CHARTER OF FUNDAMENTAL HUMAN RIGHTS

INTRODUCTION
In the beginning, there was little focus on human or fundamental rights in the Treaties. However, it was not
long before the EU established itself as a powerful entity, the express competences of which extended
beyond the boundaries of economic integration. In view of this, the Court of Justice recognised that the
interests of the Union were spread so wide that it was not possible to disregard human rights in EU law.
The approach adopted by the Court of Justice was characterised by a realisation that the absence of written
provisions relating to fundamental rights in EU legislation did not negate their existence in EU law. Rather,
the position was that Union law needed to be supplemented by unwritten legal principles, including basic
rights, which have equal status with primary Union law. The Court therefore adopted a gradual approach to
the incorporation of fundamental rights into Union law.
Stauder v. City of Ulm (1969) – the Court had to consider a Commission Decision providing butter at
reduced prices for consumers, a measure introduced to stimulate the sale of surplus butter on the common
market. The Court held that, properly interpreted, the contested Decision contained ‘nothing capable of
prejudicing the fundamental human rights enshrined in the general principles of Community law and
protected by the court’. So, although no fundamental right was found to have been violated in this particular
case, the Court nonetheless recognised fundamental rights as a general principle of Union law.

International Handelsgesellschaft case (1970) – an EU measure establishing a cereal export licensing

scheme linked to a system of deposits, which was challenged with reference to the German constitutional
rights of economic liberty and proportionality. Although the Court did not find a violation of the
fundamental rights in this case, this decision again affirmed the view that these rights, although based on
national constitutions, were part of the general principles of EU law.
Nold v Commission (1974) – the Court found that there were two primary sources for the general
principles of EU law: (i) the common national constitutional traditions; and (ii) international human rights
agreements.
NATIONAL CONSTITUTIONAL TRADITIONS
The Court of Justice will refer to common national constitutional provisions when developing general
principles of EU law. However, this can give rise to challenges, including for two principal reasons: (i) the
inherent difficulty in finding common traditions across the Member States; and (ii) the risk of compromising
the supremacy of EU law by deferring to national law.
Hauer v. Land Rheinland – Pfatz (1979) – the Court considered the right to make use of one’s property.
Here, the applicant, who wished to plant vines on her land, was prevented from doing so by an EU
Regulation restricting the planting of vines in order to avoid the overproduction of wine. In its decision, the
Court made reference to both the ECHR and the specific constitutional provisions of particular national
constitutions, concluding that the right to make use of one’s own property had to be weighed against the
Community interest.
AM & S Europe Ltd. v. Commission (1982) – The Court partly based its finding of a general principle of
lawyer-client confidentiality on a comparative survey of the laws of the Member States.
Omega Case (2004) – the Court of Justice stated that it was ‘immaterial’ whether a fundamental human
right had its source in a national constitution or the Union legal order as a general principle of law, since
EU law would protect such a right whatever its source.
Defrenne v Sabena (1978) – In this case, The CJEU held that Article 119 EEC (now Article 157 TFEU)
on equal pay has direct effect, including horizontal direct effect against private employers. It was eventually
established that, equal pay for equal work is directly enforceable in national courts against private
employers.
CHALLENGES TO EU LEGISLATION WITH THE ENACTMENT OF HUMAN RIGHTS AGREEMENTS
Although numerous challenges have been brought before the Court alleging that EU legislation violates
fundamental principles of EU law, the number of cases where the Court has actually annulled legislation is
relatively small. In the sphere of property rights, the Court has often followed the reasoning given in Nold
and Hauer (above), whereby such rights could be justified if the restrictions concerned are intended to
protect other legitimate interests and are proportionate in achieving that end.
Bosphorus v. Minister for Transport (1996) – the Court had to consider the legality of an EU regulation
which implemented UN-mandated sanctions against the former Yugoslavia. According to the Court the
fundamental interests of the international community were sufficient to justify such restrictions of property
or trade rights.
Kadi v. Council and Commission (2005) and Yusuf and Al Barakaat Intl. Found v. Council and
Commission (2005) – which involved the freezing of assets by an EU regulation implementing a UN
Security Council resolution. the Court annulled the EU regulation on the grounds that it infringed a number
of EU fundamental rights, including the right to defence and the right to effective judicial protection.
In relation to competition law, enforcement proceedings have often been the subject of challenges on the
grounds of alleged violation of fundamental principles.
