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  • Print publication year: 2015
  • Online publication date: May 2018

12 - Judicial Powers III: EU Fundamental Rights

from Part II - Governmental Powers

Summary

Introduction

The protection of human rights is a central task of many modern judiciaries. Judicial review may thereby be limited to the review of the executive; yet in its expansive form, it includes the judicial review of legislative acts. The European Union follows this second tradition. Fundamental rights thus set substantive – judicial – limits to all governmental powers and processes within the Union. They indeed constitute one of the most popular grounds of review in actions challenging the validity of European Union law.

What are the sources of human rights in the Union legal order? Despite the absence of a ‘bill of rights’ in the original Treaties, three sources for EU fundamental rights were subsequently developed. The European Court first began distilling fundamental rights from the constitutional traditions of the Member States. This unwritten bill of rights was inspired and informed by a second bill of rights: the European Convention on Human Rights. This external bill of rights was, decades later, matched by a written bill of rights specifically drafted for the European Union: the Charter of Fundamental Rights.

These three sources of EU fundamental rights are now expressly referred to – in reverse order – in Article 6 of the Treaty on European Union. The provision reads:

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties …

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

This chapter investigates each of the Union's three bills of rights and the constitutional principles that govern them. Section 1 starts with the discovery of an ‘unwritten’ bill of rights in the form of general principles of European law. Section 2 analyses the Union's own ‘written’ bill of rights: the EU Charter of Fundamental Rights.

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Alston, P. (ed.), The EU and Human Rights (Oxford University Press, 1999)
Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe (Hart, 1999)
Peers, S. et al., The EU Charter of Fundamental Rights: A Commentary (Hart, 2014)
Tridimas, T., The General Principles of EU Law (Oxford University Press, 2007)
Williams, A., EU Human Rights Policies: A Study in Irony (Oxford University Press, 2004)
Besselink, L., ‘Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union’ (1998) 35 CML Rev 629
Búrca, G. de, ‘The Evolution of EU Human Rights Law’ in Craig, P. and Búrca, G. de (eds.), The Evolution of EU Law (Oxford University Press, 2011), 465
Coppel, J. and O'Neill, A., ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 CML Rev 669
Costello, C., ‘The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe’ (2006) 6 Human Rights Law Review 87
Douglas-Scott, S., ‘A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis’ (2006) 43 CML Rev 629
Gragl, P., ‘A Giant Leap for European Human Rights? The Final Agreement on the European Union's Accession to the European Convention on Human Rights’ (2014) 51 CML Rev 13
Lenaerts, K., ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 European Constitutional Law Review 375
Liisberg, J. B., ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law?’ (2001) 38 CML Rev 1171
Lock, T., ‘End of an Epic? The Draft Agreement on the EU's Accession to the ECHR’ (2012) 31 YEL 162
Schütze, R., ‘European Fundamental Rights and the Member States: From “Selective” to “Total” Incorporation?’ (2011–12) 14 CYELS 337
Triantafyllou, D., ‘The European Charter of Fundamental Rights and the “Rule of Law”: Restricting Fundamental Rights by Reference’ (2002) 39 CML Rev 53
Weiler, J., ‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights’ in Neuwahl, N. and Rosas, A. (eds.), The European Union and Human Rights (Brill, 1995), 51
Weiler, J., ‘Does the European Union Truly Need a Charter of Rights’ (2000) 6 ELJ 95