(p. 83) 4. Fundamental Rights
The protection of human rights is a central task of many modern constitutions.1 Fundamental rights are here designed to set protective limits to governmental power(s). This protective task is principally transferred onto the judiciary and involves the judicial review of governmental actions.2 The protection of human rights may be limited to judicial review of the executive.3 But in its expansive form, it extends to the review of parliamentary legislation.4
(p. 84) The European Union follows this expansive constitutional tradition.5 It considers itself to be ‘founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’.6 Human rights are thus given a ‘foundational’ status and constitutionally limit the exercise of all Union competences—including its legislative competences.
What are the sources of human rights in the Union legal order? While there was no ‘Bill of Rights’ in the original Treaties, three sources of European fundamental rights were subsequently developed. The European Court first began distilling general principles protecting fundamental rights from the constitutional traditions of the Member States. This unwritten bill of rights was inspired and informed by a second bill of rights: the European Convention on Human Rights. This external bill of rights was subsequently—and thirdly—matched by a written bill of rights specifically for the European Union: the EU Charter of Fundamental Rights. These three sources of European human rights are now expressly referred to—in reverse order—in Article 6 TEU:
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties …
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
What is the nature and effect of each source of fundamental rights? And to what extent will they limit the exercise of Union competences? This chapter investigates the three bills of rights of the Union. Section 1 starts with the discovery of an ‘unwritten’ bill of rights in the form of general principles of European law. Section 2 then moves on to discuss possible structural limits (p. 85) to European human rights in the form of international obligations flowing from the United Nations Charter. Section 3 analyses the Union’s ‘written’ bill of rights in the form of its Charter of Fundamental Rights. Finally, Section 4 explores the European Convention on Human Rights as an external bill of rights for the European Union.
1. The Birth of European Fundamental Rights
Originally, the European Treaties contained no express reference to human rights.7 And the birth of EU fundamental rights did not happen overnight. The Court had indeed been invited—as long ago as 1958—to review the constitutionality of a European act in the light of fundamental rights. In Stork,8 the applicant had challenged a European decision on the ground that the Commission had infringed German fundamental rights. In the absence of a European bill of rights, this claim drew on the so-called ‘mortgage theory’. According to this theory, the powers conferred on the European Union by each of the Member States were tied to a human rights ‘mortgage’. National fundamental rights binding the Member States would also bind the European Union, since the Member States could not have created an organization with more powers than themselves.9 When they thus transferred powers to the Union, the very transfer was subject to the respective ‘constitutional tradition’ of each Member State. This argument was however—correctly—rejected by the Court.10 The task of the European institutions was to apply European laws ‘without regard for their validity under national law’.11 National fundamental rights could be no direct source of European human rights.
(p. 86) This position of the European Union towards national fundamental rights has never changed. However, the Court’s view has significantly evolved with regard to the existence of implied EU fundamental rights. Having originally found that European law did ‘not contain any general principle, express or otherwise, guaranteeing the maintenance of vested rights’,12 the Court subsequently discovered ‘fundamental human rights enshrined in the general principles of [European] law’.13
This new position was spelled out in Internationale Handelsgesellschaft.14 The Court here—again—rejected the applicability of national fundamental rights to European law. Yet the judgment now also confirmed the existence of an ‘analogous guarantee’ in European Union law. To quote the renowned passage in full:
[T]he law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as [Union] law and without the legal basis of the [Union] itself being called in question. Therefore the validity of a [Union] measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure. However, an examination should be made as to whether or not any analogous guarantee inherent in [Union] law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the [Union].15
From this moment, fundamental rights were seen as an integral part of the general principles of European law. But where did these fundamental rights come from? The famous answer was that the Union’s (unwritten) bill of rights would be ‘inspired by the constitutional traditions common to the Member States’.16 While thus not a direct source, national constitutional rights constituted an indirect source of the Union’s fundamental rights.
(p. 87) What, however, was the exact nature of this indirect relationship between national rights and European rights? And how would the former influence the latter? A constitutional clarification was offered in Nold.17 Drawing on its previous jurisprudence, the Court held:
[F]undamental rights form an integral part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the constitutions of those States. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of [European] law.18
In searching for fundamental rights inside the general principles of European law, the Court would thus draw ‘inspiration’ from the common constitutional traditions of the Member States. One—ingenious—way of identifying a common ‘agreement’ between the various national constitutional traditions was to use international agreements of the Member States. And one such international agreement in place then was the European Convention on Human Rights. Having been ratified by all Member States and dealing specially with human rights,19 the Convention would soon assume a ‘particular significance’ in identifying fundamental rights for the European Union.20 And yet none of this conclusively characterized the legal relationship between European human rights, national human rights, and the European Convention on Human Rights.
(p. 88) Let us therefore look at the question of a Union human rights standard first, before analysing the constitutional doctrines on limits to EU human rights.
