This essay placed second in the King’s Bench Essay Prize 2008.

Although the protection of fundamental human rights has occupied a progressively high status within the European Union, its development within the framework of EU law has been subject to a number of criticisms. A degree of scepticism exists regarding the European Court of Justice’s ability to enforce an adequate system of human rights protection within an entity primarily established as an economic institution. The ECJ has been criticised for attempting to act as another Human Rights Court, when the Strasbourg Court was already created with an express human rights jurisdiction. Similarly, it is argued that the ECJ has attempted to widen Community competences “through the back-door” by manipulating the rhetorical force of human rights to advance the commercial goals of the common market. This article seeks to demonstrate that these concerns only reinforce the necessity for a fully-fledged policy of human rights protection within the EU. A stronger commitment to ensure respect for fundamental human rights would provide the EU with the ethical foundations it has lacked as a result of its origins as a common market. This is reinforced in that the 2007 Reform Treaty confers legally binding status to the Charter of Fundamental Rights and authorises the EU to acquire international legal personality. This allows for EU accession to the European Convention on Human Rights, which would ensure consistency in the interpretation and application of human rights, whilst strengthening and legitimising their place within EU law.

The Treaty of Rome envisaged a community whose purposes were limited to economic integration, and therefore the protection of fundamental rights was not an initial concern for the European Community. However, the central driving force of the Community was continuously the achievement of peace and economic prosperity across post-war Europe. Although the Treaty exclusively intended to deal with economic freedoms, it became evident that economic integration was inextricably linked with the protection of fundamental rights. Accordingly, the European Court of Justice gradually developed unwritten general principles of Community law regarding human rights. In Internationale Handelsgesellschaft [1], the ECJ declared that respect for fundamental rights forms an integral part of the general principles of law protected by the Court, and that this protection must be ensured within the framework of the structure and objectives of the Community. Nold v Commission [2] extended this notion: the ECJ stated that, in safeguarding fundamental rights, it would be inspired by the constitutional traditions common to the Member States as well as the guidelines provided by international treaties for the protection of human rights. Therefore, rights prescribed in treaties such as the ECHR would be considered as part of the general principles of EC law.

The ECJ’s developments in the sphere of human rights were strengthened by the amendments introduced by the Treaty of Maastricht and the Treaty of Amsterdam. This is demonstrated by Article 6(2) TEU, which provided that the Union would respect the fundamental rights guaranteed by the ECHR and by national constitutional traditions. The Amsterdam Treaty went further by declaring that the Union is founded on the principles of liberty, democracy, and respect for human rights and fundamental freedoms. Furthermore, the new Article 7 allowed the Council to suspend some of the rights of a Member State responsible for a serious and continual breach of the fundamental principles of Article 6. These treaty developments undeniably signified an important political shift for the EU in order to establish the role of fundamental human rights within the Union.

However, despite these developments, a complete and coherent catalogue of positive rights protected by EU law was still lacking. Consequently, the Charter of Fundamental Rights of the European Union was proclaimed in Nice in 2000. Although devised to give greater visibility to the protection of fundamental rights, the Charter does include several innovations, such as the prohibition on reproductive human cloning. Like the ECHR, the Charter contains civil and political rights, but it also includes economic and social rights and certain third generation rights. The Charter has clearly drawn inspiration from the ECHR, yet it has attempted to modify the ECHR with the intention of rendering it simpler, more up-to-date, and broader. The scope of the protection to be afforded by the Charter is therefore not entirely equal to the one afforded by the Convention.

Concern has been expressed that the Charter can lead to conflicts in the Courts’ interpretations, and thus undermines existing protection by creating the risk of inconsistency. Article 52(3) deals with the potential overlap of rights by providing that where rights in the Charter correspond to rights in the Convention, the meaning and scope of those rights shall be the same as those laid down in the ECHR. However, this does not guarantee that the Charter will not conflict with the jurisprudence of the ECtHR. Even when the wording of the Charter and the Convention is the same, it is possible that the two Courts may interpret the same right differently. This concern is further reinforced in that the new Treaty of Lisbon explicitly recognises the legal value of the Charter. If the Treaty is ratified, the acts of the institutions of the EU and of Member States would now be vulnerable to judicial review by the ECJ for compatibility with the legally binding Charter. If a divergence in interpretation between the ECJ and the ECtHR were to arise, Member States would face a conflict between complying with their obligations under EU law, as well as those under the ECHR.

As a result, the appropriateness of a parallel jurisdiction being exercised by the ECJ is called into question by the very existence of the Strasbourg Court because it administers a system which is specifically tailored to the protection of human rights. As Von Bogdandy [3] observes, “There are doubts whether the Union’s institutions are deeply enough embedded in the public discourses, and whether they wield enough political and moral clout in order to devise and implement such policies”. The ECJ and the ECtHR share no formal link to ensure corresponding interpretations. The ECtHR interprets and applies the Convention with the sole consideration of human rights, whereas, the ECJ, in furthering the objectives of the Community, interprets fundamental rights in conjunction with largely economic considerations. Accordingly, the same issue may appear before both courts, but their respective approaches and objectives may result in different conclusions.

