European Fundamental Rights Law Literature Notes – Week 3 – The EU Charter and the
Member States
Articles 2 and 6 TEU
Article 2 TEU
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law
and respect for human rights […]. These values are common to the Member States in a society in which
pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail.
Article 6 TEU
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the
EU […], which shall have the same legal value as the Treaties. The provisions of this Charter shall not extend 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.
2. The Union shall accede to the ECHR, which shall not affect the Union’s competences as defined in the
Treaties.
3. Fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions
common to the Member States, shall constitute general principles of the Union’s law.
Monica Claes, Fundamental Rights, in PJ Kuyper and others, The Law of the
European Union (5th ed, 2018), Chapter 4, pp. 97-130.
1 Introduction
The European Union is a relative newcomer in the area of fundamental rights protection, but the Union has
now become an important player in the field, and it can no longer be denied that the EU is a human rights
organization of some sorts.
2 EU fundamental rights law as part of human rights law
Fundamental or human rights are generally perceived as rights that any individual enjoys by virtue of her
humanity against the exercise of public authority. This is, first of all, national law, enshrined in a constitution.
But all EU Member States are also parties to a wide range of human rights treaties, both at the international
level, and regionally, treaties adopted in the context of the Council of Europe.
3 The genesis of EU fundamental rights law
The current prominence of fundamental rights in the EU Treaties and EU law stands in stark contrast to the
original treaties, none of which contained a bill of rights, or a reference to fundamental rights. The European
Communities were however soon forced to acknowledge the importance of developing their own system of
human rights protection, as the absence of a bill of rights and the lack of a system of judicial protection of such
rights proved to be problematic; national constitutional rights could not be invoked, while the EC Treaties did
not contain a human rights bill, leaving individuals without protection of their fundamental rights in the face of
Community law. In the 1970’s, however, the CJEU developed a line of cases positing that fundamental rights
were included in the general principles of Community law. Yet, these decisions did not immediately manage to
convince the Italian and German constitutional courts, as exemplified by the Frontini and Solange cases. When
defining the European fundamental rights as general principles of EU law, the CJEU claimed to draw on the
“common constitutional traditions of the Member States”, which ensured the ideological continuity that is
essential for their acceptance and legitimacy. From 1989 onwards, the Court consistently recognised the
particular significance of the ECHR. The first fundamental rights cases dealt with challenges of the validity of
decisions and acts of the European institutions in the light of fundamental rights, which later found their way
onto the political agenda and entered the SEA and Maastricht Treaties. However, in the course of time, it was
felt that more was needed in order to ensure fundamental rights in the EU, for several reasons: to convince the
Member States and candidate states that the EU values and would not disrespect fundamental rights; to make
the EU more legitimate to its citizens, as well as to repair the imbalance between the internal and external
human rights discourse of the EU.
4 Sources of EU fundamental rights
Article 6 TEU sets out three main sources of EU fundamental rights protection under EU law. First, paragraph 1
states that the Union shall respect the Charter of Fundamental Rights, which has the same legal value as the
Treaties; Second, paragraph 2 holds an obligation for the EU to accede to the ECHR; Third, paragraph 3 confirms
,that fundamental rights, as guaranteed by the ECHR and as they result from the common constitutional
traditions of the Member States, constitute general principles of EU law. In addition, EU secondary law may
also shape fundamental rights, as Article 3 TEU and Article 51(1) Charter confirm that the EU is under an
obligation to promote the application of the rights and principles included in the Charter in accordance with the
existing powers and competences conferred to it.
4.1 The Charter of Fundamental Rights
o 4.1.1 Origins
In 1999 the European Council set up a Convention composed of representatives of the Heads
of State and Government and of the President of the Commission as well as of members of
the European Parliament and national parliaments and tasked it with the mandate to draft a
fundamental rights charter. The resulting Charter existed in legal limbo for a while: while the
institutions in the Nice Treaty proclaimed to be committed to it, it was not legally binding,
because the Member States did not want it to be. It was one of the elements that gave the
Constitutional Treaty constitutional appearance and accordingly, it was deleted when the
Treaty was de-constitutionalised and transformed into the Treaty of Lisbon, instead of which
it is referred to under Article 6 TEU as a form of EU primary law.
o 4.1.2 The scope of application of the Charter
The Charter and the EU institutions and bodies
The first part of Article 51(1) Charter makes the Charter binding on all authorities set
up by the Treaties or under secondary law and requires all those authorities to
respect and promote the rights of the Charter. However, it is mainly used in a
manner that is reactive rather than proactive. The Charter also binds the EU
institutions, bodies, offices and agencies when they are acting outside the scope of
the Treaties – in the context of the ESM. Last, concerning the territorial scope, the
EU has developed a range of legal and policy instruments to extend the scope of
fundamental rights to the policies of trade, investment and CFSP. It is nevertheless
not a party to the ECHR or the European Social Charter, though it unilaterally
considers itself bound by these instruments.
