EU Protection of Fundamental Rights

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Christian Hidalgo                06205165

To what extent does EU law protect fundamental rights?

The Preamble of the European Union outlines that:

it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter.

“Core fundamental rights” refer to those “rights”, or to those “levels of protection”, which are said to be universal, transcending any legitimate cultural or political difference among different societies in, at least, the universe of Europe. 

Neither the Treaty of Paris nor the Treaty of Rome contained any illusion to the protection of fundamental human rights. The initial trigger for the Court’s declaration that fundamental rights formed part of the EC legal order was:

“the challenge posed to the supremacy of Community law by Member State courts, which felt that EC legislation was encroaching upon important rights protected under national law.

Once the European Court of Justice, which played a major role in securing the growing awareness of fundamental rights, put in place its constitutional jurisprudence in cases such as Van Gend en Loos and Costa, it became legally and politically imperative that a way had to be found to support fundamental human rights at the Community level. 

In Van Gend en Loos, the ECJ established direct effect, stating that Article 12 should be interpreted “as producing direct effects and reading individual rights”. Furthermore, it held that rights conferred on individuals by the EC legislation should be enforceable by those individuals in national courts.

With growing awareness of fundamental rights, especially throughout the European Community, these rights undoubtedly began to play a crucial role and therefore their protection became inevitable. In the 1970 case of Handelsgesellschaft, which portrayed the importance of fundamental rights, the German Verwaltungsgericht referred to the ECJ the question of whether the import and export licensing system under the common organisation of the grain market was valid. In it’s ruling, the Court refused to impugn a Community act for incompatibility with the constitutional law of a Member State. Nevertheless, the Court added that:

In fact, 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 Member States, must be insured within the framework of the structure and objectives of the Community. It must therefore be ascertained, in the light of the doubts expressed by the Verwaltungsgericht, whether the system of deposits has infringed rights of a fundamental nature, respect for which must be ensured in the Community legal system.

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The judgment emphasises that the Court recognises fundamental rights as a general principle however refuses to protect it in a legislative manner. The ECJ’s progressive development of an unwritten bill of rights for the Community was gradually given express recognition in the Treaties. In particular, Article 6 TEU declares that respect for fundamental rights and freedoms constitute one of the basic principles on which the Union is founded. Despite recognising fundamental rights as a basic principle, the ECJ was not willing to declare the ECHR formally binding upon the EC/EU and thus give it complete protection. The unwillingness of ...

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