome formed the Community’s basic constitutional charter, “it is quite logical … that the Community legal order should guarantee an adequate protection of fundamental rights which are at the core of Europe’s democratic society”.
The ECJ has declared that the ‘general principles of EC law’ include protection for fundamental rights which are part of the common constitutional traditions of the Member States and proclaimed in international human rights treaties on which they have collaborated or which they have signed, and subsequently affirmed in the EU Treaty.
The EU has developed a range of human rights policies, internally, the most expanded field was the field of anti-discrimination law, following Article 13 of the EC Treaty. At the level of its external affairs, human rights issues played a role in the EC’s international trade and development policy, and more recently has been used as ‘political conditionality’ for candidate Member States, as well in the expanding ‘human rights and democratization’ policies and in the common foreign and security policy.
In the areas of immigration, asylum, criminal justice, and anti-terrorism in particular, the EU has been criticized for neglecting human rights problems.
The ECJ’s practice has developed over the years a kind of unwritten bill of rights for the Community, which has been gradually incorporated in the Treaties. For example, Article 6 TEU declares that respect for fundamental rights and freedoms constitutes one of the basic principles on which the Union is founded, and Article 7 provides a mechanism for sanctioning Member States who violate these principles in a grave and persistent manner. Nevertheless, the EU’s predominant focus remains on economic issues, and the debate regarding the adequate scope of ‘human rights role’ continues even after the adoption of the Charter of Fundamental Rights.
The initial depart for the Court’s declaration that fundamental rights formed part of the EC legal order was the challenge posed to the supremacy of Community law by Member State courts which felt that EC legislation was infringing upon important rights protected under national law. The first challenge to Community law was supported by the Member States, as being a restraint upon the powers of Community institutions rather than upon Member States. Since that period, a considerable legislation and judicial activity has been seen in the area of human rights protection, including the extension by the ECJ of fundamental rights review to certain acts of the Member States. Some regarded this development as being an intrusion upon competences achieved by the national constitutions and by the ECHR.
In the case of Internationale Handelsgesellschaft, the ECJ decided that fundamental rights formed part of the general principles of Community law that it was obliged to uphold, and that it should be guided by the constitutional traditions of the Member States in safeguarding those rights. The Nold ruling reinforced this point and also referred specifically to international treaties (though not to the European Convention specifically) which Member States had ratified as guidelines to be followed within the framework of Community law. No measure could have the force of law unless it was compatible with the fundamental rights recognized and protected by the Member States' constitutions. In the Rutili case in 1975 the Court referred explicitly to the ECHR and in the Wachauf case in 1997 the ECJ ruled that its review powers extended to the acts of Member States, to the extent that they fell within areas of Community law.
The liability of Member States to apply fundamental rights was made clear in the ERT case, in which the ECJ ruled that States were obliged by EC law to respect fundamental rights when they implement it or when they rely on derogations from fundamental Treaty rules. Although human rights may be an indirect source of Community law, the protection of fundamental rights under ECJ case law is limited. Rights must be protected within the EC system and protected areas must be within the jurisdiction of the ECJ. Furthermore, although the ECJ has made references to the ECHR in numerous judgments over the last two decades, the case law of the European Commission or Court of Human Rights was not referred to until a judgment in 1996[i]. Neither, according to studies of ECJ case law is there evidence of references to national constitutional court judgments, in spite of the ECJ’s doctrine of respect for the common constitutional provisions of the Member States. The ECJ cannot be bound either by the ECHR or by the constitutional provisions of the Member States but it is bound, by virtue of Article 220[ii], to give effect to fundamental rights. In the ECJ’s own words it is not bound by these principles or provisions, but ‘guided’ and ‘inspired’ by them. Constitutional fundamental rights provisions vary in any case from state to state. In determining fundamental rights range in the EC system, the Court has recourse to a number of sources which include the ECHR. While for some commentators this indicates incoherence, for others it is evidence of the Court’s self-restraint in not crossing the limits of its institutional role.
Whereas it is clear that the EU is committed to respecting fundamental rights, the individual Member States are only required to comply with the minimum standards laid down when they are implementing Community law. The standards for human rights protection provided by EC law apply only to EC legislation and to national measures that implement it, or which come within the EC legal framework in some other way. In practice, many Member States apply higher standards of protection than those required by EC law, often in order to comply with the stricter requirements of national constitutions. Some scholars comment that although progress has been made in this area, the context in which human rights questions have arisen in Community law has been rather weak, and no measure has been struck down for failure to respect such rights. However, as a consequence of ECJ rulings upholding human rights in the Community, when the Institutions adopt legislation they must also comply with international provisions, particularly the standards of the ECHR.
