We try to offer an overview of the multilevel system of fundamental rights protection in Europe. The different dimensions involved will be considered with a view to single out the many criticalities which affect the present state of affairs and, subsequently, to determine the possible added value of the Lisbon Treaty.1
The co-existing national, supranational and international (universal and regional) systems of fundamental rights protection and the respective systems of enforcement suffer from a lack of coordination which may affect the possibility for an individual to obtain justice. Pursuant to the Lisbon Treaty, the Charter of Fundamental Rights (hereafter CFR or the Charter) has the same status as the treaties and the Union is bound to accede to the European Convention on Human Rights (hereafter ECHR). Although the complementary nature of these two lines of action is hardly questionable, they will be examined separately: first, it will be useful to determine the true scope of a binding catalogue of fundamental rights; second, the analysis will single out the main legal implications and practical results of the future accession process.
In Europe human rights are protected at a national, supranational and international level. The atrocities of the World War II called for the adoption of specific and essentially intangible rules aimed at preventing the repetition of similar events in the future. A first manifestation of this resolution can be found in some of the constitutional charters which were drafted in the aftermath of the conflict.2
Not only did these legal texts provide for basic civil and political, social and economic rights, but they also allowed for the conclusion of international agreements for their safeguard. In this regard, reference should be made, on the one side, to the United Nations and, on the other, to the Council of Europe.
In relation to the regional dimension, attention should be drawn to the following: the early signature of the ECHR,3 accompanied by the adoption of additional Protocols; the consistent increase in the number of Member States of the Council of Europe; and, since 1998, the possibility for individuals to resort to the European Court of Human Rights (ECtHR) after exhausting domestic remedies.4
By accepting the jurisdiction of the Court and the executive powers of the Committee of Ministers, the Member States undertake to fully comply with the agreed standards and suffer the consequences for the violations thereof.5 This has led legal commentators to view the Strasbourg Court as “the Constitutional Court for Europe in the sense that it is the final authoritative judicial tribunal in the only pan-European constitutional system there is.”6 Indeed, the Court itself has characterized the ECHR as a “constitutional instrument of European public order in the field of human rights.” 7
The European Communities Treaties are also a consequence of World War II, as social development could not be achieved without political stabilization and economic cooperation.8 Their supranational character was promptly recognised by the European Court of Justice (hereafter ECJ or EUCJ) in Van Gend en Loos where the Luxembourg judges claimed the sui generis nature of the EC legal order in the international law context, “the subjects of which comprise not only member states but also their nationals.”9 Individuals could thus be the addressees of obligations, but also the beneficiaries of rights “which become part of their legal heritage.”
The transfer of sovereignty to common bodies with normative and implementing powers in a number of sensitive areas of law entailed on its face the risk of hindering individual rights, such as, for instance, the right to property and the pursuit of an economic activity. Nonetheless, human rights were not mentioned in the founding treaties, save for the prohibition of any discrimination on grounds of nationality10 and, although limited to work remuneration, of sex.11
Fundamental rights issues may arise in the most different contexts and the relevant protection mechanisms cannot operate in splendid isolation. Inevitably, their breach by acts of the Community institutions was soon raised before the ECJ (both under the EEC and the ECSC treaties). At first, the Court showed certain reluctance in this regard, either by refusing to consider possible violations of principles of national constitutional
law,12 or simply by relying on the (restrictive) wording of the applicable projects envisaging an accession of the Communities to the ECHR.18
In its view it was rather awkward that Member States should be bound by the Convention and undergo close scrutiny on the part of the Strasbourg Court whilst no obligation in that respect was incumbent on the Community.
Moreover, in consideration of the autonomous nature of the EC legal order, the risk of inconsistencies in the case law of the ECtHR and the ECJ was considered to be significant.19
These issues raised basic questions of internal legitimacy and coherence, especially since the Italian and German constitutional Courts had already started questioning the unconditioned application of the supremacy principle by invoking fundamental rights as the ultimate limit to that principle (so-called counter-limits doctrine).20 Notwithstanding its initial qualms, the Council acknowledged that the issue deserved further attention.