(a) The European Standard: An ‘Autonomous’ Standard
Human rights express the fundamental values of a society. Each society may wish to protect distinct values and give them a distinct level of protection.21 Not all societies may thus choose to protect a constitutional ‘right to work’,22 while most liberal societies will protect ‘liberty’; yet, the level at which liberty is protected might vary.23
Which fundamental rights exist in the European Union, and what is their level of protection? From the very beginning, the Court of Justice did not feel completely free to invent an unwritten bill of rights. Instead, and in the words of the famous Nold passage, the Court was ‘bound to draw inspiration from constitutional traditions common to the Member States’.24 But how binding would that inspiration be? Could the Court discover human rights that not all Member States recognize as a national human right? And would the Court consider itself under the obligation to use a particular standard for a human right, where a right’s ‘scope and the criteria for applying it vary’?25
The relationship between the Union standard and the various national standards is not an easy one. Would the obligation to draw inspiration from the constitutional traditions common to the Member States not imply a common minimum standard? Serious practical problems follow from this view. For if the European Union consistently adopted the lowest common human rights denominator to assess the legality of its acts, this would inevitably lead to charges that the European Court refuses to take human rights seriously. Should the Union thus favour the maximum standard among the Member States,26 as ‘the most liberal (p. 89) interpretation must prevail’?27 This time, there are serious theoretical problems with this view. For the maximalist approach assumes that courts always balance private rights against public interests. But this is not necessarily the case;28 and, in any event, the maximum standard is subject to a communitarian critique that insists that the public interest should also be taken seriously.29 The Court has consequently rejected both approaches.30
What about the European Convention on Human Rights as a—common—Union standard? What, indeed, is the status of the Convention in the Union legal order? The relationship between the Union and the European Convention has remained ambivalent (see Figure 4.1). The Court of Justice has not found the European Convention to be formally binding on the Union; and it has also never considered itself materially bound by the interpretation given to the Convention by the European Court of Human Rights. This interpretative freedom has created the possibility of a distinct Union standard; yet it (p. 90) equally entails the danger of diverging interpretations of the European Convention in Strasbourg and Luxembourg.31
What is the situation today, and has the 2007 Lisbon Treaty changed this ambivalent relationship? Today, there are indeed strong textual reasons for claiming that the European Convention is materially binding on the Union. For according to the (new) Article 6(3) TEU, fundamental rights as guaranteed by the Convention ‘shall constitute general principles of the Union’s law’.32 Will this formulation not mean that all Convention rights are incorporated as general principles of Union law? If so, the Convention standard would henceforth provide a direct standard for the Union. But if this route were chosen, the Convention standard would—presumably—only provide a minimum standard for the Union’s general principles.
In conclusion, the Union standard for the protection of fundamental rights is an autonomous standard. While drawing inspiration from the constitutional traditions common to the Member States and the European Convention on Human Rights, the Court of Justice has—so far—not considered itself directly bound by a particular national or international standard. The Court has therefore remained free to distil and protect what it sees as the shared values among the majority of people(s) within the Union and has thereby assisted—dialectically—in the establishment of a shared identity for the people(s) of Europe.33
(b) Limitations, and ‘Limitations on Limitations’
Within the European constitutional tradition, some rights are absolute rights. They cannot—under any circumstances—be legitimately limited.34 However, most fundamental rights are relative rights that may be limited in accordance with a public interest. Private property may thus be taxed and individual freedom be restricted—if such actions are justified by the common good.
(p. 91) Has the European legal order recognized such limits to human rights? From the very beginning, the Court has indeed clarified that human rights are ‘far from constituting unfettered prerogatives’,35 and that they may thus be subject ‘to limitations laid down in accordance with the public interest’.36 Nonetheless, liberal societies would cease to be liberal if they permitted unlimited limitations to human rights in pursuit of the public interest. Many legal orders consequently recognize limitations on public interest limitations. These ‘limitations on limitations’ to fundamental rights can be relative or absolute in nature.
According to the principle of proportionality, each restriction of a fundamental right must always be ‘proportionate’ in relation to the public interest pursued.37 The principle of proportionality is thus a relative principle. It balances interests: the greater the public interest protected, the greater the right restrictions permitted. And in order to limit this relativist logic, a second principle may come into play. For according to the ‘essential core’ doctrine,38 any limitation of human rights—even proportionate ones—must never undermine the very essence of a fundamental right. This sets an absolute limit to all governmental actions by identifying an ‘untouchable’ core within a fundamental right. The relationship between a fundamental right and (proportionate) public interest limitations and an (untouchable) essential core of that right can be seen in Figure 4.2.
(p. 92) Yet while the principle of proportionality is almost omnipresent in the jurisprudence of the Court,39 the existence of an ‘essential core’ doctrine was for a long time unclear. True, the Court had used formulations that came—very—close to the doctrine, but its relationship to the proportionality principle has long remained ambivalent.
