1
F A C U L T Y O F L A W
U N I V E R S I T Y O F C O P E N H A G E N
iCourts Working Paper Series, No. 63, 2016
Human Rights in the EU: Historical,
Comparative and Critical Perspectives
Federico Fabbrini
iCourts - The Danish National Research Foundation’s
Centre of Excellence for International Courts
Forthcoming in R. Schütze & M. Ghering (eds), Governance and Globalization (CUP 2016)
May 2016
2
Abstract:
The chapter examines the foundational role that human rights play in the project of European
integration, addressing the topic from three perspectives. First, it recounts the history of the
protection of fundamental rights in the EU to emphasize that human rights have always been at the
heart of the EU. Second, it compares the protection of fundamental rights in the EU with the
protection at the national and international level to make the point that, actually, the EU human
rights system is older and more established than most national and international systems in Europe.
Third and finally, however, it also approaches the protection of human rights in the EU from a
critical perspective, showing how the lack of strong mechanisms of executive enforcement in EU
law constitutes a problem as the EU a faces centrifugal pressures from several member states.
KEYWORDS: European Union, human rights, history, comparison, member states
Federico Fabbrini is Associate Professor of European & International Law at the Centre of
Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen.
E-mail: federico.fabbrini@jur.ku.dk
3
This research is funded by the Danish National Research Foundation Grant no. DNRF105.
iCourts - Centre of Excellence for International Courts - focuses on the ever-growing role of
international courts, their place in a globalizing legal order, and their impact on politics and society
at large. To understand these crucial and contemporary interplays of law, politics, and society,
iCourts hosts a set of deeply integrated interdisciplinary research projects on the causes and
consequences of the proliferation of international courts.
iCourts opened in March 2012. The centre is funded by a large grant from the Danish National
Research Foundation (for the period 2012-18).
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1. Introduction
Arbeit macht frei. We cannot understand the foundational importance of human rights in the
project of European integration if we don’t start from reflecting on these three words, carved onto
the iron gate of the Auschwitz concentration camp. For the project of European integration was, is,
and should remain overall a project of human redemption for a continent historically guilty of
inhuman action. While the roads of integration have been many, the end point, the mission of
Europe, is peace, and with it the prevention of new atrocities. In this grand vision, human rights are
not just an add-on. They are the foundation of the project and its feuille de route.
The core argument of this chapter is that the protection of fundamental rights is a
centerpiece of the European Union (EU). The purpose of this chapter is to examine from an
historical, comparative but also critical perspective the transformations in the protection of
fundamental rights in the EU, shedding light on the central role that these have played – and should
continue to play – in the EU. The chapter develops this argument by considering three overlapping
dimensions of the protection of fundamental rights in the EU legal order.
First, the chapter examines the protection of fundamental rights in the EU in historical
terms, with the aim to show a striking continuity in the importance human rights considerations
have played in the project of European integration. The chapter emphasizes how human rights
objectives were prominently in display in the early 1950s, when the first steps directed at
federalizing a continent devastated by the war were undertaken. As the chapter suggests, this
understanding helps to explain the judicial creation of an unwritten Bill of Right for the EU, starting
from the 1960s until the 1990s. Moreover, the chapter underlines how human rights were among the
key concerns shaping the latest transformations of the EU: after the Cold War, efforts at widening
and deepening were underpinned by a new, explicit recognition of the human rights vocation of the
EU, epitomized by the adoption of the Charter of Fundamental Rights.
Second, the chapter examines how the protection of fundamental rights in the EU fared
compared to that in the member states – as well as in the other European regional organization
devoted to the protection of fundamental rights, the Council of Europe. In this regards, the chapter
highlights how (with few exceptions) the creation of norms and institutions for the protection of
fundamental rights in the EU has been preceding – rather than following – developments elsewhere
in Europe. Since an early phase, in fact, the EU has been endowed with a substantive set of norms,
and an articulated institutional architecture, to protect human rights. While a handful of European
countries had some kind of tradition of human rights protection, or human rights rhetoric, the vast
majority of the current 28 member states of the EU were still authoritarian systems by the time the
EU had already an advanced human rights architecture.
These considerations are relevant for the third point I will make in this chapter: it is
imperative that the Union remains committed toward the protection of fundamental. Given its
history, and its comparative experience, the EU should continue to protect human rights, in
substance and form. Moreover, the EU should remain vigilant that human rights are respected – at
the transnational level, but also within the member states. While it is frequent to hear claims that the
EU should keep out from the business of looking into the human rights performance of the member
states, this chapter will argue exactly the opposite: the Union should become even more attentive on
what the states are doing. From a critical perspective, however, wrong political incentives currently
prevent the EU political branches of government from meeting this challenge. As the chapter
concludes, therefore, adequate institutional reforms ought to be considered to make sure that the EU
remains a force for promoting and protecting human rights in 21st
century Europe.
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2. Historical perspective
Since the beginning, the project of European integration was concerned with human rights.1
Efforts to reunite the continent after two bloody civil wars prominently featured human rights
considerations. This is evident of course in the initiative to establish the Council of Europe in 1949,
within which the European Convention on Human Rights and Fundamental Freedoms (ECHR) was
adopted in 1950, as a bulwark against any possible slide back in the direction of the human rights
horrors committed during the war. But this also transpires from the post-war debates and the
proposals in favor of establishing a political, federal-like organization, between France, West
Germany, Italy and the Benelux countries. This effort, which took off with the Schuman declaration
of 1950, and the establishment of the European Carbon and Steel Community (ECSC) by the Treaty
of Paris in 1951, had immediately a clear human rights dimension.
In particular, as Grainne de Búrca has recently explained, the importance of the protection of
fundamental rights for the founding generation emerges patently from the early attempts to endow
the new Europe with a human rights instrument, and to ensure a formal connection between the EU
and the just-enacted ECHR.2
The draft Treaty establishing the European Political Community
(EPC), drafted in 1952–53 as a follow-up of the ESCS, specifically provided that the ECHR would
become an integral part of the basic law of the EPC.3
In the work of the drafting committee,
moreover, it was clearly assumed that the instruments of human rights protection being created
would operate both vis-à-vis the public authorities of the Community, and vis-à-vis the states, hence
ensuring respect for common values also at the national level. Finally, the draft of the EPC
established an ambitious institutional architecture of human rights enforcement, with both judicial
and political mechanisms of supervision and redress.4
Grainne de Búrca’s exploration of the pre-history of human rights in the European legal
order challenges the widespread view that the European integration process was initially concerned
only with markets and economies, and proves how instead human rights shaped the early debates
about the future set-up of the EU already in the 1950s.5
This is not surprising for anyone
appreciating the condition of Europe after World War II. Altiero Spinelli’s Manifesto di Ventotene
reflects an equal aspiration for unity and freedom,6
and the rhetoric of the Mouvement européen was
largely imbued with rights’ aspirations.7
In fact, it is noteworthy that “the documents available from
the 1953 Intergovernmental Conference provide no evidence that any of the participants objected to
any of the EPC treaty provisions dealing with human rights.”8
Needless to say, the abandonment of the EPC Treaty after France’s failure to ratify the
European Defense Community Treaty in 1954, lead the Member States of the ECSC to follow a
different strategy of integration, focused on “a carefully limited set of economic concerns rather
than by immediately pursuing an open-ended political agenda.”9
Hence, the 1957 Treaty of Rome,
establishing the European Economic Community (EEC) and the European Atomic Energy
1
See Federico Fabbrini, Fundamental Rights in Europe (OUP 2014).
