Chapter 9 Guidance on answering assessment questions

Critically analyse the protection of human rights by the EU.

Human rights protection in Europe since the Second World War has largely been undertaken through the European Convention on Human Rights (ECHR under the auspices of the Council of Europe, and the EU originally provided little human rights protection, other than the right of persons to move freely for economic purposes (Article 48 EEC).  However, from an early stage, the Court of Justice took an activist role in developing the idea that the EU was founded on human rights and must ensure that such rights were respected (see, for example, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case 11/70) [1970] ECR 1125 and Nold, Kohlen- und Baustoffgroßhandlung v Commission (Case 4-73) [1974] ECR 491).  In recent decades, the EU legislative institutions have enshrined these ideas in the EU Treaties, and introduced secondary legislation to provide more detailed and definitive protection of certain aspects such as non-discrimination and data protection.

The most recent development is the Charter of Fundamental Freedoms of the EU, which was given legal effect by the Treaty of Lisbon which came into force in 2009. The Charter sets out a range of rights, including those contained in the ECHR and a number of others such as employment rights.  Although it is too early to fully assess the impact of the Charter, it certainly makes rights more transparent by setting them out in a single document.  It also ensures that the EU institutions, and Member States when they are implementing EU law, must comply with human rights.

However, a number of difficulties have already been identified.  For example, some potential Charter rights are expressed as principles, and Article 52(5) of the Charter provides that these are only justiciable when and if they are implemented by the EU institutions or the Member States.  This presumably means that, if there is no such implementation, the rights which are expressed as principles, have no legal effect at all.  This seems contrary to the principle of effectiveness, and the position is further confused by the lack of clarity in the body of the Charter as to which apparent rights are in fact merely principles, since although Article 49 is the only Article to contain rights referred to in this way, its text is more consistent with those rights being true rights, and several Articles contain rights which are not expressed to be either rights or principles. 

A further difficulty with the Charter which remains to be resolved is when it will apply to action (or inaction) by the Member States which allegedly violates human rights, since it only applies when they are “implementing” EU law and it is unclear exactly what this means.  The jurisprudence of the Court of Justice indicates a potentially generous interpretation of this term (see, for example, Åklagaren v Åkerberg Fransson (Case C-617/10) [2013] 2 CMLR 36), but lack of certainty in this respect may lead to difficulties for applicants in choosing which law (EU or ECHR) to rely on, and which courts to bring their claim in. 

EU accession to the ECHR is now mandated by Article 6(2) TEU, and a draft Accession Agreement resolving procedural technicalities was concluded in 2013.  In particular, a new co-respondent mechanism would ensure that if the State Party which enacted the legal measure that resulted in a violation of the ECHR is not the State Party which implemented it, both will appear before the Court of Human Rights, and the action will not be dismissed as inadmissible because the original respondent is responsible only for the legal basis of the alleged violation, and not the actual violation.  However, in 2014 the Court of Justice ruled the draft Agreement to be incompatible with EU law (Opinion 2/13), and it likely to be some time before a new Agreement addressing its objections is negotiated.

In conclusion, EU law on human rights has made considerable progress since 1957, but it is likely to remain subservient in practice to to the ECHR for the foresseable future.