The Court did, however, finally confirm the existence of an ‘essential core’ doctrine in Zambrano.40 Two Colombian parents had challenged the rejection of their Belgian residency permits on the ground that their children had been born in Belgium and thereby assumed Belgian and—thus—European citizenship.41 And since minor children would inevitably have to follow their parents, the question arose whether the latter’s deportation would violate their children’s fundamental status as Union citizens. The Court indeed held that the Belgian measures violated the Treaties, as they would ‘have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’.42 The recognition of such an untouchable ‘substance’ of a fundamental right here functioned like an essential core doctrine; and the Court has subsequently embraced the essential core doctrine as an absolute limit to all public policy limitations to EU fundamental rights.43
2. United Nations Law: External Limits to European Human Rights?
The European legal order is a constitutional order based on the rule of law.44 This implies that an individual, where legitimately concerned,45 must be able to challenge the legality of a European act on the basis that his (p. 93) or her human rights have been violated. Should there be exceptions to this constitutional rule? This question is controversially debated in comparative constitutionalism; and it has, in the context of the European Union, received much attention in a special form: will EU fundamental rights be limited by international obligations flowing from the United Nations Charter?
The classic answer to this question was offered by Bosphorus.46 The case dealt with European legislation implementing the United Nations embargo against the Federal Republic of Yugoslavia. Protesting that its fundamental right to property was violated, the plaintiff challenged the European law. The Court had no qualms in judicially reviewing the European legislation at issue—even if a lower review standard was applied.47 The constitutional message behind the classic approach was thus clear: where the Member States decided to fulfil their international obligations under the United Nations qua European law, they would have to comply with the constitutional principles of the Union legal order and, in particular, European human rights.
This classic approach was challenged by the General Court in 2005 by Kadi.48 The applicant was a suspected Taliban terrorist, whose financial assets had been frozen as a result of European legislation that reproduced United Nations Security Council Resolutions. Kadi claimed that his fundamental rights of due process and property had been violated. The Union organs intervened in the proceedings and argued—to the surprise of many—that ‘the Charter of the United Nations prevail[s] over every other obligation of international, [European] or domestic law’ with the effect that European human rights should be inoperative.49
To the even greater surprise—if not shock—of European constitutional scholars,50 the General Court accepted this argument. How did the Court come to this conclusion? It had recourse to a version of the ‘succession doctrine’, according to which the Union may be bound by the international (p. 94) obligations of its Member States.51 While this conclusion was in itself highly controversial, the dangerous part of the judgment related to the consequences of that conclusion. For the General Court recognized ‘structural limits, imposed by general international law’ on the judicial review powers of the European Court.52 In the words of the Court:
Any review of the internal lawfulness of the contested regulation, especially having regard to the provisions or general principles of [European] law relating to the protection of fundamental rights, would therefore imply that the Court is to consider, indirectly, the lawfulness of those [United Nations] resolutions. In that hypothetical situation, in fact, the origin of the illegality alleged by the applicant would have to be sought, not in the adoption of the contested regulation but in the resolutions of the Security Council which imposed the sanctions. In particular, if the Court were to annul the contested regulation, as the applicant claims it should, although that regulation seems to be imposed by international law, on the ground that that act infringes his fundamental rights which are protected by the [Union] legal order, such annulment would indirectly mean that the resolutions of the Security Council concerned themselves infringe those fundamental rights.53
The General Court thus declined jurisdiction to judicially review European legislation because it would entail an indirect review of the United Nations resolutions. The justification for this self-abdication was that United Nations law was binding on all Union institutions, including the European Courts.
From a constitutional perspective, this reasoning was prisoner to a number of serious mistakes.54 And in its appeal judgment,55 the Court of Justice remedied these constitutional blunders and safely returned to the classic Bosphorus approach. The Court held:
[T]he obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the [European Treaties], which include the principle that all [Union] acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treat[ies].56
(p. 95) The United Nations Charter, while having special importance within the European legal order,57 would—in this respect—not be different from other international agreements. Like ‘ordinary’ international agreements, the United Nations Charter might—if materially binding—have primacy over European legislation but ‘[t]hat primacy at the level of [European] law would not, however, extend to primary law, in particular to the general principles of which fundamental rights form part’.58 European human rights would thus not find an external structural limit in the international obligations stemming from the United Nations.59 The Union was firmly based on the rule of law, and this meant that all European legislation—regardless of its ‘domestic’ or international origin—would be limited by the respect for fundamental human rights.60
3. The Charter of Fundamental Rights
The desire for a written bill of rights for the European Union first expressed itself, by the end of the 1970s, in arguments favouring accession to the European Convention on Human Rights.61 Yet an alternative strategy became prominent in the late twentieth century: the Union’s own written bill of rights. The initiative for a ‘Charter of Fundamental Rights’ came from the European Council,62 and the idea behind an internal Union codification was to strengthen the protection of fundamental rights in Europe ‘by making those rights more visible in a Charter’.63 The Charter was proclaimed in 2000, but it was not yet legally binding. Its status was similar to the European Convention on Human Rights: it provided valuable inspiration but imposed no formal obligation on the European institutions.64 This ambivalent status was immediately perceived as a constitutional problem. But it took almost a (p. 96) decade before the Lisbon Treaty recognized the Charter as having ‘the same legal value as the Treaties’ in 2009.
