2.1.1.     Respect for fundamental rights in the EU - general development

LEGAL BASIS

The protection of fundamental rights is one of the basic tenets of European Community law. But neither the EC Treaty nor the EU Treaty contains a written list of fundamental rights. Only the principle of equal pay for men and women has from the start been codified in Article 119 of the EC Treaty. The European Court of Justice (ECJ) recognised the existence of fundamental rights at Community level at an early stage, and has steadily extended them. Under the Court's continuing case-law, fundamental rights form part of the general principles of Community law and are equivalent to primary law in the Community legal hierarchy.

The source of recognition of these general legal principles is Article 6 (2) (F.2) of the EU Treaty, which commits the EU to respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (EHRC) and as they result from the constitutional traditions common to the Member States, as general principles of Community law. There are also references to the protection of human rights and fundamental freedoms in Article 11(1) (J.1(2)), fifth indent, Article 30(1) (K.2(1)) EUT and Article 177(1) and (2) (130u) ECT, while the European Convention is referred to in the preamble to the Single European Act.

OBJECTIVES

To ensure that fundamental freedoms are protected in the drafting, application and interpretation of Community law. In their traditional defensive role the Community's fundamental rights protect the individual from the erosion of sovereignty by Community bodies.

ACHIEVEMENTS

1. Development of rights
The Court decided back in 1974 that fundamental rights form part of the general principles of Community law that it is required to uphold, and that in safeguarding such rights it should be guided by the constitutional traditions of the Member States. Accordingly, no measure may have the force of law unless it is compatible with the fundamental rights recognised and protected by the Member States' constitutions ([1991] ECR I-2925 at 41). The main specific rights recognised so far by the Court are:

• human dignity (Casagrande [1974] ECR 773);
• equal treatment (Klöckner-Werke AG [1962] ECR 653);
• non-discrimination (Defrenne v Sabena [1976] ECR 455);
• freedom of association (Gewerkschaftsbund, Massa et al. [1974] 917, 925);
• freedom of religion and confession (Prais [1976] ECR 1589, 1599);
• privacy (National Panasonic [1980] ECR 2033, 2056 et seq.);
• medical secrecy (Commission v Federal Republic of Germany [1992] ECR 2575);
• property (Her [1979] ECR 3727, 3745 et seq.);
• freedom of profession (Her [1979] 3727);
• freedom of trade (International Trade Association [1970] 1125, 1135 et seq.);
• freedom of industry (Usinor [1984] 4177 et seq.);
• freedom of competition (France [1985] 531);
• respect for family life (Commission v Germany [1989] 1263);
• entitlement to effective legal defence and a fair trial (Johnston v Chief Constable of the Royal Ulster Constabulary [1986] 1651 et seq.; Pecastaing v Belgium [1980] 691 et seq., 716);
• inviolability of residence (Hoechst AG v Commission [1989] 2919);
• freedom of expression and publication (VBVB, VBBB [1984] 9 et seq., 62).

Because the Court of Justice does not provide an abstract definition of the scope of protection for individual basic rights, problems arise in particular in distinguishing one fundamental economic right from another and distinguishing them from the 'fundamental freedoms' explicitly covered by the EC Treaty (free movement of persons, free movement of goods, freedom to provide services and freedom of establishment).

In any event, the fundamental rights of Union citizens who are nationals of the Member States are protected (Article 17(2) (8(2)) of the EC Treaty). But nationals of non-member States can also claim the fundamental rights where they fulfil the conditions. As non-preferential complainants, under Article 230 (173), fourth paragraph of the EC Treaty, natural and legal persons may thus institute annulment proceedings before the Court of First Instance, which is attached to the Court of Justice under Article 225 (168a), first paragraph of the EC Treaty, against acts of the Community Institutions. Comparable actions may also be brought in other procedures. The annulment proceedings under Article 230 (173) are intended for complainants who are directly affected by a legal act as defined by Article 249 (189), second to fourth paragraphs of the EC Treaty or other action with legal consequence of direct and individual concern.

If the action is well founded the Court of Justice declares the act concerned to be void, with retroactive and universal effect.

