3. The Background
The protection of fundamental rights holds a very prominent place in the contemporary debate on the EU. In particular, the attention for the subject matter was prompted in 1998 by the 50th anniversary of the United Nations Universal Declaration of Human Rights, originally adopted in 1948. And yet, the issue of rights protection in the EU is far from being a recent phenomenon.
Ever since the EC started to exercise state power in accordance with the competencies accorded to it in the treaties there has been concern that this exercise by the EC institutions, and the Member States when implementing EC law, might come into conflict with the rights of the individual. Hence, the inclusion in the treaties of a court with jurisdiction to review the legality of the cases where the institutions were capable of addressing decisions directly to individuals.
These concerns were strengthened once the ECJ had stated, in a string of cases during the 1960s and 1970s, that EC law had direct effect (1) (i.e. that the effects of EC law within a Member State is determined by EC law and not by national law and that individuals may rely on it in national courts), supremacy over national law (however framed) (2) and that EC-law pre-empts (3) national law (both retroactively and prospectively). With these three principles the ECJ effectively transformed the operative system of the EC from public international law to constitutional law and confirmed the EC as “a new legal order” embracing both states and individuals alike.
As a consequence, fundamental rights protection had to be handled on the European level if the coherence of the EC as a legal order common within the Member States and not only between them, was to be preserved. Indeed, both the German (4) and Italian (5) constitutional courts reacted promptly to the ECJ’s case law indicating that the absence of a functioning fundamental rights protection was of such significance that there could be no question of ‘real’ supremacy of EC law over national constitutional provisions of fundamental rights.
In other words these courts claimed that they retained an ultimate say on whether EC-law would be supreme or not in a specific case, the answer depending to no small degree on the level of rights protection afforded by the Community. The ECJ rose to the challenge. After some initial cautiousness (6) the issue of the protection of fundamental rights has been addressed by the ECJ as a question of general principles of law (7) and thus enjoyed a de facto protection in the case law of the court. The idea was clearly formulated by the Advocate General Dutheillet De Lamothe in the Internationale Handelsgesellschaft case in the following terms:
[The fundamental principles of national legal systems] contribute to forming that philosophical, political and legal substratum common to the Member States from which through the case-law an unwritten Community law emerges, one of the essential aims of which is precisely to ensure the respect for the fundamental rights of the individual.(8)
To paraphrase Voltaire’s famous remark on the Deity, one could say that if constitutional rights protection did not exist in EC law before, one wouldhave to invent it. With the Treaty of Maastricht it was (in Art. 6 TEU) officially recognised that the EU is a Union built on the respect for fundamental rights which are common to the legal traditions of the Member States and defined in the ECHR.
Still, there was widespread belief that the EU should have its proper Bill of Rights and not be dependent on the one elaborated within the Council of Europe, as defined by Member States constitutional law or as elaborated in the case law of the ECJ.
The need was not perceived as stemming from insufficient levels of protection in legal practice (de facto protection). It was rather on the political level that the desire for codification was strongest. As L. Gunvén observed, it was about infusing the EU with “a soul”.(9) Consequently in 1999, by appointment of the European Council, a convention under the chairmanship of the former German president Roman Herzog was convened to deal with the issue of such Bill of Rights for Europe. On 2 October 2000 the Convention completed its task.
The CFR was solemnly declared by the European institutions (the Commission, the European Parliament and the Council) at the IGC in Nice in December 2000. (10) The Charter was explicitly mentioned in the so called Laeken declaration by the European Council of 15 December 2001. The declaration contained 60 questions on the future of the Union revolving around four main themes: the division and definition of powers, the simplification of the treaties, the institutional set-up and moving towards a Constitution for European citizens.
To that end, the Laeken declaration also set up a Convention (composed of representatives of the national governments and parliaments, the European Parliament and the Commission) to tackle the above mentioned issues. The result of the Convention was a draft Constitutional Treaty which included, in Part II, the full text of the Charter.
This draft version was subsequently adopted as the Treaty Establishing a Constitution for Europe (the Constitutional Treaty). Following its rejection in the 2005 French and Dutch referenda, the idea of a Constitutional Treaty was abandoned in favor of a more traditional reform treaty amending the existing treaties. After a period of reflection, called for in June 2005 by a declaration by the European Council, (11) the EU proceeded to amend the existing treaties including in Art. 6 of the new TEU a reference to the Charter attributing to the latter (which is annexed to the Lisbon Treaty (12) full binding force.
(1) Case 26/62 van Gend en Loos  ECR 1.
(2) Case 6/64 F. Costa v. ENEL  ECR 585.
(3) Case 106/77 Simmenthal  ECR 629.
(4) Cf. Solange I  2 CMLR 540.
(5) Cf. Frontini  2 CMLR 372.
(6) Cf. Case 1/58 F. Stork & Cie v. High Authority of ECSC  ECR 17, where the ECJ rejected the claim that the Community would be bound by fundamental rights as these were guaranteed by national constitutions.
(7) Cf. Case 29/69 Stauder  ECR 419.
(8) Case 11/70 Internationale Handelsgesellschaft  ECR 1125.
(9) L. Gunvén, ‘EU:s stadga om de grundläggande rättigheterna – arbetet med att ge EU en “själ”’, (2001) Europarättslig tidskrift 13.
(10)  OJ C364/1.
(11) The declaration is available at
(12) Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms.