European union assignment

Assess the importance of fundamental rights as a source of Community law, with particular reference to their status under the EC Treaty and the Treaty on European Union

Within any state, or Community there are any number of sources of law. The question here is where, if at all, so called ‘fundamental rights’ exist in this hierarchy. It will be seen that the status of these rights has fluctuated dramatically over time, with the past, present, and future all considered.

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FUNDAMENTAL RIGHTS

The first question concerns the meaning of ‘legal source’. This can be defined as the origin of law within the European Community; in essence the places where the laws are embodied . The same definition lists the sources and it is worthwhile to note that ‘fundamental rights’ are not listed. The closest would be ‘general principles of law’.

It is unsurprising then that in Colneric’s paper, the focus is on the decisions made by the European Court of Justice ; nor that Dr. Colneric calls the development of fundamental rights a “success story of judge made law” . This is something of a give-away as it is clear that Colneric believes that the development of the fundamental rights doctrine as a valid source of law has been a success.

In the absence of early codification, it is to the ECJ that the examination must turn. The case law lacks cohesion but does maintain a consistency of direction, if not always of principle. For example, in Wachauf v Germany the ECJ ruled that the scope of a fundamental right is limited to the purview of the Treaties and Conventions. Likewise in Nold v. Commission the ECJ emphasised that the name was an oxymoron because even a fundamental right could be ignored if a sufficient reason existed; public interest and national security were the two cited.

There was though a counter view; a view first forwarded by Dworkin who wrote that the existence of a fundamental right provided the holder with, in essence, a “trump card” that put the opposing party in a defensive position with all burdens and duties passing to that other party. Emphasising this view clearly indicates that far more deference should be paid to fundamental rights than Wachauf and Nold suggest.

It is partly because of this ambivalence, partly due to the objections of unenumerated rights being enforced, and partly because of the expanding Europe that the status of fundamental rights has been codified. In 1992 the principle of fundamental rights was incorporated into the Treaty on the European Union in Article 6(2). This did solidify the status without leading to incorporation into the actual EC Treaty.

It is important to understand that the stalled codification, or at least the slow approach taken, may be more down to a concern over the legality of such a move than to a low estimation of importance. The argument evolved that fundamental rights should be a matter for the individual member states rather than the Community. The response by the ECJ and Community was that A220 of the EC Treaty required the institutions to move towards a central body of government.

Apart from this, recognition has been fairly ambiguous. There was an attempt to incorporate it into the EC Treaty via the Rome Convention. However a sufficient number objected to prevent the alteration being made . In 2000 the Charter on Fundamental Rights was proclaimed . It was later referred to by Kyriakov as “a soft law instrument”. The point is that while is does codify fundamental rights, it has little significance in the legal sources status issue. Although Dr. de la Rochere believes the mere presence of the Charter will have an impact, there can be no denying the fact that it is of little legal significance. While the Charter has been mentioned, it has rarely been given significant attribution. It is of use as a symbol but little more at the present time.

Of even greater interest is the potential for even greater acceptance in the future. de la Rochere notes that the process of negotiation for the Charter was unusually smooth and that plans have already been made for a greater discussion on the subject. Indeed the article suggests that the Charter may be the fore-runner for a development similar to the American Bill of Rights; a recognition that is at the apex of the legal sources in America. Were this to become reality, ‘fundamental rights’ would have completed a remarkable journey from obscurity into full and unadulterated recognition.

CONCLUSION

In conclusion, it can be said that the status of fundamental rights has undergone a transformation, from the original status of unwritten guidelines, through express recognition by the ECJ, to the present day where they hold the position of principles entrenched within the various Treaties of the European Union. In the future, they are likely to take on even greater significance.

BIBLIOGRAPHY

EC Treaty
Charter of Fundamental Rights 2000
EU Treaty 1992

Barnard C ‘The Substantive Law of the EU’
Oxford University Press

Dr. Colneric N ‘Protection of Fundamental Rights Through the Court of Justice of the European Communities’ Working Paper 2
http://denning.law.ox.ac.uk/iecl/pdfs/working2colneric.pdf

Dr. de la Rochere JD ‘The EU Charter of Fundamental Rights’

Dworkin R ‘Taking Rights Seriously’
London: Duckworth Press

Kyriakou T ‘The impact of the EU Charter of Fundamental Rights of the EU system of protection of rights: much ado about nothing?’
http://webjcli.ncl.ac.uk/2001/issue5/kyriakou5.html

Vasiljevic S ‘Fundamental rights protection as a disturbing place of European citizenship’
http://www.liv.ac.uk/law/ukcroatia/documents/vasiljevic%20research%20statement.df

University of Sheffield Library
http://www.shef.ac.uk/library/libdocs/crmr3.html

http://europa.eu.int/eur-lex/en/about/abc/abc_19.html

Case 29/69 (1969) ECR 419 Stauder
Case 5/88 (1989) ECR 2609 Wachauf v Germany
Case C-299/95, Friedrich Kriemzow v. Austrian State [1997] ECR I-2629
Case 44/79, Liselotte Hauer [1979] ECR 3727 at 3744-3745,
Case 4/73, Nold v Commission [1974] ECR 491

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