Fundamental Rights in the EU Legal Order

The protection of fundamental rights in the European Union has evolved from judicial innovation to codified constitutional principle. Initially absent from the founding Treaties, which focused on economic integration, fundamental rights were first recognised by the European Court of Justice as unwritten general principles of EU law. The Charter of Fundamental Rights, binding since the Treaty of Lisbon, now constitutes the primary written source of rights within the EU legal order, possessing the same legal value as the Treaties under Article 6(1) TEU. This development mirrors the broader constitutionalisation of the EU from an international economic organisation to a union of values.

The Development of Fundamental Rights through ECJ Case Law

The Treaty of Rome (1957) contained no catalogue of fundamental rights. The ECJ initially declined to review Community measures for compliance with fundamental rights, holding in Stauder v City of Ulm (Case 29/69) that the provision at issue did not violate any fundamental right — without, however, denying the existence of such rights within the Community legal order. The breakthrough came in Internationale Handelsgesellschaft (Case 11/70), where a German court referred questions concerning the compatibility of a Community agricultural regulation with fundamental rights protected by the German Basic Law. The ECJ held that respect for fundamental rights forms an integral part of the general principles of EU law protected by the Court. The protection of such rights, while inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community.

In Nold v Commission (Case 4/73), the Court elaborated that it draws inspiration from the constitutional traditions common to the Member States and from international treaties for the protection of human rights on which Member States have collaborated or to which they are signatories, notably the European Convention on Human Rights. The Court thereby established a dual source for fundamental rights protection: national constitutional traditions and the ECHR. This approach allowed the Court to develop a body of fundamental rights jurisprudence without a written catalogue, balancing the autonomy of Community law against the need to protect individuals from Community action.

Subsequent case law expanded the range of protected rights. The Court recognised the right to property and the freedom to pursue a trade or business (Hauer v Land Rheinland-Pfalz, Case 44/79), the principle of proportionality as a general principle limiting Community action, the right to judicial protection (Johnston v Chief Constable of the Royal Ulster Constabulary, Case 222/84), and the principle of non-discrimination on grounds of nationality (Cowan v Trésor Public, Case 186/87). By the 1990s, the ECJ had developed a comprehensive body of fundamental rights case law covering most rights subsequently codified in the Charter.

The Charter of Fundamental Rights

The European Council in Cologne (1999) decided to draft a Charter of Fundamental Rights to consolidate the rights protected at EU level into a single document. A Convention composed of representatives of national parliaments, governments, the European Parliament, and the Commission drafted the Charter, which was solemnly proclaimed in Nice in December 2000. The Charter initially had only political force as a solemn proclamation, though it was invoked by Advocates General and the General Court from its proclamation.

The Treaty of Lisbon, which entered into force on 1 December 2009, gave the Charter binding legal effect. Article 6(1) TEU provides that the Charter has the same legal value as the Treaties, elevating it to primary EU law. The Charter thereby became a source of law that can be invoked to challenge EU acts and Member State acts implementing EU law, and provides a basis for the interpretation of secondary legislation.

The Charter is organised in seven titles: Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights, Justice, and General Provisions. It codifies rights in six categories: human dignity, the classic civil and political rights, economic and social rights, equality rights, citizens’ rights, and procedural rights. The horizontal clauses in Title VII regulate the scope and interpretation of Charter rights. Article 51(1) provides that the Charter is addressed to the EU institutions and to Member States only when they are implementing Union law. Article 52(1) permits limitations on Charter rights provided they are provided for by law, respect the essence of the rights, and are proportionate. Article 52(3) ensures coherence with the ECHR by providing that Charter rights corresponding to ECHR rights have the same meaning and scope.

The Charter has become central to EU litigation. The CJEU cites it routinely, and it has been invoked in landmark judgments including Digital Rights Ireland (Cases C-293/12 and C-594/12, invalidating the Data Retention Directive for disproportionate interference with privacy and data protection rights), Schrems I (Case C-362/14, invalidating the Safe Harbour decision for inadequately protecting the right to data protection), and Google Spain (Case C-131/12, recognising the right to be forgotten as part of the right to data protection under Articles 7 and 8 of the Charter).