The Charter and the EU Member States
In its pre-Lisbon case law on general principles of EU law, the CJEU had gradually
extended the application of general principles, first to acts of the Member States
“implementing EU law”, then to the Member States derogating from EU law, and
finally to them when “acting within the scope of EU law”. Since Lisbon, the new
fundamental rights provision of the TEU and the Charter clearly demonstrate the will
of the Member States to prevent EU fundamental rights to be used to extend the
reach of EU law, reflected in Article 6 TEU and in Article 51 of the Charter. Article
51(1) Charter clearly intends to preclude the judicial expansion of the Charter to
fields that are not covered by EU law. This was explained in Akerberg Fransson,
where it was clarified that the Charter is applicable in all situations governed by EU
law and must be complied with where national legislation falls within the scope of
EU law. Since the fundamental rights guaranteed by the Charter must therefore be
complied with where national legislation falls within the scope of EU law, situations
cannot exist which are covered by EU law without those fundamental rights being
applicable.
o 4.1.3 Limitations
Article 52(1) Charter accepts limitations on the exercise of rights enshrined by the Charter,
provided that the limitations are (1) provided for by law; (2) respect the essence of those
rights and freedoms, and; (3) in accordance with the principle of proportionality are
necessary and genuinely meet objectives of general interest.
o 4.1.4 Rights and principles
Concerning the difference between rights and principles, Article 52(5) Charter stipulates that
principles, as opposed to rights, require further action by the European and national
authorities and are not justiciable. However, the Charter is imprecise as to which of its
provisions should be viewed as “rights” and which as “principles”, which is mainly the result
of the inability of the drafters to reach consensus. The Court has not been helpful either as it
has used such terms interchangeably in its case law. It nevertheless seemed to adopt a
narrow interpretation of Article 52(5) by limiting judicial review to measures implementing
, Article 26 and did not pay attention to the role of principles as standard for legal review or
tools of interpretation.
4.2 The ECHR
o 4.2.1 The ECHR as a source of EU fundamental rights
The ECHR and the case law of the ECtHR are of fundamental importance for the EU, and to
serve as a source of EU fundamental rights. First, Article 6(3) TEU mentions the ECHR as
constituting general principles of EU law, and thus as a source of EU fundamental rights,
though the Court has consistently held that the ECHR as such is not a source of EU
fundamental rights until the EU accedes to the ECHR. Second, Article 52(3) of the Charter
essentially contains an obligation to follow the ECHR, and since the latter is interpreted by the
ECtHR, it contains an obligation to follow the case law of the ECtHR.
o 4.2.2 Accession of the EU to the ECHR
Background
The idea of accession to the ECHR dates back to the 1970’s, when the European
Communities, in search of a European identity, pointed to the importance of human
rights protection. In 1994, however, the Court rejected the EU’s competence to
accede, based on the lack of such a competence in the Treaties. That basis was
finally provided by the Lisbon Treaty in Article 6(2) TEU and Protocol 8. In 2010, the
Council gave the Commission a mandate to conduct the negotiations on behalf of
the Union, and an Accession Agreement was finalised in 2013.
The Draft Accession Agreement
The key features of the Agreement were the co-respondent and prior involvement
mechanisms. The former sought to ensure that proceedings by non-Member States
and individual applications are correctly addressed to member States and/or the
Union, and thus to address the concern mentioned in point (b) of Article 1 of
Protocol 8. The latter introduced the possibility of prior involvement of the CJEU in
proceedings before the ECtHR where the EU has joined as a co-respondent, allowing
the CJEU to examine whether, as a matter of EU law, human rights have been
breached. This would thus function as a kind of replacement for the preliminary
reference that did not take place. The Agreement further provided that proceedings
before the CJEU should not be understood as “means of dispute settlement” in the
meaning of Article 55 ECHR.
Opinion 2/13
Before the ratification process began, the CJEU was asked to give its Opinion on the
compatibility of the Accession Agreement with EU law pursuant to Article 218(11)
TFEU (on agreements between the Union and third states), and declared the
Accession Agreement to be incompatible with EU primary law. First, it held the
Agreement liable to adversely affect the specific characteristics of EU law and its
autonomy. Second, it found a breach of Article 344 TFEU, since the Accession
Agreement did not explicitly exclude from the ECtHR’s jurisdiction inter-state
disputes relating to the application of Convention rights which come within the
scope of EU law. Third, the arrangements concerning the co-respondent mechanism
did not ensure that the specific characteristics of the EU and EU law were preserved.
Fourth, the Court held that the procedure for prior involvement failed to preserve
the specific characteristics of the EU and EU law. Last, the Court noted that CFSP fell
outside the ambit of judicial review by it.
After Opinion 2/13
In the case of a negative Opinion of the Court, the EU agreement may not enter into
force under Article 218(11) TFEU, unless it is amended, or the EU Treaties are
revised. Despite the consistent commitment to accession on the part of the
Commission, no real progress has been made, and given the current political
tensions in the EU, it seems unlikely that accession will happen any time soon.
o 4.2.3 The position of EU law under the ECHR
While the EU is not a party to the ECHR, all its Members are, which might put them in the
difficult position of conflicting treaty obligations, when complying with EU law obligations
would cause them to breach ECHR rights. In Matthews, the ECtHR held the UK responsible for
a violation of the right to vote under Article 3 of Protocol 1 of the ECHR, resulting from