Consequently, it turned to the ECJ asking it to verify the possibility for the European Community to accede to the Convention. The answer, contained in the celebrated Opinion No 2/94 of 28 March 1996,21 was in the negative as the judges deemed that the EC lacked the necessary competence to conclude an international agreement in the field of human rights.22The Amsterdam and Nice Treaties did not change the situation,23 but nonetheless injected into primary law a number of provisions regarding fundamental rights in order to enhance the legitimacy and coherence of the system as a whole. The former treaty amended Art. F2 specifying that the need to respect fundamental rights is a general principle common to the Member States.24
Moreover, it required the Court of Justice to ensure compliance with Art. 6 (2) TEU in regard to measures adopted in the field of police and judicial cooperation in criminal matters.25 Thirdly, it expressly provided for, inter alia, equality between men and women26 and the protection of personal data.27 Finally, it allowed a political control over candidate and Member States. On the one side, by codifying the existing practice,28 Art. 49 TEU conditioned accession to the respect of fundamental rights as enshrined in the ECHR;29 on the other, and perhaps more importantly, a serious and persistent breach by a Member State of principles mentioned in Art. 6(1) TEU could entail the suspension of certain rights deriving from the application of that Treaty, and, consequently, of the TEC.30
The Nice Treaty broadened the scope of such monitoring and turned its function from repressive into preventive by foreseeing an early warning system enabling the EU Council to ascertain, and thus deter, the commission of such violations before they arose. In the meantime, the EU Charter of Fundamental Rights had been elaborated by a multi-representative Convention,31 solemnly proclaimed and fully accepted by the European Institutions as a parameter of legality.32 As the 2000 Intergovernmental Conference did not incorporate it in the Nice Treaty, the Charter remained for almost a decade a non binding catalogue of fundamental rights protected within the EU legal order. Nonetheless, it was increasingly referred to in decisions by the national constitutional courts and by the community judges;33 a Bill of Rights-to-be, since it was soon to become the second Part of the Treaty Establishing a Constitution for Europe.34
The time seemed ripe to make that constitutional upgrade, that final step that the EU had to take in order to acquire the appropriate role on the international scene and, as a self contained regime, to “dress the emperor”.35 The fate of that immense effort is too well known to be dwelled upon. The reaction to the political impasse generated by the French and Dutch referenda in 2005 was ultimately overcome and the Lisbon Treaty largely endorses the results of the 2004 IGC.36 For the purposes of the present contribution, two in particular should be mentioned: the primary law status attributed to the Charter and the commitment to accede to the ECHR, which represents “a strong political signal of the coherence between the Union and “greater Europe”, reflected in the [Council of Europe] and its pan-European human rights system.”37
1. According to Art. 1 (3) TEU, as amended by the Lisbon Treaty, the Union is founded on the Treaty on the European Union (TEU) and on the Treaty on the Functioning of the European Union (TFEU), having the same legal value. Moreover, it should be recalled that by virtue of this provision “The Union shall replace and succeed the European Community”.
2. On the establishment of fundamental rights catalogues in the Constitutions of the Member States, see A. Von Bogdandy, P. Cruz Villalón and P. M. Huber (eds.), Handbuch ius publicum Europaeum, Vols. I–II (Müller, 2007).
3. A complete list of the High Contracting parties with the date of signature and ratification of the Convention (and its Protocols) can be found at www.coe.int
4. See in general, A. Moravcsik, ‘The origins of human rights regimes: democratic delegation in post war Europe’, (2000) 54 International Organization 217; R. Blackburn and J. Polakiewicz (eds.), Fundamental rights in Europe: The European Convention on Human Rights and its member States, 1950–2000 (Oxford University Press, 2001); D. Nichol, ‘Original intent and the European Convention on Human Rights’, (2005) Public Law 152 and S. Greer, The European Convention on Human Rights (Cambridge, 2006).
5. Cf. Arts. 41 and 46 (1) ECHR. The latter provision has been interpreted by the Strasbourg Court as entailing the State’s duty to “put an end to the breach and reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach” (Appl. No 14556/89 Papamichalopoulos v. Greece, (1995) A/330B, para 34).
6. S. Greer, The European Convention on Human Rights, n. 4 above, at 173. See also J.F. Flauss, ‘La Cour Européenne des droits de l’homme est-elle une cour constitutionnelle?’ (1999) 36 Revue française de droit international 711 and L. Wildhaber, ‘A onstitutional future for the European Court of Human Rights’ (2000) 23 Human Rights Law Journal 161 and E.A. Alkema, ‘The European Convention as a Constitution and its Court as a Constitutional Court’, in P. Mahoney, F. Matscher, H. Petzold and L. Wildhaber (eds.), Protecting human rights: the European perspective (Carl Heymans, 2000) 41.
7. Appl. No 15318/89, Loizidou v. Turkey, (1995) Series A No 25, para 239.
8. On the political debate and process which lead to the elaboration and adoption of the ECSC, EEC and EURATOM treaties, see P. Gerbet, La construction de l’Europe (Impremerie Nationale, 1983); H. Von der Groeben, The European Community. The formative years. The struggle to establish the Common Market and the Political Union (The European Perspective Series, Commission of the EC, 1987); M.-T. Bitsch, Histoire de la construction européenne de 1945 à nos jours (Complexe, 1996).
