Chapter 3.

EU protection of
Human Rights

Section 1. EEC original system:

economy preeminence
1. The functionalist theory

Declaration of 9 May 1950

This is the full text of the proposal, which was
presented by the French foreign minister Robert
Schuman and which led to the creation of what is
now the European Union.
World peace cannot be safeguarded without the
making of creative efforts proportionate to the
dangers which threaten it.
The contribution which an organized and living
Europe can bring to civilization is indispensable to
the maintenance of peaceful relations. In taking upon
herself for more than 20 years the role of champion
of a united Europe, France has always had as her
essential aim the service of peace. A united Europe
was not achieved and we had war.

Europe will not be made all at once, or according to a single

plan. It will be built through concrete achievements which first
create a de facto solidarity. The coming together of the nations of
Europe requires the elimination of the age-old opposition of
France and Germany. Any action taken must in the first place
concern these two countries.
With this aim in view, the French Government proposes that
action be taken immediately on one limited but decisive point.
It proposes that Franco-German production of coal and steel
as a whole be placed under a common High Authority, within the
framework of an organization open to the participation of the other
countries of Europe. The pooling of coal and steel production
should immediately provide for the setting up of common
foundations for economic development as a first step in the
federation of Europe, and will change the destinies of those
regions which have long been devoted to the manufacture of
munitions of war, of which they have been the most constant
victims.

Functionalist theory.
This method represents a breach in the
previous experiences:
instead of the political priority, it has
chosen an economical priority,
instead of the global approach and
immediate, this method offers a sectorial
(example: coal and steal) approach and
progressive;
the most important element is that the
cooperation is substituted by the
integration.

60 years have unified more than 500 million people

1951: The Treaty of Paris

1957 : The Treaty of Rome creates the European
Community
1986: The "Single European Act" program fulfilling the
general market without internal frontiers
1992: The Maastricht Treaty creates the euro and the
ECB
1997: The Treaty of Amsterdam has adapted EU to the
new challenges of World
2001: The Treaty of Nice opened the Union to the new
democracies of Central and Eastern Europe
2005: The draft of a European constitution failed
2009: Treaty of Lisbon

The steps of the European construction

2. The implementation by the Court of

Justice of European Communities
(CJEC) of the functionalist theory:
- EEC law primacy and
- EEC law direct effect.

The European Court of Justice in Luxembourg

The Community legal order is

qualified sui generis,
(i.e.

that its specificity make it

impossible to classify it in one of the
preestablished categories and that it
needs one especially for it):
-neither federal State
-nor international organization,
it borrows from both.

 3. Implementation of the functionalist

theory by Member States: the national
resistances

When competences in the EEC sphere

were exerted by the MS, their acts
were doubly controlled:
Inside, on a national base, by the
control of constitutionality (the
conformity of an ordinary law to the
Constitution) by the constitutional
judge and
-outside by European Court on HR.

German constitutional Court Case Law

18 octobre 1967.
So lange I du 29 mai 1974.
Wnsche Handelgesellschaft, dit So
lange II , du 22 octobre 1986.
Brunner contre Trait sur l'Union
Europenne, So lange III pour les uns,
Maastricht pour d'autres (arrt sur le Trait
de Maastricht) du 12 octobre 1993.
So lange III ou IV , arrt du 7 juin 2000.

Section 2. The current EU system or

preeminence of the rights

 1. The case law compensation to the

lack of protection of Fundamental Right

EUROPEAN COURT OF JUSTICE Case Law

integrating Human Rights into EEC law

Stauder , November 12, 1969

the CJEC refers implicitly to the concept
of Fundamental Right which it
integrates in the (GPL) General
Principles of Law, applicable in the
absence even of written rules.

International Handelsgesellschaft 1970,

the respect of the basic rights, forms
integral part of the general principles of
law (GPL), whose Court ensures the
respect.
the safeguard of these rights, while taking
as a starting point the common
constitutional traditions of the Member
States (1st mention of this concept), must
be ensured within the framework of the
structure and the objectives of
Community.

