Introduction

The protection of human rights is a central task of many modern constitutions. This protective task is principally transferred onto the judiciary and involves the judicial review of governmental action. The protection of human rights may be limited to judicial review of the executive. But in its expansive form, it extends to the review of parliamentary legislation. And where this is the case, human rights will set “substantive” limits within which democratic government must take place. The European Union follows this second constitutional tradition. It considers itself to be “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights”. Human rights are thus given a “foundational” place in the Union. They are – literally – “fundamental” rights, which constitutionally limit the exercise of all Union competences.

What are the sources of human rights in the Union legal order? While there was no “Bill of Rights” in the original Treaties, three sources for European fundamental rights were subsequently developed. The European Court first began distilling general principles protecting 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 for the European Union: the Charter of Fundamental Rights.