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, which provides that the Union “shall accede” to the ECHR , which requires EU action rather than merely offering an option –,and that “such accession shall not affect the Union’s competences as defined in the Treaties.”
3.2 Numerous arguments have been offered in support of EU accession to the ECHR. First and foremost, EU accession has been championed on the ground that it would be symbolically important as it would send a positive message stressing the EU commitment to fundamental rights protection internally as well as externally.
3.3 Secondly, EU accession would also give a strong signal of the coherence between the EU legal system and the national ones:
“Any legal order (national and European) must respect the identity of the other legal orders; its identity must not be affirmed in a manner that either challenges the identity of the other legal orders or the pluralist conception of the European legal order itself”
3.4 It is surprising, in some regard, that the EU is not formally bound by the ECHR whereas EU member states are all members of the Council of Europe and accession to the ECHR is one of the conditions of entry into the EU. Also, the EUCJ and ECtHR, over the past decade or so, have held regular bi-lateral meetings and it can be observed that there is a progressive interest in their respective jurisprudence, especially on the part of the EUCJ.
3.5Another argument in favour of EU accession to the ECHR is that it will eventually afford citizens protection against EU acts similar to that which they already enjoy against national measures. It is also often assumed that such a step is required to preclude any potential divergence in human rights standards between the ECJ and the ECtHR ; viewed in this light, the fact that the ECJ would come under direct, external and specialised judicial supervision in the same fashion as national courts, is seen as a desirable development.
3.6 It must also be noted that the EUCJ will be asked to render an opinion on whether or accession is compatible with the treaties, which legal academics suggest should be returned in the affirmative.
4 The Charter and the Lisbon Treaty:
4.1 The Lisbon Treaty (in a peculiar fashion in that it didn’t form part of the treaties) declared the Charter to have primary law status:
‘The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of December 2000, as adopted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties’
4.2 A look at the Charter's provisions has best described as a gifted crystallization of existing fundamental rights contained in the ECHR. What's more, the language used by the drafters of the Charter also reflects existing national, EU and international provisions.
4.3 The Charter can be considered to be more far reaching then the ECHR. First of all, the ECHR is mostly confined to civil and political rights whereas the Charter contains both civil and political rights, on the one hand, and economic, social and cultural rights on the other. The Charter also contains a small number of ‘third generation’ rights or rights which protect issues of global concern, such as the right to a clean environment. It thus intends to strengthen ‘the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments’.
4.4 The Charter goes further than the ECHR because it contains rights that were not envisaged at the time of the ECHR in 1950, including issues such as cloning and data protection. The Charter also extends the meaning of some traditional rights into new areas. For instance, the ECHR speaks of the right of a man and woman to marry. The Charter uses more modern language, in line with national legislation which recognizes other ways of creating a family than marriage. Similarly, the section on equality in the Charter is more extensive than that in the ECHR. There is a very broad non-discrimination provision which, unlike article 14 of the ECHR, is freestanding (i.e. it is not necessary to show a violation of another right in addition to the right of non-discrimination). There are also specific provisions promoting equality of men and women, the rights of the child, the rights of the elderly and the rights of the less able bodied. The protection of equality between men and women does not, however, prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex (i.e. positive discrimination).
4.5 It should be noted that the rights in the ECHR are considered to be a minimum standard of protection. It is recognised in article 52(3) of the Charter that the EU might provide a higher standard since it provides that “this provision shall not prevent Union law providing more extensive protection” .The result of this provision could be that the EU and national courts will build on and develop the ECHR rights through the Charter.
4.6 Another important issue is whether the ECJ has now been empowered to review any provision of national law in the light of the Charter. Even in areas where the EU can legislate, the reach of the Charter is not boundless. The Charter settles that national authorities, when acting outside the scope of EU law, are not bound by its provisions since it provides that the national authorities must respect EU fundamental rights “only when they are implementing Union law”. In other words, it is still a condition for the EU courts in exercising their jurisdiction that the relevant national measures fall “within the scope” of EU law. The individuals haven’t now gained the right to institute judicial proceedings on the basis of any provision of the Charter, in any situation, against any measure adopted by national or EU public authorities.
