To what extent is EU law on fundamental rights in a satisfactory state?

This introductory case law states that fundamental rights cannot be ignored and upholds these for the first time giving them importance and helping to safeguard what should be a protected and reasonable area of law. The case at hand, made it clear that fundamental rights were capable of limiting the competence of the community therefore could be seen to sustain some satisfactory state. The case of Stauder announced the new doctrine of the European Courts conversion to fundamental rights. This doctrine was developed in subsequent cases.

While Stauder confirmed the existence of fundamental rights in common law, Internationale Handelsgesellschaft v Einfuhr identified they would take precedence over European Community law (EC) and confirmed what was said in Stauder. Here the Courts were increasingly fervent to give prominence to fundamental rights when saying, ‘respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice.’ It seems fundamental rights have some sort of ‘soft law’ legal status within the European constitution which progressively has converted fundamental rights from being unidentified and ostracized, to being an ever-increasingly acceptable and established state.

It can be said that the current law on fundamental rights is close to satisfactory or as close as it will get without binding force. As most recent case law has shown, this is generally applied, so the need for a binding document is not as great as it were pre-1968. For example, the German constitution says, ‘we’re constitutionally unable to adopt legislation…that contravened fundamental rights.’ From this, one can say that the Courts give fundamental rights their legal status and importance despite there being no binding force thus, fundamental rights may not have any greater influence given legal status, than it contains now. In developing case law, Razzouk & Beydoun v Commission, it was stated that fundamental rights was an ‘observance which the Court has a duty to ensure.’ Again, there seems to be an unwritten rule, convention, whereby the Courts must uphold these rights as if they were binding.

Within the European Union, fundamental rights do carry an essential aim to protect the rights and freedoms of the citizen. In 1977 the European parliament, the council and the commission made a declaration which stressed, ‘the importance they attach to the protection of fundamental rights.’ Similarly in Nold v Commission, the European Court said it would not uphold measures ‘incompatible with fundamental rights.’ Following this, it can be debated that fundamental rights are converting to a satisfactory state as the European Courts accept them as a general principle of law which they protect and uphold.

However, some fundamental right pleas are unsuccessful making the existing protection on fundamental rights substandard and as seen, there is little case law where the rights are protected. Many argue that this is due to the rights not being, ‘absolute.’ The Court of Justice has referred to this matter of deficiency, stating there is a lack of case law on the subject leaving the protection of fundamental rights far from satisfactory.

The lack of successful fundamental rights case law may be due to fact that there was an initial reluctance to develop these rights as a general principle of community law.

At present, fundamental rights can be seen by the case law above, at the very least as enumerating in a systematic way those rights which are part of the community acquis.

From subsequent case law, the European Courts have no clear interpretation as to fundamental rights which leave this area of law uncertain and insufficient.

After fundamental rights were recognised by the courts, they were then endorsed into treaties giving them a more pronounced legal status. The Maastricht and Amsterdam treaty amendments finally gave constitutional legitimacy to protect fundamental rights within the community since 1968. The treaty of the European Union, Article 6 (2), declared that the union ‘shall respect fundamental rights.’ It goes further to say that, ‘the union shall recognise the rights, freedoms and principles set out in the Charter of fundamental rights.’ From this, one can see that the Union recognises fundamental rights and gives them growing importance.

The latest development for fundamental rights involves the draft of the Charter of fundamental rights. Until 2006, when the Charter is believed to be implemented into the European constitution, fundamental rights will continue to have this inadequate, slowly processed status of soft law.

However there are procedures which are being undertaken currently which could add this certainty and precise form to fundamental rights, changing it from an unwritten convention to a legally binding document of the European constitution which will go further to protect fundament rights.

It has been more than fifty years since the community has been founded and the position on fundamental rights has changed considerably. In June 1999 the cologne European council entrusted the task of drafting a Charter of fundamental rights into the drafts of the new European constitution. The draft was adopted in October 2000 and the Biarritz council approved the draft and forwarded it to the European parliament and commission. They both gave their acceptance at the end of 2000 and the presidents of the European parliament, commission and council signed and proclaimed the Charter on behalf of their institutions on December 2000 in Nice. The Nice European council is currently undertaking discussions on the definitive status to be given to the Charter. However, the future of the Charter will either be a simple integration of its provisions into the existing treaties or into the European Union.

Attempts have been made in the past to protect fundamental rights on this level. In 1953 the European political community drew up primary aims which were declared to protect these rights however the proposal was abandoned in 1954. The step to produce a Charter today was taken by the ECJ as challenges were made against community law as member states felt EC legislation was encroaching upon important rights protected under national law.

For the President of European Commission, the need for a Charter of fundamental rights was, ‘to make more visible and explicit to European citizens the fundamental rights,’ as the body of European law has few references to fundamental rights. The Charter brings together all existing rights of the European citizens in a more accessible form. By codifying fundamental rights into the constitution of the European Union, it brings together in a concise text the rights scattered throughout many different sources. Following this, fundamental rights as they stand now, are less effective and satisfactory due to their imprecise and scattered form. However, this draft Charter has even been described as a ‘road map’ to the protection of fundamental rights. As they stand now, the rights offer no direction to protect. Many believe the Charter deserves legal status and will promote the importance of fundamental rights within the law and to the citizens of the European Union at large. If fundamental rights are to be implemented into the constitution then citizens will have a documented framework to refer to which will contain rights in a clear, strong form rather than scattered across many sources as they are presently. Certainty and awareness of these rights can only be ascertained through the force of the Charter. It could therefore be suggested that fundamental rights, as they are at the moment, are unreasonable as they have no written or precise form of reference preventing citizens to acknowledge or enforce their rights. This is an insufficient form of protection. One could suggest that if the Charter does gain legal status, the law on fundamental rights would be stronger and more precise therefore in a satisfactory state which it has long awaited. A debate of the convention was held in 2002 and stated, ‘a very large majority of speakers supported incorporation of the Charter…making the Charter a legally binding text.’ Others downplayed the significance of the Charter. In 2000, Tony Blair stated his disapproval of the Charter by described it as ‘simply a statement of policy.’ He went on to say, ‘the UK is not the only member state to oppose something of a binding legal nature.’ This argument can be reasoned by suggesting countries such as UK, fear that if the Charter became legally binding it would create new legal obligations which would undermine their national sovereignty.

Community law is an evolving legal system which continues to develop to the needs and objectives of the European Union. One thing that has not changed is the Unions’ dominant focus upon economic values.

At present, the protection of the rights in the European Union is managed in an incoherent way. There is no clear conceptual underpinning to the rights protected under the European law. There is an uncertain nature of the charters exact legal status which may not matter much as it can still be regarded as a convenient summary of fundamental rights. At best the Charter is a written expression as the Unions general respect for fundamental rights.

The charters incorporation might contribute a more positive fundamental rights policy at Union level. The inter-governmental conference (IGC) will ‘take the ultimate decisions.’ The status of the Charter is determined by the intention of the member states which draft it, at present there is no such intention by the member states.

One thing can be concluded, the area of fundamental rights has grown in worth since 1968 and if the Charter is to have binding status, than the protection of fundamental rights within the European Union will be much more satisfactory.

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