Fundamental Rights in the EU
Fundamental Rights in the EU
Overview
While fundamental rights were not on the agenda of the European Economic Community when it was founded in the 1950s, they have acquired increasing importance as the EU has further developed as a supra-national body. The Court of Justice of the EU (CJEU) has been instrumental in this process and it is principally its case law which signalled the emergence and pre-eminence of EU fundamental rights.
On 1st December 2009 the Lisbon Treaty was ratified, giving rise to a number of significant developments in the field of fundamental rights protection in the European Union. This paved the way for the EU to accede to the European Convention on Human Rights (ECHR - a process now under negotiation). Protocol No. 14 to the ECHR further provides for the EU to become a party to the ECHR.
No less significantly, the European Charter of Fundamental Rights (the Charter) became binding with the ratification of the Lisbon Treaty, and it is now a source of primary EU law - that is to say it has the same legal value as the Treaties.
Since 2001, however, the Charter has been relied on as a source of 'soft law' by the CJEU (See for example the Opinion of Advocate General Jacobs in Case C-112/00 Schmidberger [2003] ECR I 5659).
Where do EU Fundamental Rights come from?
As far back as 1970 the CJEU recognised in the Internationale Handelsgesellschaft case that "...respect for fundamental rights forms an integral part of the general principles of Community law" (Case 11/70 [1970] ECR 1161).
In Nold v. Commission (Case 4/73 [1974] ECR 491) the Court cited the inspiration for the general principles of EU law as comprising: i) common national constitutional traditions and ii) international human rights agreements. Thus fundamental rights have increased in importance and stature, in no small part due to the development of the general principles of EU law by the CJEU and through legislative initiatives in areas such as non-discrimination.
Indeed, respect for fundamental rights as outlined in Article 6 of the Treaty on European Union is a requirement for countries which aspire to become members of the EU.
What is the EU Charter and when does it apply?
The Charter is a codification of rights that the EU and its Member States have to respect in the implementation of EU law. This is turn should make it easier for citizens to rely on fundamental rights in actions against EU institutions and Member States. However, this does not involve any transfer of powers to the EU.
There are strong similarities between the provisions of the Charter and the ECHR. However, the Charter goes further in the area of some economic, social and cultural rights - although, it should be noted that some rights are non-justiciable (see Article 52 (5) in relation to the 'principles' in the Charter).
Examples of the Charter going further than the ECHR include: the right to good administration, freedom to conduct a business, and the rights of the elderly. The Charter also makes it clear in Article 52(3) that ECHR rights are to be considered as the minimum that the Charter guarantees and that they make be extended further.
The Charter does not extend the competence or powers of the EU (Article 51(2) of the Charter and Article 6(1) TEU). The Charter is meant to supplement fundamental rights protection at the national level and it only applies when Member States are implementing EU law (Article 51); see, for example, Wachauf. The Charter is accompanied by an Explanatory Memorandum which is not given legal weight as such and is rather a tool of interpretation vis-à-vis the provisions of the Charter. Since the Charter became binding it has been referred to in some thirty judgments handed down by the CJEU.
Recent Cases of Note
Court of Justice rules on child citizens of the European Union March 2011
On 8 March 2011 the Court of Justice rules that parents of dependent child citizens of the European Union may not be refused a right of residence in the case C 34/09 Gerardo Ruiz Zambrano v Office national de l'emploi (ONEM) 8 March 2011
The Court of Justice ruled that:
"[EU law] precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."
This Judgment followed on from the previous Opinion of Advocate General Sharpston