GLOBAL PROTECTION OF HUMAN RIGHTS

THE EUROPEAN UNION SYSTEM

(Chronological development)

1951: Treaty Establishing the European Coal and Steel Community (ECSC).

1952: The European Court of Justice is set up in Luxembourg.

1957: Treaty Establishing the European Economic Community (EEC)

(Article 119)

Treaty Establishing the European Atomic Energy Community (Euratom)

1969: Steuder v. City of Ulm (Case 29/69)

1970: International Handelsgesellschaft (Case 11/70)

1974: Nold v Commission of the European Communities (Case 4/73)

France ratifies the ECHR (France was the only Member State of the European Communities at that time that had not ratified the ECHR)

-It explains the words of the Court in the judgment of the Nold case-

1986: The Single European Act.

(Preamble)

1988: Wachauf v Germany (Case 5/88)

1992: Treaty on European Union (Treaty of Maastricht).

(Article F.2)

1994: The European Court of Justice receives a request (lodged at the Registry of the Court on 26 April 1994) for an Opinion from the Council of the European Union about if the accession of the European Community to the ECHR would be compatible with the Treaty establishing the European Community.

1996: Opinion of the Court of 28 March 1996 about the Accession of the Community to the ECHR (Opinion 2/94).

1997: Treaty of Amsterdam.

(Article 6)

2000: Treaty of Nice.

(Article 7)

Charter of Fundamental Rights of the European Union.

THE EUROPEAN SYSTEM

The origins of the European Union (EU) lie in the Treaty of Paris of 1951 establishing the European Coal and Steel Community (ECSC) and subsequently in the two Treaties of Rome of 1957 establishing the European Economic Community (EEC) and the European Atomic Energy Community (Euratom).

These first Treaties establishing the European Communities had, over all, federalist and economic goals, so they didn't really make any reference to Human Rights. The only reference to Human Rights that I have found in these Treaties is contained in the Article 119 of The Treaty establishing the European Economic Community, which said that: “Each Member State shall maintain the application of the principle that men and women should received equal pay for equal work”.

Therefore, in these early years of existence of the Communities, none of its institutions though that EC Law had anything to do with Human Rights. Not even the European Court of Justice (the judicial organ of the EU), which, at this time, when a case involving Human Rights came before it, the Court always said that it didn't have jurisdiction to decide about Human Rights.

This thinking, this jurisprudence, of the Court changed since the Steuder case, in its Judgment of 12 November 1969 the Court said “Fundamental Human Rights are enshrined (within) the General Principles of Community Law and, therefore, are protected by the Court”.

One year later, in the International Handelsgesellschaft case, the Court said “Fundamental Rights forms an integral part of the General Principles of Law protected by the Court. The protection of such rights, inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community”.

On 3 May 1974 Frances ratifies the European Convention on Human Rights. This is important because France was at that time the only Member State of the European Communities that had not ratified the Convention.

Just 12 (twelve) days later, in its Judgment of 14 May 1974, resolving the Nold case, the Court said “Fundamental rights are an integral part of the general principles of law, the observance of which the Court ensures. In safeguarding these rights the Court is bound to draw inspiration from the Constitutional traditions common to the Member States […] and from International Treaties for the Protection of Human Rights, on which the Member States have collaborated or of which they are signatories”.

So, despite the absence of any written law or Bill of Rights, at this time, within the EC Law, the Court of Justice, case by case, were upholding the protection of fundamental rights by way of general principles of Community Law, referring to common constitutional traditions and international instruments in which the State Members were signatories, in particular the ECHR.

In February 1986 was signed the Single European Act. Drawing on that case-law, the Single European Act refers in its Preamble to respect for the fundamental rights recognized in the constitutions and laws of the Member States, in the ECHR and in the European Social Charter.

In its judgment of the Wachauf case, in 1988, the Court set up another important character of the Human Rights within the EC Law. The Court said in that judgment that “The fundamental rights recognized by the Court are not absolute, but must be considered in relation to their social function. Consequently, restriction may be imposed on the exercise of those rights, in particular in the context of a common organization of a market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights ”.

The next step in the constitutional development of the European Communities and also in the development of the Human Rights within EC Law was the Treaty on European Union signed on 7 February 1992 in Maastricht.

In its Article F.2, the Treaty of Maastricht provided that “The Union shall respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law”.

However Article L provided that all the common provisions (which included of course Art.F.2) were not justiciable by the European Court of Justice, what means that the Court did not have the power to rule on their application or validity. Despite this, it was possible that the Court of Justice would take the common provisions into account, including Article F.2, when interpreting the founding Treaties, as amended.

On 26 April 1994, the European Court of Justice receives a request for an Opinion from the Council of the European Union. The question was:

“Would the accession of the European Community to the Convention for the Protection of Human Rights and Fundamental Freedoms be compatible with the Treaty Establishing the European Community?”

Two years later, the Court gave its opinion about it, which was that such a step could not be taken in the absence of a specific Treaty amendment to that effect.

The Court said that

• No Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field.

• Besides, Accession to the Convention would entail a substantial change in the present Community system for the protection of Human Rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order.

Since that Opinion of the Court, the European Union opted to move in a different direction by drafting its own “Charter of Fundamental Rights”.

In October 1997, is signed the Treaty of Amsterdam, which Article 6 amended the Article F.2 of the Treaty of Maastricht:

The effect of Article 6 is to give formal recognition in the Treaty to what has been part of the jurisprudence of the Court since the Steuder case.

Finally, the Treaty of Nice (France) was agreed for the Member States in December 2000, and signed on 26 February 2001. In regard to Human Rights, its Article 7 provides for the suspension of a Member State's Treaty rights where there has been a “serious and persistent” breach of the Article 6.1, it means when there has been a serious and persistent breach of the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law.

Also in Nice, during the meeting that the Council of the European Union held on December 2000, was signed the Charter of Fundamental Rights of the European Union.

The Charter combines in a single text the civil, political, economic, social and societal rights. It includes rights of dignity (as the right to life), freedoms (respect for private and family life, freedom of assembly and of association), equality (respect for cultural, religious and linguistic diversity), solidarity, citizen rights, justice… and so on.

The Charter is not legally binding, but it is highly probable that the Court of Justice will draw in its provisions when interpreting and applying Community law.

Despite all these reforms and developments one high-level expert group have called for major reforms in the European Human Rights Policies in order to make them “coherent, balanced, substantive and professional”, since the existing approach was, in its opinion, splintered in many directions, lacks the necessary leadership and profile, and marginalized in policy-making.

European Commission: Affirming fundamental Rights in the European Union: Report of the expert Group in Fundamental Rights (1999).