The European Union’s fundamental rights law has three main sources: general principles of law via national constitutional traditions and the European Convention for the Protection of Human Rights and Freedoms; the European Court of Human Rights (ECHR) itself; and the European Union Charter of Fundamental Rights (EUCFR). The following will discuss the gradual development of fundamental rights, and whether sufficient protection has been provided by the EU.
Brief Background: Pre-Recognition of Fundamental Rights
Fundamental rights have not always been recognized as an objective in the EU. It was not present in the founding Treaty of Rome 1958, with its initial objective being the development of the single market. The Treaty of Amsterdam 1997 marked a stronger commitment, as it encompasses not only fundamental rights but political rights. In 1999, the Cologne European Council agreed that a charter of fundamental rights should be established. This charter was to include the rights contained in the ECHR and constitutional traditions common in the Member States.
Agreement on the charter’s legal status could not be reached at the Nice European Council 2000. It was only following the Lisbon Treaty 2007 that the EUCFR was affirmed by EU institutions. This treaty had sought to reform existing Treaties, resulting in the adoption of the Treaty of the European Union (TEU). Post-Lisbon, fundamental rights protection in Europe is made up of a ‘crowded house’ of overlapping national, international and supranational human rights practices, which is overseen by its own authoritative judicial body. This allowed greater opportunity for inter-systemic ‘cooperation, interaction, mutual enrichment, for adversarial discourses, even for trial and error’.
2. Substance Of EU Fundamental Rights Law
The EU’s approach involves ‘humanizing’ its institutional framework towards a more appealing legal and political culture. There is no one authority which lays down the fundamental values of EU law, but rather it involves a combination of different legislation which acts as a means of checks and balances to allow for open discussion of the law.
Standard of protection of fundamental rights
Article 52(3) EUCFR dictates the need to uphold the protection of individuals as its basic standard. The leeway from this, however, would require a specific interest: the reasoning for the EU’s departure, and the importance of that right across the board. The interpretation of fundamental rights hence is based on balancing a representative’s interest versus the general perspective of that right in society. Now, the Union acknowledges that fundamental rights are involved in most of its activities and revises accordingly its regulatory strategies. This has led to a greater consideration of fundamental rights as a key source of interpreting legislation.
National constitutional traditions and the EU
The field of human rights has gradually developed via case law, from its initial start of constitutional traditions. Human rights protection now not only has garnered universal recognition but is also a national objective – a call for co-operation among international bodies towards a ‘safer, more prosperous world’. Constitutional courts contribute to the European system of fundamental rights protection, and their relationship with the COJ can be seen as supportive rather than mutual exclusion. Although the Court in Kremzow expressed that it draws inspiration from constitutional traditions and Member States’ guidelines that supplement international treaties for the protection of human rights, constitutional courts cannot expect to preserve the ‘control’ they enjoyed in the past, as many of their sovereign powers have been transferred to the EU’s discretion.
The Court made clear in Stauder that fundamental human rights or principles of EU law must not be placed in a compromising position. However, at the time of this case, fundamental rights occupied no more than a second-order status. National courts were still left with a choice between refusing to apply EU law or neglecting the fundamental liberties enshrined in their national constitutions. The question of status rose again in Internationale Handelsgesellschaft. The court was asked to scrutinize on whether the regulation had violated the right to freedom of trade. Although it was decided that there was no such violation, this case established the role of fundamental rights – as they were ‘read in’ the treaty despite it not being expressly addressed. The threat to national fundamental rights could be averted by placing its own checks and balances so that conflicts will less likely occur.
The EUCFR divides its rights and principles into six main categories: human dignity, freedoms, equality, solidarity, citizens’ rights, and justice. Most of these rights are conditioned with limitations and expectations. Article 52(1) EUCFR sets out that limitations must be in line with the Union’s objectives, lawful, and for the protection of rights. Scarlet Extended further clarified that limitations must be of “accessible, clear, and foreseeable” nature to properly regulate conduct.
The EUCFR did raise a few eyebrows, as not all ‘important’ rights are in its headings. Article 52(5) EUCFR lays down that certain principles may be implemented by legislative and executive acts taken by Union representatives or member states – hence certain provisions will be protected more absolutely than others. The problem arises when there is no specification as to which provisions in particular constitutes as rights or principles. In Fransson, EU fundamental rights law was deemed to act as no more than a minimum standard, with allowing Member States to adopt a higher level of protection if they desired. Hence, the focus should be on the substance and relevance of rights in this day and age.
The field of data protection represents a modern development of fundamental rights. In Digital Rights Ireland, the pressure group was protesting against Directive 2006/24 – which allows mobile phone operators to retain particular personal data of their users. The group claimed that having access to these records was a violation of the right to privacy. The COJ ultimately struck down the directive, deeming it as a ‘serious interference’ with EU charter rights, as well as citizens’ rights – the directive could not be weighed in its favour as it had went past the scope of what was strictly necessary.
In Google Spain, the Court was asked to decide if internet search engine providers are required to block links to accessible third-party webpages, specifically pages possessing content irrelevant to an individual. Mr.Gonzalez had requested for the removal of search engine links that led to an article he did not want attention given to. The decision effectively imposes on Google (and other market operators) a legal responsibility to balance an individual’s right to privacy over their personal data against the public right of the freedom of expression. It also signifies the possible shifting of responsibility for breaches of privacy towards a broader range of operators – affecting the way privacy rights were understood.
3. Enforcement Of Limits Against Union Institutions
There are two main judicial procedures to enforce limits against the exercise of Union competences; direct action and indirect action.
There are two key aspects to the notion of direct action:
1) Firstly, there must be a causal link between the act under review and the infliction of harm on the applicant. The second aspect is that the interest must affect his/her legal position directly. However, as it may not always be clear where a ‘legal’ interest is jeopardized.
