Part II
Governmental Powers

12. Judical Powers III: EU Fundamental Rights  

Introduction

The protection of human rights is a central task of many judiciaries. Judicial review in light of fundamental human rights may here be limited to the review of the executive; yet in its expansive form, it includes the judicial review of legislative acts. The European Union follows this second tradition. Fundamental rights set substantive – judicial – limits to all governmental powers and processes within the Union. They indeed constitute one of the most popular grounds of judicial review in actions challenging the validity of European Union law.

What are the sources of human rights in the Union legal order? Despite the absence of a ‘bill of rights’ in the original Treaties, three sources for EU fundamental rights were subsequently developed. The European Court first began distilling 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 matched by a – third – written bill of rights specifically drafted for the European Union: the EU Charter of Fundamental Rights. These three sources of EU fundamental rights are now expressly referred to – in reverse order – in Article 6 of the Treaty on European Union. The provision reads:
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 adopted 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.
This chapter investigates each of the Union’s three bills of rights and the constitutional principles that govern them. 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 to an analysis of the Union’s ‘written’ bill of rights: the EU Charter of Fundamental Rights, which was adopted to codify existing human rights in the Union legal order. Section 3 investigates the formal relationship between the Union and the European Convention on Human Rights. Finally, section 4 explores the relationship between all three bills of rights and the Member States. It will be seen that each of the three Union bills applies, at least to some extent, also to the Member States. National courts may thus be obliged to review the legality of national law also in light of EU fundamental rights.

The ‘Unwritten’ Bill of Rights: Human Rights as ‘General Principles’

  1. The Birth of EU Fundamental Rights
    1. The European Standard – An ‘Autonomous’ Standard
    2. Limitations, and ‘Limitations on Limitations’
  2. United Nations Law: External Limits to European Human Rights

The ‘Written’ Bill of Rights: The Charter of Fundamental Rights

  1. The Charter: Structure and Content
    1. (Hard) Rights and (Soft) Principles
    2. Limitations, and ‘Limitations on Limitations’
  2. Relations with the European Treaties (and the European Convention)
    1. Harmonious Relations with the European Treaties
    2. Harmonious Relations with the European Convention

The ‘External’ Bill of Rights: The European Convention on Human Rights

  1. The European Convention Standard for Union Acts
    1. Before Accession: (Limited) Indirect Review
    2. After Accession: (Full) Direct Review
  2. Union Accession to the European Convention: Preconditions
    1. Union Accession I: Constitutional Preconditions
    2. Union Accession II: Procedural Conditions

The ‘Incorporation Doctrine’: EU Fundamental Rights and National Law

  1. Incorporation and General Principles: Implementation and Derogation
  2. Incorporation and the Charter of Fundamental Rights
    1. General Rules for all Member States
    2. Special Rules for Poland and the United Kingdom
  3. Incorporation and the European Convention on Human Rights?
  4. Excursus: Human Rights and Private Party Actions

Footnotes

  1. On human rights as constitutional rights, see A. Sajó, Limiting Government (Central European University Press, 1999), ch. 8; and on the role of the judiciary in this context, see M. Cappelletti, Judicial Review in the Contemporary World (Bobbs-Merrill, 1971). 
  2. 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). 
  3. On the idea of human rights as ‘outside’ majoritarian (democratic) politics, see Sajó, Limiting Government (n. 1 above), ch. 2, 5ff. 
  4. P. Pescatore, ‘Les Droits de l’homme et l’intégration européenne’ (1968) 4 Cahiers du droit européen 629.