The Charter ‘reaffirms’ the rights that result ‘in particular’ from the constitutional traditions common to the Member States, the European Convention on Human Rights, and the general principles of European law.65 This formulation suggested two things. First, the Charter aims to codify existing fundamental rights and was thus not intended to create ‘new’ ones. And, second, it codified European rights from various sources—and thus not solely the general principles found in the European Treaties. To help identify the sources behind individual Charter articles, the Member States decided to give the Charter its own commentary. These ‘Explanations’ are not strictly legally binding, but they must be given ‘due regard’ in the interpretation of the Charter.66
The structure of the Charter is shown in Table 4.1. The Charter divides the Union’s fundamental rights into six classes. The classic liberal rights are covered by Titles I to III as well as Title VI. The controversial Title IV codifies the rights of workers; yet, provision is here also made for the protection of the family and the right to health care.67 Title V deals with ‘citizens’ rights’; that is, rights that a polity provides exclusively to its members. This includes the right to vote and to stand as a candidate in elections.68
The general principles on the interpretation and application of the Charter are finally set out in Title VII. These horizontal provisions establish four fundamental principles. First, the Charter is addressed to the Union and will only exceptionally apply to the Member States.69 Second, not all provisions within the Charter are ‘rights’; that is: directly effective entitlements for individuals.70 Third, the rights within the Charter can, within limits, be restricted by Union legislation.71 Fourth, the Charter tries to establish harmonious relations with the European Treaties and the European Convention, as well as with the constitutional traditions common to the Member States.72 In the context of the present section, only principles two and three warrant special attention.
Table 4.1 Structure of the Charter of Fundamental Rights
EU Charter of Fundamental Rights
Title V—Citizens’ Rights
Title VII—General Provisions
Article 51—Field of Application
Article 52—Scope and Interpretation of Rights and Principles
Article 53—Level of Protection
Article 54—Prohibition of Abuse of Rights
Protocol No. 30 on Poland and the United Kingdom Explanations
(p. 97) (a) (Hard) Rights and (Soft) Principles
It is important to note that the Charter makes a distinction between (hard) ‘rights’ and (soft) ‘principles’. The distinction between rights and principles seems to contradict the jurisprudence of the Court with regard to fundamental rights as general principles in the context of the European Treaties. Yet what the Charter here means is that only those provisions that have direct effect will be ‘rights’ in that they can be invoked before a court. And not all provisions within the Charter are rights in this strict sense. The Charter expressly recognizes the separate existence of such ‘principles’ in Title VII.73
What are these principles in the Charter, and what is their effect? The ‘Explanations’ offer a number of illustrations, for example, Article 37 of the Charter dealing with ‘Environmental Protection’. The provision reads: ‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’74 This wording (p. 98) contrasts strikingly with that of a classic right provision. For it constitutes less a limit to governmental action than an aim for governmental action. Principles indeed come close to orienting values, which ‘do not however give rise to direct claims for positive action by the Union institutions’.75 They are not subjective rights, but objective guidelines. In the words of the Charter:
The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions … They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.76
The difference between rights and principles is thus between a hard and a soft judicial claim. An individual will not have an (individual) right to a high level of environmental protection. In line with the classic task of legal principles,77 the courts must, however, generally draw ‘inspiration’ from Union principles when interpreting European law.
But how is one to distinguish between ‘rights’ and ‘principles’? Sadly, the Charter offers no catalogue of principles. Nor are its principles neatly grouped into a section within each substantive title. And even the wording of a particular article will not conclusively reveal whether it contains a right or a principle. But, most confusingly, even a single article ‘may contain both elements of a right and of a principle’.78 How is this possible? The best way to make sense of this is to see rights and principles not as mutually exclusive concepts, but as distinct but overlapping legal constructs. ‘Rights’ are situational crystallizations of principles, and therefore derive from principles. A good illustration may be offered by Figure 4.3 and Article 33 of the Charter on the status of the family and its relation to professional life.
(b) Limitations, and ‘Limitations on Limitations’
Every legal order protecting fundamental rights recognizes that some rights can be limited to safeguard the public interest. For written bills of rights, these limitations are often recognized for each constitutional right. While the Charter follows this technique for some articles,79 it also contains a provision (p. 99) that defines legitimate limitations to all fundamental rights. These ‘limitations on limitations’ are set out in Article 52 of the Charter. The provision states:
Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.80
The provision subjects all limitations to EU Charter rights to three constitutional principles.
First, any limitation of a fundamental right must be provided for ‘by law’. This requirement seems to prohibit, out of hand, human rights violations that are the result of individual acts based on the Union’s autonomous executive powers.81 However, the problem is still this: will a limitation of someone’s fundamental rights require the (democratic) legitimacy behind formal Union legislation? Put differently, must every ‘law’ limiting a fundamental right be adopted under a ‘legislative procedure’?82 This view would significantly affect the balance between fundamental rights and the pursuit of the common good of the Union. For if Article 52 outlaws all limitations of fundamental rights (p. 100) that are the result of delegated executive acts, much of the governmental machinery of the Union would come to a halt. In order to prevent such a petrification of the executive branch, the Court has favoured a material concept of ‘law’.83
However, Article 52(1) of the Charter mentions, of course, two additional limitations on right limitations. Most importantly, Article 52 has now confirmed the independent existence of an absolute limit to Union interferences with fundamental rights by insisting that each limitation must always ‘respect the essence’ of the right in question. The codification of the ‘essential core’ doctrine is to be welcomed; and its independence from the principle of proportionality has been consistently confirmed.84 Finally, and according to the principle of proportionality, each restriction of fundamental rights must, of course, always be necessary in the light of the general interest of the Union or the rights of others. This imposes a general constitutional obligation on the Union institutions to balance the various rights and interests at stake.