2) The second part of the test is “individual concern”: setting an individual apart from others in terms of their circumstances. The Court in Plaumann lays down the following:
“… may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.”
In Plaumann, being the sole market operator in a particular field was deemed insufficient to satisfy this part of the test. There must be the existence of a unique legal right or differentiating circumstance. However this has proven to be difficult to fulfil, and the Lisbon Treaty via Art 263(4) TFEU has since revised this criteria for regulatory acts – focusing instead on establishing of direct concern, not implementing measures. This approach was affirmed in Inuit, whereby it was stated that ‘less stringent conditions’ were created to allow individuals to bring actions of annulment easier for non-legislative EU measures. This development brings to light whether individual concern should be disregarded altogether, and direct concern should become the main focus instead.
Article 267 TFEU provides the alternative whereby action is taken up to the national courts, and they make reference to the CJEU – which involves a discussion on the interpretation or validity of actions of EU institutions, bodies, or agencies. The body referring a case must have a statutory origin and it must be permanent. It must also include an inter-partes procedure, have compulsory jurisdiction, and applies the rule of law.
The national court or tribunal of any member state has discretion, under Art.267(2), to refer a case if it considers that a decision on a question of EU law is necessary. In interpreting Art.267(3), the CJEU held that when a provision is clear-cut, and there is no room for doubt, the last instance national court or tribunal has the discretion to refer a case. The Austrian final court clarified that a breach would be considered “sufficiently serious” only when infringement is clear and “manifest in nature”.
It was highlighted that the EU’s legal autonomy is not unlimited. On one hand, the ECHR is rather lenient and readily assumes that the EU legal order provides equivalent protection when it comes to the preliminary ruling procedure. On the other hand, Strasbourg displays a much stricter approach to the issue of whether the presumption of equivalent protection can be rebutted due to manifest deficiencies.
The UK government’s plan to possibly set aside the EU Charter. Although they have pledged that removal of the Charter will not lead to a reduction of rights, not all rights in the Charter possesses the same level of protection in national law. Removal of the Charter without an exact replacement could lead to possible limitations of legal rights or even domestic remedies. Fundamental rights has evolved in line with the EU, but the balance between the protection of fundamental rights and the respect for a legislature’s decisions should always be kept in mind. The EU legal order would better benefit if there is a heightened check and balance on the growing case law of the Strasbourg and Luxembourg Courts as well as its institutions, to decipher the possible ‘missing out’ of fundamental rights and in setting appropriate fundamental rights standards within the scope of EU law.
 A. Torres Perez, ‘Conflicts of Rights in the European Union: A Theory of Supranational Adjudication’, 2009, Oxford University Press
 Villalon, ‘Rights in Europe: The Crowded House’, King’s College London Working Paper, 2012, https://www.kcl.ac.uk/law/research/centres/european/research/CELWPEL012012FINAL.pdf
 Polakiewicz, ‘EU Law and the ECHR: Will EU Accession to the European Convention on Human Rights Square the Circle?’, 2013, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2331497
 Marco Dani, ‘National constitutional courts in the European constitutional democracy: A reply to Jan Komárek’, 1 July 2017, International Journal of Constitutional Law, Volume 15, Issue 3, p.785-789
 Guy Harpaz, ‘The European Court of Justice and Its Relations with the European Court of Human Rights: The Quest for Enhanced Reliance, Coherence and Legitimacy’, 2009, Common Market Law Review, Issue 46, p.105-141
 Marco Dani, ibid., p.785
 Joined Cases C-244-245/10, Mesopotamia Broadcast A/S METV, 2011, E.C.R. I-8777
 Foreign and Commonwealth Office, ‘Policy Human Rights Internationally’, http://www.gov.uk/government/policies/human-rights-internationally
 J. Velaers, ‘The Protection of Fundamental Rights by the Belgian Constitutional Court and the Melki-Abdeli Judgment of the European Court of Justice’
 Case C-299/95 Kremzow v Austria  ECR I-2629
 Elspeth Guild & Guillaume Lesieur, ‘The European Court of Justice on The European Convention on Human Rights: Who Said What, When?’, 1998, Kluwer Law International, p.146-149
 Case 29/69 Stauder v City of Ulm  ECR 419
 U.Scheuner, ‘Fundamental Rights in European Community Law and in National Constitutional Law’, 1975, 12th Issue, Common Market Law Review, pp. 171, 173-174.
 Case C-70/10 Scarlet Extended v SABAM
 ‘T.Hervey and J.Kenner, ‘Economic and Social Rights under the EU Charter of Fundamental Rights, 2003, Oxford Publishing, Issue 1, p.16-18
 Case C-617/10 Aklagaren v Fransson, Judgment of 26 February 2013
 ibid., para.29, Judgement of 26 February 2013
 T.Horsley, ibid., p.116
 City College, ‘Judicial Review of Acts and Omissions of EU Institutions: The Annulment Action’, Chapter 8, http://www.citycolleges.ie/wp/wp-content/uploads/European-Union-Law-Chapter-8.pdf
 Case 25/62 Plaumann
 Case C-583/11 P Inuit Tapiriit
 Case C-17/00 De Coster v College des Bourgmestre  ECR I-9445
 Case C-224/01 Kobler 
 Case No. 17502/07 Avotins v Latvia
 David Isaac, ‘Remaining a global leader on equality and human rights’, European Human Rights Law Review, 2017, p.2
 J. Komarek, ‘National Constitutional Courts in the European Constitutional Democracy’, 2014, International Journal of Constitutional Law, Issue 12, p.525
 L.H Storgaard, ibid., p.485-521