Fundamental Rights Protection

EU Law "There can be no meaningful constitution for the EU without a more cogent approach to fundamental rights protection. The existing multiplicity of legal sources creates confusion and conflict." Discuss.

Introduction

Whilst there are differing views about the reasons for forming a constitution of Europe, and the exact powers that it would behold, 1.there is indeed at least some general agreement that a European Constitution would entail a set of principles setting out with greater clarity the rights and responsibilities of the EU institutions, and also the rights and responsibilities of individual Members States and the people within those states.

In theory, the net effect of this being a simplification of the complexity of the rulebook that has been created by the current mechanisms based on the treaties, and there resulting secondary legislation and the judgments of the European Court of Justice. 2.

It is in relation to fundamental rights of the citizens of the Member States that this piece shall concentrate, and in doing so by focusing on three main issues. Firstly we shall discuss the multiplicity of sources that are referred to in the question, and comment on how they have affected the cogency of fundamental rights protection by the ECJ on a whole. Secondly we shall look at how the ambit and scope of the judgements has raised questions of cogency. Finally we shall look at the how various institutions of the EU have responded to the judgements of the ECJ, again in the light of the effects on cogency, and we shall look at the potentially influential new Article 53 that covers fundamental rights and how, if at all, this could alter the current position. 3.In conclusion we shall discuss how a constitution could improve the current situation that exists within the context of fundamental rights.

Fundamental Rights - Their Sources and Protection by the ECJ - A Critique

The European Union is founded on the indivisible and universal values of human dignity, freedom, equality and solidarity. It can be said to be inherently based on the principles of democracy and the rule of law. These were enshrined at the Treaty of Amsterdam under Article 6. 4.Its aim vis a vis the individual is to establish a form of citizenship of the Union by creating an area of freedom, security and justice. Indeed so crucial are these objectives that candidate countries must now respect these as a precursor to entry into the Union. .5Therefore, the Union, in order to be a democratically legitimate institution, must contribute to the preservation and to the development of these common values while respecting the diversity of the peoples of Europe as well as the national identities of the Member States. The Treaty of Amsterdam now specifically recognises that the European Court of Justice has the power to ensure respect of fundamental rights and freedoms by the European institutions.6.

However the ECJ had been using a commensurate an ad hoc power previously prior to such "codification" and this has formed the policy of the EU as regards the protection of fundamental rights. The concepts of the direct effect and the supremacy of European law were asserted by the ECJ, and then it became legally and politically imperative to find a way to vindicate fundamental rights at the Community level. Whilst the protection of fundamental rights is one of the basic tenets of European Community law, neither the EC Treaty nor the EU Treaty contains any textual list of fundamental rights, however the ECJ recognised the existence of fundamental rights at Community level at an early stage of the EU, and in a not too unfamiliar way, has steadily extended the ambit of the rights through the course of its judgments.

The Court has judged that the fundamental rights form part of the general principles of Community law that it is required to uphold, and that in safeguarding such rights it should be guided by the constitutional traditions of the Member States. The Court has held that '...fundamental rights form an integral part of the general principles of Community law whose observance it ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the member states and from the guidelines supplied by international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories. The ECHR has special significance in that respect.' 7.

Thus no measure may have the force of law unless it is compatible with the fundamental rights recognised and protected by the Member States' constitutions and the array of international treaties that have been signed. This takes on all the more prominence when the plethora of specific rights recognised so far by the Court are scrutinised. They are more than numerous, and include rights that are linked with economic activity as well as more traditional recognised rights of an individual, and indeed the different ways that each of the constitutions of the Member States deal with them ads to complexities 8. Any discussion on cogency must therefore focus on exactly these multiple factors have been considered by the ECJ.

The ECJ has confirmed that a person's rights may be restricted provided that the restrictions correspond to objectives of general public interest and do not constitute a disproportionate and intolerable interference with the very substance of the right protected.9. However, these restrictions are not prescribed by law, and it is doubtful whether decisions of the ECJ have given a high level of legal certainty in this field, compared for example to that which a Constitution could provide.

Whilst the rights are always considered with regard to the social function of the protected activity 10. and the principle of proportionality and the guarantee of essential content are two further constraints. This approach can also be said to have led to a lacuna in the law. Firstly as regard the judgements the Member States are only required to comply with the minimum standards which the rights lay down when they are implementing Community law under Article 10 (5) of the EC Treaty. On the other hand certainty is emanated by the fact that if an action is successful then Court of Justice declares the act concerned to be void, with retroactive and universal effect.

The Court's reasoning, as laid out in a number of cases, makes it clear that the general principles of law are to be regarded as a primary source of law. However, it must be noted that the common constitutional traditions of the Member States and the international treaties for the protection of human rights, to which the ECJ resorts as its sources of judgement, do not constitute a primary source of law in the Community legal order whatsoever. 11. Thus a great deal of leeway is placed at the hands of the ECJ, and arguably the democratic deficit is deepened by the placing of a power that presides over the constitutional norms of the sovereign state without the express permission of the state. Not to mention the dual approach of the European of Court Human Rights adding to the possibility of dangerous contradictions. 12.In addition there is no guarantee that the Member States will reach a consensus on exactly how far reaching the fundamental rights are in their own constitutions, indeed some will have greater restrictions than others on the rights 13. and thus differ greatly on how they will be protected. And, unlike under a constitution, they will have no direct say in the final judgements of the ECJ.