2
Gráinne de Búrca, ‘The Road Not Taken: The European Union as a Global Human Rights Actor’ (2011) 105.
American Journal of International Law 649.
3
Ibid 660.
4
Ibid 661.
5
Ibid 651.
6
See Andrew Glencross & Alex Trechsel (eds), EU Federalism and Constitutionalism: The Legacy of Altiero Spinelli
(Routledge 2010).
7
See Mikael Madsen and Chris Thornhill (eds), Law and the Formation of Modern Europe: Perspectives from the
Historical Sociology of Law (CUP 2014).
8
de Búrca (n ) 663.
9
Ibid 652.
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Community (Euratom), did not include a full-fledge regime for the protection of fundamental rights
within the EU system comparable to that envisaged in the draft EPC.
Yet, it is once more a revisionist oversimplification to claim that the EEC had nothing to do
with human rights. To begin with, the EEC Treaty introduced new economic freedoms for natural
and legal person, and entrenched a prohibition of discrimination based on nationality – which was
of significant relevance for the millions of migrant workers who, for instance, had moved from
Southern Italy to the mining regions of Benelux and Rheinland. Moreover, the EEC Treaty also
enshrined the principle of equal pay for equal work, prohibiting discrimination based on gender:
while this principle had a peculiar political rationale – namely preventing inter-state competition
which would arise from the unfair dumping of labor costs through the employment of female
employees10
– it still represented a major break-through for the principle of equality.
Given this background, it is not really surprising that the European Court of Justice (ECJ) –
the highest judicial organ of the Communities – began protecting fundamental rights in a praetorian
manner soon after its establishment. As is well known, the introduction of an unwritten catalogue of
fundamental rights at the supranational level has been one of the greatest achievements of the
ECJ.11
Despite the lack of a charter of rights in the Treaty of Rome, starting with the Stauder
judgment of 1969 the ECJ held that fundamental rights formed part of the general principles of
Community law.12
In its effort to identify a corpus of human rights norms for the EU, the ECJ drew
inspiration from the the common constitutional traditions of the Member States and, as stated in the
1974 Nold decision, from “international treaties for the protection of human rights on which the
Member States have collaborated or of which they are signatories.”13
In Rutili, the ECJ clarified that
the ECHR represented a source of special importance, also in light of the fact that all member states
had by then become parties to the ECHR.14
Some scholars have argued that the case law of the ECJ was a response to the jurisprudence
of the Italian and German Constitutional Court on “counter-limits”,15
and that it was therefore an
attempt to foster the newly crafted doctrines of supremacy and direct effect of Community law
within the national legal systems.16
However – as Brun-Otto Bryde has powerfully demonstrated –
the case law of the ECJ was not a purely defensive move: despite the willingness of the ECJ to
thwart potential threats coming from the national courts, the jurisprudence of the ECJ represented
instead “an impressive step in the development of a human rights culture in Europe.”17
Indeed,
when the ECJ first identified an unwritten catalogue of fundamental rights in the general principles
of EEC law, the protection of human rights was still much underdeveloped in the legal systems of
10
See Catherine Barnard, ‘Gender Equality in the EU: A Balance Sheet’ in Philip Alston et al (eds), The EU and
Human Rights (OUP 1999) 215, 216.
11
See Bruno de Witte, ‘The Past and the Future Role of the European Court of Justice in the Protection of Human
Rights’ in Philip Alston at al (eds), The EU and Human Rights (OUP 1999) 859.
12
Case 29/69 Stauder [1969] ECR 419. But see also Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125.
13
Case 4/73 Nold [1974] ECR 491.
14
Case 36/75 Rutili [1975] ECR 1219.
15
See C. Cost n. 183/1973 Frontini (holding that the supremacy of EU law cannot extend to the point of undermining
the protection of state constitutional rights); BVerfGE 37, 271 (1974) Solange I (idem).
16
See Jurgen Kühling, ‘Fundamental Rights’ in Armin von Bogdandy and Jurgen Bast (eds), Principles of European
Constitutional Law (Hart Publishing 2006) 501 and Frank Schimmelfennig, ‘Competition and Community:
Constitutional Courts, Rhetorical Action and the Institutionalization of Human Rights in the European Union’ in
Berthold Rittberger and Frank Schimmelfennig (eds), The Constitutionalization of the European Union (Routledge
2007) 100.
17
Brun Otto Bryde, ‘The ECJ’s Fundamental Rights Jurisprudence – A Milestone in Transnational Constitutionalism’
in Miguel Poiares Maduro and Loïc Azoulai (eds), The Past and Future of EU Law. The Classics of EU Law Revisited
on the 50th
Anniversary of the Rome Treaty (Hart Publishing 2010) 119, 122.
7
the member states.18
In addition, the rise of a fundamental rights jurisprudence at the EU level
predates the Solange decisions of the national constitutional courts – whose concern for
fundamental rights has therefore been described by some as “a disguise for the opposition to
supranational power as such.”19
Be that as it may, the ECJ was able to promote a significant expansion of human rights
within the areas on which the EEC had competence.20
From the 1960s until the 1990s the ECJ built
up an important human rights case law, recognizing among others a right to property,21
a right to a
fair trial,22
the privilege against self-incrimination23
– but also the freedom to provide services in the
field of abortion. 24
Furthermore, while the ECJ required that EU institutions comply with
fundamental rights, it also policed compliance by the member states, when they implement
Community law,25
or when they exploit derogations permitted by Community law.26
The human rights acquis of the ECJ proved of major help when, at the beginning of the
1990s, the EU institutions and its member states faced the momentous transformations produced by
the fall of the Berlin Wall. These events offered the opportunity to deepen the process of European
integration among the member states, paving the way towards its widening with the accession of
new member states.27
Hence, with the Treaty of Maastricht of 1992, the EEC was transformed into
the European Community (EC) and endowed with new powers, including in the context of
Economic and Monetary Union (EMU), and embedded into a broader organization, the EU, with
competence also in the area of Common Foreign and Security Policy (CFSP) and Justice and Home
Affairs. In the field of fundamental rights, then, Article F EU Treaty codified the principle already
elaborated in the case law of the CJEU that the EU “shall respect fundamental rights, as guaranteed
by the [ECHR] and as they result from the constitutional traditions common to the Member States,
as general principles of Community law”, thus enhancing the role of the ECJ as a court with an
explicit mandate to protect human rights in the EU.28
As Wojciech Sadurski has underlined, the explicit recognition of human rights in the text of
primary EU law reflected the awareness of policy-makers that the end of the Iron Curtin would lead
to the enlargement of the EU toward Central and Easter European countries.29
However, because
these nations had not been able to develop a human rights or rule of law tradition due to the Soviet
occupation, 30
Western European states felt the need to clarify what were the key values
underpinning the EU, and what would be the pre-conditions for acceding to it.31
In fact, respect for
human rights and the rule of law were entrenched on top of the list of the so-called Copenhagen
18
See infra Section 3.
19
Bryde (n ) 121, quoting Hans Peter Ipsen, Europäisches Gemeinschaftsrecht (Mohr 1972) 716.
20
See José Cuñha Rodriguez, ‘The Incorporation of Fundamental Rights in the Community Legal Order’ in Miguel
Poiares Maduro and Loïc Azoulai (eds), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th
Anniversary of the Rome Treaty (Hart Publishing 2010) 89.
21
See Case 44/79 Hauer [1979] 3727.
22
See Case 222/84 Johnston [1986] ECR 1651.
23
See Case 374/87 Orkem v Commission, [1989] ECR 3283.
24
See Case C-159/98 Grogan [1991] ECR I-4685.
25
See Case 5/88 Wachauf [1989] ECR 2609.
26
See Case C-260/89 ERT [1991] ECR I-2925.
27
See Ingolf Pernice and Ralf Kanitz, ‘Fundamental Rights and Multilevel Constitutionalism in Europe, Humboldt
Universität Walter Hallestein Institut Paper No. 7/2004.
28
See Armin von Bogdandy, ‘The European Union as a Human Rights Organization? Human Rights at the Core of the
European Union’ (2000) 37 Common Market Law Review 1307.
29
Wojciech Sadurski, ‘Adding Bite to Bark: The Story of Article 7, E.U. Enlargement, and Jörg Haider’ (2010) 16
Columbia Journal of European Law 385.
30
See infra Section 3
31
Ibid 386.
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criteria – drafted in 1993 by the European Council – needed to qualify for membership in the EU.32
Moreover, as the prospect for accession became closer, the Treaty of Amsterdam of 1997 (which
also renamed Article F of the Treaty of Maastricht as Article 6 TEU) introduced a political
mechanism to ensure member states’ compliance with the Union’s fundamental rights principles.33
According to then Article 7 TEU, the European Council could vote by unanimity (with the
exclusion of the member state concerned) to suspend the voting rights of a member state found to
be in “serious and persistent breach” of human rights.
As is well known, the first potential attack against the human rights principles of the EU did
not come from a post-Communist country, but rather from one of the member states which joined
the EU in 1995: Austria. Moreover, the mechanism of Article 7 proved inefficient: since that clause
could only be activated after a breach of human rights had taken place, in 1999 the then 14 other
states of the EU decided to respond to the entry into government of a xenophobic, right wing party
by acting outside the framework of EU law, through the suspension of diplomatic relations with
Austria.34
This strategy – aimed at preventing a member country from faulting the common values
of the EU, and thus at tackling a potential violation of human rights before it happened – was
eventually codified at the next round of treaty revisions in EU primary law.35
The Treaty of Nice of
2001, in fact, introduced in Article 7 TEU a new procedure, whereby the Council acting by a super
majority of its members can take action against a member state where there is “a clear risk of a
serious breach” of the rule of law, democracy and the protection of fundamental rights.
The high investment on human rights issues emerging in the political and legal debates
taking place in the EU during the 1990s underlines the foundational importance that the protection
of fundamental rights has continued to have throughout the project of European integration. Even in
a period when the EU was making quick steps toward completing the common market and creating
an EMU, rights considerations were central in shaping the constitutional design of the EU. This
trend reached its apex when, in 1999, the European Council meeting in Cologne decided to
establish a special Convention charged to draft a Charter of Fundamental Rights for the EU.36
The
Convention – which blended, in an innovative fashion, delegates of national governments together
with representatives of the EU institutions and national parliaments – worked swiftly to produce an
ambitious Bill of Rights, working on the assumption that the document would become binding for
the Union and its member states.37
The Charter of Fundamental Rights was conceived as as a restatement of the general
principles of EU fundamental rights law but is de facto quite innovative in many respects.38
In fact,
it represents arguably the most update and complete human rights document existing world-wide.
The Charter overcomes the Cold War distinction between, on the one hand, civil and political
rights, and, on the other, social and economic rights. Moreover, it includes a number of modern
provisions reflecting the need and concerns of the contemporary era – such as the right to privacy
and data protection, and environmental rights.
32
European Council Conclusions, Copenhagen, 21-22 June 1993, SN 180/1/93.
33
See Bruno de Witte & Gabriel Toggenburg, ‘Human Rights and Membership of the European Union’ in Steve Peers
and Angela Ward (eds), The EU Charter of Fundamental Rights: Politics, Law and Policy (Hart Publishing 2004) 59.
34
Sadurski (n ) 400.
35
De Witte & Toggenburg (n ) 60.
36
European Council Conclusion, Cologne, 3-4 June 1999.
37
See the position taken by Roman Herzog the President of the Convention, and former President of the German
Constitutional Tribunal, on 17 December 1999, CHARTE 4105/00 BODY 1, Annex 1 (reporting his view that the
Convention should work “as if [the Charter were to become] a legally binding list”).
38
Marta Cartabia, ‘L’ora dei diritti fondamentali nell’Unione Europea’ in Marta Cartabia (ed), I diritti in azione (Il
Mulino 2007) 13, 51.