CHALLENGES TO MEMBER STATE LEGISLATION WITH THE ENACTMENT OF HUMAN RIGHTS
AGREEMENTS
According to developed case law, Member States are bound by general principles of EU law in a number
of circumstances. The first circumstance is when the Member State is applying national provisions of EU
legislation, which are based on protection for human rights.
Rutili Case (1975) – the Court of Justice said that national measures restricting free movement had to be
examined as to their compliance with Directive 64/221 setting out the limitations on the right of free
movement of workers under Article 45(3) TFEU and also in the light of provisions of the ECHR.
The second circumstance is when the Member State is acting as an ‘agent’ of the EU by implementing or
enforcing EU measures. Thus, when interpreting and implementing EU law, Member States are under an
obligation to act and legislate in a way that respects Convention rights, even if such rights are not explicitly
provided for under EU law.
Wachauf Case (1989) – the Court had to consider the obligation of a Member State to provide
compensation under an EU Regulation to a farmer who had discontinued milk production. The Court felt
that to deprive the farmer of compensation in return for the fruits of his labour would be incompatible with
his fundamental rights. Member States should be bound, when implementing EU law, by all of the same
general principles and fundamental rights as the Union.
The third circumstance is when Member States derogate from EU law on the grounds of, for example,
public policy. Even in these cases, the Court has held that it has a duty to ensure that the Member State,
when derogating, has adequately respected EU fundamental rights and general principles.
On the one hand, such scrutiny by the Court has meant that there has been a stream of cases in which a
Member State attempts to rely on a public policy or public interest derogation to expel, or refuse a benefit
to, a migrant covered by EU law. In such cases the Member State has been required by the Court to take
adequate account of the impact of the proposed action on the right to family life, as protected under Article
8 of the Convention. On the other hand, this scrutiny has also allowed the Court to uphold derogations made
on grounds of the protection of human rights.
Omega Case – the Court found that the restriction of the marketing of laser games in Germany could be
justified on the grounds of the protection of human rights.
Lastly, the Court has confirmed that, when acting outside the scope of EU law, Member States are not bound
by EU fundamental rights and principles.
Cinetheque Case (1985) – the Court of Justice held that it had no power to examine the compatibility with
the ECHR of national law which concerns an area that falls within the jurisdiction of the national legislator.
Kremzow v. Austria (1997) – the Court found that a purely hypothetical prospect of exercising the right
to the free movement of persons does not establish a sufficient connection with EU law to justify the
application of Union general principles.
THE EMERGENCE OF THE CHARTER OF FUNDAMENTAL HUMAN RIGHTS
The original Community Treaties contained no catalogue of basic rights which could constitute a check on
the exercise of power by the EU institutions. Recognising this, the Union set up a study group in 1999 with
the intention of cataloguing the various fundamental rights spread around the EU Treaties, the case law of
the Court of Justice, the ECHR and the Declaration on Fundamental Rights of the European Parliament
1989. As such, the aim was not only to collect together existing rights, but also to codify new rights. The
result was the Charter, which sets out rights that must be upheld within the Union, categorising them under
the subheadings of Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights, Justice and General Provisions
of Interpretation and Application.
The Charter was solemnly proclaimed at the Nice European Council on 7 December 2000. At that time, it
did not have any binding legal effect. However, the Treaty of Lisbon saw the incorporation of the Charter
into primary European law and, since then, it has been binding on EU institutions and national governments.
Article 6 TEU states that ‘the Union recognises the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the European Union of 7 December 2000 ... which shall have the same legal value
as the Treaties’.
Following the Lisbon Treaty, the Charter now has primary legal status within the Union. However, for the
rights to be actionable a Union element must still be invoked. Thus, purely internal situations do not fall
within the ambit of the Charter, nor do fundamental rights issues which arise in areas over which the EU
has no competence.
The Court of Justice has ruled on the scope of the Charter. Article 51 states that the Charter is applicable to
the institutions of the EU and the Member States when implementing EU Law. The expression ‘Member
states when implementing EU law’ was the object of much disagreement. Its wording reflects the attempts
made by Member States to limit the scope of the Charter mainly to the mere implementation of Directives.
In conclusion it could be argued that the Charter is now a benchmark for the legality of both EU law and
national law when this falls within the (very wide) scope of EU law.
