Fundamental rights in the European Union

In this chapter we are going to look at fundamental rights in the EU. As we shall see, the original Treaties did not contain any specific reference to fundamental rights. For this reason it fell upon the Court of Justice to develop a fundamental rights jurisprudence to ensure that individuals would be adequately protected. Eventually this gap was remedied and the EU ‘proclaimed’ its own catalogue of rights, the Charter of Fundamental Rights of the European Union, which became ‘legally binding’ following the entry into force of the Lisbon Treaty. The Lisbon Treaty also provided for competence for the EU to accede to the European Convention on Human Rights (ECHR), a fundamental rights document adopted in the context of the Council of Europe (which is a separate organization from the EU). Accession negotiations had been concluded in 2013; however, accession has been stalled following a ruling by the Court of Justice which found the proposed agreement incompatible with the Treaty. The Court’s objections were far reaching and difficult to be overcome and two years have gone by without any progress being made towards a new accession deal. The protection of fundamental rights in the EU is a rich, and at times contested, area of EU law and it has become increasingly important with the expansion of the powers of the EU, especially in the field of criminal law. However, when reflecting on the debate on fundamental rights you should bear in mind the bigger picture: the more extensive the jurisdiction of the Court, the more enthusiastic its protection of individuals, the more pronounced the intrusion in national law. Here, consider that once the Court of Justice has asserted jurisdiction, the national courts must relinquish it—if the Court decides that it is for itself to assess whether, for example, a national immigration rule falling within the scope of EU law is compatible with fundamental rights, it will then be only for the Court to balance the competing interests (ie the desire to curtail immigration vis-à-vis the rights of the migrant). Those incursions in what is felt to be the national jurisdiction might lead to problems, especially when national courts disagree with the level of protection afforded by the Court. Moreover, further judicial review of national legislation might be perceived as an unwelcome intrusion into the sovereignty of national parliaments. This chapter will start by analysing the historical background and the development of the case law on fundamental rights since, despite the introduction of the Charter, an understanding of the previous case law is vital to appreciate when and how fundamental rights apply in the EU. We will then analyse the main Treaty provisions relating to fundamental rights protection, before turning to the Charter of Fundamental Rights of the EU. In the last section we will look at the relationship between the EU and the ECHR, including the extent to which the European Court of Human Rights (ECtHR) agrees to scrutinize EU acts. We will also analyse the draft agreement on the EU’s accession to the ECHR, and the Court’s objections to that agreement.