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The Charter is opened by an inspired preamble and structured in 7 thematic chapters. Title I
(“Dignity”) affirms the value of human dignity and the prohibitions of the death penalty, of torture
and slavery. Title II (“Freedoms”) entrenches a plurality of civil rights, including free speech,
freedom of religion, freedom of assembly – but also the right to education, the right to privacy and
the right to asylum. Title III (“Equality”) affirms the prohibition of discrimination, based on gender,
race, color ethnic or social origin, language, religion or belief: moreover, it proclaims the right of
the child, of the elderly and of the persons with disabilities. Title IV (“Solidarity”) protects a
plurality of social rights, ranging from the rights to collective bargaining and strike, to the rights of
social security and health care – up to the rights to consumer and environmental protection. Title V
(“Citizen’s Rights”) encompasses inter alia several political rights, the right to free movement and
the right to a good administration. Title VI (“Justice”), then, includes a variety of rights related to
the civil and criminal process, including the right to an effective remedy, the presumption of
innocence and the principle of ne bis in idem.
Finally, Title VII of the Charter (“General Provisions Governing the Interpretation and the
Application of the Charter”) sets horizontal provisions on the application and the interpretation of
the Charter. With regard to the former, Article 51 disposes that the Charter shall apply to the
institutions of the EU as well as to the Member States “when they are implementing Union law” – a
clause which has been interpreted to reflect the pre-existing case law of the ECJ.39
With regard to
the latter, Article 52 provides that rights enshrined in the Charter can be subject to limitations in
accordance with the principle of proportionality, and provided their essence is not infringed.
Moreover, Article 52 also includes a reconciliation clause, which requires the interpreter to read
provision of the Charter which tracks provision of the ECHR, in accordance with ECHR law.
Otherwise, Article 53 also introduces a safeguard clause – whose meaning however ought to be
subject to qualifications40
– which affirms that nothing in the Charter shall be “interpreted as
restricting or adversely affecting human rights as recognized, in their respective fields of
application, by Union law,” by the ECHR and by member state’s constitutions.
The Charter of Fundamental rights was officially proclaimed in Nice in December 2000 by
the EU institutions – with a non-binding status.41
Given its comprehensive features, however, the
Charter was soon actively employed by the EU (and national) judiciary as an advanced instrument
for the protection of fundamental rights.42
The Charter was then included as Part II of the Treaty
establishing a Constitution for Europe in 2003.43
Moreover, after the failure of the Constitution in
the French and Dutch referenda of 2009, the Charter was “saved” by the Treaty of Lisbon.44
Article
6 TEU, as modified by the Treaty of Lisbon, in fact, states that the EU recognizes the rights and
freedoms set out in the Charter, “which shall have the same legal value as the Treaties.” Since the
entry into force of the Treaty of Lisbon on 1st
December 2009, therefore, the Charter has acquired
39
See Explanations relating to the Charter of Fundamental Rights, OJ 2007 C 303/32.
40
See Fabbrini (n 1) 39.
41
See Koen Lenaerts and Eddy de Smijter, ‘A “Bill of Rights” for the European Union’ (2001) 38 Common Market
Law Review 273.
42
See Case T-54/99, max.mobil, ECLI:EU:T:2002:20; Case C-540/03, Parliament v. Council, ECLI:EU:C:2006:429.
43
See Gráinne de Búrca and Jo Beatrix Aschenbrenner, ‘European Constitutionalism and the Charter’ in Steve Peers
and Angela Ward (eds), The EU Charter of Fundamental Rights: Politics, Law and Policy (Hart Publishing 2004) 4.
44
See Bruno de Witte, ‘Saving the Constitution? The Escape Routes and their Legal Feasibility’ in Giuliano Amato,
Hervé Bribosia, and Bruno de Witte, Genesis and Destiny of the European Constitution (Bruylant 2007) 919.
10
the status of EU constitutional law,45
and binds the EU institutions and the member states when
their action falls under the scope of application of EU law.46
The codification of a Charter of Fundamental Rights, however, has not implied a
fossilization of the protection of human rights in the EU.47
To the contrary, taking inspiration from
the Charter, the ECJ has delivered in the last few years a series of remarkable decisions on human
dignity, 48
non-discriminations on the basis of gender 49
or sexual orientation, 50
freedom of
expression,51
social rights,52
political entitlements,53
as well as due process rights in the context of
national security.54
In the field of privacy and data protection then, the ECJ has vested with
confidence the role of a human rights court, 55
holding inter alia that data subjects have a
fundamental right to be protected against systematic retention of personal data for law enforcement
purposes,56
a right to request removal of data about them from on-line search engines,57
as well as a
right to know how their data will be used when they are transferred to third countries.58
Moreover, the protection of fundamental rights is today also an important policy of the
Union, both internally and externally.59
Since 2007 the EU has a Fundamental Rights Agency,
empowered to monitor and promoted human rights;60
the European Parliament is endowed with an
ad hoc Committee on Civil Liberties which verifies the human rights compliance of EU
legislation;61
and the European Commission has recently created a post of First Vice President with
responsibility on the Charter of Fundamental Rights and the Rule of Law.62
In its interaction with
45
See Michael Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) 45 Common Market Law
Review 617.
46
See Piet Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 Common Market
Law Review 945.
47
See Cartabia (n ) 37.
48
See Case C-36/2002, Omega [2004] ECR I-9609 (recognizing a fundamental right to dignity as a justification for the
limitation of the freedom of movement of goods).
49
See e.g. Case C-285/1998, Kreil [2000] ECR I-69 (declaring incompatible with EU law a provision of the German
Constitution prohibiting women from serving in the military); Case C-46/07, Commission v. Italy [2008] ECR I-151
(declaring incompatible with EU law a provision of the Italian social security legislation setting up a different
retirement age for men and women).
50
See e.g. Case C-117/2001, K.B. [2004] ECR (recognizing the right of transsexuals); Case C-423/2004, Richards
[2006] ECR II-3585 (idem).
51
See e.g. Case C-112/2000, Schmidberger [2003] ECR I-5659 (recognizing the right to freedom of expression as a
justification for the restriction of the freedom of movement); Case C-380/05, Centro Europa 7 [2008] ECR I-349
(declaring incompatible with EU law a provision of the Italian media law which did not ensure pluralism in the
broadcasting system).
52
See e.g. Case C-184/99, Grzelczyk [2001] ECR I-6193 (recognizing the right of migrant students to obtain social
security benefits in the host state); Case C-438/05, Viking [2007] ECR I-10779 (recognizing a fundamental right to
strike).
53
See e.g. Case C-300/04, Eman & Sevinger (Aruba) [2006] ECR I-8055 (holding a Dutch law restricting the franchise
to the EU Parliament of Dutch citizens residing in Aruba incompatible with EU law).
