With the entry into force of the Lisbon Treaty the protection of fundamental rights has become one of the vital aspects of European Union activity and we are now witnessing the fundamental change of the nature of the European construction which was born in 1957 mainly as an economy oriented organisation.
Notwithstanding the recent critics of the German Constitutional Court, the EU system of protection is now much more articulated than before and the possibility for an individual to challenge the EU acts has been improved.
According to art. 6 TUE (*) Fundamental rights are now protected in the European Union under three diverse and complementary perspectives: as general principles of the EU, as defined by the European Charter and as protected by the European Convention of human rights.
Fundamental rights protected as part of the “general principles of the EU law”
It is worth recalling that the founding Treaties did’nt make any reference to fundamental rights and that even in ’59 the Court itself denied itself the competence to judge on the legality of some CECA decisions from the perspective of protection of fundamental rights as granted by the German Constitutional Court (Judg. February 4th, 1959, Judg. 1/58, Stork V.High Authority, February 1960, Judg. 16-18/59, Geitling v. Hig Authority). By so doing, the Luxembourg judges avoided a confrontation with the European Court for Human rights in Strasbourg and with the national Constitutional Courts.
Therefore, only a few years later in ’63 and ’64 by proudly declaring the autonomy of the Community legal order with the landmark “Van Gend en Loos” and “Costa contro Enel” Judgements, and by empowering the European citizens to invoke the primacy of Community law before the national Judges, the Luxembourg Court faced the opposition of the Constitutional Courts of Italy (Judgement “Frontini e Pozzani” of March 7, 1974, n. 14) and Germany (“Solange I” Judgment of May 19th, 1976 in BverGE, 37, p. 271) which did not accept such a primacy of Community law when fundamental rights as protected by the national Consitution could have been at stake.
To counter this national opposition and the lack of an explicit reference to fundamental rights in the founding Treaties, the Court of Justice developed a very cleaver and original doctrine by declaring that Member States should protect fundamentalr rights (“Stauder”, C- 29/69, ” “Handelsgesellschaft” C-228/69) as an “integral part of the general principles of [European Community] law” when implementing EU law (“Wachauf” C-5/88, July 13th, 1989) because the “…Respect for human rights is therefore a condition of the lawfulness of Community acts..” (ECJ Opinion 2/94)
It is worth noting that with the doctrine of the EU “general principles” stemming from the constitutional traditions common to the Member States, the EU judges have not only created a strong common ground both for the national and european legal orders but also an evolving mechanism mirroring the evolution of the national Constitutional orders and of the Member States international relations (“Nold”, C-4/73 of May 14th, 1974).
The interaction beteween the national and european level makes it possible to match the evolution of the EU society notably when fundamental rights are at stake. It is therefore not surprising that in sixty years several “generations” of fundamental rights came to the attention of the european Judges and legislators.
Therefore, it took some time before the doctrine of “general principles” (as a legal cross-fertilisation mechanism between the national and european level) had been mirrored in the Treaties but it happened in ’93 with the Maastricht Treaty, confirmed by the Amsterdam Treaty and now clearly stated in the Lisbon treaty.
Fundamental rights as protected by the European Charter of Fundamental rights
The main weakness of the “general principles” doctrine is that it depends on the interpretation of the judges who can act only on a case by case basis. At the end of the eighties it became necessary to link the enlargment process to new Member States and the extension of the EU missions to the codification of ECJ jurisprudence of the previous decades by making fundamental rights more visible to the european citizen and to the EU legislator itself.
This codification of fundamental rights as stemming from the ECHR, the common constitutional traditions of the Member States and from the jurisprudence of the ECJ has been decided by the European Council in Cologne on the 3/4 June ’99 in parallel with the entry into force of the Amsterdam Treaty: “There appears to be a need, at the present stage of the Union’s development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union’s citizens. The European Council believes that this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union’s citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.”
Following this mandate an extraordinary “Convention”, composed of representatives of the Heads of State and Government, the President of the Commission as well as members of the European Parliament and national parliaments, prepared a text which even if without a binding status was proclamed by the EU institutions in Nice in December 2000.
With the entry into force of the Lisbon Treaty the Charter (slightly updated in 2007) is now part of the EU Constitutional order even if UK and Poland enjoy a specific regime as defined in two protocols.