4. The ‘External’ Bill of Rights: The European Convention on Human Rights
The discovery of an unwritten bill of rights and the creation of a written bill of rights for the Union had been ‘internal’ achievements. They did ‘not result in any form of external supervision being exercised over the Union’s institutions’.85 And by preferring its internal human rights over any external international standard, the Court has even been accused of a ‘chauvinist’ and ‘parochial’ attitude.86
This bleak picture is distorted—at the very least, when it comes to one international human rights treaty that has always provided an external standard (p. 101) to the European Union: the European Convention on Human Rights. From the very beginning, the Court of Justice took the Convention very seriously,87 sometimes even too seriously.88 The Union has for a long time indeed acted as if it was bound by the European Convention; and even the Convention system has developed some form of external review of Union acts. Nonetheless, there are still many complexities and shortcomings with the European Convention as long as the Union is not formally bound by this external bill of rights. This fourth section will consequently look at the external standard imposed by the Convention prior to and after an eventual accession by the Union.
(a) Before Accession: Indirect Review of Union Law
The Union is (still) not a formal party to the European Convention. Could the Member States thus escape their international obligations under the Convention by transferring decision-making powers to the European Union? In order to avoid a normative vacuum, the European Convention system has developed a form of indirect judicial review of Union acts.
This indirect review is based on the doctrine of (limited) Member State responsibility for acts of its Union. This complex construction draws on the idea of a human rights mortgage: the Convention Member States cannot transfer powers to the European Union without being bound—at least to some extent—by the European Convention to which they are formal parties. In M & Co. v Germany,89 the European Commission of Human Rights thus found that whereas ‘the Convention does not prohibit a Member State from transferring powers to international organisations’, ‘a transfer of powers does not necessarily exclude a State’s responsibility under the Convention with regard to the exercise of the transferred powers’.90 This would not, however, mean that the State was to be held responsible for all actions of the Union: ‘it would be contrary to the very idea of transferring powers to an international organisation to hold the Member States responsible for examining [possible violations] in each individual case.’91
What, then, were the conditions for this indirect review of Union acts? Consistent with its chosen emphasis on State responsibility, the Convention system does not concentrate on a concrete Union act, but on the State’s (p. 102) decision to transfer powers to the Union. This transfer of powers is deemed ‘not incompatible with the Convention provided that within that organisation fundamental rights will receive an equivalent protection’.92
This was confirmed in Bosphorus.93 Where the Union protected human rights in an ‘equivalent’ manner to that of the Convention, the European Court of Human Rights would operate a ‘presumption’ that the States had not violated the Convention by transferring powers to the European Union. This presumption translates into a lower review standard for acts adopted by the European Union, since the presumption of equivalent protection could only be rebutted where the actual treatment of human rights within the Union was ‘manifestly deficient’.94 This lower review standard represented a compromise between two extremes: no control, as the Union was not a member, and full control even in situations in which the Member States acted as mere agents of the Union. This compromise is ‘the price for Strasbourg achieving a level of control over the EU, while respecting its autonomy as a separate legal order’.95
(b) Union Accession: Preconditions and Consequences
The EU Commission, long ago, suggested that accession to the Convention should be pursued. But under the original Treaties, the European Union lacked the express power to conclude human rights treaties. The Commission thus originally proposed using the Union’s general competence: Article 352 TFEU; yet—famously—the Court rejected this strategy. In Opinion 2/94, the Court held that since accession by the Union would have ‘fundamental institutional implications’, only a subsequent Treaty amendment could provide the Union with the power of accession.96
This competence has today been granted. According to Article 6(2) TEU, the European Union ‘shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms’. The ‘shall’ formulation indicates that the Union is even constitutionally obliged to become a member of this international organization. Union accession to the European (p. 103) Convention must, however, pay due regard to the ‘specific characteristics of the Union and Union law’.97
These ‘specific characteristics’ have recently been given a controversial interpretation in Opinion 2/13 (Accession to the ECHR II). Indeed, no Opinion has generated more—negative—commentary in recent years!98 What was the main problem for the Court? The Court recalled that the Union is not a State; and that its legal order was a ‘new kind of legal order’ that was neither international nor national in nature.99 The special characteristics of the Union were especially manifest in the horizontal relations between the Member States, where they found particular expression in the principles of mutual trust and mutual recognition.100 The principle of mutual recognition here demands that Member States must generally accept the decisions of other Member States as if they had adopted these decisions themselves; and according to the Court, this logic must never be undermined by accession to the European Convention:
In so far as the ECHR would, in requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the EU but also in their relations with each other, including where such relations are governed by EU law, require a Member State to check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.101
But assuming that this constitutional precondition can be fulfilled, through which procedure would the Union have to accede to the European Convention? On the Union side, accession will principally depend on the Member States of the Union:
The Council shall … act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into (p. 104) force after it has been approved by the Member states in accordance with their respective constitutional requirements.102
The Council will thus have to agree unanimously, having previously obtained the consent of the European Parliament,103 and unlike ordinary international agreements of the Union, the Union accession agreement will only come into force once each and every Member State has also ratified it. The Member States will therefore be able to block Union accession twice: once in the Council and once outside it. And while they technically are under a constitutional obligation to consent to accession as members of the Council, this is not the case for the second consent. For the duty to accede to the Convention expressed in Article 6(2) TEU will only bind the Union—and its institutions—but not the Member States.
