The European Union legal order has protected fundamental rights for many years. The Charter on Human Rights was incorporated into the Lisbon Treaty and took effect in December 2009.

The Treaty on European Union states that the EU recognises the rights, freedoms, and principles set out in the Charter of Fundamental Rights.

The rights and principles in the Charter derive from a wide range of sources including the EU Treaties and the constitutional, traditional and international obligations common to member states, in particular, the European Convention on Human Rights.

The Court of Justice of the EU does not apply the European Convention on Human Rights as such, but rather the general principles, of which it is an important source.

Scope of Charter

General obligations to apply human rights standards apply when EU institutions and bodies are acting within the scope of EU law. The concepts of acting within the scope of EU Law is a matter of debate and discussion. The institutions and bodies of the European Union are bound by the Charter of Fundamental Rights when they are implementing EU law act within the scope of European Union Law.

It is argued that implementing EU law is narrower than acting within the scope of European Union Law. This divergence leads to uncertainty as to the application and the scope of the Charter of Fundamental Rights. It is possible to take a narrow and a broader view.

Much legislation is derived directly from EU legislation. Some domestic legislation is derived from EU legislation indirectly. There are areas where there are shared competence between the EU and member states.  There are strong arguments that simply because domestic legislation has some connection with the abstract scope of EU Law or interacts with it in some way, is insufficient to trigger the Charter.

Article 52 of the Charter provides that rights for which provision is made in the EU Treaties must be exercised under the conditions and within the limits defined by those treaties. Rights corresponding to guarantees in the European Convention on Human Rights have the same meaning and scope as the ECHR right. This is not to prevent EU Law providing more extensive protection. In so far as the Charter recognises  rights resulting from the constitutional traditions common to the member states, they shall be interpreted in harmony with those traditions.

Article 53 of the Charter provides that nothing contained in it is to restrict human rights as recognised from other sources including the member states’ constitutions and the European Convention on Human Rights. The explanation provides that it is intended to maintain a level of human right protection afforded by EU Law national law and international law.

National authorities and courts are free to apply national human rights standards in areas not entirely determined by EU Law provided that the level of protection is at least that provided by the Charter and the primacy, unity, and effectiveness of  EU Law is not compromised.

Charter and Individual Rights

The charter may be employed by the European Court of justice and by domestic courts to interpret EU law and domestic measures consistent with its guarantees.

Some provisions of the charter give rise to directly enforceable rights such as the prohibition on discrimination on the grounds of age. Measures contrary to this directly enforceable rights may be declared invalid. Domestic courts must disapply the offending provision.

A right may arise and be enforceable in the domestic courts if it is sufficiently clear precise and unconditional. However, the existence of the fundamental right does not mean that it will necessarily have an effect. Each right by its terms is subject to limitations. The Charter states expressly that national laws and practices are to be taken into account.

Title IV of the Charter “Solidarity” contains provisions on employment law, social security, environmental protection and consumer protection. Article 1 of the protocols says that nothing in Title IV creates rights applicable or justiciable in the UK except and so far as such rights are provided for in domestic law.

Where the fundamental rights have direct effect, they may in some circumstances apply between private persons as well as between private persons and states and their agencies/emanations.. The European Court of Justices has held that the general principle of non-discrimination and the ground of age as reflected in EU directive may be raised in proceedings between private parties.

However, it is clear that not everything in the charter has “horizontal effect” between private parties.

Fundamental Rights Agency

The EU has established a Fundamental Rights Agency. It produces reports on the basis of data collected. It seeks to improve knowledge and awareness of fundamental rights issues EU.

The agency’s objective is to provide the relevant institutions, bodies, and offices of the EU and member states when implementing EU law with assistance and expertise in relation to fundamental rights in order to support them, undertake measures or formulate courses of action in the respective spheres of competence to fully respect those rights.

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