Nold 14 May 1974

the Court renews the reference to the
common constitutional traditions
and adds a reference to the treaties
relative to Human rights to which
members States adhered, in particular
the European Convention of human
rights.

Rutili 28 October 1975

Since 1975, with the Rutili judgment,
the Court will refer directly to the
rights guaranteedl by the CEDH,
which becomes thus its principal
source of inspiration.

 2. The textual contribution to the

protection of the rights: the Charter of
Fundamental Rights of the European
Union

A. Communitys evolution towards a

codification

B. A catalogue of EU fundamental
rights
1) 6 values
2) Delimitation of the rights

EU Charter distinction
- subjective rights, which means that
their invocation is possible directly by
private individuals in front of the judge;
- the principles which, addressed to the
legislator, are however not deprived of
legal consequences, their non respect
being sanctioned.

Article 15 of the EU Charter. Freedom to choose an

occupation and right to engage in work

1. Everyone has the right to engage in work and

to pursue a freely chosen or accepted
occupation.
2. Every citizen of the Union has the freedom to
seek employment, to work, to exercise the right
of establishment and to provide services in any
Member State.
3. Nationals of third countries who are authorised
to work in the territories of the Member States
are entitled to working conditions equivalent to
those of citizens of the Union.

Charter 6 values

Dignity
Freedoms
Equality
Solidarity
Citizenships rights
Justice

+General provisions

PREAMBLE of the EU FR Charter

The peoples of Europe, in creating an ever closer
union among them, are resolved to share a peaceful
future based on common values.
Conscious of its spiritual and moral heritage, the
Union is founded on the indivisible, universal values
of human dignity, freedom, equality and solidarity; it
is based on the principles of democracy and the rule of
law. It places the individual at the heart of its
activities, by establishing the citizenship of the Union
and by creating an area of freedom, security and
justice.

The Union contributes to the preservation and to the

development of these common values while respecting
the diversity of the cultures and traditions of the
peoples of Europe as well as the national identities of
the Member States and the organisation of their public
authorities at national, regional and local levels; it
seeks to promote balanced and sustainable
development and ensures free movement of persons,
goods, services and capital, and the freedom of
establishment.To this end, it is necessary to strengthen
the protection of fundamental rights in the light of
changes in society, social progress and scientific and
technological developments by making those rights
more visible in a Charter.

This Charter reaffirms, with due regard for the powers and
tasks of the Community and the Union and the principle of
subsidiarity, the rights as they result, in particular, from the
constitutional traditions and international obligations common
to the Member States, the Treaty on European Union, the
Community Treaties, the European Convention for the
Protection of Human Rights and Fundamental Freedoms, the
Social Charters adopted by the Community and by the
Council of Europe and the case-law of the Court of Justice of
the European Communities and of the European Court of
Human Rights. Enjoyment of these rights entails
responsibilities and duties with regard to other persons, to the
human community and to future generations.
The Union therefore recognises the rights, freedoms and
principles set out hereafter.

Preamble of the ECHR

The governments signatory hereto, being members of the Council of
Europe,
Considering the Universal Declaration of Human Rights proclaimed by
the General Assembly of the United Nations on 10 December 1948;
Considering that this Declaration aims at securing the universal and
effective recognition and observance of the Rights therein declared;
Considering that the aim of the Council of Europe is the achievement
of greater unity between its members and that one of the methods by
which that aim is to be pursued is the maintenance and further
realisation of human rights and fundamental freedoms;
Reaffirming their profound belief in those fundamental freedoms which
are the foundation of justice and peace in the world and are best
maintained on the one hand by an effective political
democracy and on the other by a common understanding and
observance of the human rights upon which they depend;
Being resolved, as the governments of European countries which are
likeminded and have a common heritage of political traditions, ideals,
freedom and the rule of law, to take the first steps for the collective
enforcement of certain of the rights stated in the Universal Declaration,
Have agreed as follows:

CHAPTER I. DIGNITY
From article 1 to article 5

Article 1 of the EU Charter. Human

dignity
Human dignity is inviolable. It
must be respected and protected.

