Importance of Protection of Fundamental Rights in the EU

Why is the protection of fundamental rights needed in the EU and how has the initial lack of fundamental rights protection been resolved (until now)

The EU is a union made up of many diverse countries and peoples, all with various cultures and traditions, race and religions, that was founded upon the values of freedom, democracy and respect for human rights, as it states in article 2 of the Treaty of the European Union (TEU)[1]. All citizens of the Member states deserve the right to the protection of their liberty and freedom, to security as well as respect, in order for the Union to function as a democratic entity that respects the rights of its members. The preamble to the Treaty on the European Union states “CONFIRMING their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms”[2] as well as The Charter on Fundamental Rights which reinforces this, and ensures there is a binding, legal obligation to protect the rights of the citizens of the EU. However, this legal protection has not always been present, having only been introduced firstly via the Treaty of Maastricht.  Before this, the expressed protection of fundamental rights and freedoms was lacking from the Treaties, with only the ECJ recognising the principle of fundamental rights in its dealings with the Community through using the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as its source on an individual case by case basis.[3] A number of events transpired determining the need for a legally binding reference to the protection of the fundamental rights of EU citizens.

The establishment of the Union in the 1950s was centred on two specific aims; the need for peace after a devastating period of war and the need for economic cooperation in order to generate economic prosperity for the continent. Therefore, at the time it, was considered there was no need for any reference to the fundamental rights of the members of the Union in the Treaties, as it was an entity created principally for economic means, and the ECHR was considered the source of guarantee of protection of human rights. The draft Treaty on European Political Community was to make the ECHR part of Community law, however this never transpired due to France’s rejection of the 1954 Defence Community Treaty.[4] The Treaty of Rome 1957 did make reference to the principle of protection against discrimination with regards to nationality(Article 7), and for the freedom for workers to move between member states (Article 48)[5], however the majority of this treaty makes reference to non-discrimination regarding economic activity between Member states (for example Article 39 and 40, which refer to the establishment of the Common Agricultural Policy).[6] As was realised over time, there was a need for specific referencing via legal documents of the EU, such as the treaties, regarding the protection of the fundamental rights of EU citizens.[7] The European Court of Justice (ECJ) sourced inspiration surrounding the principles of fundamental rights from the ECHR[8]. For example, in the case Eric Stauder v the city of Ulm[9] of 1969, which is centred on the lower pricing of butter for certain citizens, ,human rights are immediately taken into account alongside the general principles of community law, as can be seen in point 2 of the summary.[10]

In the 70s the EU began to take some action regarding the protection of fundamental rights. The ECJ confirmed the principle of direct effect and primacy of EU law. The supremacy of European law when it came to case judgements was beginning to be called into question by Member states, as they believed there could be a possible breach of fundamental rights by the EU when supremacy of EU law is applied over national constitutional law.[11] Certain member states introduced limits when it came to the question of the application of supremacy of EU law, such as Germany who introduced fundamental rights as a limit to supremacy of EU law. Member states such as Italy and Germany found Community law was lacking when it came to the level of recognition of fundamental rights protection at both national and European level. Both Germany and Italy adopted judgements in 1974 which determined that EU law did not provide for the protection of fundamental rights.[12] The Declaration on European Identity at the Copenhagen European summit in 1973 placed the principle of respect for human rights as a core element in the international identity of the European Community.[13]

There has been intensive developments surrounding the protection of fundamental rights within the EU over the last 60 years, with the introduction of the Maastricht Treaty making reference to fundamental rights, introduction of article 6 to the TEU[14] and also the introduction of the EU Charter of Fundamental Rights post Lisbon Treaty.  Article 6 of TEU explicitly recognises the rights and freedoms of EU citizens, as stated in the beginning of article 6 but also in articles 2, 3 and 7. Through the introduction of this article into the treaty, the EU is legally obliged to enforce this protection and ensure it is done so by member states. It also obliges the EU to accede to the ECHR, in order to have a coherent legal framework on EU human rights protection. This has yet to be achieved due to a series of rejections of member states regarding the and the council, first concerned that the accession would interfere with the functioning of the EU institutions, specifically with regards to their individual powers and competences. There is ongoing work on this question, but the EU Council have continuously repeated their commitment to the accession of the ECHR.[15] 

The introduction of the Charter was a significant step in the consolidation of EU protection of fundamental rights, ensuring legal conformity between EU policies with fundamental rights. The Charter was constructed using inspirational elements from the ECHR, other human rights conventions and elements of constitutions of Member states. The Charter was consolidated as the primary legal source regarding the subject of fundamental rights[16], ensuring the individual rights of citizens took precedence with regards to EU policies as well as legally obliging EU institutions and Member states to consider fundamental rights in the development of EU policies. The sanction mechanism policy, originally introduced in the Amsterdam treaty and found in Article , ensures the EU in its development of international trade and development policies, respects the fundamental rights of its citizens, as well as the other founding values and principles introduced in the TEU[17]. 

Since the establishment of the Union in the 1950s, membership has grown considerably from 6 to 28 (soon to be 27) member states. The Union is made up of many different national parliaments and many variable cultures, all who have a fundamental right to their protection and a fundamental right to their national identity. The Charter of Fundamental Rights, established post Lisbon in 2009, was a major reform in explicitly acknowledging the need to safeguard the rights of the individual citizen of the EU. It became the legally binding primary source for reference in the protection of fundamental rights for EU citizens.[18] 

With regards to the ever-changing and developing environment EU citizens live in today, we have seen numerous developments in relation to the protection of human rights concerning the right of individuals regarding the protection of their personal data (such as the introduction of the General Data Protection Regulation, GDPR) and rights pertaining to travelling communities. Via the Charter of Fundamental Rights, treaty articles and the European Convention on Human Rights, there is ample documentation to ensure these fundamental rights are respected and protected. The EU has still to continue its work on the accession to the ECHR, yet remains committed to working to achieve this. 