The Ambit and Scope of the Judgements on Fundamental Rights

This state of protection of fundamental rights in the communities has repeatedly been the subject of debate that has not been too often been complementary to the ECJ. The nature of the solution adopted by the ECJ could be argued to be inconsistent with the notion of fundamental rights as constituent factors of a society which claims to be based on the rule of law and that, in a society of pluralism, protection of fundamental rights must, and can only be provided by institutions with democratic legitimacy.

His specifically bears on our discussion because of course any such wide 'pregnant formula' brings to light the requirement of legal certainty. The development of the Community rights undertaken by the ECJ has offered some advantage of flexibility to apply broad justice on a case by case basis, but at the same time it has been unable to offer the same definite and coherent code of rights that a promulgated piece of legislation could. The ECJ justified recourse to general principles and, thus to fundamental rights, by reference to Art. 220 EC Treaty: 'the European Court is to ensure that in the interpretation and application of the Treaties the law is observed'. Thus the Article as mandating the Court to develop the principles, which correspond to the notion of rule of law, has allowed a broad-brush approach.

In addition there is anything but an underlying hard and fast rule that encompasses which areas come under the competence of the ECJ. It now seems that in contrary to earlier judgements that the rulings of the ECJ, will not apply to cases where legislation does not in anyway deal with the implementation or securing of compliance with EC law, and thus will fall outside the competence of the ECJ 14. However this rule is far form set in stone.15.

The Response of the Institutions to the Judgements of the ECJ

What has been the response of the Institutions of the EU in relation to the values of the ECJ that have been trumped by it in its judgements? In short the institutions have "confirmed the substance of the Court's decisions through a series of measures of increasing legal significance."16. In essence they have always been one step behind the often great leaps of the ECJ, providing so called 'soft' approval of the developments of the law, and thus their involvement only merits a minor consideration in this discussion. This been said however the provisions have no doubt helped to improve the clarity of the judgements of the ECJ by encapsulating them.

Parliament in particular has called for the legal conditions to be created to enable fundamental rights to be codified, so as to ensure that rights are comprehensively safeguarded under Community law The Parliament the Council and Commission adopted a declaration on fundamental rights, which is of course is not binding, but persuasive. 17 The declaration was subsequently expanded in a declaration of 1989 through the Resolution on the Solution on the Declaration of Fundamental Rights and Freedoms, which includes a comprehensive list of fundamental rights. Yet the Member States have not yet formally associated themselves with it to the present date.

Indeed the changes formed the basis for the hard law provisions of the Treaty of the European Union and the Treaty of Amsterdam, and this leads us to the next area of discussion the Charter on Fundamental Rights.


Article 53 - The Charter on Fundamental Rights - How the EU Seeks to Remedy the Problems

The members of the EU have identified the need to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments. The European Union Charter of Fundamental Rights sets out a whole range of civil, political and social rights enjoyed by the EU's 370 million plus citizens. The charter was signed by the 15 EU countries as a political declaration at the Nice Summit in December 2000. This means that it may be taken into account by individual national law courts and the ECJ, but it is not legally binding. The charter has the effect of bringing together all the existing rights of EU citizens in a more accessible form. While those rights contained in the European Convention of Human Rights were already visible, those that derived from court judgements in the subsequent 50 years, as already stated were less obvious.

By making those rights more visible in a Charter's the object is to reaffirm, with regard for the powers and tasks of the Community and the Union and the principle of subsidiary, the rights as they result, in particular, from the constitutional traditions and international obligations that are common to the Member States.

Whilst not directly binding however, it is certain that parties involved in fundamental rights litigation will try to find support for their case in the text of the Charter by referring to it in support of their arguments. Indeed "it is well-known that courts are very able at playing with those notions; in other words it is relatively easy for courts to characterise an element of law as mere confirmation of the court's reasoning whereas that element was effectively the basis for the Court's decision." 18.

A Charter of Rights should deal with the apparent inconsistency of different human rights standards across the three Pillars of the Union and the lack of clarity under the existing Treaties as to the status of the ECHR, and, amongst other agreements, the Council of Europe Social Charter.

The Charter should bring some greater consistency to treaty interpretation by providing one single source that individuals can point to as containing a cogent, coherent, and decisive list of rights applicable in the Community. Thus the Charter can arguably be seen as a further step in the protection of the fundamental rights in the EU legal order in that it codifies the already existing rights, and thus offers a higher degree of legal certainty.

