Why is the protection of fundamental rights needed in the EU and how has the initial problem been resolved (until now)?
European Law Human Rights
Essay 2013 6 Pages
1 Why is the protection of fundamental rights needed in the EU?
In order to demonstrate the importance of fundamental rights in the European Union (EU), it needs to be clarified what fundamental rights are and how they differ from the fundamental freedoms of the EU. When going through the literature of the European Union one might see the term “fundamental freedom”. Fundamental freedoms are embedded in the European Economic Community (EEC) since 1957 and describe the free movement of goods, persons, services and capital, the driving forces for the internal market.1 Even though fundamental freedoms and fundamental rights are linked and sometimes similar, Fundamental freedoms are not to be mixed up with fundamental rights which are much more focused on the citizens’ rights than on the economic factor. Fundamental rights are difficult to define as there is no common sense of what exactly is “fundamental”. Nevertheless there is different background and understanding of fundamental rights, they are generally defined as “…hierarchical supreme norms, which judicially protect citizens against unjustified interference by public authority”.2 Fundamental rights receive the highest level of protection, as they do not only speak the language of the suffered people, but also protect the rights of the nation’s citizens and are therefore essential values of a democratic legal system. Fundamental rights like human dignity, prohibition of slavery and forced labour, the respect of private and family life and the right to marry and to found a family are essential rights and represent a nations or unions values. Moreover fundamental rights ensure equality among citizens. Given the EU with its round about 500 million peoples of different backgrounds, religions and beliefs, equality is an important factor for the democratic legitimacy of the EU. For example, a French student who is passing his exchange semester in Spain has to pay the same tuition fee than a Spanish student. Anything different can be seen as discrimination and inequality among the member states. Moreover, fundamental rights on EU level increase transparency and ensure that every EUs citizen has the same source of law.
After World War 2, Europe was totally destroyed. Over 50 million people have been killed in this war and fundamental rights have totally been ignored by the Nazis. The legal system did not ensure the protection of the minimum rights of the people and the authorities did not pay deference to the citizens. Fundamental rights have also been ignored in the Eastern Bloc during the cold war and the Iron Curtain, where citizens had not the right to speak up and to move across the borders which the authorities determined. Given the European history, fundamental rights are essential for a close and fair integration, in order to overcome the trauma of the past and to regain trust in the authorities. Fundamental rights have the power to set boundaries and to protect citizens.3 By getting closer to the citizens and by paying attention to their rights, the EU can hold its democratic legitimacy.4
Having discussed the importance of fundamental rights in the EU it is difficult to understand that there was, until 2007, no legally binding written catalogue of fundamental rights in the EU.5 As mentioned above the EEC did not include fundamental rights but had its focus on economic matters. Within the first years of European Integration there was limited power on the EU level and the character of the EU was more intergovernmental than supranational. The economic integration was the main goal to achieve and other topics like fundamental rights hadn’t been the centre of attention. Nevertheless since 1969, the ECJ recognized the lack of a written catalogue of fundamental rights and started to legally protect the fundamental rights of the Union’s citizen through its creative case law. The case law of the ECJ has had a significant role in the development of the integration of fundamental rights in the European law. The ECJ established a body of case law, in order to serve as a framework of fundamental rights, by which the court applied general legal principles to the fundamental rights and consequently protected the community legal order.6 The first significant case where the ECJ derived its decision from the basic laws of community law, was the Stauder case (Erich Stauder vs. City Ulm, Sozialamt 29/69, Urteil 12.11.1969, p.149), where the ECJ accepted the complaint of a citizen with regard to human dignity and quality.7 A few years later the ECJ further developed the case law on fundamental rights and demonstrated limitations of the fundamental rights which gave the case law a better defined framework (Nold vs. Commission (04/73, Urteil vom 14.5.1974, p.491).8 Even though the EU did not enter the European Convention of Human Rights (ECHR), as the accession was refused, the ECJ had via its case law similar examination criteria and therefore legitimated its decision making.9 Nevertheless the EJC tried to compensate the lack of explicit, transparent, written law for fundamental rights in the EUs treaties, the case law of the ECJ got more complex.10 The increasing complexness due to the European integration principles, enlargement, deepening and widening, made fundamental rights on the EU level more important. At the beginning of the integration process, with the ECC, there was very limited supranational power at EU level and most of the power stayed with the Member States. With the increasing shift of national power to the European level, which led to the EU as a supranational organisation, which is able to pass community law, directly applicable to the Unions citizen, fundamental rights became a more present value for the European integration, based on equality of its Member States. The lack of a common order to start legal proceedings and the lack of transparency were no longer acceptable.
1 Walter Hallstein, ’ Die Europäische Gemeinschaft ’, 1st edition (1973), 47, Düsseldorf
2 Fundamental Rights Conflicts in the European Union.
3 Daniel Thym,’The evolution of ‘, WHI Paper 3/2009, <http://whi-berlin.eu/documents/whi-paper1406.pdf > (last accessed 5 December 2012), 6f.
4 Nicholas Moussis, ‘ Guide to European policies ’, 15th edition (2009), 141 f.
5 Compare The ABC of European Union Law, 29f.
7 Waldemar Hummer, Christoph Vedder, Stefan Lorenzmeier,‘Europarecht in Fällen‘ 5th edition (2012), 78f
8 Waldemar Hummer, Christoph Vedder, Stefan Lorenzmeier,‘Europarecht in Fällen‘ 5th edition (2012), 78f.
9 Siegmar Schmidt; Wolf J. Schünemann, ‘ Europäische Union: Eine Einführung ‘, 1st edition (2009), 212 f.
10 3-8329-01663, 13ff.