“[E]ven if, in the areas which fall outside the scope of the Community’s competence, the Member States are still free, in principle, to lay down the conditions governing the existence and exercise of the rights in question, the fact remains that, when exercising that competence,…Member States must nevertheless comply with Community law” [1]. This recent assertion by the European Court of Justice (ECJ) is yet another illustration of burgeoning judicial and academic initiatives seeking to define the contours of the European Union’s respect of fundamental human rights (FHRs). Nevertheless, this initiative has been disputed, and therefore we must take note of the explicit steps that recent case-law has taken to ensure some EU protection of fundamental human rights. In this rather limited study, we shall therefore address the question of a necessity for such protection in the EU, examining only the paradigmatic debate regarding civil, social and political rights. This shall exclude the semantic debate as to the distinction of “fundamental” versus “human” rights, the former possibly designating the so-called “fundamental freedoms” protected by the EC Treaty. ‘EU’ law denotes all three pillars of the Union structure, and whilst the second and third pillars mainly concern intergovernmental action, through which Member States must respect their obligations under human rights treaties, we shall argue that the possible infringement of right by EU law as a whole necessitates protection. Finally, the notion of “need” rather than “should”, which is not neutral, seeks proof of an objective necessity for the EU legal order to include such a protection, a necessity recognised by positive law. Despite doubts as to the appropriateness of human rights protection at the EU level, the potential for human rights infringement (I) demands that EU law ensure human rights protection (II).

The fundamental nature of rights protection in any “legal order”

The question of the necessity for EU law to offer some form of regulation of rights protection goes to the very heart of any legal order, as the basic manifestation of a balance between the framework of rules agreed upon by and governing individuals in a community, and the respect of the autonomy of those individuals. This balance has traditionally been achieved in national law, yet in recent times other legal entities, such as the EU, have joined the debate. The key justification for this is the possibility for infringement of rights by EU law, for without correlative protections, there is an imbalance in the coherence of the legal system. It is clear that the growing powers of EU bodies mean that their decisions affect, with increasing frequency, the sphere of the rights of the individual. This is apparent both in the administrative activities of institutions, but also in the Union’s legislative acts. The recent case-law of the Court of Justice has recognised this infringement in cases such as Schmidberger [2] where the free exercise of a fundamental freedom was an obstacle to the right to freedom of assembly, or the recent judgement on the validity of the European Arrest Warrant [3].

There are potential complications for a legal order relying on intergovernmental and supranational elements, notably its potential lack of competence to act in this field. Whilst the Trade-orientated EC has grown into an EU concerning itself even with criminal matters, i.e. domains where fundamental human rights are concerned, the legal order has attributed competences under article 5 of both the EU and EC treaties – correlatively, if competence for rights protection is not foreseen then EU law cannot act within this domain. Only laconic formulae exist in article 6(2) TEU, inciting the respect of fundamental rights by the EU, and other specific formulations, for instance Article 136§1 EC demanding “[t]he Community and…Member States, hav[e] in mind fundamental social rights…”. This does not necessarily grant the EU an active competence and critics argue it should not interfere in a domain that its constituent members did not expressly envisage.

Another concern is the existence of another international organisation, including the same members, and predating the EU, with the explicit and specialised role of guaranteeing the protection of human rights – the ECHR. The expertise of the judges already ruling in Strasbourg, and the desire to avoid multiplying identical legal initiatives seems to dilute the need for FHRs protection in EU law – after all the ECHR has even indirectly encouraged positive actions by Member States, such as adopting legislative rights protection [4].

A further difficulty lies in the procedure for review of the legality of acts of the EU institutions provided by article 230 TEC, requiring a “direct and individual concern” to justify an individual’s recourse to the ECJ. This requirement, if it concerned the possibility to invoke violation of a human right, places an additional obstacle in the way of individuals who would not be able to show they were the only victims of the infringement and therefore unable to seek redress.

The first two of the complications noted have a largely political scope, and therefore, with the political backing of Member States, EU law could offer such rights protection even in the face of such obstacles – as one could view the introduction of article 6 TEU. The final complication of standing rights is an altogether separate and important legal issue, which would be present even if FHRs protection was offered explicitly by EU law. The worry of infringement remains however, and thus some solution seems necessary in the EU legal jigsaw.

The need for a specific and limited EU human rights protection

The conclusion we have reached finds its basis in both legislative and judicial paradigms. In our opinion both a priori legislative protection (that is before the infringement of a right) and a posteriori judicial protection of fundamental rights is necessary.