54
See Joined Cases C-402/05 P and C-415/05 P, Kadi & Al Barakaat [2008] ECR I-6351, and Joined Cases C-584/10
P, C-593/10 P and C-595/10 P, Council, Commission and United Kingdom v. Kadi, judgment of 18 July 2013, nyr.
55
See Federico Fabbrini, ‘The EU Charter of Fundamental Rights and the Right to Data Privacy: The European Court
of Justice as a Human Rights Court’ in Sybe De Vries et al (eds), The EU Charter of Fundamental Rights as a Binding
Instrument (Hart Publishing 2015) 261.
56
See Joined Cases C-293/12 and C-594/12, Digital Rights Ireland, EU:C:2014:238.
57
See Case C-131/12, Google Spain v. Agencia Española de Protección de Datos (AEPD), EU:C:2014:317.
58
See Case C-362/14 Schrems, EU:C:2015:650.
59
See Philip Alston & Joseph H.H. Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European
Union and Human Rights’ in Philip Alston et al (eds), The EU and Human Rights (OUP 1999) 3.
60
Council Regulation (EC) No 168/2007 establishing an EU Agency for Fundamental Rights OJ 2007 L 53/1.
61
See Vicki Kosta, Fundamental Rights in EU Internal Market Legislation (Hart Publishing 2015).
62
European Commission President Jean-Claude Juncker, Mission Letter to Frans Timmermans, 1 November 2014.
11
the rest of the world, then, the EU pursues a human rights inspired foreign policy,63
and the Vice
President of the Commission who is High Representative for the EU in CFSP adopts periodically an
external EU human rights agenda, and reports on it to the Council.64
Needless to say, the protection of fundamental rights in the EU – as everywhere else – is not
without its shadows too.65
The EU institutions and the member states bare the guilt for having
watched idly while a new genocide was being committed in the European continent in the early
1990s – with Dutch soldiers policing the Muslim enclave of Srebrenica handing over women and
children to Serb forces for mass extermination.66
And the EU courts have also missed opportunities
to further develop the protection of human rights: much criticisms, in particular, have been voiced
at the decisions of the ECJ to block, first in 1996,67
and then in 2014,68
the accession of the EU to
the ECHR – despite the fact that the new Article 6(3) TEU, as modified by the Lisbon Treaty,
explicitly required so as a way to enhance the consistency of the European multilevel human rights
architecture.69
Nevertheless, the fact that the EU has “for over six decades contributed to the
advancement of peace and reconciliation, democracy and human rights in Europe” was the key
motive that prompted the Nobel Committee to award to the EU the Peace Prize in 2012.70
In conclusion, in Europe anno 2016, the protection of fundamental rights remains as
important for the EU as it was at the beginning of the project of European integration. As this
section has claimed, human rights considerations inspired the creation of supranational authorities
in Europe, and prominently featured in legal and institutional proposals under debate in the early
1950s. Human rights considerations, then, motivated the judge-made developments of the EU legal
order steered by the ECJ since the 1960s, which lead to the creation of an unwritten human rights
acquis for the EEC. Human rights consideration finally, shaped the transformations of the EU after
the end of the Cold War – prompting the codification of the ECJ human rights doctrine, the
establishment of new mechanisms of political supervision, and eventually the proclamation of a
Charter of Fundamental Rights for the EU. At any historical stage in the development of the project
of European integration, in other words, the protection of fundamental rights represented a key
concern, and a key incentive for integration – suggesting that the protection of fundamental right
ought to be seen as a normative foundation of the EU.
3. Comparative perspective
The previous section has explained that the EU has been involved in the business of human
rights since its creation: from an historical perspective, the protection of fundamental rights has
been a Leitmotiv in the project of European integration. This section takes a step forward and claims
that the EU has greater experience with the protection of human rights that most other (national and
international) public authorities in Europe: from a comparative perspective, the EU has been
involved in the business of human rights protection longer than almost any European state or
63
See Joris Larik, Foreign Policy Objectives in European Constitutional Law (OUP 2016).
64
High Representative of the EU Communication, ‘Action Plan on Human Rights and Democracy (2015-2019):
Keeping Human Rights at the Heart of the EU Agenda’, 28 April 2015, JOIN(2015)16 final.
65
See infra Section 4.
66
See Joseph H.H. Weiler, ‘Deciphering the Political and Legal DNA of European Integration’ in Julie Dickson and
Pavlos Eleftheriadis (eds), Philosophical Foundations of European Union Law (OUP 2013) 143.
67
See Opinion 2/94 [1996] ECR 1759.
68
See Opinion 2/13 EU:C:2014:2454.
69
But see also Protocol No. 8 TEU.
70
See Nobel Prize, ‘European Union (EU) – Facts’, available at:
http://www.nobelprize.org/nobel_prizes/peace/laureates/2012/eu-facts.html (last visited 24 May 2016).
12
regional organization.71
While the reader may find this claim surprising in an era of growing
Euroscepticism, this section endeavors to shed light on several hard facts which are often neglected
in the public debate about human rights and the EU.
In contemporary constitutional law theory the protection of fundamental rights is typically
associated with the existence within a given legal system of substantive and institutional guarantees
which are capable of securing respect for human rights.72
Human rights require, in substantive
terms, the existence of a catalogue of fundamental rights entrenched in the supreme law of the land
– and thus removed from the ordinary legislative process, so that transient majorities are unable to
change the catalogue of human rights at will.73
Moreover, human rights require, in institutional
terms, the existence of mechanisms of enforcement, capable to sanction possible rights’
infringements: since the end of World War II, in particular, widespread consensus exists on the idea
that courts ought to play such a role.74
At the same time, based on the experience of totalitarianism
of the first half of the 20th
century, contemporary constitutionalism requires judicial review to
operate not only vis-à-vis the executive branch, but also vis-à-vis the legislature: as the legislative
power can infringe on human rights just as much as the executive, the power of courts to strike
down legislative action is today universally considered as a condition to ensure the protection of
fundamental rights and freedoms in a legal system.75
Now, when measured by these standards, the EU appeared to fare better than most
competitors in the protection of fundamental rights – since an early phase of the project of
European integration. As reported in the previous section, since the 1960s the EU came to have a
judge-made catalogue of fundamental rights – considered part of the general principles of EU law.76
This unwritten but substantive bill of rights had thus a constitutional status, being beyond the reach
of the EU institutions and of the EU member states in their legislative capacity. Moreover, the EU
was endowed with an institutional architecture designed to ensure compliance with constitutional
norms.77
In particular, already the Treaty of Rome explicitly created multiple mechanisms of
judicial review of executive and legislative action: Either through the preliminary reference
procedure78
– which allows (or in some case: compels) national courts to refer a question to ECJ on
the interpretation or validity of EU law (and indirectly also of national law) – or through the action
for direct annulment79
– which allows European resortissants to challenge EU legal measures
directly and individually afflicting them – the ECJ was vested with the power to “ensure that in the
interpretation and application of the Treaties the law is observed.”80
This state of affairs is remarkable when compared with the substantive and institutional
features of the other public authorities existing in Europe at the time. At the regional level, the
Council of Europe has been explicitly designed as an organization for the promotion and the
71
For a comparison of the EU system for the protection of fundamental rights with the systems in place in other federal
regimes, and notably in the United States see instead Fabbrini (n 1) 25.
72
See e.g. Georg Nolte (ed), European and US Constitutionalism (CUP 2005) and Robert Alexy, A Theory of
Constitutional Rights (Julian Rivers trans., OUP 2010).
73
See e.g. Andras Sajó, Limiting Government: An Introduction to Constitutionalism (CEU Press 1999) and Augusto
Barbera, Le basi filosofiche del costituzionalismo (Laterza 1996).
74
See e.g. Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale UP 1962)
and Ahron Barak, The Judge in a Democracy (Princeton UP 2006).
75
See e.g. Gustavo Zagrebelsky, Il diritto mite (Einaudi 1992) and Dieter Grimm, Die Verfassung und die Politik:
Einsprüche in Störfällen (Beck 2001).
76
See Giuseppe Federico Mancini, Democracy and Constitutionalism in the European Union (Hart Publishing 2000).
77
See Pierre Pescatore, Le droit de l’intégration (1972 repr. Bruylant 2005).
78
See Art 177 TEEC, now Art 267 TFEU.
79
See Art 173 TEEC, now Art 263 TFEU.
80
See Art 19 TEU.
13
protection of human rights.81
The ECHR, in fact, listed a set of civil and political rights which
Contracting Parties committed to respect within their domestic systems. However, the mechanisms
of enforcement of the ECHR were initially fairly weak.82
While the ECHR did establish a Court –
the European Court of Human Rights (ECtHR) – access to this institution was filtered by a political
mechanism designed to shield the member states: Pursuant to the original text of the ECHR, a
European Commission of Human Rights (ECommHR) was empowered to decide on the cases, and
propose a friendly settlement to the disputes. The decision to refer a controversy to the ECtHR
rested on the ECommHR alone, and for its first 30 years of existence the ECtHR only received a
handful of cases, often in the context of state-to-state conflicts.83
At the same time, the protection of fundamental rights suffered from significant substantive
or institutional weaknesses also at the national level. The six founding states of the EU all bear the
blunt, albeit with different degrees, of the horrors of the Holocaust. While the guilt stood mainly on
Nazi Germany, as Joseph H.H. Weiler has remarked, also in the other five states “important social
forces became complicit and were morally compromised. This was obviously true of Fascist Italy
and Vichy France. But even the little Luxembourg contributed one of the most criminally notorious
units to the German army, and Belgium distinguished itself as the country with the highest number
of indigenous volunteers to the occupying German forces. The betrayal of Anna Frank and her
family by their good Dutch neighbors was not an exception but emblematic of the Dutch society
and government, which tidily handed over their entire Jewish citizenry for deportation and death.”84
The rise of totalitarian regimes in the 1920s and 1930s and the bloodshed of war during the 1940s
had demonstrated the fragility of the liberal state, built on 19th
century ideas of the rule of law,
parliamentary supremacy, and state self-limitation. Given the failure of majoritarianism one would
have expected that after the War states would take steps to protect fundamental rights by creating
counter-majoritarian institutions, keeping in check democratic legislatures.
Yet, of the six founding states of the EU only three overhauled their constitutional systems,
only two of them established checks on the exercise of legislative power and only one of them
adopted new mechanisms to adjudicate human rights claims on a broad basis. In Belgium, the
Netherlands, and Luxembourg the termination of the hostilities of World War II and the reorganization
of public life simply brought to the re-establishment of the constitutional charters
governing the states – dating respectively to 1814, 1831 and 1842. A few amendments were
adopted to update the content of these Constitutions. Notably, in the Netherlands, a constitutional
revision enacted in 1956 introduced new provisions regulating the relationship between the Dutch
legal order and international law, recognizing the supremacy of duly ratified treaties over
conflicting domestic acts.85
Yet the structure of these documents remained solidly grounded in
Rechtsstaat ideas that judicial oversight would operate only vis-à-vis the executive branch, while
the democratic legislature would remain the main source for the protection of fundamental rights
catalogued in the Constitution. At its extreme, the Dutch Constitution even preserved the written
prohibition of judicial review of legislation originally introduced in 1848, confirming its faith in the
capacity of the political process to correct its own excesses.86
81
See Andrew Moravcsik, ‘The Origin of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000)
54 International Organization 217.
82
See Danny Nicol, ‘Original Intent and the European Convention on Human Rights’ [2005] Public Law 152.
83
See e.g. Ireland v. United Kingdom [1978] ECHR 1 (finding a violation of Article 3 by the UK in Northern Ireland).
84
Joseph H.H. Weiler, ‘The Political and Legal Culture of European Integration: An Exploratory Essay’ (2011) 9
International Journal of Constitutional Law 678, 685, fn 2.
85
See Arts 65-66 Const. Nl.
86
See Maurice Adams & Gerhard van der Schyff, ‘Judicial Review by the Judiciary in the Netherlands: A Matter of
Politics, Democracy or Compensating Strategy?’ (2006) 66 Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht 399.
14
France, then, was rhetorically la patrie de droits de l’homme, but in constitutional terms, the
end of World War II led to the restauration. The Constitution of the Fourth Republic of 1946 recreated
a parliamentary form of government with no external checks on legislative powers. The
Constitution did not include any catalogue of right, save for a reference in the non-binding
preamble to the Declaration of the Rights of Man and Citizen of 1789 and to a new set of political,
economic and social principles “especially necessary to our times.” The 1946 Constitution
established a Constitutional Committee composed by members of the legislature and the President
of the Republic, but its task was purely advisory.87
Nor much changed after the Algerian crisis and
the retour of Général de Gaulle. Once again, the Constitution of the Fifth Republic – adopted in
1958 (after the entry into force of the Treaty of Rome and the ECHR) – did not include any
reference to fundamental rights but in the preamble. And albeit it established a Constitutional
Council it gave to this body mainly the task to keep in check the Parliament (whose powers were
explicitly tailored) against encroachments into the Presidential prerogatives (whose powers were
hardly defined).88
As Alec Stone Sweet has explained,89
it took a revolution for the Constitutional
Council to begin in 1971 referring to human rights in its review. 90
And until 2008, 91
the
Constitutional Council remained constrained, its review being subject to referral by political
institutions and confined to the examination of the bills of Parliament a priori, before their
enactment.92
Hence it is only in Italy and West Germany that new mechanisms to review and constrain
the action of the political branches were put in place. The Italian Constitution of 1948 codified a
long list of civil, political, social and economic rights and created a constitutional court to arbitrate
conflicts between branches of government and review legislation.93
Yet, as the Constitution was the
result of a compromise between several political forces (including Communist and Liberal parties
wary of judicial review), the role of the Corte Costituzionale was tempered. 94
In fact, the
functioning of the court and the modalities for the exercise of its review were delegated to a
constitutional act and then to an ordinary statute, which delayed the beginning of the court’s
operation to 1956.95
Pursuant to Italian legislation the constitutional court was entrusted of review
of legislation in direct proceedings – in which the state challenged regional legislation, or vice-versa
– or in indirect proceedings – i.e. preliminary reference submitted by ordinary courts who doubted
about the constitutionality of legislation they had to apply in the course of an ordinary civil,
criminal or administrative case or controversy.96
Hence, republican legislation ended up delegating
to the ordinary judiciary (which was at worse compromised with Fascism, and at best committed to
a formalistic-legalistic approach) the task to act as a bulwark against possible human rights
87
See Didier Maus, ‘Les origines : avant 1958, l’impossible contrôle de constitutionnalité’ Michel Verpeaux &
Maryvonne Bonnard (eds), Le Conseil Constitutionnel (La documentation Française 2007) 15.
88
See the position taken by Michel Debré, Minister of Justice and main author of the French Constitution, in front of
the Conseil d’Etat on 15 August 1958 (reporting the view that the Constitutional Council ought to serve as the
“watchdog” of Parliament, protecting the domaines réservés of the President of the Republic).
89
Alec Stone-Sweet, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective
(OUP 1992).
90
See Décision no. 71-44 DC of 16 July 1971 (recognizing that the preamble of the Constitution of 1958, which refers
to the Preamble of the Constitution of 1946 and to the Declaration of the Rights of Men and Citizens of 1789 constitute
part of the benchmark the Constitutional Council uses to exercise judicial review).
91
See infra n __
92
See Federico Fabbrini, ‘Kelsen in Paris: France’s Constitutional Reform and the Introduction of A Posteriori
Constitutional Review of Legislation’ (2008) 9 German Law Journal 1297.
93
See Giuseppe Franco Ferrari (ed.), Introduction to Italian Public Law (Giuffré 2008).
94
See Enzo Cheli, Il giudice delle leggi (Il Mulino 1996).
95
See Legge costituzionale del 9 febbraio 1948; and legge dell’11 marzo 1953, no. 87 (It).
96
See Vittoria Barsotti et al., Italian Constitutional Justice in Global Context (OUP 2015).
15
violations – reflecting what Sabino Cassese has called a striking continuity between the pre-War
and the post-War Italian state.97
In West Germany, instead, the Basic Law adopted in 1949 introduced a major break with the
past. The fact that Germany was an occupied, and divided state, and that therefore the exercise of
constitution-making was not the result of a sovereign decision, played a key role.98
By drafting for
the defeated country a new basic law, the allied nations enshrined dignity as the cornerstone of the
new constitutional order, established federalism as a way to diffuse future threats to centralization
of power,99
and created a powerful constitutional court.100
Besides competences analogous to those
of the Italian constitutional court, the German Bundesverfassungsgericht was also entrusted with the
adjudication of individual direct complaints: any German citizens doubting about the compatibility
of any executive, legislative or judicial act with the human rights protected by the Basic Law could
bring a case to the constitutional court asking it to declare the act unconstitutional. 101
This
unprecedented mechanism – called Verfassungsbeschwerde – coupled with the mandate that West
Germany participate in project of European integration, was designed to ensure that Germany’s
future would lay safely in the direction of peace and human rights. Unsurprisingly, if you wish,
counter-majoritarianism and human rights concerns reached their nadir in West Germany.
However, as Giacomo Delledonne and I have argued elsewhere, despite the fact that the new
constitutional systems of West Germany and Italy included important new substantive and
institutional features designed to protect and promote fundamental rights, the record of national
constitutional courts in the field of human rights during the 1950s and 1960s was weaker than what
it is generally thought. 102
Even though both the Bundesverfassungsgericht and the Corte
Costituzionale were technically empowered to review national legislation in light of constitutional
human rights, a systematic study of the case law of these courts shows that in their earlier years of
existence they were cautious in protecting fundamental rights.103
Besides purging the legal order
from Nazi and Fascist norms, the Italian and German constitutional courts were mainly concerned
with issues of structure. 104
Thus, at least in an earlier phase, protection of constitutionally
entrenched fundamental rights was more the indirect result of the struggle to deal with totalitarian
past than a goal in itself. Certainly, by the late 1960s these constitutional tribunals had established
themselves within the legal order and evolved into an important force for the protection of human
rights.105
But the important point to be made here is that this development substantially corresponds
with the period in which also the ECJ started developing a human rights catalogue for the EU
too.106
In sum, a comparison of the substantive and institutional architectures for the protection of
human rights at the national and EU level in the first two decades after World War II, shows that
the EU was endowed with a more advanced human rights regime that four of the six founding
member states, which had not constitutionalized a catalogue of human rights and empowered a
97
See Sabino Cassese, Governare gli italiani. Storia dello Stato (Il Mulino 2014).
98
See John Gimbel, The American Occupation of Germany: Politics and the Military, 1945-1949 (Stanford UP 1968).
99
See Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland, vol. I (2nd
ed. Beck 1984) 666.
100
See Donald Kommers & Russel Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (3rd
ed. Duke UP 2012).
101
See Arts 90 to 95 Bundesverfassungsgerichtsgesetz vom 12. März 1951 (Ger.).
102
Giacomo Delledonne & Federico Fabbrini, ‘The Founding Myth of EU Human Rights Law: Revisiting the Origin of
the European Human Rights Jurisprudence’ XXX
103
Ibid.
104
Ibid.
105
See e.g. Dieter Grimm, ‘The Role of Fundamental Rights After Sixty-Five Years of Constitutional Jurisprudence in
Germany’ (2015) 13 International Journal of Constitutional Law 9 and Tania Groppi, ‘The Italian Constitutional Court:
Towards a “Multilevel System” of Constitutional Review’ (2008) 3 Journal of Comparative Law 101.