Article 2 of the EU Charter. Right

to life
1. Everyone has the right to life.
2. No one shall be condemned to
the death penalty, or executed.

Article 3 of the EU Charter Right to the

integrity of the person
1. Everyone has the right to respect for his or her
physical and mental integrity.
2. In the fields of medicine and biology, the following
must be respected in particular:
. the free and informed consent of the person concerned,
according to the procedures laid down by law,
. the prohibition of eugenic practices, in particular those
aiming at the selection of persons,
. the prohibition on making the human body and its
parts as such a source of financial gain,
. the prohibition of the reproductive cloning of human
beings.

Article 4 of the EU Charter

Prohibition of torture and
inhuman or degrading treatment
or punishment
No one shall be subjected to
torture or to inhuman or
degrading treatment or
punishment.

Article 5 of the EU Charter

Prohibition of slavery and forced
labour
1. No one shall be held in slavery or
servitude.
2. No one shall be required to perform
forced or compulsory labour.
3. Trafficking in human beings is
prohibited.

CHAPTER II. FREEDOMS

From article 6 to article 19.

Article 6 of the EU Charter. Right

to liberty and security
Everyone has the right to liberty
and security of person.

Article 7 of the EU Charter. Respect for private and

family life

Everyone has the right to respect for his or her

private and family life, home and
communications.
Article 8 of ECHR Right to respect for private and
family life
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national security,
public safety or the economic well-being of the
country, for the prevention of disorder or crime, for
the protection of health or morals, or for the
protection of the rights and freedoms of others.

Article 8 of the UE Charter Protection of

personal data
1. Everyone has the right to the protection of
personal data concerning him or her.
2. Such data must be processed fairly for
specified purposes and on the basis of the
consent of the person concerned or some other
legitimate basis laid down by law. Everyone has
the right of access to data which has been
collected concerning him or her, and the right to
have it rectified.
3. Compliance with these rules shall be subject
to control by an independent authority.

Article 9 of the UE Charter. Right to

marry and right to found a family
The right to marry and the right to found a
family shall be guaranteed in accordance
with the national laws governing the
exercise of these rights.
Article 12 of ECHR. Right to marry
Men and women of marriageable age have
the right to marry and to found a family,
according to the national laws governing
the exercise of this right.

Article 10 of the UE Charter. Freedom of

thought, conscience and religion
1. Everyone has the right to freedom of thought,
conscience and religion. This right includes
freedom to change religion or belief and
freedom, either alone or in community with
others and in public or in private, to manifest
religion or belief, in worship, teaching, practice
and observance.
2. The right to conscientious objection is
recognised, in accordance with the national laws
governing the exercise of this right.

Article 11 of the EU Charter .

Freedom of expression and
information
1. Everyone has the right to freedom of
expression. This right shall include
freedom to hold opinions and to receive
and impart information and ideas
without interference by public authority
and regardless of frontiers.
2. The freedom and pluralism of the
media shall be respected.

Article 12 of the UE Charter. Freedom of

assembly and of association

1. Everyone has the right to freedom of

peaceful assembly and to freedom of
association at all levels, in particular in
political, trade union and civic matters,
which implies the right of everyone to form
and to join trade unions for the protection
of his or her interests.
2. Political parties at Union level contribute
to expressing the political will of the
citizens of the Union.

Article 14 of the UE Charter Right to education

1. Everyone has the right to education and to

have access to vocational and continuing
training.
2. This right includes the possibility to receive
free compulsory education.
3. The freedom to found educational
establishments with due respect for democratic
principles and the right of parents to ensure the
education and teaching of their children in
conformity with their religious, philosophical and
pedagogical convictions shall be respected, in
accordance with the national laws governing the
exercise of such freedom and right.