9. Case 26/62 Van Gend & Loos  ECR 1.
10. Former Art. 8 TEC.
11. Former Art. 119 TEC.
12. Case 1/58 Stork  ECR 43.
13. Case 40/64 Sgarlata  ECR 279.
14. Case 11/70 Internationale Handelsgesellschaft  ECR 1125 and Case 4/73 Nold  ECR 491.
15. Case 36/75 Rutili  ECR 1219. The Court of Justice progressively adopted the ECHR as preferential source in the field of fundamental rights protection. In this sense, legal commentators have spoken about a ‘banal usage’ of the ECHR on the part of the Court of Justice.
16. Cf. the European Parliament, the Council and the Commission Joint Declaration on Human Rights (5 April 1977),  OJ C 103/1; the Copenhagen Summit Declaration on European Identity of 14 December 1973; the Resolution of the European Parliament adopting the Declaration of fundamental rights and freedoms (12 April 1989),  OJ C 120/51 and the Charter of the Fundamental Social Rights of Workers (9 December 1989) adopted in the form of a Declaration by the 11 Member States except the United Kingdom, which did not sign it until 1998. For an extensive overview of the developments which took place in the field of fundamental rights protection, see G.C. Rodriguez Iglesias, ‘La protecion de los derechos fundamentales en la Union Europea’, in Scritti in onore di F. Mancini, II (Giuffré, 1998) 831; A. Tizzano, ‘L’azione dell’Unione Europea per la promozione e protezione dei diritti umani’, (1999) 1 Il Diritto dell’Unione europea 149; F. Benoit-Rohmer, ‘Les droits de l’homme dans l’Union européenne: de Rome a Nice’, in L.S. Rossi (ed.) Carta dei diritti fondamentali e Costituzione dell’Unione europea (Giuffré, 2002) 19.
17. Cf. after the Nold precedent, Case 136/79 National Panasonic  ECR 2033, para 18; Case 222/84 Johnston  ECR 1651, para 18; Case 85/87 Dow Benelux NV  ECR 3137, para 24; Joined cases 46/87 and 227/88 Hoechst AG  ECR 2859, para 13. It is also interesting to note that a specific reference to fundamental rights protection is to be found in Art. 3 of the Treaty instituting the European Defence Community (Paris, 27 May 1952), in Art. 2 of the Draft Treaty embodying the Statute of the European Community (10 March 1953) and in Art. 4 of the 1984 Progetto Spinelli, all of which never entered into force.
18. See, respectively, ‘Accession of the Communities to the Convention on Human Rights’, EC Bull., Suppl. 2/79 and Commission Communication SEC (90) 2087 of 19 November 1990. See further L. Ferrari Bravo, ‘Problemi tecnici dell’adesione delle Comunità europee alla Convenzione europea dei diritti dell’uomo’, (1979) 4 Rivista di diritto europeo 347; G. Sperduti, ‘Le rattachement des Communautés Européenne à la Convention de Rome sur la sauvegarde des droits de l’homme et des libertés fondamentales’, (1980) 2 Revue du Marché Commun 170; R. Adam, ‘La prospettata adesione delle Comunità alla Convenzione di Roma: si devono anche modificare i trattati comunitari?’, (1980) Rivista di diritto internazionale 883; F. Capotorti, ‘Sull’eventuale adesione della Comunità alla Convenzione europea dei diritti dell’uomo’, (1980) Rivista di diritto internazionale 5; J.-P. Jacqué, ‘Communauté Européenne et Convention européenne des droits de l’homme’, in Mélanges à Boulouis (Dalloz 1991) 325.
19. Press Release IP (90) 892, 31 October 1990.
20. On the affirmation of the counter-limits doctrine and its development throughout the European integration process, see E. Cannizzaro, ‘Tutela dei diritti fondamentali nell’ambito comunitario e garanzie costituzionali secondo le Corti costituzionali italiana e tedesca’, (1990) Rivista di diritto internazionale 372; A. Oppenheimer, The relationship between European Community law and National law: the cases (Cambridge, 1994) 410; J. Kokott, `German constitutional jurisprudence and European integration’, (1996) 2 European Public Law 237; B. De Witte, ‘Direct effect, supremacy, and the nature of the legal order’, in P. Craig, G. De Burca (eds.), The evolution of EU law (Oxford University Press, 1999) 177; A. Ruggeri, ‘Tradizioni cosituzionali comuni e controlimiti, tra teoria delle fonti e teoria dell’interpretazione’, in P. Falzea, A. Spadaro, L. Ventura (eds.) La Corte costituzionale e le Corti d’Europa (Giappichelli, 2003) 505.
21. Opinion 2/94  ECR I-1759.
22. Ibid., para 27. The second question put forward by the Council – namely, the compatibility of the agreement with the Treaty – was declared inadmissible since the Court had not been given sufficient information as to the envisaged practical solutions submitting the Community to the jurisdiction of the ECtHR (para 21). See further, G. Gaja, ‘Court of justice opinion 2/94, Accession by the Community to the European Conventionfor the protection of human rights and fundamental freedoms given on 28 march 1996, not yet reported’ (1996) 33 Common Market Law Review 973; P. Wachsmann, ‘L’avis 2/94 de la Cour de la justice relatif à ladhésion de la Communauté européenne à la Convention de
sauvegarde des droit de l`homme et des libertés fondamentales’, (1996) 2 Revue trimestrielle de droit européen 467.
23. And this despite the requests of Austria, during the negotiations of the former treaty, and of Finland, on the occasion of the Intergovernmental conference leading to the adoption of the latter.
24. See Art. 6 (1) TEU. This provision can be considered to be a codification of the Copenhagen Declaration on European Identity of 14 December 1973.
25. Cf. former Art. 46 TEU.
26. Former Arts. 2, 3, 13 TEC and Art. 119 (subsequently 141) TEC. In addition, it should be recalled that Art. 136 TEC contains an explicit reference to specific international instruments for the protection of workers (such as the European Social Charter signed at Turin on 18 October 1961 and the 1989 Community Charter of the Fundamental Social Rights of Workers).
27. Former Art. 286 TEC.
28. See the Conclusions of the Copenhagen European Council in 1978 and 1993 and the Conclusions of the Madrid European Council in 1995. Moreover, similar provisions had been introduced in Art. 96 ECSC and in Art. 204 EURATOM.
29. Thereby making, de facto, EU membership conditional upon accession to the ECHR and, following the adoption of Protocol No 11, to the acceptance of the compulsory jurisdiction of the Strasbourg Court. See generally P. Alston, The EU and Human Rights (Oxford University Press, 1999) 689.
30. Former Arts. 7 (2) and (3) TEU. The effects of such a decision will also affect the rights enjoyed by the interested Member State under the EC Treaty (see former Art. 309 TEC).
31. On the composition and working method of the Convention see, amongst the many which have commented the peculiar features of this organ, J.-P. Jacqué, ‘La Charte des Droits Fondamentaux de l’Union européenne: présentation générale’, in L.S. Rossi (ed), Carta dei diritti fondamentali e Costituzione dell’Unione Europea (Giuffré, 2002) 55.
32. After the adoption of the Charter, a number of mechanisms were put into place to ensure the respect of the rights enshrined therein. In this sense, the commitment of the Commission, the Council and the european Parliament to obey the document despite its non binding nature was strong enough to impose a ‘regulated self-restraint’. See further in this volume F. Camporesi, ‘Chapter 4’.
33. See further in this volume V. Bazzocchi, ‘Chapter 3’.
34. Treaty Establishing a Constitution for Europe,  OJ C 310/41. See also K. Lenaerts, E. De Smijter, ‘A Bill of Rights for the European Union’, (2001) 38 Common Market Law Review 273.
35. J.H.H. Weiler, The Constitution of Europe – do the new clothes have an Emperor? (Cambridge University Press, 1998). On the constitutional development of the European Communities, see further – F. Mancini, ‘The making of a Constitution for Europe’, (1989) 26 Common Market Law Review 595; J. Gerkrath, L’emergence d’un droit constitutionnel pour l’Europe (E´ditions de l’Université de Bruxelles, 1997); J.C. Piris, ‘L’Union européenne a-t-elle une Constitution? Lui en faut-il une?’ (1999) Revue Trimestrielle de Droit Européenne 599; L.S. Rossi, ‘Costituzionalizzazione’ dell’U.E. e dei diritti fondamentali’, in L.S. Rossi (ed.), Carta dei diritti fondamentali e Costituzione dell’Unione Europea (Giuffré, 2002); J.-P. Jacqué, ‘Les principes constitutionnels fondamentaux dans le projet de traité établissant la Constitution européenne’, in L.S. Rossi (ed.), Vers une nouvelle architecture de l’Union européenne (Bruylant, 2004) 71; For a more critical approach to the phenomenon under examination see K. Lenaerts and M. Desomer, ‘New models of constitution-making in Europe: the quest for legitimacy’, (2002) 39 Common Market Law Review 1217 at 1218.
36. See J. Ziller, Les nouveaux traites européens: Lisbonne et après (LGDJ, 2008); C. Craig, ‘The Treaty of Lisbon: process, architecture and substance’, (2008) 33 European Law Review 137; N. Moussis, ‘Le traitè de Lisbonne: une Constitution sans en avoir le titre’, (2008) Revue du marché commun et de l’Union europèenne 161; M. Dougan M., ‘The Treaty of Lisbon 2007: winning minds, not hearts’, (2008) 45Common Market Law Review 617; P. Ponzano, ‘Le traité de Lisbonne: l_Europe sort de sa crise institutionnelle’, (2007) Revue du droit de l_Union européenne 569.
37. Final Report of Working Group II, CONV 352/02.