The effect and status of the Charter of Fundamental Rights of the European Union

Abstract

This work focuses on the two main pivots in the discussion of the development of human rights protection in the European Union. These being the European Union Charter of Fundamental Freedoms as a new text in the legal order of the Union and a possible accession into the European Convention of Human Rights and Fundamental Freedoms. This automatically includes the workings of the current Convention on the Future of Europe, and the drafting of the Constitutional Treaty. Initially, there will be a brief examination of the development of human rights in the Union's legal order, from the legislative perspective and from the judicial perspective. The focus will then shift onto the Charter itself which includes the process of its drafting and a basic description of the text and its functions in a European perspective. Presently, the Charter is no more than a solemn proclamation, however in the workings of the Convention its status as a legal instrument was brought to the forefront. Therefore, there will be an assessment on its current and future status, either as a text incorporated into the Constitutional Treaty or as a proclamation of rights. The legal effects of the Charter will be taken into account in the two main chapters of this work. The first part will discuss the specific provisions of the Charter relating to the Member States in their relationship with the Union and its possible effects on the primacy of Union law. An analysis will be made of the Member States' national constitutional court judgments when faced with problems relating to the primacy of Community law over their constitutional provisions, in particular with those provisions relating to the protection of human rights. In addition, the relationship between the European Union and the Council of Europe and their two main instruments on the protection of rights will be commented upon. This will be done with special emphasis on a possible accession of the Union into the ECHR, and the discussions brought about by this possibility. This includes the Opinion 2/94 of the ECJ and the Convention's conclusions on the legal basis for accession into the ECHR.