EU Accession to the ECHR

Article 6(2) TEU, introduced by the Treaty of Lisbon, requires the Union to accede to the European Convention on Human Rights. Accession would subject EU acts to external human rights review by the European Court of Human Rights in Strasbourg, providing a remedy against EU action parallel to that available against Member State action. The legal basis for accession is provided by Article 6(2) TEU and Protocol No. 8 to the Treaties, and the conditions of accession are regulated by the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Negotiations for the accession agreement were concluded in April 2013, and the draft agreement was submitted to the CJEU for an opinion under Article 218(11) TFEU. In Opinion 2/13 (2014), the CJEU found the draft agreement incompatible with EU law. The Court identified multiple structural problems: the draft agreement failed to preserve the autonomy of EU law, gave the ECHR jurisdiction to review EU laws without adequate regard for the preliminary reference procedure, failed to protect the role of the CJEU as the final interpreter of EU law, and did not adequately address the position of Member States in relation to the Union.

Following Opinion 2/13, negotiations for a revised accession agreement resumed. The Commission and the Council continue to work towards accession, but significant legal and political obstacles remain. The requirement to preserve the autonomy of EU law while subjecting it to external judicial review creates structural tensions that are difficult to resolve. Accession remains a legal obligation under the Treaties, but its realisation depends on finding a formula acceptable to all parties, including the CJEU, the Council of Europe, and the Member States.

The Relationship with the ECHR: The Bosphorus Presumption

Pending accession, the relationship between EU law and the ECHR is governed by the Bosphorus presumption developed by the European Court of Human Rights. In Bosphorus Hava Yollari Turizm ve Ticaret AS v Ireland (Application No. 45036/98, 2005), the ECHR held that the protection of fundamental rights by EU law is “equivalent” to that of the Convention system. Where a Member State implements EU obligations and the EU provides equivalent protection, the ECHR will presume that the Member State has not departed from Convention requirements.

The Bosphorus presumption is rebuttable. If, in the circumstances of a particular case, the protection of Convention rights was manifestly deficient, the presumption falls away and the ECHR will examine the Member State’s compliance with the Convention directly. The presumption applies only where the Member State had no discretion in implementing the EU obligation — where the Member State exercises discretion, the Bosphorus presumption does not apply and the ECHR reviews the measure directly. The presumption has been applied in numerous subsequent cases, including MSS v Belgium and Greece (2011) and Avotiņš v Latvia (2016), in which the ECHR found the presumption rebutted.

Scope of Application of the Charter under Article 51

Article 51(1) of the Charter provides that its provisions are addressed to the EU institutions and to Member States only when they are implementing Union law. This scope limitation is crucial to maintaining the EU’s limited competences and preventing the Charter from extending the field of application of EU law. The CJEU has interpreted “implementing Union law” broadly in Akerberg Fransson (Case C-617/10), holding that the Charter applies whenever a situation falls within the scope of EU law, not only when Member States are directly transposing EU directives.

This broad interpretation creates tension with the Explanations relating to the Charter, which indicate that the obligation to respect Charter rights is triggered when Member States act in the scope of Union law. In Siragusa (Case C-206/13), the Court refined its approach, holding that the concept of implementing Union law requires a certain degree of connection between the national measure and EU law, going beyond the mere proximity of the policy areas.

The Charter does not apply to purely national measures falling outside the scope of EU law. Where Member States act in areas of national competence such as education, criminal law, or healthcare, the Charter provides no basis for review. The dividing line between situations falling within and outside the scope of EU law continues to generate litigation, particularly in the areas of criminal procedure, migration, and taxation. The CJEU’s broad interpretation of Article 51 has provoked criticism from some Member States and national constitutional courts, which fear that the Charter’s application extends beyond the limits intended by the Treaties.

The protection of fundamental rights in the EU legal order thus operates through multiple mechanisms: the Charter as primary law, the general principles of EU law that continue to apply alongside the Charter, the ECHR as a source of inspiration and through the Bosphorus presumption, and the constitutional traditions common to the Member States. This multi-layered system reflects the constitutional complexity of the EU and the enduring challenge of ensuring effective rights protection within a legal order that is neither a state nor a classical international organisation.