Protection of fundamental has
been described as “a founding principle of the union and an indispensable
prerequisite for legitimacy”1. Whilst this is true
and the position of fundamental rights has advanced from having no formal
recognition as limits on union competencies in the 1957 ECC Treaty2
to a legally binding charter on fundamental rights being introduced at Lisbon
the protection of fundamental rights against acts of the union institutions can
never be fully complete but has shown to be decidedly effective . This essay will explore the development of the
protection of fundamental rights through the treaties, case law and the charter
giving weight to the argument that the EU legal order does provide to some
extent a rounded and effective system of fundamental rights protection against acts
of the Union institutions. Still requiring fundamental reform, owing to new
threats continually being posed to the protection of fundamental rights.
It is on
the basis of a systematic interpretation of the founding treaties that the
Court infered the inclusion of fundamental rights into the Community law
system. Following fundamental rights not
featuring in the original EEC Treaty (1957)4
at all as limits on competence or grounds for judicial review, as the original
treaty was focused on trade and economics, this position shifted. Fundamental Rights progressed from a
situation of no recognition to one of express recognition through the treaties,
leading up to the Lisbon Treaty (2009)5.
The Maastricht Treaty (1992)
The Maastricht Treaty (also known as
of the European Union (TEU)) in 19926
converted the commitment to respect human rights previously expressed by the
European Court of Justice (ECJ), into a treaty obligation of the Union. Although the Treaty itself did not contain a bill
of rights it provided that the European Union must respect fundamental rights in accordance with
the protections afforded by the Convention, as they arise from the constitutional
traditions of the Member States and as general principles of Community law. The Treaty in effect codified the case law of the ECJ, in
particular the case of Internationale Handelsgesellschaft7
formal treaty recognition to human rights as part of EU law. The Maastricht Treaty stated that “Community
policy in this area shall contribute to the general objective of developing and
consolidating democracy and the rule of law, and to that of respecting human rights
and fundamental freedoms”8.
Later treaties, such as the Treaty of Amsterdam, 19979
elaborated on the concept of human rights protection and expanded the
parameters of protection, particularly around equality rights.
The Lisbon Treaty (2009)
“The Lisbon Treaty introduced significant changed to human rights
protection in the EU, the most significant of which lie in the amendments to
Article 6 of the Treaty of the European Union”10. Many,
such as Sionaidh Douglas-Scott saw the Treaty of Lisbon as a significant breakthrough in
the protection of fundamental rights in Europe as
it gave legal force to the Charter of Fundamental Rights of the European Union11, which was proclaimed in Nice (2000)12,
and incorporated it into European constitutional law. It also required the accession
of the European Union to the European Convention of Human Rights and
Fundamental Freedoms (the ECHR/the Convention)13 highlighting
the EU’s commitment to fundamental rights protection. Academic Karoline L. Mathisen believed it was “clear that
with the new Article 6 TEU, the protection of fundamental rights in the EU
context had been taken to a new level”. By transposing the Charter of Fundamental
Rights into a legally binding instrument, Article 6 TEU also duty-bound the
Member States to respect the provisions of the charter. The developments at
Lisbon eased criticism that had been raised against the EU for their
inconsistent and incoherent approach to fundamental rights14
It is evident through analysing the treaty
developments that the treaties lay down the foundations for the EU legal order
to be able to provide a complete and highly effective system of fundamental
rights protection. Through consistent reform and cooperation the EU was able to
bring about a charter codifying all previous attempts at protecting fundamental
rights against the acts of the union insitutions. Despite this, the charter
will need to be able to be flexible and adapt in the future, to changes in
threats to fundamental rights, so can never truly be a complete system of
fundamental rights protection although possibly effective.
Council decision on the drawing up of a Charter of Fundamental Rights of
the European Union,’ Annex IV to the Conclusions of the European Council
in Cologne (3-4 June) 1999.
2 Treaty establishing the European Economic
3 Treaty of Lisbon, 2009.
4 Treaty establishing the European Economic
5 Treaty of Lisbon, 2009
6 Treaty of Maastricht, 1992.
7 Internationale Handelsgesellschaft (Case 11/70) EU:C:1970:114.
8 Maastricht TEU, supra note 1, art. F 1992 O.J. C 191, at 5.
9 Treaty of Amsterdam, 1997.
10 S. Douglas-Scott, ‘The European Union And
Human Rights After The Treaty Of Lisbon’ (2011) 11 Human Rights Law Review.
14 “Human Rights Protection in the European
Community: Resolving Conflict and Overlap Between the European Court of Justice
and the European Court of Human Rights”, European
Public Law, 5(3)(1999)