4.7 The EUCJ does makes clear that EU fundamental rights are binding on national authorities when they apply provisions of EU law which are based on protection for fundamental rights, or enforce and interpret EU rules or invoke EU derogation rules relating to the fundamental economic freedoms such as the free movement of goods
5 Has the aforementioned changes mentioned above completed the EU legal systems evolution?
5.1 I have outlined the impact of the Lisbon treaty on the changes to the EU legal system and how fundamental rights have been enshrined at the heart of the EU legal system but has it fully evolved?
5.2 Firstly, the EU legal system has had a strange evolutionary process, in the fact that it began as economic partnership of nations, and progressed from there. Its evolution lead to the establishment of EU supra-national institutions which have spawned socialistic style legislation, in the form agriculture policy, and converged common and civil law methodology in its drafting of legislation and functioning of its legal system . Through the EUs single market powers it is the main legislator in company law (Competition policy etc) and has even become a key player in the fight against terrorism. The EU has recently been granted its own legal personality and its actions (or lack of in recent times) and policy initiatives have an effect on all the 27 member states which comprise the EU.
5.3 These are all the characteristics of a is quasi-federal organisation and unlike other similar organisations such as the USA or the Federal Republic of Germany, the EU, did not at its conception enshrine a bill of rights in any form. It therefore can be suggested that the EU legal system has evolved in a ‘backwards’ fashion by only incorporating a constitutional style document such as the Charter with the Lisbon treaty.
5.4 It can therefore be argued that the recent changes implemented by the Lisbon treaty and the paving of the way for the accession to the ECHR have finally fully evolved the EU legal system. I however, must conclude that due to recent political and economic changes and challenges that the evolution of the EU legal order is not finished yet.
6 The implications of future treaty changes upon the EU legal system:
6.1 In response to the economic crisis which has engulfed the EU, Angela Merkel, on the 24/11/2011 announced the treaty changes would be mooted to "make clear that we must take steps toward a fiscal union to express the conviction that we know policies must be more closely coordinated if you have a common, stable currency”
6.2 The following is an extract from European Commission in its green paper on Eurobonds:
1. The proposal for a Regulation on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit in the euro area Member States pursues the triple aim of (a) complementing the European semester with a common budgetary timeline aiming at better synchronizing the key steps in the preparation of national budgets; (b) complementing the multilateral surveillance system of budgetary policies (the preventive arm of the SGP) with additional monitoring requirements in order to ensure that EU policy recommendations in the budgetary area are appropriately integrated in the national budgetary preparations and (c) complementing the procedure for correction of a Member State's excessive deficit (the corrective arm of the SGP) by a closer monitoring of budgetary policies of Member States in excessive deficit procedure in order to secure a timely durable correction of excessive deficits;
2. The proposal for a Regulation on enhanced surveillance ensures that a euro area Member State should be subject to enhanced surveillance when it is experiencing – or
at risk of experiencing – severe financial disturbance, with a view to ensuring its swift return to a normal situation and to protecting the other euro area Member States against possible negative spill over effects..
6.3 I lack the expertise to fully appreciate and academically critique the implications that the proposed treaty changes will have on the future of the EU legal system. However, due to these to treaty future changes, it would be irresponsible to come to the conclusion that the EU legal system has completed its evolution.
7 Conclusion:
7.1 Over the last 45 years or so the ECJ has repeatedly went ‘way beyond the textual stipulations of the treaties leaving behind it a variety of well-merited, legal interpretative principles’ and thus enhancing integration. The adoption of the Lisbon treaty and thus the eventual accession to the ECHR and codification of the Charter as ‘primary law’ has ensured a mandate of the EUCJ to include the upholding of every citizen fundamental rights. The legally binding status of the Charter allows fundamental rights to gain a new momentum in the case-law of the Court and within the legal order. However, despite these advancements in the EU legal order, future treaties and uncertain political times ahead, ensure that the EU legal order has not finished its evolution; especially regarding the EUCJ jurisdiction over MS disputes over fiscal irresponsibility.
Biblography:
- See, The Council of Europe, 1949-1953: AH Robertson - The International and Comparative Law Quarterly, 1954
- 2 See The European Court of Justice, national governments, and legal integration in the European Union: Garrett, RD Kelemen (1998)
- 3 See A. Rosas, ‘The European Court of Justice and Fundamental Rights: Yet Another Case of Judicial
- Activism?