Assuming that the Union eventually accedes to the Convention, will the presumption that the Union—in principle—complies with the European Convention on Human Rights disappear with accession? It seems compelling that the Bosphorus presumption will indeed cease once the Union accedes to the Convention. For ‘[b]y acceding to the Convention, the European Union will have agreed to have its legal system measured by the human rights standards of the ECHR’, and will ‘therefore no longer deserve special treatment’.104 The replacement of an indirect review by a direct review should also—at least in theory—lead to the replacement of a limited review by a full review. Yet the life of law is not always logical, and the Strasbourg Court may well decide to cherish past experiences by applying a lower review standard to the (acceded) European Union. We must wait and see whether or not logic will trump experience.
Fundamental rights constitute a vital constitutional limit to all legislative and executive actions of the Union. They are principally enforced by the judiciary in the form of judicial review.
The Union has, unfortunately, not reserved one place for human rights, but has instead developed three bills of rights. Its unwritten bill of rights results (p. 105) from the general principles of Union law. The Court here indirectly developed EU fundamental rights from the constitutional traditions of the Member States. The Charter of Fundamental Rights adds a written bill of rights for the Union. The relationship between this written bill and the unwritten bill of rights within the EU Treaties remains, however, ambivalent. The same is true for the relationship between the two internal bills of EU rights and the European Convention on Human Rights. The latter has always provided an external bill of rights—yet the exact status of the European Convention in the Union legal order and its influence on the substance of EU fundamental rights remains to be settled. There is thus much potential confusion as to which source of fundamental rights governs a case.
What is, however, certain is that most EU fundamental rights are not absolute rights. They can be limited if the public interest so demands. Yet these public interest limitations are themselves limited by the principle of proportionality and the idea that the essential core of a fundamental right can never be touched. (p. 106)
1 On human rights as constitutional rights, see A. Sajó, Limiting Government (Central European University Press, 1999), ch. 8.
2 See M. Cappelletti, Judicial Review in the Contemporary World (Bobbs-Merrill, 1971).
3 For the classic doctrine of parliamentary sovereignty in the United Kingdom, see A. V. Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund, 1982).
4 The classic example here is the United States, where the US Supreme Court can invalidate congressional legislation.
5 On this point, see Parti Écologiste ‘Les Verts’ v European Parliament, Case 294/83  ECR 1339, para. 23: ‘a [Union] based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.’ For an extensive discussion of judicial review in the Union legal order, see Chapter 8, Section 3.
6 Art. 2(1) TEU.
7 For speculations on the historical reasons for this absence, see P. Pescatore, ‘The Context and Significance of Fundamental Rights in the Law of the European Communities’ (1981) 2 Human Rights Journal 295.
8 Stork v High Authority of the European Coal and Steel Community, Case 1/58  ECR (English Special Edition) 17.
9 In Latin, the legal proverb is clear: Nemo dat quod non habet.
10 For a criticism of the ‘mortgage theory’, see H. G. Schermers, ‘The European Communities Bound by Fundamental Rights’ (1980) 27 Common Market Law Review 249 at 251.
11 Stork v High Authority, Case 1/58 (n. 8), 26: ‘Under Article 8 of the [ECSC] Treaty the [Commission] is only required to apply Community law. It is not competent to apply the national law of the Member States. Similarly, under Article 31 the Court is only required to ensure that in the interpretation and application of the Treaty, and of rules laid down for implementation thereof, the law is observed. It is not normally required to rule on provisions of national law. Consequently, the [Commission] is not empowered to examine a ground of complaint which maintains that, when it adopted its decision, it infringed principles of German constitutional law (in particular Articles 2 and 12 of the Basic Law).’
12 Geitling Ruhrkohlen-Verkaufsgesellschaft mbH, Mausegatt Ruhrkohlen-Verkaufsgesellschaft mbH and I. Nold KG v High Authority of the European Coal and Steel Community, Joined Cases 36, 37, 38 and 40/59  ECR (English Special Edition) 423 at 439 (emphasis added).
13 Stauder v City of Ulm, Case 29/69  ECR 419, para. 7.
14 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Case 11/70  ECR 1125.
15 Ibid., paras 3–4 (emphasis added).
16 Ibid. (emphasis added).
17 Nold v Commission, Case 4/73  ECR 491.
18 Ibid., para. 13 (emphasis added).
19 When the E(E)C Treaty entered into force on 1 January 1958, five of its Member States were already parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. Ever since France joined the Convention system in 1974, all Member States have also been members of the European Convention legal order. For an early reference to the Convention in the jurisprudence of the Court, see Rutili v Ministre de l’intérieur, Case 36/75  ECR 1219, para. 32.
