The complete system of fundamental rights protectionThe complete system of fundamental rights protection

The protection of fundamental
rights was not mentioned in the founding Treaties of the European Economic
Committee in terms of Treaty objectives, due to a particular focus on economics
and trade. It took over 50 years before the Union adopted a legally binding
document which strengthened and developed fundamental rights protection in
Europe. Although created in 2000, the European Union Charter of Fundamental
Rights did not enter into force as a legally binding document until December
2009, by the Treaty of Lisbon.1 The rights contained in
this Charter limit the exercise of European Union (EU) competences.

Although the Charter is highly
effective in parts, it does not provide a complete system of fundamental rights
protection against the acts of the Union Institutions and therefore, further
reform is necessary.

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When evaluating the
effectiveness of the current system, it is firstly important to reflect briefly
on the historical direction from which it has evolved. Although early case law
suggested a preference in upholding community law over the rights of the individual2, the European Court of
Justice has in fact played a substantial role in advocating the transition from
a lack of formal recognition of fundamental rights to today’s legally binding Charter.

Towards the end of the 1960’s,
there became an increasing number of cases suggesting the scrutiny of Community
Institutions’ compliance with fundamental right standards.3 However, the courts had
slowly started to incorporate the interpretation of EU measures regarding
fundamental rights principles.4 This became apparent in
the historic case of Handelsgesellschaft5,
where it was argued that the Community had infringed the standards of
fundamental rights contained in the German Constitution.

The European Court of
Justice’s solution was extremely dauntless and set a tone for its cultivating approach
to fundamental rights. The Court held that EU Law is sovereign over national
constitutional provisions, asserting its competence to review the validity of
EU measures against community law.6 The suggestion being, if
EU law developed a suitable fundamental rights doctrine of its own, national
constitutional courts would have little reason to deny its authority.7

The Court of Justice declared
that fundamental rights were in fact contained in the Treaties and submitted
that they were an integral part of both the Treaties and Community Law (this
being an example of judicial activism). They held that the Court would
scrutinise acts of institutions in regard to the following fundamental rights
standards: constitutional traditions of the Member States8, international instruments
of which Member States have determined together9 and rights also protected
under the European Convention of Human Rights (ECHR).10

The Council of the European
Union, the European Commission and the European Parliament issued a non-binding
joint declaration in 1997, accepting the Courts case law and submitting that
they were bound by fundamental rights when exercising competences. This case
law was then codified by The Maastricht Treaty.11

In 2000, the EU Charter of
Fundamental Rights was established, differing greatly from previous
developments. For the first time, an independent charter was created, which did
not solely borrow from the ECHR or from constitutional traditions. It was
initially soft law (only political) and could not be used to strike down an act
of an institution pre-2009. Although originally non-binding, it intended to
provide ‘greater visibility and a higher profile to existing rights.’12

Following the Treaty of Lisbon
in 2009, the EU Charter of Fundamental Rights was given legal effect, rendering
it legally binding. Following this implementation, there are now political
sanctions against member states for any ‘serious and persistent’ breach of
fundamental rights.13 It was determined that
the Charter (after its ratification) was now the principal instrument of
fundamental rights protection.14

This legally binding Charter
is highly significant. Compared to existing fundamental rights protection
regimes, it has the most modern and comprehensive statement, encapsulating a
wide range of contemporary rights constellations. Yet, although the Charter is
more in depth than the European Convention of Human Rights (ECHR), it has been
criticised for being in parts, actually much vaguer than its antecedent15 – an illustration of this
being a comparison of the Right to Life under Article 2 of the ECHR and under Article
2 of the Charter. Nevertheless, the Charter does encompass modern, factual
situations such as prohibits on cloning, data protection and environmental
protection – things not included in the ECHR.16