So far, the clear distinction between the reference of the ECJ and that of the Court of Human Rights has slightly disappeared and the expansion of the EU’s activities and competences, particularly in the third pillar areas, has given the ECJ a human rights dimension in areas also covered by the ECHR. Although the ECHR is not formally binding on the EU Institutions as it is on Member States, its provisions are given effect as ‘general principles’ of EC law. As argued by Craig & De Burca, the ECJ has to find a background of generally accepted principles of law against which to interpret the Community laws. Increasingly it has turned to the ECHR as evidence of these generally accepted principles, so in a way the Convention is becoming part of EC law. Rulings of the ECJ have contributed to the jurisprudence of the ECHR as well as to the development of human rights protection in the EC legal order.
The EU Charter of Fundamental Rights was politically approved by the Member States at the Nice European Council summit in December 2000 and proclaimed by the Parliament, the Council and the Commission, ‘as if’ it were to have full legal effect. Questions of its legal status were left to be decided by the political process following the Nice and Laeken European Council Declarations, which in turn led to the drafting of the Future of Europe in 2004 of the Constitutional Treaty. The CT incorporated the Charter of Fundamental Rights, but since it was not ratified as anticipated in 2005, the Charter is being treated by the EU Institutions and by the Court as an important but non-binding form of legal guidance on the existence and identity of the fundamental rights which are protected as part of EU law.
After several years of silence on the Charter, the ECJ begin referring approvingly to the Charter as a re-affirmation of the general principles of law common to the Member states. In a case brought by the EU Parliament related to the family reunification directive, the Court declared that “While the Charter is not a legally binding instrument, the Community legislature did, however, acknowledge its importance by stating, in the preamble, that the Directive observes the principles recognized not only by Article 8 ECHR but also the Charter. .. the principle aim of the Charter… is to reaffirm ‘rights as they result, in particular, from the constitutional traditions and international obligations common to Member States, the Treaty of European Union, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court… and of the European Court of Human Rights.’”[iii]
As emphasized by Craig & De Burca, in the Reynolds Tobacco judgment, the ECJ confirmed that the Charter has definitely entered the constitutional practice of the EU, even if final resolution of its legal status is likely to remain undetermined until discussions over the proposed Reform Treaty take place.
Evidence that the Charter is not without a legal effect, is the initiatives taken by other EU Institutions. The Commission decided, by an internal decision, to conduct a form of compatibility review with regard to the Charter and to consider any legislative proposal connected with the protection of fundamental rights for compatibility with the provisions of the Charter, by the inclusion of recitals in the legislation mentioning the relevant Charter rights. The Commission also had created a Communication on compliance with the Charter of Rights in legislative proposals and an external report on human-rights impact assessment for EU legislative policy proposals.
The European Ombudsman has also continued to make regular reference to the Charter, to various aspects of the right of good administration, and to the right of access to the Ombudsman, in his speeches and annual reports to the EU Parliament.
Although the Charter applies mainly to the EU and its institutions, it is addressed also to the Member States ‘when implementing Union law’, and it declares that no new power or task for the EU is created by its provisions. Nevertheless all the addressees are required to promote the rights contained in the Charter.
A co-operative relationship has developed between the ECJ and the ECtHR with an increase of cases before the ECJ and CFI where ECHR jurisprudence is cited. This was followed by the introduction of cases before the ECtHR which indirectly challenge EU measures (reference to Bosphorus judgment)[iv].
Despite the efforts to promote harmony and avoid conflict between these two systems, the question of accession by the EC/EU to the ECHR remains on the agenda.
In this respect it can be also said that the current policies such as monetary union and enlargement with the global economy pose new challenges to the European commitment towards the safeguarding of fundamental rights.
[i] See Case C-13/94, P v. S and Cornwall County Council  ECR I-2943, at 2164.
[ii] “The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is
observed” (ex-Article 164)
[iii] Case C-540/03 European Parliament v. Council  ECR I-5769
[iv] Bosphorus v Ireland, App. No. 45036/98, , 42 EHRR