However, under the case-law of the Court there are limits to the protection of fundamental rights. Such rights are not granted without restraint but must be compatible with the Community's structure and objectives. They must always be considered with regard to the social function of the protected activity (Internationale Handelsgesellschaft [1970] ECR 1125). The principle of proportionality and the guarantee of essential content are further constraints. Consequently where the Community intervenes in the protected sphere of a fundamental right it may neither violate the principle of proportionality nor affect the essential content of that right (Schräder v Hauptzollamt Gronau [1989] ECR 2237 at 15).

It is in principle the European Community which is committed to respecting fundamental rights. The Member States are only required to comply with the minimum standards which the rights lay down when they are implementing Community law (cf. Article 10 (5) of the EC Treaty; cf. Kremzow v Austrian Republic, judgment of 29 May 1997, ECR I-2629 at 15 et seq, 19).

When adopting acts of secondary Community law affecting fundamental rights, the Community Institutions must also comply with and refer to international provisions, and particularly the standards of the EHRC (for instance, Recital 2 of European Parliament and Council Directive 97/66/EC on telecommunications or Council Regulation 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia).

2. Codification and accession to the European Human Rights Convention
To strengthen the protection of fundamental rights in the European Union, Parliament in particular has been calling for the legal conditions to be created to enable fundamental rights to be codified, so as to ensure that rights are comprehensively safeguarded under Community law. The Council asked the Court to draw up a report on whether the Community had the power to accede to the EHRC. In its report of 28 March 1996 ([1996] ECR I-1759) the Court found that the Community was not so empowered. Accession founders on the principle in Community law of limited individual authority, which also applies to action under international law. The Court found that Article 308 (235) was not a sufficient basis for such authority. Accession to the EHRC would be equivalent to an amendment of the Treaty, since it would result in an essential change in the present Community system for protecting human rights, as it would entail the Community's integration into a different institutional system governed by international law and the incorporation of all the provisions of the EHRC into Community law.

3. Changes as a result of the Treaty of Amsterdam
The Treaty of Amsterdam made some progress with regard to respect for fundamental rights in the European Union. The third recital already refers to respect for human rights in the EU.

Article F (now 6) EUT states for the first time that the Union is founded on the principles that include respect for human rights, to enforce which Article F.1 (now 7) EUT and similarly Article 236(2) (309(2)) ECT enable the Council to take measures against Member States which have infringed the principles laid down in Article F (now 6) EUT.

The Court's protection of human rights has improved, as its powers were extended in Article L (d) (now 46) EUT. This particularly applies to the protection of fundamental rights in the field of visas, asylum and immigration now transferred to Community law (new Title IV, Article 73i et seq. (now 61 et seq) ECT.

ROLE OF THE EUROPEAN PARLIAMENT
As a democratically elected Community Institution, Parliament considers that it has a duty to see that fundamental rights and freedoms are protected and upheld.

It issued a declaration of political principle on the definition of fundamental rights as long ago as 10 February 1977; the Council and Commission adopted the declaration and the Presidents of the three bodies signed it in Luxembourg on 5 April 1977. The declaration was subsequently expanded in a declaration of 1989 (Resolution on the declaration of fundamental rights and freedoms), which includes a comprehensive list of fundamental rights. This document calls on the Member States and other Community bodies to associate themselves formally with the declaration, a call that has not yet been heeded.

On 10 February 1994 Parliament adopted a list drawn up by its Committee on Institutional Affairs of human rights guaranteed by the European Union. The list draws largely on the fundamental rights declaration of 1989.

In 1993 the new Committee on Civil Liberties and Internal Affairs set up under the Maastricht Treaty produced its first annual report on respect for human rights in the Community, and Parliament adopted a resolution on the subject on 11 March 1993.

Parliament has since then repeatedly adopted resolutions on respect for human rights in the European Union. These have included calls for the EU to accede to the EHRC and for abolition of the death penalty in Member States which had not yet done so. More generally, it has stressed the need not only to safeguard respect for human rights in the European Union but also to enhance the EU's credibility in the eyes of the outside world, by including a clause requiring respect for human rights in cooperation agreements with third countries. It is worth pointing out, for instance, that an essential criterion for considering applications for accession from Central and Eastern European countries is their compliance with human rights. Parliament's call for the Protocol and Agreement on Social Policy and the Charter of Fundamental Social Rights to be incorporated in the Treaty was not heeded in the Treaty of Amsterdam. Nor was its plea for the EU to accede to the Council of Europe's social charter.