Yet the Charter, in must be stated, in the guise of its current legal form, does not change the status of protection of fundamental rights. Thus it is doubtful whether the adoption of the Charter as a non-enforceable declaration will achieve its aim, falling someway short of the effect of a Constitution, even if full implemented. Indeed it could be the case that by creating tension between its hopeful ideology and its actual legal effect, it will constitute northing more than what has been described as 'a recipe for further disenchantment with Europe' 19. and as regards this only the sands of time will obviate its effect.

Conclusion

To conclude, the current situation of enforcement of fundamental rights draws on bases that are often conflicting or unclear in nature and places them in the hands of a body that has used, through necessity, a wide scope of interpretation to enforce them. Should the Charter ton Fundamental Rights be followed then the ambiguity in the current laws could be greatly reduced, yet this would still eve a wider interpretation to the ECJ, and as a means to this end it seems that nothing short of a written constitution could ever provide the needed remedy to rectify the current problems..

  1. See http://politics.guardian.co.uk/speeches/story/0,11126,781968,00.html for example the differing view between Jack Straw and Malcolm Rifkind. Jack straw is of the view that it would not only improve the EU's capacity to act, it would help to reconnect European voters with the institutions which act in their name. Whilst Mr. Rifkin believes the whole point about a constitution is that it would be enforceable by the European court. And be used to force through measures of European harmonisation that are not in the interests of the people of this country.[^ Return]
  2. Which has been referred to as a crisis of legitimacy by the current foreign Secretary. Again see http://politics.guardian.co.uk/speeches/story/0,11126,781968,00.html[^ Return]
  3. The charter was signed by the 15 EU countries as a political declaration at the Nice Summit in December 2000. This means that it may be taken into account by individual national law courts and the European Court of Justice, but it is not legally binding.[^ Return]
  4. Article 6 of the Treaty on European Union states that The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles that are common to the Member States. And that the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.[^ Return]
  5. Article 49 TEU[^ Return]
  6. Article 46 TEU[^ Return]
  7. Case C-299/95, Friedrich Kriemzow v. Austrian State [1997] ECR I-2629, at 2645.[^ Return]
  8. For example the freedom of profession (Her [1979] 3727); freedom of trade (International Trade Association [1970] 1125, 1135 et seq.); and freedom of industry (Usinor [1984] 4177 et seq.);
    Contrasted with the right to human dignity (Casagrande [1974] ECR 773); respect for family life (Commission v Germany [1989] 1263); and the freedom of expression and publication (VBVB, VBBB [1984] 9 et seq., 62).[^ Return]
  9. In Case 4/73 Nold v. Commission [1974] ECR 491, at 508, para 14, the Court made clear that fundamental rights had meaning in European Community law only so far as they were fitted into the Community framework. The protection of rights 'is always subject to limitations laid down in accordance with the public interest' and 'within the Community legal order it likewise seems legitimate that these rights should, if necessary be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched'.[^ Return]
  10. Internationale Handelsgesellschaft [1970] ECR 1125.[^ Return]
  11. Dauses, M (1985) 'The protection of fundamental rights in the community legal order'10 ELRev. 398 at 411).[^ Return]
  12. F. Jacobs, The European Convention on Human Rights Clarendon Press 1975 279[^ Return]
  13. Case 44/99 Haeur [1979] ECR 3727[^ Return]
  14. C - 299/95 Kremzov v Austria.[^ Return]
  15. See the cases of R v Ministry of Agriculture, Fisheries and Food ex parte First City Trading Ltd [1997] 1 CMLR 250 and case C - 2/92 R v Ministry of Fisheries, Agriculture and Foods, ex parte Bostock [1994] ECR for just one example of anything but a constant and linear approach.
    Craig and De Burca EU Law Text, Cases, and Materials Oxford 2nd edition at page 331
    Signed in Luxembourg on 5 April 1977.
    Eeckhout, P (2000) 'The proposed EU Charter: some reflections on its effects in the legal systems of the EU and of its member states' in Feus, K (ed) The EU Charter of fundamental rights (London: Federal Trust for Education and Research) at page 104 - 105
    Eeckhout, 2000, at 102.[^ Return]
  16. Craig and De Burca EU Law Text, Cases, and Materials Oxford 2nd edition at page 331[^ Return]
  17. Signed in Luxembourg on 5 April 1977.[^ Return]
  18. Eeckhout, P (2000) 'The proposed EU Charter: some reflections on its effects in the legal systems of the EU and of its member states' in Feus, K (ed) The EU Charter of fundamental rights (London: Federal Trust for Education and Research) at page 104 - 105[^ Return]
  19. Eeckhout, 2000, at 102.[^ Return]

BIBLIOGRAPHY

Craig and De Burca EU Law Text, Cases, and Materials Oxford 2nd

Dauses, M (1985) 'The protection of fundamental rights in the community legal order'10 EL Rev. 398

Eeckhout, P (2000) 'The proposed EU Charter: some reflections on its effects in the
legal systems of the EU and of its member states

Jacobs,F (1975) The European Convention on Human Rights Clarendon Press

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