A Priori legislative protection

Recent times have seen a clear movement to take normative initiatives to encourage the protection of human rights, yet these have had little force [5]. Most notably, whilst through the Nice proclamation in December 2000, of a Charter of Fundamental Rights, and the latter’s incorporation in its entirety in reform Treaties, the European Union has signalled “its commitment to respect for human and fundamental rights…” [6], this has yet to enter into force, and that prospect is marred by the opt-outs of certain Member States, notably the UK. Instead we must turn to case law, which recognises the necessity and means to protect such rights.

A posteriori judicial protection

Since the sixties, the Court of Justice responded to pressure by national constitutional courts by considering cases where fundamental rights were affected by Community law. As stated in Hauer [7]: “[t]he question of a possible infringement of fundamental rights by a measure of the Community institutions can only be judged in the light of Community law itself.” The result of its ‘general principles’ case law has been to recognise as inherent to EU law and particularly the first pillar a number of traditional ‘human rights’. Ensuring this protection has become a condition for the continuing recognition of the supremacy of EU law by national constitutional courts [8] and a means of ensuring that the direct effect of EU law does not ignore the impact of such measures on individuals. Furthermore, in recent case-law fundamental rights have been expressly invoked as a ground of derogation from the EC fundamental freedoms provisions. In four cases to date, the Court has held that the protection of fundamental rights is “a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty [9], such as the free movement of goods (Schmidberger) or freedom to provide services (Omega)” [10]. This is all the more important in cases where horizontal direct effect is recognised for the provisions concerned, as in the recent cases Viking and Laval for article 43 TEC.

This new evolution can be applauded for its recognition of the necessity for EU law to protect fundamental human rights, for the legal order does not exist in a vacuum but affects other rights and legal regimes. Its merits are also that the audacity of the Court to discover and safeguard certain rights is conditioned by the necessity to be inspired by the “common constitutional traditions” of Member States, and from international conventions to which Member States are signatories [11]. Moreover, the Court states that “[a]lthough the right to take collective action must therefore be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures, the exercise of that right may none the less be subject to certain restrictions… [and] is to be protected in accordance with Community law and national law and practices” [12]. Therefore, the protection of fundamental human rights is conditioned by the balancing act we envisaged at the beginning of this analysis – but at the EU level. As noted, each legal order must find its own balance, and thus the new initiatives taken by the EU institutions must be applauded. Furthermore, with new mechanisms such as the doctrine of “abuse of rights” at the Court’s disposal, the simple recognition of a right by the Court would not necessarily lead to the primacy of those rights over other considerations, such as fraud to EU law [13].

This teleological approach to human rights protection in EU law equally seems laudable when one draws inspiration from experiences in the United States, where the recognition of such regulation was necessary to allow the coherence of the federal legal system even though explicit competences were not foreseen to that effect [14]. Moreover, one can note that the EC’s presumed ECHR compliance has been recently reaffirmed [15], an encouraging result no doubt inspired by these recent evolutions. It seems that to respect human rights obligations imposed on EU institutions and Member States applying EU Law, and also to ensure the coherence of the legal order instituted by the Member States, affecting and often limiting the rights of individuals, rights protection must be foreseen by EU law. Nevertheless, the audacity of the solution is perhaps muted since the Court has not used this reasoning in its own judicial review mechanism, but in preliminary references. Therefore, it remains for national courts to apply this case-law; adding a risk that they will diverge in their acceptance and adaptation to this ‘directive’ from Luxembourg. Fundamental rights protection in EU law therefore remains a false dawn, demanding political clarification and not legal acrobatics.

