Fundamental Rights in the European Union

Unfortunately, it would be naive to assume that the principles governing the protection of fundamental rights in European Union law were as straightforward as one would hope. The General Principles ['GP'] of the EU are principles applied by the national courts of Member States as well as the European Court of Justice when analysing the lawfulness of administrative and legislative measures within the European Union. Broadly speaking, the general principles operate to fill the gaps, unify the law and legitimise the EU legal order as a whole. The EU principles are deeply connected to the values, moral and social convictions embedded in EU law which cannot otherwise enter the legal lexicon of the EU Treaties directly. The EU has distinguished the GP from the rules of law, as principles are more liberal, open-ended and as such can be focused more directly towards the specific circumstances of each individual case. The European Court of Justice has acknowledged fundamental rights subsidiarity, legal certainty and proportionality as several GP of the EU. Here, I will take a primary look at the development of protection and vindication of fundamental rights in EU law.

A brief history of General Principles in the EU

The establishment of the European Treaties did not refer, at all, to the provision of fundamental rights and the CJEU historically refused to apply fundamental rights. This is because initially, it was common practice for the onus of asserting the main legal source for fundamental rights to be placed on the constitutional traditions of each individual Member State. This was as well as Member States participating in, and abiding by, international agreements relating to fundamental rights, most notably the European Convention on Human Rights. The staunch denial of the EU to protect fundamental rights (as expressed strongly in the case of Stork [1959]), raised serious concerns for Member States at the national levels. This was due to the appearance of a Community which seemingly adopted an integrative position and which claimed supremacy over national law yet fundamental rights, an element of great importance, were unprotected in the legislation.

The leading case of Solange I by the German Constitutional Court held that for as long as fundamental rights were inadequately served and protected under EU law, the German Constitutional Court reserved the right not to abide and to disapply EU law in Germany. The claim of increasingly frustrated Member States was that the EU was a powerful entity who should subsequently protect fundamental rights. The case of Solange I was a powerful case in motivating the CJEU to change its position in terms of fundamental rights in EU law. The subsequent cases of Nord and International Handelsgesellschaft [1970], the EU directed that the EU law in actual fact did contain provisions and protections for fundamental rights in the form of the General Principles. In the latter case of Handelsgesellschaft, the CJEU held, "respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community." The CJEU took a similar position in Nord, re-asserting the importance of the general principles of the EU as being a vital means to ensure that fundamental rights are respected and protected within the Community. What both cases evidently conveyed however was that despite their outward portrayal of a dedication to the protections of fundamental rights, the EU remained firmly against directly applying national fundamental or constitutional rights as this would threaten the autonomy and supremacy of EU law. At the same time however, the EU created the open-ended and undefined category of unwritten general principles to govern the 'analogous' protection of fundamental rights.

Legal jargon - tale as old as time

Evidently (as is the case in many legal scenarios), the legal jargon was too complicated, opaque and vague for such an immensely important issue as fundamental rights. As Takis (2020) points out, although the European Court of Justice has relied on General Principles of law as a source of rights and obligations from the earliest stage of development of the European Union, their remains profound uncertainty with regards to their definition, nature and role as a source of law which remains unresolved today. Takis interestingly reflects, how "diverse and often bewildering judicial terminology serves to obfuscate the role of principles which, in terms of positive law, stand at the apex of the EU law edifice." Armin Cuyvers is in agreement with Taxis, as Cuyvers expresses how "in certain ways, general principles can be understood as the dark matter of EU law". This "dark matter" is hard to pinpoint and describe, which is what the EU would elaborate as being a necessary element of their existence in order to allow for the fluidity and flexibility to successfully execute the diverse role they play in EU law.

The EU Charter of Fundamental Rights

Everyday individuals like you and me, may not solely rely on initiating proceedings in the CJEU or even through EU law if one of our fundamental rights are violated or breached as the CJEU does not have a separate fundamental rights jurisdiction. Regardless of the creation of the EU Charter of Fundamental Rights in 2000 ('Charter') which contains a multitude of protections of fundamental rights within the scope of the EU, these protections and rights do not afford an individual jurisdiction to bring action in the CJEU. General principles however, act to import, so to speak, national constitutional and ECHR rights into EU law by transforming them into principles that could be applied in the EU legal order. The Treaty of Maastrich [1992] was significant in consolidating the significance of the ECHR and fundamental rights in EU law with the introduction which was further consolidated by the Lisbon Treaty [2007] which effectively elevated the Charter to Treaty status. Article 6(3) TEU now governs fundamental rights as general principles. An extensive existence of case-law which invoked the vindication of fundamental rights-based claims supported this decision by the EU (such as cases of, for example, RTL Television, Fratelli v Martini, Max Mobil and European Parliament v Council). Importantly, the Charter is addressed specifically to the institutions and bodies of the EU, and to the Member States, only when they are implementing EU law, rather than the 'scope of application of EU law' which is the broad framework by which the EU institutions and Member States are bound by the Treaties. The Charter is legally binding and has the force of treaty law. The Treaty of Lisbon, as mentioned, enabled the Charter to be used as a mechanism for challenging the acts of the EU institutions and Member States if they are in violation or non-compliant to the rights enshrined within the Charter. With that being said however, the European Courts are reluctant to annul EU legislation on this basis alone.