Article 17 of the UE Charter Right to property

1. Everyone has the right to own, use, dispose of

and bequeath his or her lawfully acquired
possessions. No one may be deprived of his or
her possessions, except in the public interest
and in the cases and under the conditions
provided for by law, subject to fair compensation
being paid in good time for their loss. The use of
property may be regulated by law in so far as is
necessary for the general interest.
2. Intellectual property shall be protected.

Article 18 of the EU Charter.

Right to asylum
The right to asylum shall be
guaranteed with due respect for the
rules of the Geneva Convention of 28
July 1951 and the Protocol of 31
January 1967 relating to the status of
refugees and in accordance with the
Treaty establishing the European
Community.

Article 19 of the EU Charter Protection in

the event of removal, expulsion or
extradition

1. Collective expulsions are

prohibited.
2. No one may be removed, expelled
or extradited to a State where there is
a serious risk that he or she would be
subjected to the death penalty, torture
or other inhuman or degrading
treatment or punishment.

Article 20 of the EU Charter. Equality before the

law
Everyone is equal before the law.
Article 21. Non-discrimination
1. Any discrimination based on any ground such as sex,
race, colour, ethnic or social origin, genetic features,
language, religion or belief, political or any other opinion,
membership of a national minority, property, birth,
disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty
establishing the European Community and of the Treaty
on European Union, and without prejudice to the special
provisions of those Treaties, any discrimination on
grounds of nationality shall be prohibited.
Article 22. Cultural, religious and linguistic diversity
The Union shall respect cultural, religious and linguistic
diversity.

Article 23 of the EU Charter. Equality

between men and women

Equality between men and women

must be ensured in all areas, including
employment, work and pay.
The principle of equality shall not
prevent the maintenance or adoption
of measures providing for specific
advantages in favour of the underrepresented sex.

Article 47. Right to an effective remedy and to a

fair trial
Everyone whose rights and freedoms guaranteed by
the law of the Union are violated has the right to an
effective remedy before a tribunal in compliance with
the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial
tribunal previously established by law. Everyone shall
have the possibility of being advised, defended and
represented.
Legal aid shall be made available to those who lack
sufficient resources in so far as such aid is necessary
to ensure effective access to justice.

CHAPTER VII. GENERAL PROVISIONS

Article 51. Scope
1. The provisions of this Charter are addressed to the
institutions and bodies of the Union with due regard
for the principle of subsidiarity and to the Member
States only when they are implementing Union law.
They shall therefore respect the rights, observe the
principles and promote the application thereof in
accordance with their respective powers.
2. This Charter does not establish any new power or
task for the Community or the Union, or
modify powers and tasks defined by the Treaties.

Article 52. Scope of guaranteed rights

1. Any limitation on the exercise of the

rights and freedoms recognised by this
Charter must be provided for by law and
respect the essence of those rights and
freedoms. Subject to the principle of
proportionality, limitations may be made
only if they are necessary and genuinely
meet objectives of general interest
recognised by the Union or the need to
protect the rights and freedoms of others.

Article 53. Level of protection

Nothing in this Charter shall be interpreted as
restricting or adversely affecting human rights
and fundamental freedoms as recognised, in
their respective fields of application, by Union
law and international law and by international
agreements to which the Union, the Community
or all the Member States are party, including the
European Convention for the Protection of
Human Rights and Fundamental Freedoms, and
by the Member States' constitutions.

2. Rights recognised by this Charter which are

based on the Community Treaties or the Treaty on
European Union shall be exercised under the
conditions and within the limits defined by those
Treaties.
3. In so far as this Charter contains rights which
correspond to rights guaranteed by the Convention
for the Protection of Human Rights and
Fundamental Freedoms, the meaning and scope of
those rights shall be the same as those laid down by
the said Convention. This provision shall not
prevent Union law providing more extensive
protection.