- E. VOS, Regional Integration through dispute resolution: The EU experience (2005)
- See Flaminio Costa v ENEL [1964] ECR 585 (6/64)
- See NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen Case 26/62 [1963] ECR 1; [1963] CMLR 105
- See Stauder 29/69 [1969] ECR 419
- K Alter and S. Menunier ‘Judicial Politics in the European Community’ (1994) 26 Comparative Political Studies
- See: Legal Reasoning of the Court of Justice in the Context of Principle of Equality, between Judicial Activism and Self-Restraint; by Pollicino - German Law Journal, pp. 283-317, 2004.
- P. Pescatore, ‘Les Droits de l’homme et l’intégration Européenne’ (1968) 4 Cahiers de Droit Européenne 629–673, 657.
- 29/69 [1969] ECR 419
- 11/70 [1970] ECR 1125
-
4/73 [1974] ECR 491, §13
- Case C-185/95 P [1998]
- I Pernice, ‘Multilevel Constitutionalism in the European Union’ (2002) 27 EULR 511
- S. Douglas-Scott; ‘A tale of two Courts: Strasbourg, Luxembourg and the growing European human rights acquis’ (2006) 43 Common Market Law Review 629
- Reflections on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights ELJ,Vol. 17, No. 5, September 2011; page 572
- Pursuant to Art 218, para 10 TEU, the opinion may be sought by the Commission, Council or EP
- Art. 6(1) of TEU
- The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems? rederic van den Berghe European Law Journal, Vol. 16, No. 2, March 2010
- The Charter of Fundamental Rights and the Environmental Policy Integration Principle (2011) Springer
- The EU Charter of rights and the right to equality: S Peers (2011)
- EU law module, notes from class 5
- Caslav Pejovic: CIVIL LAW AND COMMON LAW: TWO DIFFERENT PATHS LEADING TO THE SAME GOAL
-
- Sonia Morano-Foadi and Stelios Andreadakis: Reflections on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights by European Law Journal, Vol. 17, No. 5, September 2011, pp. 595–610
See, The Council of Europe, 1949-1953: AH Robertson - The International and Comparative Law Quarterly, 1954
See The European Court of Justice, national governments, and legal integration in the European Union: Garrett, RD Kelemen (1998)
See A. Rosas, ‘The European Court of Justice and Fundamental Rights: Yet Another Case of Judicial
Activism?
E. VOS, Regional Integration through dispute resolution: The EU experience (2005)
See Flaminio Costa v ENEL [1964] ECR 585 (6/64)
See NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen Case 26/62 [1963] ECR 1; [1963] CMLR 105
See Stauder 29/69 [1969] ECR 419
K Alter and S. Menunier ‘Judicial Politics in the European Community’ (1994) 26 Comparative Political Studies
See: Legal Reasoning of the Court of Justice in the Context of Principle of Equality, between Judicial Activism and Self-Restraint; by Pollicino - German Law Journal, pp. 283-317, 2004.
P. Pescatore, ‘Les Droits de l’homme et l’intégration Européenne’ (1968) 4 Cahiers de Droit Européenne 629–673, 657.
I Pernice, ‘Multilevel Constitutionalism in the European Union’ (2002) 27 EULR 511
S. Douglas-Scott; ‘A tale of two Courts: Strasbourg, Luxembourg and the growing European human rights acquis’ (2006) 43 Common Market Law Review 629
Reflections on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights ELJ,Vol. 17, No. 5, September 2011; page 572
Pursuant to Art 218, para 10 TEU, the opinion may be sought by the Commission, Council or EP
The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems? rederic van den Berghe European Law Journal, Vol. 16, No. 2, March 2010
The Charter of Fundamental Rights and the Environmental Policy Integration Principle (2011) Springer
The EU Charter of rights and the right to equality: S Peers (2011)
EU law module, notes from class 5
Caslav Pejovic: CIVIL LAW AND COMMON LAW: TWO DIFFERENT PATHS LEADING TO THE SAME GOAL
Sonia Morano-Foadi and Stelios Andreadakis: Reflections on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights by European Law Journal, Vol. 17, No. 5, September 2011, pp. 595–610