1. Case C-438/05 International Transport Workers’ Federation, Finnish Seamen’s Union, v Viking Line ABP, OÜ Viking Laine Eesti [11 December 2007], paragraph 40.
2. Case C-112/00, Schmidberger v Republic of Austria, [2003] ECR I-5659.
3. Case C-303/05, 3 May 2007.
4. Ex: article 626-1 French Code of Criminal Procedure allowing a re-examination of criminal cases whose procedure is considered to have violated the ECHR by the Court in Strasbourg.
5. See [1997] OJ C282/14, COM (97) 357 – 97/0191 (SYN)
6. “Respect for fundamental and human rights by the European administration: standards and remedies” Speech, European Ombudsman, Professor Diamandouros, Krakow, 6 June 2005.
7. Case 44/79, Hauer v Land Rheindland-Pfalz, [1979] ECR 3727.
8. See Austrian Constitutional Court [25 June 1997], or Danish Constitutional Court 6 April 1998, Maastricht, att.9.6., UfR 1998, p.800.
9. Case C-112/00, Schmidberger v Republic of Austria, [2003] ECR I-5659; Case C-36/02 Omega Spielhallen v Oberbürgermeisterin der Bundesstadt Bonn, [2004] ECR I-9609; Case C-438/05 supra n.1; Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetaref orbundet.
10. Paragraph 44, Case C-438/05 supra n.1.
11. For instance, paragraph 13, Case 4/73 Nold (1974) ECR 491.
12. Ibid. paragraph 44 and paragraph 91, Case C-341/05, supra n.10.
13. Case C-255/02 Halifax [2006] ECR I 1609, paragraph 68, Veli Tum & Mehmet Dari v SSHD, Case 16/05, OJ. C 269, 10/11/2007 p. 4.
14. For the possibility of legislative competence for Congress based on the Commerce Clause, analogous to article 95 TEC, Heart of Atlanta Motel v US 379 U.S. 241 (1964).
15. Bosphorus Hava Yollari Turizm v.Ireland, App. No. 45036/98 (Eur. Ct. H. R. 30 June 2005)

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

This is a question that has three aspects to it. One avenue, that this question leads us towards, is whether human rights protection through the EU is excessive and unnecessary. Citizens of the European Union are already able to call upon rights granted by the European Convention on Human Rights. However, there also exists a European Charter on Human Rights. We can examine the requirement for additional protections, and find out if there is any gain to be made from having these as a part of the substantive European Union law. Another issue, which is more broad in nature, is to explore the correctness of interventions of the EU into matters such as these and the third aspect is the idea that the EU is compelled to protect fundamental human rights. The intention of this essay is to explore each one of these and it commences with the first matter stated above.

The best way to identify the potential value, or otherwise, of the charter is to see how it differs from the ECHR. It has features that cause it to stand out markedly. The Charter brings an updated view on the kinds of rights that need protection in the 21st Century. It includes measures which guard against abuses in data protection and in bioethics. One of the reasons for the Charter comes from scientific progress and the discovery of new processes that were not a practical reality at the time the ECHR was created. Where a new development takes place in the sphere of technology it tends to bring new solutions and also the danger of abuse so it is advantageous for the newly formed gaps in convention provisions to be filled.

At the same time the Charter reflects the character of the European treaty and the notion of citizenship by including a statement of the provisions for workers’ rights. It makes a lot of sense for the rights of workers to be made a specific area of focus, not so much because protections for these do not already exist within the European treaty. Instead, the value is in having an accessible document that contains these safeguards. Workers can find the minimum level of care they should receive from employers and learn how far their freedom, to seek employment in the locations most rewarding to them, extends.

The counter view to the qualities of the charter stated above is that there will always be new gaps in the law that are continually being created. It is not useful to create yet another document, stating rights, which will soon become outdated and inadequate. These matters would be better left to the discretion of the legal systems of the member states, which in any event, would be able to introduce additional legal provisions as they are required and far more swiftly. Domestically produced rules are likely to be tailor made to the particular requirements of the individual nation. As a result these are more likely to be effective than generic measures which do little more than stating a broad goal and then which require judicial interpretation from the ECJ on the finer points of specific application.

The problem with this argument is that we cannot expect individual member states to voluntarily provide the best protections possible. This is because the EU charter has no vested interests to protect while domestic governments do have a great many competing influences. Pressure not to create overly paternalistic law comes from groups who regard too many rights protections as being burdensome and anti-competitive. It is these groups, often large business interests, who have the means to drown out the voices of individuals who would most benefit from these protections. The EU charter acts as a spur to domestic governments to examine existing policies in the light of a political ideal and because the charter is a prominent part of the EU it encourages a uniform level of adoption by all member states. It is the requirement that a value be universally accepted that transforms it from being a romantic and low priority luxury into a matter which must be taken seriously. It is only when this happens that it becomes possible to square economic reality with the greater social good of an empowered and healthy workforce.

This concept of fairness and uniformity in the application of EU law often lies at the heart of the ground breaking judgments of the ECJ. The ECJ has a history of extending the scope of treaty rights in favour of nationals of member states in ways which were not always intended by the original signatories. The ECJ has recognised that, in relation to freedoms granted by the existing treaty, restrictions on the free movement of goods in one state, not only disadvantages the individual importer or exporter but also other members of the EU since it gives an unfair competitive advantage to the state imposing the restriction. The fundamental role of the ECJ is to provide guidance on the interpretation of the treaty in a way that best upholds its aims. If it did not do this the incentive for those who were observant of the rules would be removed. The reasoning in the free movement of goods cases forms the basis for the application of the treaty provisions on the free movement of services and workers as well. But this willingness of the ECJ to interpret a provision of EU law widely provides the detractors of the charter with an argument against it. There is no need for a charter, when the ECJ is willing to make binding decisions on such matters, often in the absence of any source document.