Fundamental rights as protected by the ECHR
As outlined above the ECHR is the main reference and the founding block of fundamental rights protection in Europe even if it focuses mainly on political and civil rights (the so called “first generation”) which were considered the main priority after the second World War. Already in April 1979 the European Commission proposed that the European Community could become member of the ECHR but the procedure was only launched after another Commission Communication of November 19th, 1990. The proposal was followed by a Council request for an opinion from the ECJ. The Opinion (2/94 was adopted on March 28th, 1996 and stated quite surprisingly that “..No Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field. Accession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order. Such a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for
the Member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Article 235. It could be brought about only by way of Treaty amendment.“
Therefore the fact that the EU, contrary to its Member States, was and still is not formally member of the ECHR. This has created some problems when Member States are brought before the Strasbourg Court for breaching fundamental rights with a national law that conflicts EU law.
In two landmark cases “Matthews” in ’99 and more clearly “Bosphorus ” in 2005, the Strasbourg Judges made it clear that even if the EU fundamental rights protection regime “…could have been considered to be, and to have been at the relevant time, “equivalent” to that of the Convention system….Such a presumption could be rebutted if, in a particular case, it was considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international co-operation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights”.
The consequence of this reasoning is that EU Member States when implementing European Union law would be summoned by the Strasbourg Court (if the EU legislation does not grant sufficient protection to fundamental rights) and at the same time summoned by the Luxembourg Court for not implementing the same rules.
To avoid being caught between a rock and a hard place or to be taken hostage between the two legal regimes of Luxembourg and Strasbourg, the Member States decided that with the Lisbon Treaty the European Union should also become party to the Convention so that its acts could be directly challenged before the Strasbourg Court in case of violation of the European Convention of Human rights.
By adopting Protocol 14 the accession is now legally possible on part of the Council of Europe even if the negotiation of this accession already seems far from being easy.
A wider right of access for Judges
It would had been meaningless to have so many ways to invoke the protection of fundamental rights against the EU acts, if this new legal construction would not have been accompanied by an easier access of the individual to the EU judge.
Here again the Lisbon Treaty brings some improvements.
In the previous situation (art. 230 p4 of the TEC) an individual was entitled to bring an action against an EU act only if he was directly and individually concerned by these acts.
The situation of legal and/or physical person “individually” concerned by an EU act was rather common at the beginning of the EU construction when many Decisions of the Institutions (such as the ones of the CECA High Authority or of the Commission acting in the competition policy) were addressed to specific enterprises, but has become less frequent the more the EC and the EU developed their “legislative” activity by adopting acts of regulatory nature. Indeed, nearly all actions brought by individuals against Community regulations have been declared inadmissible by the ECJ because the requirement of ‘individual concern’ was not fulfilled. The doctrine considered then that the approach of the Community courts was too restrictive to guarantee effective legal protection of individuals against acts of a general nature.
The Court of Justice considered therefore that “effective legal protection” was in any case guaranteed by the right of individuals to bring an action before national courts against national measures implementing an EC/EU regulation in individual cases (since these courts acting as “decentralized european judges” would have been able to refer to preliminary questions to the Court of Justice).
This indirect solution was therefore unavailable when Community measures didn’t require national implementation. In these cases, as denounced by the Advocate General Francis Jacobs in the “Jégo-Quéré,” case before the Court of First Instance, the only way for the individuals to obtain justice was to infringe the EU measure and challenge its validity during the penal or other proceedings brought against him.
The CFI in its Judgment of 3 May 2002, followed the AG Jacobs ruling by considering a person as “individually concerned” by a measure of general application when it affects his legal position in a manner which is both definite and immediate, by restricting his rights or imposing obligations on him. However, the Court of Justice rejected this interpretation (“UPA” Case of 25 June 2002) by considering that a reform of the system of judicial review would had been possible only through a Treaty amendment.
Such a reform was finally adopted, albeit in a rather unclear way, during the negotiations of the Constitutional Treaty and thereafter mirrored in the Lisbon Treaty.
The former art. 230 TEC has now become Article 263 of the TFEU which reads as follows:
‘Any natural or legal person may, under the same conditions, institute proceedings against an act addressed to that person or which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures.’”
Therefore the main question surrounds the Treaty’s lack of definition of the notion “regulatory acts”.
Does this formula cover all the acts of general application be it of legislative or non legislative nature or does it refers only to “non legislative” acts as considered by part of the doctrine (Bruno De Witte)?
This second interpretation will therefore allow the legislator to hide in legislative acts all the measures for which he does not want be challenged by the individuals. Moreover this interpretation will also counter ECJ jurisprudence according to which only the contents of the act are decisive and not its legal form.
(*) TUE Article 6(as modified by the Lisbon Treaty)
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.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
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.