20 See Höchst v Commission, Joined Cases 46/87 and 227/88  ECR 2859, para. 13: ‘The Court has consistently held that fundamental rights are an integral part of the general principles of law the observance of which the Court ensures, in accordance with constitutional traditions common to the Member States, and the international treaties on which the Member States have collaborated or of which they are signatories. The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter referred to as “the European Convention on Human Rights”) is of particular significance in that regard.’
21 ‘Constitutions are not mere copies of a universalist ideal, they also reflect the idiosyncratic choices and preferences of the constituents and are the highest legal expression of the country’s value system.’ See B. de Witte, ‘Community Law and National Constitutional Values’ (1991/2) 2 Legal Issues of Economic Integration 1 at 7.
22 Art. 4 of the Italian Constitution states: ‘The Republic recognises the right of all citizens to work and promotes those conditions which render this right effective.’
23 To illustrate this point with a famous joke: ‘In Germany everything is forbidden, unless something is specifically allowed, whereas in Britain everything which is not specifically forbidden, is allowed.’ (The joke goes on to claim that: ‘In France everything is allowed, even if it is forbidden; and in Italy everything is allowed, especially when it is forbidden.’)
24 Nold (n. 17), para. 13 (emphasis added).
25 AM & S Europe Ltd v Commission, Case 155/79  ECR 1575, para. 19.
26 In favour of a maximalist approach, see L. Besselink, ‘Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union’ (1998) 35 Common Market Law Review 629.
27 This ‘Dworkinian’ language comes from Stauder (n. 13), para. 4.
28 The Court of Justice was faced with such a right–right conflict in Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others, Case C-159/90  ECR I-4685, but (in)famously refused to decide the case for lack of jurisdiction.
29 J. Weiler, ‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights’ in N. Neuwahl and A. Rosas (eds), The European Union and Human Rights (Brill, 1995), 51 at 61: ‘If the ECJ were to adopt a maximalist approach this would simply mean that for the [Union] in each and every area the balance would be most restrictive on the public and general interest. A maximalist approach to human rights would result in a minimalist approach to [Union] government.’
30 For the early (implicit) rejection of the minimalist approach, see Hauer v Land Rheinland-Pfalz, Case 44/79  ECR 3727, para. 32—suggesting that a fundamental right only needs to be protected in ‘several Member States’ (emphasis added).
31 For an excellent analysis of this point, see R. Lawson, ‘Confusion and Conflict? Diverging Interpretations of the Europe Convention on Human Rights in Strasbourg and Luxembourg’ in R. Lawson and M. de Blois (eds), The Dynamics of the Protection of the Rights in Europe (Martinus Nijhoff, 1994), Vol. III, 219 and esp. 234–50.
32 Art. 6(3) TEU (emphasis added).
33 T. Tridimas, ‘Judicial Federalism and the European Court of Justice’ in J. Fedtke and B. S. Markesinis (eds), Patterns of Federalism and Regionalism: Lessons for the UK (Hart, 2006), 149 at 150—referring to the contribution of the judicial process ‘to the emergence of a European demos’.
34 The European Court of Justice followed this tradition and recognized the existence of absolute rights in Schmidberger v Austria, Case C-112/00  ECR I-5659, para. 80: ‘the right to life or the prohibition of torture and inhuman or degrading treatment or punishment, which admit of no restriction’.
35 Nold v Commission, Case 4/73 (n. 17), para. 14.
38 For the German constitutional order, see Art. 19(2) German Constitution: ‘The essence of a basic right must never be violated.’
39 See T. Tridimas, The General Principles of EU Law (Oxford University Press, 2007), chs 3–5.
40 Zambrano v Office national de l’emploi, Case C-34/09  ECR I-1177. Admittedly, there are many questions that this—excessively—short case raises (see ‘Editorial: Seven Questions for Seven Paragraphs’ (2011) 36 European Law Review 161).
41 According to Art. 20(1) TFEU: ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’
42 Zambrano (n. 40), para. 42 (emphasis added); and see also para. 44: ‘In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.’
43 For a discussion of this point, see K. Lenaerts, ‘Limits on Limitations: The Essence of Fundamental Rights in the EU’ (2019) 20 German Law Journal 779.
44 See Parti Écologiste, Case 294/83 (n. 5).
46 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others, Case C-84/95  ECR I-3953.
47 For a critique of the standard of review, see I. Canor, ‘“Can Two Walk Together, Except They Be Agreed?” The Relationship between International Law and European Law: The Incorporation of United Nations Sanctions against Yugoslavia into European Community Law through the Perspective of the European Court of Justice’ (1998) 35 Common Market Law Review 137 at 162.
48 Kadi v Council and Commission, Case T-315/01  ECR II-3649.
49 Ibid., paras 156 and 177.
50 P. Eeckhout, Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations (Europa Law Publishing, 2005); as well as R. Schütze, ‘On “Middle Ground”: The European Community and Public International Law’, EUI Working Paper 2007/13.
52 Kadi, Case T-315/01 (n. 48), para. 212.
53 Ibid., paras 215–16 (references omitted).
54 On this point, see R. Schütze, ‘On “Middle Ground”: The European Union and Public International Law’ (n. 50), 19 et seq.
