Eu and the Fundamental Rights..

The European Community (EC) has expressed through treaty provision and case law that the protection of the fundamental rights of EC citizens is vitally important. However, the EC itself is not currently bound to a set of agreed fundamental rights. For years, the European Court of Justice (ECJ) has respected and protected fundamental rights by considering the position of state constitutions and the terms of the European Convention on Human Rights (ECHR). Yet, the ECJ is not bound to follow these. It is not bound to the ECHR, as it is not a signatory.

In 1999, when the member states of the EC also drew up the European Union Charter of Fundamental Rights as part of the new constitution. However the documents have not been formally agreed upon and therefore do not bind the EC or its member states.

With this the ECJ has had no formal grounds on which to make its decisions and has therefore had to look outside the EC and into other sources of European law.

The ECHR, although not signed by the EU as one body, is signed by all 25 members of EU and has a great deal of standing in each signatory state. The ECJ, when making its decisions has demonstrated that the ECHR is a valuable source. For example in the early case of Nold the ECJ examines the status of fundamental rights considering “in particular the Convention for the Protection of Human Rights…”. However, the situation has not changed much, as is demonstrated in a recent case where the ECJ states:

“the court draws inspiration from [treaties the member states are signatories to]…the ECHR has special significance in this respect”.

The court also makes reference to the importance of ECHR case law.

What is clear from this is that the terms of the ECHR act as significant guidance for the ECJ when making their judgements in fundamental rights cases. A significant reason for this may be connected to the article in the EC treaty that recognises the importance of the ECHR based on the joint declaration in 1977 of the European Parliament, Council and Commission, recognising the status of the ECHR and respecting its importance.

However, despite the ECHR’s significance as a source, the ECJ is not bound by those provisions and in the Court’s opinion on Accession to the ECHR and the case of Grant v South west Trains the court has expressed that the EC under its current constitution will be unable to become a signatory to the ECHR - “those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community”.

However, the EC’s own form of fundamental rights protection – the European Union Charter of Fundamental Rights – cannot be considered to be replacing the ECJ’s use of the ECHR.

The Charter was written to compliment the EC’s new constitution. However, neither has been adopted and are now during a period of reflection by member states before any further action is taken with them. On this basis, the Charter, like the ECHR, has no legal status. Citizens of the EC cannot rely upon the charter rights directly. In the case of BECTU , Advocate General Tizzano states “the relevant statements of the Charter cannot be ignored” and bases his opinion on the terms of the Charter. However, the courts subsequent judgement, although coming to the same result, does not make any reference to the charter.

Nonetheless, since BECTU, there has been some acceptance of the Charter by the ECJ, with the Court of First Instance using it in the case of max.mobil but perhaps more significantly the ECJ made use of the Charter in Parliament v Council (Family Reunion Directive) – although this was based on the fact that the Directive in question had referred to a respect for the Charter in its preamble. Yet, should the EC make more reference to Charter in its provision, the ECJ may feel more compelled to make use of the Charter.

As the situation stands currently though, the Charter appears a very unnecessary document. Without more backing the EC, especially giving it legal status, the Charter remains just another possible source for the ECJ to examine. But, given the ECJ’s long-standing use of the ECHR, the Charter will have a weaker influence.

With the current political situation with regard to the Charter it is unlikely that it will be given legal effect in their current state and the ECJ may feel reluctant to use the Charter should it give effect to rights that may later be left out of the final document. Furthermore, giving the EC and the ECJ more power in more areas is an idea that many member states are sceptical of, and this may delay and even prevent the legal