Development of the Protection of Fundamental Rights within the European Union - an Improved Human Rights Agenda?

Abstract: The Treaty of Rome which established the European Economic Community contained no explicit references to the protection of fundamental rights. This thesis describes the emergence of an EU acquis covering the field of fundamental rights developed by the EU judiciary and legislators in close cooperation with the Member States and the Council of Europe. The objective of this essay is to present the added value of the development in this particular area of Union law. Thus, the starting point of the examination is the development of the case law by the European Court of Justice. The ECJ early established the existence of fundamental rights as general principles of Community law. Due to not least explicit criticism of the Community legal order expressed by national constitutional courts concerning fundamental rights issues in relation to the supremacy of Community law the Court developed a doctrine where fundamental rights were given a prominent position within the legal system of the Community. Fundamental rights, as safeguarded by national constitutions and the European Convention on Human Rights, were to be considered as general principles with an aura equivalent to the highest-ranking norms of the Community. As a response to the jurisprudence of the ECJ, the legislative powers of the Union gave the protection of fundamental rights its truly deserved attention by including references and specific provisions in the Treaty of Maastricht and the Treaty of Amsterdam, albeit to a large extent merely codifying the findings of the Court. Pari passu, and in the light of a rediscovered European human rights agenda farther institutional development of the protection of fundamental rights within the Union could be discerned. In connection to the new millennium an EU fundamental rights catalogue, the EU Charter of Fundamental Rights and an EU monitoring center for human rights, the Fundamental Rights Agency emerged. The Charter of Fundamental Rights was “solemnly proclaimed” in December 2000 whereas the Fundamental Rights Agency was established in March 2007. These two novelties are both examples of instruments unprecedented in the Union. The most recent development, yet with an utmost importance for the protection of fundamental rights, is to be found in the Treaty of Lisbon, signed in 2007 and entered into force in December 2009. The Treaty of Lisbon clarified the ambiguities concerning the legal status of the Charter, making it a legally binding document attached as a protocol to the Treaty. It furthermore called for an EU accession to the ECHR. Despite the clarifications and additions to the fundamental rights protection in the Union flowing from the Treaty of Lisbon, uncertainties concerning the scope, application and interpretation of the Charter still remain. It is for the ECJ to further clarify and specify the impact of the Charter and the rights contained therein. Equally unclear is the future EU accession to the ECHR. Accession, however, appears to be imminent. In that case, it would indeed clarify not only the relationship between the EU and the ECHR but also the content of the Charter as well as the nature of the protection of fundamental rights within the European Union.