Source:
http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon
_treaty/ai0020_en.htm

Division of competences within the European Union

INTRODUCTION
The Treaty of Lisbon clarifies the division of competences between
the European Union (EU) and Member States. It introduces a
precise classification for the first time in the founding Treaties,
distinguishing between three main types of competence: exclusive
competences, shared competences and supporting competences.
This attempt at clarification does not result in any notable transfer of
competence. However, this reform is important and vital for the
proper functioning of the EU. Several conflicts of competence have
emerged in the past between the EU and Member States.
Henceforth, the boundaries between the competences of each are
clearly defined. In addition, this transparency facilitates the
application of the fundamental principles relating to the control and
exercise of these competences.

ABOLITION OF THE PILLARS OF THE EU

One of the most notable changes resulting from the Treaty of

Lisbon concerns the abolition of the three-pillar structure of the
EU. These pillars were:
the European Community;
the Common Foreign and Security Policy (CFSP);
police and judicial cooperation in criminal matters.
Within this structure, several types of competence were
superimposed. Acts adopted under the framework of the first pillar
were adopted in accordance with the EUs legislative procedures.
In contrast, the other two pillars were based on intergovernmental
cooperation between Member States.
The Treaty of Lisbon puts an end to this complicated structure.
The European Community disappears. It is replaced by the EU,
which is endowed with legislative procedures enabling it to
exercise the competences conferred upon it to the full extent.
Moreover, the EU also acquires legal personality, which was
previously reserved for the old Community. It is therefore able
henceforth to conclude treaties in the fields coming within its area
of competence.

THE THREE MAIN TYPES OF

COMPETENCE
The Treaty on the Functioning of the EU (TFEU) distinguishes between three
types of competence and draws up a non-exhaustive list of the fields
concerned in each case:
exclusive competences (Article 3 of the TFEU): the EU alone is able to
legislate and adopt binding acts in these fields. The Member States role is
therefore limited to applying these acts, unless the Union authorises them to
adopt certain acts themselves;
shared competences (Article 4 of the TFEU): the EU and Member States are
authorised to adopt binding acts in these fields. However, Member States may
exercise their competence only in so far as the EU has not exercised, or has
decided not to exercise, its own competence;
supporting competences (Article 6 of the TFEU): the EU can only intervene
to support, coordinate or complement the action of Member States.
Consequently, it has no legislative power in these fields and may not interfere
in the exercise of these competences reserved for Member States.

SPECIAL COMPETENCES

The EU has special competences in certain fields:

the coordination of economic and employment policies (Article 5 of the TFEU):
the EU is responsible for ensuring the coordination of these policies. It is required
to define the broad direction and guidelines to be followed by Member States;
the CFSP (Article 24 of the Treaty on EU): the EU has competence in all fields
connected with the CFSP. It defines and implements this policy via, among others,
the President of the European Council and the High Representative of the Union
for Foreign Affairs and Security Policy, whose roles and status have been
recognised by the Treaty of Lisbon. However, the EU may not adopt legislative
acts in this field. In addition, the Court of Justice of the EU does not have
competence to give judgment in this area;
the flexibility clause (Article 352 of the TFEU): this clause enables the EU to act
beyond the power of action conferred upon it by the Treaties if the objective
pursued so requires. However, this clause is framed by a strict procedure and by
certain restrictions in terms of its application.
THE EXERCISE OF COMPETENCES
The exercise of Union competences is subject to three fundamental principles
which appear in Article 5 of the Treaty on EU. The definition of EU competences
greatly facilitates the proper application of these principles:
the principle of conferral: the Union has only the competences conferred upon it by
the Treaties;
the principle of proportionality: the exercise of EU competences may not exceed
what is necessary to achieve the objectives of the Treaties;
the principle of subsidiarity: for shared competences, the EU may intervene only if
it is capable of acting more effectively than the Member States;

TRANSFER OF COMPETENCES
The current division of competences
between the EU and Member States is not
set in stone. However, the reduction or
extension of EU competences is a delicate
matter which requires the consent of all
Member States and necessitates a
revision of the Treaties.