Fundamental Rights Essay
Fundamental Rights Essay
Fundamental Rights Essay
The
EU is a limited body of powers and only holds power that is provided to it by the treaties.
I first argue that the EU treaties deliver their aims, which is to provide rights to
individuals and MS. This is demonstrated through defining the legal base of the treaties
and referring to the principle of conferral. These treaties are directly enforceable in
national courts. I then show how the Court of Justice plays a role in ensuring the rights
of individuals are protected through the Rule of Law. Lastly, the development of the
Charter of Fundamental rights after the Treaty of Lisbon reaffirms existing rights of
Firstly, the treaties, TFEU and TEU promote socioeconomic rights for individuals.
The aims of the EU are set out in Articles 2 and 3 TEU1. These rights focus on the
peace and well-being of its people. The treaties provide a legal base for the EU to act
under Article 114 TFEU2. EU either has exclusive competence to legislate or shares
competence with MS. Article 4 TEU3 aims at reflecting the shared competencies by
ensuring the EU only legislates if they can achieve the objective more effectively than
the MS. EU is subject to the principle of subsidiarity which states, laws should only be
made at the EU level when MS and the EU share competence and when the objective
legislation; thus, to ensure the proportionality principle, the legal base allows EU law to
only act out of necessity and effectiveness.4 They have a minimum need to reach the
objective hence, EU is bound by union competence and cannot act in ultra vires.
Furthermore, the legal base leads to the principle of conferral where the EU
cannot legislate unless the treaty explicitly provides the power to do so. This plays a
significant role in ensuring EU acts in the benefit of the fundamental rights of MS. It
ensures that the EU only has those powers which is conferred on it by the treaties and
the powers not conferred remains with the MS. The EU ‘s powers are granted by the
MS. Article 19 TEU5 confirms that EU law should not undermine or restrict general
principles of law within the MS. The right and aims of the treaties only come into force
because the MS has approved it and negotiated them. These rights are legally binding
The case 26/62 of Van Gen den Loos demonstrates the development of judicial
review through teleological reasoning. In this case judges interpreted the treaty’s
meaning and effects and concluded that without the principle of supremacy, EU
integration would not be possible. This gives rights to import goods without paying tariffs
so EU law must be followed.6 It was held that EU constitutes a new legal order that not
only imposes obligation on individuals but intends to confer upon them rights which
become part of their legal heritage. Individuals may rely directly on these rights in their
own national courts and where national courts conflicts with EU law, national law is set
aside. The supremacy of EU law is based on ensuring the rights are available to all
citizens. The principle of supremacy guarantees uniformity, so laws are applied the
same way across all MS and prevents them from pursuing self-interests. However, EU
This leads to the second argument that, CJEU has developed several ‘general
principles’ of EU law. By doing so it has drawn on the legal traditions of the MS.
Fundamental rights are protected by the Rule of Law. Courts are prepared to intervene
and challenge legislation; this is the process of judicial review which ensures legitimacy
and accountability of the EU. The role of CJEU is to uphold the treaties and ensure
these rights are protected. The CJEU polices EU to ensure they are not acting out of
their powers. They will ensure there is a clear treaty base and that they are following the
correct one. The court will take into consideration subsidiarity, the fundamental right
integration, equality, non discrimination and procedural fairness when deciding. CJEU
ensures the interpretation is observed but in doing so they also observe law and
practice in MS. The law should be upheld to add to their rights; and decision should not
EU restricts rights to property. CJEU held that EU rights are absolute, but EU law will
always be compatible with rights common to the MS. MS cannot use the convention to
create a barrier with the EU law because EU law will always ensure its compatibility. EU
upholds a minimum standard of protection and does not undermine domestic human
law. Although EU law is supreme, this supremacy is consistent with the protection of
fundamental rights as EU law complies with the ECHR and which is common to all MS.
range of socioeconomic rights reflecting the values of MS. After the Treaty of Lisbon9,
which developed the fundamental rights, the CJEU ensures the EU law is compatible
with the convention. The protection of fundamental rights can be remarkably powerful
and will on occasion require the courts to consider whether the protection of
fundamental rights should take priority over the provision in the EU treaties. Despite the
developments, the absence of a visible list of fundamental rights and freedoms attracted
adverse comments. This is where the Charter of Fundamental Rights came in. Under
Article 6 TEU10 the union recognises rights, freedoms and principles set out in the
Charter. EU supports the Charter and ensures JR for all powers and legislations made.
The CJEU has shown itself much more willing to refer to the charter since it has the
same legal value as the treaties. It addresses the problem of the lack of transparency of
treaties. EU recognizes the necessity to protect against the risk of the abuse of human
In the joined case of Kadi and AL Barakaat12, the applicants were named in a list
within the annex of the UN resolution for being linked to funding of terrorist activities. UN
Since EU regulations did not permit JR, it took away their free movement right under the
EU treaty and infringed their rights to seek an effective remedy under Article 47
Charter13. CJEU annulled a regulation freezing the assets of the individuals because the
process did not give them a right to be heard or any ability to challenge the inclusion of
their names on the UN list. Private individuals did not have the right to go before courts
to challenge EU law since this regulation is only aimed at MS. The CJEU took
responsibility to interpret the law fairly to ensure judicial protection in all circumstances.
EU law should be there to protect fundamental rights and add to them, not to reduce
them. EU has a distinct legal order which includes an obligation by the CJEU to protect
fundamental rights.
Therefore, EU treaties provide aims and functions for EU powers which ensure
that rights of MS and citizens are compatible with EU law. The CJEU is responsible for
interpreting the treaties to ensure that they are used to add and protect rights of MS and
individuals. Finally, the Charter assists in reaffirming important rights and making them
more transparent and accessible for EU, MS and individuals. Thus, EU has set up a
regulations