This same point could be argued in the opposite way i.e. an excellent reason for the charter is that it is better to create a guiding document than to leave carte blanch to the ECJ. In any event this brings us on to the wider question of whether or not the EU should get involved with the protection of fundamental rights, regardless of the existence of a charter. The answer to this question is that the EU, through the ECJ, inevitably does get involved with the protection of fundamental rights. What is interesting to envisage is a situation where the court refused to get involved in this area of law. Imagine what the result would be if the ECJ denied itself jurisdiction in matters involving fundamental rights. It would most likely completely alter the function of the ECJ and the character of the supranational body that we call the EU.

For one thing there would be no such thing as the direct effect of treaty articles. It was through the judgment in Van Gend en Loos that citizens of member states were granted the right to bring a claim based on provisions in the treaty. The court could have argued that this was a matter of fundamental rights and should be left to the court of the member state to decide. This too would have had an effect on later freedoms cases. When Dassonville was arrested for selling imported Scotch Whiskey without a valid certificate of origin he would not have been able to invoke article 28 as a defence. Without the ruling in Dassonville a whole library of case law on the free movement of goods, services and workers would never have come into existence. In fact, it is hard to imagine a modern European Union without there being a common stance on what fundamental freedoms should be protected. It would certainly be a much less influential body.

So the reality is that the EU is in a position where it has to protect fundamental rights. This situation has come into being because of the spirit of the treaty and because of enthusiastic endorsement of citizens’ rights by the judicial arm of the Union. It is not possible for the EU to back down on this at this stage and it is possible to predict with some certainty that there will be a continuing requirement for the EU to protect fundamental human rights. It is a complex task. The Schmidberger case illustrates both the inevitability of EU involvement in the protection of human rights and the delicate balance that has to be struck when two important freedoms come into conflict. In this case it was the needs of a business to freely transport goods set against the rights of protesters who wanted to draw attention to damage that was being caused to the environment. The court gave the environmentalists’ rights a higher priority than those of the haulage company. A more recent case also shows the acutely difficult task of separating out two competing sets of citizens rights. In the Viking case the question arose over the possibility of strike action being caught by Article 43 because it prevented a companies’ freedom of establishment. The court had to rule on the legality of action by the International Transport Worker’s Federation to effectively block an employer’s freedom to take advantage of lower wage rates in another country. On the one hand there was the fundamental right to strike on the other issue of free movement. The implication of denying the right to strike would be to cause massive upset amongst trades unionists throughout Europe. Ruling against the right of establishment risked ruining the company and making the Euro zone a less attractive place to be in business. In this case the ECJ has stated the conditions under which industrial action by trades unions is legitimate.

The above mentioned cases illustrate the inevitability of the ECJ’s involvement with the protection of citizens’ rights. As the judicial arm of the EU with ultimate power to decide what is within the scope of EU law or not it is this body which decides the extent to which the EU gets involved with fundamental rights. There was perhaps a point in the EU’s history when it could have sidestepped such issues, but to have done so would have been a disservice to European citizens today. Once it crossed that point it became a matter of necessity for the EU to get to grips with evaluating competing interests and upholding rights to the best of its ability. It seems there would be very little point in being a European Citizen if the rights and freedoms, that are conferred by that status, were not legally enforceable.

Professor Alan Dashwood, who judged the competition, announced the prizes at a small reception held at the Luncheon Room of the Inner Temple on March 19, 2008. We thank all those who submitted entries and look forward to launching the 2008/2009 competition in late September.

The prize is an award for an essay of outstanding quality by a King’s College, London undergraduate or postgraduate student on a title set by the current KB editorial team. It will be judged by Professor Alan Dashwood, formerly Director in the Legal Service of the Council of the European Union and the founding editor of the European Law Review.

The Essay Title – ‘Does EU law need to protect fundamental human rights?’

The winner will receive one week’s work experience with Weil, Gotshal & Manges, a £150 cash prize, a trophy and publication of their essay. The runners-up will also receive cash prizes and will have their work published on our website.

Essays, a maximum of 2,000 words length (including footnotes), should be typed in size 12 Times New Roman font, double-spaced, and should include the name and year of study of the author in a headnote. Submissions must be sent as an email attachment to no later than 12pm on Friday February 15.

Please email me at if you have any questions. Otherwise get writing!