This point is demonstrated by the cases of Grogan [4] (ECJ) and Open Doors [5] (ECtHR). The cases appeared simultaneously before the ECJ and the ECtHR and concerned the publication and distribution of information about the availability of legal abortions in the United Kingdom. The ECJ addressed the issue in relation to the economic freedom to provide services under Article 49 TEU, and, as a result, the ruling was narrowly based on the fact that there was no commercial link between the providers of the abortion service in one Member State and the providers of the information in the other Member State. Therefore, the ECJ simply could not address the issues of freedom of expression and the freedom to receive and impart information. Conversely, the ECtHR considered that there had been a violation of Article 10 ECHR as the absolute nature of the injunction was disproportionate.

Coppel and O’Neill [6] have strongly criticised the ECJ’s approach in Grogan: “The high rhetoric of human rights protection can be seen as no more than a vehicle for the court to extend the scope and impact of European law”, displaying a clear bias towards market rights instead of ensuring the protection of fundamental human rights. As a result, there is concern that human rights protection within the EU entails the extension of Community competences over areas which should remain the prerogative of the Member States. Maduro [7] argues that the Charter reflects two opposing perspectives: for some, it reinforces limits on the power of the EU and reasserts the control of States; while for others, the Charter is the starting point of a “truly constitutional deliberative process and the construction of a European political identity”. The original proclamation of the Charter outside the framework of the Treaties reflected this tension as to the role of human rights in the Union legal order. While there is a wide consensus among Member States on core human rights, there is divergence on certain areas. With the rapid geographical expansion of the Union to include countries without well-developed internal human rights protection, the EU faces a tough challenge in imposing uniformity of human rights standards across Member States, particularly given their political, cultural, and ideological diversity.

However, these concerns only reinforce the notion that a solid commitment to the protection of fundamental human rights is essential within the framework of EU law. Far from increasing the power of the Union and the ECJ, a codified, fully-fledged human rights policy could potentially act as a brake on that power. The uncertainty of the EU’s human rights standards and the open-ended competences of the ECJ could be significantly constrained by a coherent system of human rights protection within the EU.

Furthermore, a shared dedication to human rights is a potentially unifying force and can provide a common foundation for the EU legal system. In Bosphorus v Ireland [8], the Strasbourg Court analysed the system of protection of fundamental rights within the EU and was satisfied with the system of observance of Convention rights under EC law. The Court took the view that State action taken in compliance with the obligations flowing from membership of an international institution is justified “as long as” fundamental rights are protected in a manner at least equivalent to that for which the Convention itself provides. In this way, although its objectives originated from considerations of economic integration, the evolution of the Community demonstrates the existence of moral and social considerations that extend beyond their economic significance. The Lisbon Treaty aims to implement the reforms necessary to bring the EU closer to this ideal, by giving legally binding status to the Charter, as well as allowing the EU to acquire legal personality so that it can become a signatory to the ECHR.

Accordingly, it is argued that an effective way of reconciling the issues regarding fundamental human rights within the EU would be the accession of the Union to the ECHR. Accession has been termed as “the key” [9] to securing the necessary consistency in the interpretation and application of human rights, as it would provide a clearly defined constitutional basis for the protection of those rights. The consequence of accession is that the ECJ would have an external scrutiny in the field of fundamental human rights – if the ECJ unsatisfactorily interpreted the Convention or avoided a particular human rights issue, the ECtHR could find a violation and give a correct interpretation of the Convention. Accession would therefore underpin the achievements of the ECtHR, whilst strengthening the system of human rights protection within the EU, and preventing inconsistencies in the substance and interpretation of rights.

This paper has sought to demonstrate that the EU has evolved into a sophisticated legal and political entity of which human and social rights protection is an essential element. A firm dedication to the protection of fundamental rights has provided the EU with the ethical basis it initially lacked, allowing the ECJ to work towards uniting not only our common economic interest, but also our common humanity. Accession to the ECHR would be a crucial step towards this unity, strengthening and legitimising EU human rights protection, whilst resolving any potential conflict with the ECtHR. However, accession should not be seen as the final step – the protection of human rights within the EU will inevitably continue to be a topic of live debate and discussion, and it is certain that the Lisbon Treaty will only further reinforce the development of a fully-fledged human rights policy within the framework of EU law.

1. [1970] ECR 1125
2. [1974] ECR 491
3. (2000) 37 CMLRev. 1307 at 1317
4. [1991] E.C.R I-4685
5. (1993) 15 E.H.R.R 244
6. (1992) 29 CMLRev 669
7. E.L. Rev. 2004, 29(2), 282-283
8. App. 45036/98
9. Fredman, UKPL 2000, Sum, 178-186