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Fundamental Rights in the EU (Oct 2019)



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Introduction to the topic and crucial readings
• Chapter 12 of the Study Guide
• Core Text Horspool & Humphreys Sections 6.50-6.53; 6.58-6.59; 13.7-13.12
This lecture concerns the development of fundamental rights in the EU legal order. We will see
that, at the beginning, nothing was specified in the Treaties with regards to fundamental rights. As
you might have noticed from our discussions on supremacy (also available on Lecture Plus), this
created important tensions between the ECJ and national constitutional courts in the early years of
EU integration. The national constitutional courts felt that the supremacy of EU law cannot be
enforced if the EU legal order has no mechanisms to protect fundamental rights.
Gradually, however, fundamental rights were integrated in EU law, first through the work of the
Court of Justice, and subsequently through amendments to the Treaties. The case you would need
to read from the early years is 11/70 Internationale Handelsgesellschaft, summarized also on Slide
4 of the video. The most important article to remember is Article 6 TEU:
1. 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.
The provisions of the Charter shall not extend in any way the competences of the Union as defined
in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the
general provisions in Title VII of the Charter governing its interpretation and application and with
due regard to the explanations referred to in the Charter, that set out the sources of those
provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the
Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human
Rights and Fundamental Freedoms and as they result from the constitutional traditions common to
the Member States, shall constitute general principles of the Union's law.
All culminated in the drafting of a bill of rights for the EU, at the beginning of the Millennium. The
Charter of Fundamental rights was included in the Treaties at Lisbon, and is now binding for EU
institutions and for the Member States when they are implementing European Union Law. as you can see from Article 6 TEU, the Charter is not the only source for fundamental
rights. Another important instrument is the European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR). Please note that this is another international treaty,
signed outside of the EU framework, by a different international organization, called the Council of
Europe, and including much more Member States. Furthermore, the ECHR has a judicial
mechanism, the European Court of Human Rights (ECtHR). In order to avoid confusions, please
take a moment to read more about the Council of Europe, the ECHR, and the ECtHR by clicking on
the provided hyperlinks. Please also note that, despite Article 6(2) TEU, the EU is not yet a signatory
to the Convention. This is mainly due to the fact that the ECJ has given a negative opinion to the
draft accession treaty back in 2014. It is important that you read Opinion 2/13 of the Court. More
information on the accession, and of the relationship between the ECHR and the EU is to be found
on Slide 13 of Lecture plus.
Fundamental rights can play a series of important roles in the EU: they can be used as a sword
against violations by Member States or EU institutions, but also as a shield, by the Member States
who want to derogate sometimes from Treaty obligations in the name of fundamental rights.
Similarly, they help construct a constitutional space for the European Union.
With regards to the Charter of Fundamental Rights, it is important to note that the scope of its
application is limited. It applies to EU institutions, but it only applies to EU Member States when
implementing EU law. In order to understand when the Charter applies to the Member States it is
important to read C-617/10 Fransson, summarized on Slide 7 of Lecture Plus. Furthermore, you
should also understand that rights are rarely absolute. The Charter contains a general rule for
derogations in Article 52(1), and, in order to understand how the Court interprets derogations, an
important case to read is C-293/12 Digital Rights Ireland, summarized on Slide 7 of Lecture Plus.
Given the wealth of fundamental rights protection instruments, important conflicts of
interpretation can of course arise. Crucially, there exists still tension between national
constitutions, on the one hand, and the supremacy of EU law.
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