55 Kadi and Al Barakaat International Foundation v Council and Commission, Case C-402/05P  ECR I-6351.
56 Ibid., para. 285.
57 Ibid., para. 294 (‘special importance’).
58 Ibid., para. 308.
59 Ibid., para. 327.
60 The Court in fact identified a breach of the right of defence, especially the right to be heard (ibid., para. 353), as well as an unjustified violation of the right to property (ibid., para. 370).
61 Commission, Memorandum on the Accession of the European Communities to the European Convention for the Protection of Human Rights and Fundamental Freedoms,  Bulletin of the European Communities—Supplement 2/79, esp. 11 et seq.
62 On the drafting process, see G. de Búrca, ‘The Drafting of the European Union Charter of Fundamental Rights’ (2001) 26 European Law Review 126.
63 Charter, Preamble 4.
64 See Parliament v Council, Case C-540/03  ECR I-5769, para. 38: ‘the Charter is not a legally binding instrument’.
65 Charter, Preamble 5.
66 Art. 6(1) TEU and Art. 52(7) Charter: ‘The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.’ These ‘Explanations’ are published in  OJ C303/17.
67 See, respectively, Arts 33 and 35 Charter.
68 Art. 39 Charter.
69 Art. 51 Charter. On the application of the Charter to the Member States, see R. Schütze, ‘European Fundamental Rights and the Member States: From “Selective” to “Total” Incorporation?’ (2011/12) 14 Cambridge Yearbook of European Legal Studies 337.
70 Arts 51(1) and 52(5) Charter.
71 Art. 52(1) Charter.
72 Art. 52(2)–(4) as well as (6) of the Charter. But see also Art. 53 on the ‘Level of Protection’.
73 Arts 51(1) and 52(5) Charter. For a good discussion of these provisions, and the case law here, see J. Krommendijk, ‘Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the European Court of Justice’ (2015) 11 European Constitutional Law Review 321.
74 Emphasis added.
75 ‘Explanations’ (n. 66), 35.
76 Art. 52(5) Charter.
77 See R. Dworkin, Taking Rights Seriously (Duckworth, 1996).
78 ‘Explanations’ (n. 66), 35.
79 Art. 17 (Right to Property) Charter states in para. 1: ‘No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’
80 Art. 52(1) Charter (emphasis added).
81 See Knauf Gips v Commission, Case C-407/08P  ECR I-6371.
82 In favour of this view, see D. Triantafyllou, ‘The European Charter of Fundamental Rights and the “Rule of Law”: Restricting Fundamental Rights by Reference’ (2002) 39 Common Market Law Review 53–64 at 61: ‘Accordingly, references to “law” made by the Charter should ideally require a co-deciding participation of the European Parliament[.]’
83 Such a material reading of the phrase ‘provided for by law’ was confirmed in Schecke & Eifert v Land Hessen, Joined Cases C-92 and 93/09  ECR I-11063.
84 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources et al., Joined Cases C-293 and 594/12  ECR I-238. The Court here clearly distinguished between a violation of the essential core doctrine (ibid., paras 39–40) and a breach of the principle of proportionality (ibid., paras 45–69). And see most definitely also Schrems, Case C-362/14, EU:C:2015:650, paras 94–5.
85 I. de Jesús Butler and O. de Schutter, ‘Binding the EU to International Human Rights Law’ (2008) 27 Yearbook of European Law 277 at 278. This statement is correct only if limited to direct external supervision.
86 G. de Búrca, ‘The European Court of Justice and the International Legal Order After Kadi’ (2010) 51 Harvard International Law Journal 1 at 4.
87 See S. Douglas-Scott, ‘A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis’ (2006) 43 Common Market Law Review 629.
88 See Spain v United Kingdom, Case C-145/04  ECR I-7917.
89 M & Co. v Federal Republic of Germany (1990) 64 DR 138.
90 Ibid., 145 (emphasis added).
91 Ibid., 146.
92 Ibid., 145 (emphasis added).
93 Bosphorus Hava v Minister, Case 84/95 (n. 46).
94 Ibid., paras 156–7. See also J. Callewaert, ‘The European Convention on Human Rights and European Union Law: A Long Way to Harmony’  European Human Rights Law Review 768 at 773: ‘through the Bosphorus-presumption and its tolerance as regards “non-manifest” deficiencies, the protection of fundamental rights under [European] law is policed with less strictness than under the Convention’.
95 Douglas-Scott, ‘A Tale of Two Courts’ (n. 87), 639.
97 Protocol No. 8 relating to Art. 6(2) of the Treaty on European Union on the Accession of the Union to the ECHR.
98 See P. Gragl, ‘The Reasonableness of Jealousy: Opinion 2/13 and EU Accession to the ECHR’ (2015) 15 European Yearbook on Human Rights 27.
99 Protocol No. 8 (n. 97), paras 156–8.
101 Protocol No. 8 (n. 97), para. 194 (emphasis added).
102 Art. 218(8) TFEU, second indent.
103 Art. 218(6)(a)(ii) TFEU.
104 T. Lock, ‘EU Accession to the ECHR: Implications for Judicial Review in Strasbourg’ (2010) 35 European Law Review 777 at 798.