The Charter also claims its heritage from the constitutional traditions of the Member States. For example, Article 52(4) of the Charter states that the European courts will not recognise a fundamental right unless it is enshrined if almost all of the national laws and constitutions of the Member States. As such, though EU law generally is seen as affording greater protections for the vindication of fundamental rights, the European Convention on Human Rights is held to be the minimum threshold for the standard to be applied. The first case to successfully find a violation of a fundamental right by an EU institution was the case of Baustahlgewebe.

What actually constitutes fundamental rights?

It's probably nonsensical that this is only coming up at this point in this blog/essay/thing. However, the history and background is arguably needed before jumping into this. With that now covered, a plethora of fundamental rights are covered within the Charter, including 'basic' human rights to life, bodily integrity, freedom of belief, freedom of expression, freedom of religion and so fort. Beyond these basic rights, the Charter goes further to protect a range of rights that are perhaps not universally protected or recognised, including the right to work (Article 15), conduct a business (Article 16), equality to include employment, work and pay (Article 23), social security (Article 34) and healthcare (Article 35).

The EU Courts position on various rights have been set out in the case law, such as the case of Schmidberger (freedom of expression/assembly), Laval/Viking case (collective bargaining) and Omega Spielhalen (protection of human dignity).

Important cases

In the case of Kadi v Council and Commission [2008], Mr Kadi was a Saudi resident with frozen assets in Sweden. The charity for Somali refugees, Al Barakaat, however claimed that these frozen assets were unlawful. Mr Kadi's property was seized without any court hearing or right of redress or allegation of wrongdoing and he was placed on the UN Security Council Committee list. The reason given was a his suspected involvement and link to Al Qaeda. The UN resolution was binding on the EU, however, Kadi argued that this violated his human fundamental rights regarding his right to be heard and his right to effective judicial protection. This is because Mr Kadi could not challenge the legal basis as why he had been placed upon the list. The case continues to be one of the most interesting cases of the CJEU as scholars Kokott and Sobotta note, as it essentially made the CJEU decide where a United Nations Security Council resolution should enjoy primacy over EU law. EU law did not previously allow for this primacy. The CJEU held in favour of Kadi's argument, stating that his fundamental rights had been breached. This led to the EU annulling the regulation implementing the UN resolution on the basis that it violated Kadi's fundamental rights as well as on the basis that it constituted an unjust restriction on Kadi's property rights.

In the case of Melloni v Ministerio Fiscal, the Court interpreted Article 53 of the Charter on the interaction between the Charter and Member States' constitutions. In this case, the Court affirmed the supremacy of EU law, and the Member States's obligation to execute a European Arrest Warrant over a fundamental rights provision of the Spanish Constitution which was claimed to prevent such an execution.

Citizenship

Alongside the above mentioned distinctions and efforts to develop EU jurisprudence in the area of human rights, the concept and application of EU citizenship is another element which has driven EU developments. In the case of Baumbast [2002], B was a German working in the UK. Having worked in the UK, he left and began to work outside the EU however his family remained in the EU and his children still attended school in the UK. The Court referred to the European Court of Justice to question whether a person who was previously admitted into the UK for the purposes of work could continue to enjoy the protection of the Community upon their departure, within the meaning of Article 39 EC. The ECJ held that the children of an EU citizen who had installed themselves in the Member State during the exercise of free movement rights by their parents, are permitted to stay in that Member State and finish their educational courses or degree, pursuant to Article 12 of the Regulation 1612/68. This was despite the fact that the parents of the children had divorced. The Court therefore confirmed that national measures which restrict free movement rights and are justified by national authorities on public interest grounds will subsequently be subjected to assessment by the Court for their compatibility with the principles of fundamental rights.

Other cases of reference: Zumbrano, Carpenter and Digital Rights Ireland.

Concluding thoughts

Ultimately, EU fundamental rights have no general, specific or definitive application and the CJEU does not afford jurisdiction for general fundamental rights. These undoubtedly express the limitations of EU law with regards to protection of fundamental rights, however, this area as evidenced here has been profoundly developed in recent times with the most significant improvement being the establishment of the general principle of fundamental rights under the Treaties. A consequence of which has been the expansion of the scope and provision of EU law and the complete overhaul and transformation of human rights protections in the EU. Therefore, the scope of the Court's jurisdiction regarding human rights has enhanced immeasurably in the recent decades.

- Feelings after today.

MD