The European Convention on Human Rights is not part of the European Union Treaties. However, from the earlier stages, the European Court of Justice and its successors recognised that the European Convention on Human Right is part of general principles of law and reflects a common set of values of the member states and accordingly informed the interpretation of  European Communities law.

In the 1960s, the ECHR rights were declared to be general principles of EU primary law, with which the EU institutions and member states were bound to comply. They derive their force from the tradition of national legal systems and have been recognised in EU case law.

The European Court of Justice drew on the constitutional traditions of the member states in formulating and articulating the so-called general principles of law. Ultimately, the ECHR rights provisions were formally acknowledged as having a role in the interpretation of European Union Law as part of the Maastricht Treaty.

The Treaty of Lisbon required the EU to accede to the ECHR. However, when the negotiated agreement was put to the Court of Justice for opinion, it ruled (in December 2015) that the agreement did not provide for sufficient protection of the EU’s specific legal arrangements and the Court’s exclusive jurisdiction.

For the time being, no new accession agreement has been drafted, but both the Parliament and the Commission underline the need for EU accession. Scholars remain divided, some considering that accession would bring added value, whilst others express the view that accession would actually do more harm than good to EU citizens.

EU and Fundamental Rights

The European Union legal order has protected fundamental rights for many years. The European Union treaties have contained provisions prohibiting discrimination since the outset. They now extend to prohibit discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

These rights were declared to be directly effective in the 1970’s. Since then, the EU institutions have passed a number of directives to give further effect to these rights. The EU Treaties do not contain any other express competence to adopt legislation or take specific action generally in relation to fundamental rights.

The Maastricht Treaty in 1993 provided that the Union shall respect fundamental rights as guaranteed by the European Convention on Human rights and fundamental freedoms and as they result from the constitutional traditions of the member states, as general principles of EU  law.

In 1999, European Council declared the need to establish a Charter of Fundamental Rights in order to make their overriding importance and relevance more visible to EU Citizens. It declared that the Charter should contain fundamental rights and freedoms (including procedural rights) guaranteed in the ECHR and derived from the constitutional traditions common to the member states. It also considered that accounts should be taken of economic and social rights.

Charter of Fundamental Rights

The Charter of Fundamental Rights of the European Union was embodied in the Lisbon Treaty 2007 and came into effect in December 2009. The rights, freedoms, and principles in the Charter are listed under six headings.

  • dignity;
  • freedoms,
  • equality,
  • solidarity,
  • citizens’ rights and
  • justice.

The final title sets out general provisions as to how the Charter should be interpreted. It sets out explanations and context necessary for understanding the Charter, the sources and the limits of the rights concerned. The EU Treaties and  the charter itself provide that due regards is to be had to the explanations when interpreting the Charter

The Treaty provides that the Charter does not extend the competence of the European Union. It does not extend the field of application of Union Law beyond the powers of the Union or establish any new power or task for it. The UK sought Protocol 30 to clarify the application of the Charter in relation to the UK.

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