The Charter of Fundamental Rights

This is the first of a series of posts I’ve decided to write about the Charter of Fundamental Rights. The Charter was written some eight years ago but will only come into the force if the Lisbon Treaty is ratified. It was previously included as the second part of the European Constitution. In this post I will deal with the reasons that have led to the Charter’s adoption.

In the late 1960s a German administrative court in Frankfurt ruled that certain regulations of the then European Economic Community were unenforceable as they violated the principle of proportionality enshrined in German Constitution law. This interpretation was disputed and in 1970 the court referred the matter to the European Court of Justice. The latter court responded that:

“The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure”. Internationale Handelsgesellschaft.

The decision exposed a problem created by the EEC's fledgling legal system: by transferring powers to the supranational European institutions, national courts had lost their ability to review the validly of legislation, and the European Court of Justice did not have any rights charter against which legislation could be judged. Government ministers could, in theory, pass laws in Brussels that their national constitutions and courts wouldn’t have allowed them to do at home.

In order to allay fears of forfeiting rights' protections, the European Court of Justice, in the same case, declared that “respect for fundamental rights forms an integral part of the general principles of [Community] law”. The Court then invoked the (ostensibly German) principle of proportionality, but ruled that the disputed measures — which related to a system of deposits in the corn market — was proportional and valid.

On receiving the ECJ judgement, the administrative court asked the German Constitution Court what it should do. The latter court accepted the supremacy of EEC law over the German Constitution with a caveat. Since the EEC lacked a “codified catalogue of fundamental rights” (Solange I), the German Constitutional Court would reserve for itself the last word on the enforceability of European rules in Germany.

The Charter of Fundamental Rights of the European Union is intended as that codified catalogue which the EEC lacked. The ECJ has greatly developed its human rights jurisprudence over the years by discovering fundamental principles, but the EU still lacks this written catalogue. A written catalogue would make protection of human rights by the ECJ more visible and give the area more clarity. It would also guarantee that the rights of citizens are as protected at European level as they are at national level.

In my next post I'll deal with the relationship between the Charter and Irish Constitution, and why the former won't replace the latter.

Post Script

Please have a read of: What I should have mentioned in my last post. And leave any comments you might have there. MJ.