Cruciano Siragusa v. Regione Sicilia – the Court held that a national measure will be considered as
implementing EU law when ‘a certain degree of connection’ is established and where that link with EU law
‘is above and beyond the matters covered being closely related or one of those matters having an indirect
impact on the other’.
The Charter, with a particular focus on the right to effective judicial protection, has been recently invoked
in a series of rulings, including infringement proceedings brought by the Commission with respect to
Member State provisions relating to the national judicial system.
THE APPLICATION OF CHARTER RIGHTS BY COURT OF JUSTICE
Since the coming into force of the Lisbon Treaty, the number of judgments in which the Court has cited or
made reference to the Charter has vastly increased. The Court has also upheld the fundamental right of data
protection by invalidating part of an EU measure which required the publication of the names of recipients
of funds from the European Agricultural Guarantee Fund and the European Agricultural Fund for Rural
Development.
Chakroun Case (2010) – the Court interpreted the provisions of the EU Family Reunification Directive in
the light of fundamental rights, in particular the right to respect for family life. In view of this interpretation,
the Court found that national legislation which imposes certain requirements on the amount of financial
resources available to third-country nationals who wish to obtain a residence permit for their spouse was
prohibited under the Directive.
The right to an effective remedy is one of the most quoted rights in the case law of the Court of Justice. The
Court had to consider whether national legislation refusing legal aid to persons in the absence of a ‘public
interest’ violated the right to an effective remedy. The Court held that the principle in Article 47 of the
Charter must be interpreted as meaning that it is not impossible for legal persons to rely on that principle
and that aid granted pursuant to that principle may cover, inter alia, the costs of legal advice or
representation.
The Court has not only considered Member State measures when applying the rights protected in the
Charter. In fact, the Court has also ruled on how the EU institutions must take into account fundamental
rights in the Charter when acting. For instance, the Court has annulled the notices of several open
competitions to become a civil servant of the EU on the basis that they have only been published in three
languages, thereby violating the non-discrimination prohibition in Article 21 of the Charter.
Maximillian Schrems v. Data Protection Commissioner – the ECJ held that the decision of the
Commission ‘cannot eliminate or reduce the powers expressly accorded to the national supervisory
authorities’ by the Charter or the Directive.
THE APPLICATION OF THE ECHR BY THE COURT OF JUSTICE
As an international human rights measure, the EU uses the ECHR as a source of inspiration when
interpreting fundamental principles in EU law. This was recognised in Case C-4/73 Nold v Commission. In
Case C 36/75 Rutili v Minister for the Interior [1975] ECR 1219, the Court held that various rights invoked
by the applicant and contained in express provisions of Union secondary legislation were specific
manifestations of more general principles enshrined in the ECHR. Further references to specific provisions
of the ECHR were made by the Court in Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR
1651, where the Court said that the requirement of judicial control reflected a general principle of law
common to the Member States as laid down in Articles 6 and 13 of the ECHR. As such, Article 6 of the
Equal Treatment Directive 76/207 had to be interpreted ‘in the light of the general principle’. The EU has,
on some occasions, gone further than the Convention when recognising rights in EU law.
In the field of competition law, the Commission’s powers are broad and include the right to authorise
searches of premises and to impose severe financial penalties. Affected parties have therefore called upon
the Court to limit the exercise of the Commission’s powers by reference to fundamental legal principles.
THE EU’S ACCESSION TO THE ECHR
All EU Member States are also parties to the ECHR, the EU itself is currently not. Even though the EU is
founded on the respect for fundamental rights, the ECHR and its judicial mechanism do not formally apply
to EU acts. Despite this, all EU Member States, as parties to the Convention, have an obligation to respect
the ECHR even when they are applying or implementing EU law. This divergence may be rectified by the
EU becoming a party to the Convention.
Accession would make the ECtHR the court of last instance regarding matters of human rights in the EU,
a fundamental shift from the current constitutional set-up. Bosphorus v Minister for Transport [1996]
concerned an Irish action to impound a Yugoslav plane under EU Regulation 990/93. The interpretation and
application of the Regulation was contested in the light of fundamental rights, including the right to peaceful
enjoyment of property and the freedom to pursue a commercial activity. In response to a preliminary
reference, the Court of Justice did not consider that the Irish actions had been disproportionate.
Subsequently, the lessees of the plane brought an action before the ECtHR (Application No. 45036/98
Bosphorus v Ireland, Judgment of 30 June 2005), in which the Court found that EU law protection of
fundamental rights could be considered ‘equivalent’ to that of the Convention system.