Charter of fundamental rights

-The scope of fundamental rights as progressively established and developed by the

Court of justice. In the early stages of development of fundamental rights there was
little focus on human fundamental rights in treaties, EU was mired with uncertainty and
confusion. EU did not contain any human right provision in the early stages however it
was not long before the EU established itself as a powerful entity. CJEU recognized that
the interests of Union spread so wide to develop a set of coherent human rights that it
was not possible to disregard human rights in EU law. The approach was developed in
the case of (INTERNATIONAL HANDLE SGESELLSEHAFT) concerning serial export
licensing the court was faced with the infringement of human rights situation, Although
the court did not find a violation of fundamental rights in this case. In essence general
principles and the charter of fundamental rights are an intrinsic part of the EU legal
order, The Lisbon treaty has given the charter a same status as the main constituted
treaties. The TFEU and TEU, we shall explore the charter later in details.
In (NOLD V COMISSION) there are two primary sources for the general principle of EU
law; (1) the common national constitutional traditions and (2) International human
rights agreements. ECJ took the approach respecting certain fundamental rights that
form the core of certain countries constitution and incorporate the Union legal order
these difficulties seem to have been partly recognized, Fundamental rights can be used
as a shield against EU law. in the case of (OMEGA), Omega is an example of a case of
deference towards the national constitutional values with the court of justice lowering
the threshold. It was stated by the court of Justice that it was immaterial weather a
fundamental human right had its source in a national constitution or the union legal
order. The court is prepared to recognize a particular right on the basis of common
traditions in several member states, there is no guarantee that interpretation of right
will be accepted by all member states. The general principles associated with the
protection of fundamental human rights where the court uses human rights standards
to interpret union law and as a basis of action against the institutions, In the case of (KB)
the court of Justice taking account of relevant judgements from the ECHR on the right to
marry held in the principle that the national marriage requirement breached union law
on gender discrimination. The court of justice has consistently treated the ECHR as a
special source of inspiration, (JOHN V STON) the court recognized the convention rights
to be an effective remedy. The court has also referred to other international and
regional agreements such as the European social charter, (DEFRENE V SABENA). Union
law ensure both the widest acceptance of union law in national courts and the
maximum effectiveness (effet utile) of the unions objectives sometimes to the extent of
going beyond the limiting wording of a specific provision in the pursuant of a wide or
general aim, court of justice has applied principles which may be common to some or all
of the member states. In the case of (AUDIOLUX SA V GBL) where the court stated
unequivocally the general principles of EU Law have a constitutional status and should
be of general application.
Although numerous challenges have been brought before the court alleging that EU
legislation violates fundamental principles of EU law, the number of cases where the
court has actually annulled legislation is relatively small. Fundamental rights have been
contributing to the construction of EU’s own constitutional space this reasoning was
later confirmed in the initial (KADI AND YUSUF CASES) in that regard these cases are
extremely important. In these cases it was held that the obligations imposed by an
international agreement cannot have the effect of prejudicing the constitutional
principles of the treities which include the principle that all EU acts must respect
fundamental rights
Member states are bound by general principles of EU law in number of circumstances
for example (RUTILELI) the court of justice said that national measures restricting free
movement had to be examined as to their compliance with directive 64/241 setting out
the limitations of the right of free movement of workers under article 45 (3) TFEU and
also in the light of provisions of ECHR. The case of (MANGOLD) was quoted earlier in
which the court stated that non discrimination on grounds of age was a general
principle of law in the union, It is not clear weather the court is invoking article 21 (1) of
the charter which prohibits an discrimination based on age or mainly referring to it as
general principle. The various drafters of Union law took the opportunity to introduce a
series of general principle which would define, expand and deepen the Union legal
order, some principles such as equality standards these principles are here termed “over
arching principles” of union legal order. Member state is acting as an agent of the EU by
implementing or enforcing EU measures so it is under obligation to act and legislate in a
way that respects convention rights even if such rights are not explicitly provided under
EU law, In (WACHAUF) the court felt to reply the former of compensation would be
incompatible with his fundamental rights. Member states derogate from EU Law on the
grounds of public policy but has adequately respected EU fundamental rights (ELLINIKI
RADIOPHONIA). The principle of proportionality ha been used to challenge both Union
action and member state action in the Union sphere, the principle lays down an
obligation on part of administration invoking a penalty or operating a policy to justify
actions chosen the principle has been invoked in many cases (INTERNATIONALE
HANDLESGESELLCHAFT). Proportionality operates as a general principle of Union law, In
the case of (COMISSION V DENMARK) the court of justice applied the proportionality
principle to mitigate the exception to the free movement of goods.
Charter which sets out rights that must be upheld within the Union categorizing them
under the subheadings of “Dignity” ,“Freedoms” and “Equality, The biggest innovation
would be that it departs from the traditional dichotomy of civil and political rights and
economic and social rights and places all rights at least theoretically at the same level,
Following the Lisbon treaty the charter now has primary legal status within the Union
for the rights to be actionable a Union element must still be invoked thus purely internal
situations do not fall within the ambit of charter (VINKOV). The treaty of Lisbon saw the
incorporation of charter into primary European law and since then it has been binding
on EU institutions and national governments, article 6 TEU states ‘Union recognizes the
rights freedom and principles sets out in the charter of fundamental rights of the
European Union of 7 December 2000. The charter is now a benchmark for the legality of
both EU Law and national law that falls within the scope of EU Law.

The substantive provisions are complemented by horizontal provisions (51-54) which

are as important also they are complex and difficult to interpret, specially in the light of
article 51 the legislation is intended to implement a provision of EU law. The nature of
that legislation and weather it pursues objectives other than thus covered by EU Law
even if it is capable of indirectly affecting EU law, The charter applies to institutions and
to member states, thus it does not appear that it applies to individuals. Article ,52
provides ‘Any limitation to fundamental rights must be provided for by law respect the
essence of thus rights and freedom and respect the principle of proportionality, Failing
which EU legislation is also held to be void. Article 53 of the charter makes it clear that
nothing in the charter can be interpreted as to lower existing protection of rights under
EU Law, The charter shall be interpreted as restricting adversely affecting human rights
and fundamental freedoms as recognized. The issue surfaced in the case of (MELLONI)
the case deals with the possible conflict dealing with fundamental rights guaranteed by
the Spanish constitution and European arrest warrant rules, Article 53 of charter could
be interpreted in cases where national constitution’s provided higher protection than
the charter.

The EU has gone further than convention when recognizing rights in EU Law, (AM AND S
EUROPE LIMITED), the accession of EU to ECHR became a legal obligation under article 6
(2) of the treaty of Lisbon the legal basis for the accession of EU is provided by article 59
(2) ECHR as amended by protocol 14. Following talks on accession, a draft accession
agreement would make the ECHR the court of law of last instance regarding matters of
human rights in EU. The CJEU in this way has enhanced the protection of human rights