The functioning of any type of public power within a democracy is based upon the respect of fundamental rights.[19] In order for the EU to effectively function as a democratic union, it needs to respect the freedoms and fundamental rights of its citizens, ensuring protection via legal instruments such as the Treaties and the sanction mechanism put into place.

Bibliography

Primary Sources

• The Treaty on the European Union, retrievable at : https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012M%2FTXT, last accessed 08.12.2019
• Charter of Fundamental Rights of the European Union, retrievable at : https://www.europarl.europa.eu/charter/pdf/text_en.pdf, last accessed 08.12.2019

Cases :

• Case 29-69. - Judgment of the Court of 12 November 1969. - Erich Stauder v City of Ulm, retrievable at : https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61969CJ0029, last accessed 08.12.2019
• Case 36-75 - Judgment of the Court of 28 October 1975. - Roland Rutili v Ministre de l'intérieur, retrievable at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A61975CJ0036, last accessed 08.12.2019

.

Secondary Sources:

•  Besselink. F. L, (2012) The Protection of Fundamental Rights post-Lisbon, The Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights (ECHR) and National Constitutions, retrievable at : https://www.google.ie/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiv3MnmwKbmAhWKVRUIHTUUAMEQFjAAegQIARAC&url=https%3A%2F%2Fpure.uva.nl%2Fws%2Ffiles%2F1863964%2F122194_The_Protection_of_Fundamental_Rights_post_Lisbon_FINAL_corrected.doc&usg=AOvVaw1HWOuUXJOx6bWNSa1kSHw4 last accessed 08.12.2019
• Carmona. J, Ferraro. F (2015), Fundamental Rights in the European Union, the role of the Charter and after the Lisbon Treaty, an in-depth analysis, European Parliamentary Research Service, retrievable at : https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_IDA(2015)554168 last accessed on : 08.12.2019
• Craig. P, De Burca. G (2015), EU Law; Text, cases and materials, 6th edition, Oxford University Press
• Marzocchi O (2019), The Protection of fundamental rights in the EU: European Parliament achievements during the 2014-2019 legislative term and challenges for the future, briefing paper. Retrievable at: European Parliament :
• http://www.europarl.europa.eu/RegData/etudes/BRIE/2019/621911/IPOL_BRI(2019)621911_EN.pdf, last accessed 08.12.2019
• Marzocchi O (2019), The Protection of Fundamental rights in the EU (2019), retrievable at European Parliament :
• http://www.europarl.europa.eu/ftu/pdf/en/FTU_4.1.2.pdf last accessed 08.12.2019
• Pech.L, Groussot. X (2010), Fundamental Rights Protection in the EU post Lisbon Treaty, Fondation Robert Schuman retrievable at :
• https://www.robert-schuman.eu/en/european-issues/0173-fundamental-rights-protection-in-the-eu-post-lisbon-treaty last accessed 08.12.2019

[1] Treaty of the European Union, Article 2 “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”.

[2] Treaty of the European Union, preamble, pg. 3

[3] Carmona. J, Ferraro. F (2015), Fundamental Rights in the European Union, the role of the Charter and after the Lisbon Treaty, an in-depth analysis, European Parliamentary Research Service, retrievable at :https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_IDA(2015)554168 last accessed on :

[4] De Burca, Craig (2015), EU Law; Text, cases and materials, 6th edition, Oxford University Press, Chapter 11

[5] Treaty of Rome (1957),

[6] Treaty of Rome (1957), Fundamental Rights Protection in the EU post Lisbon Treaty (2010) pg.1,

[7] The Protection of Fundamental rights in the EU (2019) -http://www.europarl.europa.eu/ftu/pdf/en/FTU_4.1.2.pdf

[8] Fundamental Rights Protection in the EU post Lisbon Treaty (2010)

[9] Case 29/69

[10] Carmona. J, Ferraro. F (2015), Fundamental Rights in the European Union, the role of the Charter and after the Lisbon Treaty, an in-depth analysis, European Parliamentary Research Service, Case 29/69

[11] The Protection of Fundamental rights in the EU (2019)

[12] De Burca, Craig (2015), EU Law; Text, cases and materials, 6th edition, Oxford University Press

[13] Carmona. J, Ferraro. F (2015), Fundamental Rights in the European Union, the role of the Charter and after the Lisbon Treaty, an in-depth analysis, European Parliamentary Research Service.

[14] Treaty of the European Union, Article 6, “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

[15] Carmona. J, Ferraro. F (2015), Fundamental Rights in the European Union, the role of the Charter and after the Lisbon Treaty, an in-depth analysis, European Parliamentary Research Service.

[16] Carmona. J, Ferraro. F (2015), Fundamental Rights in the European Union, the role of the Charter and after the Lisbon Treaty, an in-depth analysis, European Parliamentary Research Service.

[17] The Protection of Fundamental rights in the EU (2019)

[18] Fundamental Rights Protection in the EU post Lisbon Treaty (2010)

[19] Besselink. F. L, (2012)The Protection of Fundamental Rights post-Lisbon, The Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights (ECHR) and National Constitutions,  retrievable at