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 self-incrimination.

• General principles of law: the principle of non-discrimination, 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 wide-ranging socio-economic or environmental rights.