Critically discuss the proposition that the Treaty of Lisbon has completed the evolution of the EU legal system

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David McCabe 11090596

Words: 2837(excluding footnotes and bibliography)

Question: Critically discuss the proposition that the Treaty of Lisbon has completed the evolution of the EU legal system

1 Introduction:

1.1 In the aftermath of WW2 the leaders of Europe faced many challenges, economically, politically and socially. It was in this aftermath that the framers of the original EC treaties sought to create an economic union which was to promote trade and commerce within the continent and thus encourage propensity and co operation in a land which had been haunted by war after war. Also in this aftermath, the Council of Europe was founded in 1949 to ensure the protection of human rights and thus ensure the atrocities of authoritarian governments did not re-occur. This paved the way for the creation of the Convention of human rights (referred from now on as the ECHR) which enshrined a set of common goals and standards to the countries which agreed to abide by the Convention. The European court of Human rights (referred from now on as the ECtHR) was also established as a mechanism to which human rights cases and states in breach of the Convention could have the issues adjudicated.

1.2 Upon the creation of the EEC, fundamental human rights were not considered part of its mandate, promoting stronger economic ties and breaking down trade barriers was to be its primary function. However, as the EC grew and successfully achieved its goals, it morphed into an institution which incorporated a wider mandate. This transformation can inherently be traced back to the early case law of its legal arm, the European Court of Justice (EUCJ), and the landmark decisions which it handed down. This ‘judicial activism’ has paved the way for what we now recognise as the European Union and its unique and thriving legal system.

1.3 In the Lisbon treaty, the EU has been given a legal personality and will finally ascend to the Convention of Human rights. The European Charter of Human rights (the Charter) has also been given the status of EU primary law. In this essay, I will explore whether the change in the makeup of the EU legal system, most notably the issue of fundamental rights in the EU, has completed the evolution of a legal system or not.

2 The origins of fundamental rights in the European legal system:

2.1 In its first two decades the EUCJ was very reluctant to adjudicate on issues which were not economic in nature. However, the EUCJ soon became extremely active in following ‘a vigorous policy of legal integration, particularly in the first decades of the Community’s existence,’ giving substance to the ‘framework’ Treaties, expanding Union competences, enhancing the effectiveness of Union law and developing the principle of supremacy, the doctrine of direct effect and the general principles of Union law. It has been described, on the as ‘a hero who has greatly advanced the cause of integration and has also been condemned for its ‘judicial activism’.

2.2 In the 1960s, the EUCJ judges developed the doctrine of direct effect and supremacy opening up discussions at national doctrinal levels on the possible conflicts between Community (now Union) law being declared supreme, yet not containing an adequate system of protection of human rights. In 1968, a progressive article published by Pierre Pescatore, questioned whether within the EUCJ’s case-law there was enough scope to adequately protect fundamental rights at Union level. Consequently, a year later, the Stauder case provided the Court with the opportunity to clarify that fundamental rights form part of the general principles of Union law. Later on, in Internationale Handelsgesellschaft, the Court explained that, despite being ‘inspired by constitutional traditions common to the MSs,’ the protection of fundamental rights should be ensured within the Community legal system.

2.3 Arguably, a further extension of the material scope of Union law, thus implying a step forward in European integration, was provided by the Nold decision. Here the Court stated that in assuring protection of fundamental rights, it is required ‘to draw inspiration from constitutional traditions common to the Member States and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States.’ It then affirmed that indications to take into account within the framework of Community (now Union) law are the international treaties on the protection of human rights, in which the MSs have cooperated or to which they have adhered to.

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2.4 The past 20 years have also been characterised by numerous references to individual articles of the ECHR, as a source of guidelines to be followed within the framework of Union law. The Convention was also mentioned in the preamble to the Single European Act (1987) and in the Maastricht Treaty (1992). In 1998, the EUCJ, in Baustahlgewebe, expressly relied on Strasbourg’s jurisprudence. Then, the Charter of Fundamental Rights was solemnly proclaimed in 2000 by the European Parliament, the Council and the Commission.

3 EU accession to the ECHR

3.1 The Lisbon treaty has introduced Article 6(2) TEU, ...

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