106
Delledonne & Fabbrini (n ).
16
constitutional court to review its compliance. At the same time, while post-Nazi West Germany and
post-Fascist Italy had moved toward the entrenchment of human rights in their new constitutions,
and the creation of ad hoc institutions tasked to police compliance with fundamental liberties both
by the executive and the legislature, the track-record of national constitutional courts highlights that
the protection of human rights at the state level was really no more advanced in substance than the
one existing at EU level. While much scholarship has been devoted to study the influence that the
German and Italian constitutional courts had on the rise of the EU human rights jurisprudence, the
fact remains that both national and EU courts essentially started to play an important role in the
field of human rights protection simultaneously, from the late 1960s.107
The EU has also maintained a lead in the protection of fundamental rights in comparison
with the new member states and the (reformed) institutions of the Council of Europe over the years.
In fact, few of the countries joining the EU in the seven rounds of enlargements (1973, 1981, 1986,
1995, 2004, 2007 and 2013) had institutional and substantive mechanisms of human rights
protection – not to mention a human rights tradition – which matched that of the EU. Certainly, the
United Kingdom (UK) had a centennial history of respect for civil rights:108
in its unique evolution,
the British system had internalized human rights considerations through acts of Parliament and
constitutional conventions,109
and the democratic tradition had succeeded in preventing slides
toward autocracy. In fact, in the 1940s the UK had been the only country standing alone against the
winds of totalitarianism blowing from the continent (and the bombs of the Luftwaffe). However, by
the time it became an EU member in 1973, the UK did not have a written Constitution and under
the doctrine of parliamentary sovereignty, the UK excluded that judges could review Westminster
legislation for compliance with human rights. While these constitutional features reflected a model
of political constitutionalism proper of the Commonwealth tradition,110
they remained at odds with
the reality of EU law: in fact, with the adoption of the Human Rights Act in 1998,111
also the UK
would eventually entrench human rights as part of the supreme law of the land,112
and embrace
judicial review as part of its system.113
Comparable features also characterized the Nordic countries (Denmark, Sweden and
Finland) – which in their self-conception had a proud tradition of human rights, but either lacked
human rights documents, or lacked human rights judicial review.114
Ireland, instead, had a written
Constitution since 1937, and recognized judicial review.115
But the Constitution only included a few
fundamental rights provisions, and although the Supreme Court has identified several unenumerated
rights it has done so mostly on the basis of the Catholic commitment expressed in the Constitution’s
preamble.116
A similar situation existed in Austria: the Constitution of 1920 – amended in 1929,
suspended after the Anschluss, and resumed in 1945 – had been the first ever to create a
constitutional court, on the Kelsenian model.117
However, the Constitution only included structural
107
See supra n __
108
See Charles McIlwain, Constitutionalism: Ancient and Modern (Cornell UP 1947).
109
See Albert V. Dicey, An Introduction to the Study of the Law of the Constitution (8th
ed. Liberty Classics 1915).
110
See Richard Bellamy, Political Constitutionalism (CUP 2007).
111
See infra n __
112
See D. Vick, ‘The Human Rights Act and the British Constitution’ (2002) 37 Texas International Law Journal 329.
113
See Richard Gordon and Tim Ward, Judicial Review and the Human Rights Act (Routledge 2001).
114
See Marlene Wind, ‘The Nordics, the EU and the Reluctance towards Supranational Judicial Review’ (2010) 48
Journal of Common Market Studies 1039.
115
See Seamus O’Tuama, ‘Judicial Review Under the Irish Constitution: More American Than Commonwealth’ (2008)
12 Electronic Journal of Comparative Law 1.
116
See Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 Yale Law Journal 1226, 1273.
117
See Hans Kelsen, ‘La garantie juridictionnelle de la Constitution (La justice constitutionnelle)’ [1928] Revue Droit
Public 197.
17
provisions.118
Moreover, frozen in the Cold War, the country had arguably not developed a strong
human rights culture, as evidenced by the previously mentioned 1999 crisis.119
As for the countries
of Southern, Central and Eastern, Europe, the admission to the EU corresponded with the transition
toward democracy and human rights.120
It is a fact that when the EU had already an established
system for the protection of fundamental rights, illiberal autocracies were ruling Spain, Portugal,
Greece, Poland, Hungary, Estonia, Lithuania, Latvia, Romania, Bulgaria, Czekia, Slovakia,
Slovenia and Croatia (the last 4 countries, of course, did not even exist, as they only emerged from
the break-up of Czechoslovakia and Yugoslavia in the 1990s). It is also worth recalling that this was
true for half of Germany – a reality quickly forgotten with the reunification.121
As is well known, the admission to the Union, or the prospect thereof, together with the
influence of the ECHR, had important effect on the protection of human rights in the domestic
constitutional system of many European countries. From the late 1970s in Greece, Portugal and
Spain,122
to the early 1990s with the post-Communist countries of Central and Eastern Europe123
–
an event of paramount importance has been the adoption of a binding catalogue of fundamental
rights enshrined in the supreme law of the land and safeguarded by the creation of specialized
constitutional courts.124
Moreover, the protection of fundamental rights has recently also gained a
new momentum in those countries of Western and Northern Europe in which no such constitutional
transformation took place after World War II. Hence, judicial review of legislation has been
introduced step by step in Belgium and Luxembourg,125
expanded (as mentioned) in France in
2008,126
and started being debated in the Netherlands.127
Moreover, in the UK, the Parliament
decided in 1998 to incorporate the ECHR into domestic law through the Human Rights Act,128
which empowered ordinary courts to adjudicate fundamental rights cases and to declare the
incompatibility (without affecting the validity, however) of an act of Parliament with the ECHR
when it infringes upon the rights and liberties codified therein.129
Finally in the Nordic countries,
Sweden and Finland, also introduced human-rights-based judicial review.130
118
See Manfred Stelzer, The Constitution of the Republic of Austria (Hart Publishing 2011).
119
See supra n __
120
Giuseppe de Vergottini, Le transizioni costituzionali (Il Mulino 1998).
121
With the unification of West Germany and East Germany in 1991, the latter was annexed into the constitutional
system of the former, and into the EU, without having to undertake human rights conditionality.
122
See Victor Ferreres Comella, ‘The Spanish Constitutional Court: Time for Reforms’ (2008) 3 Journal of
Comparative Law 22 (on Spain) and Antonio Cortes & Teresa Violante, ‘Concrete Control of Constitutionality in
Portugal: A Means Toward Effective Protection of Fundamental Rights’ (2011) 29 Penn State International Law
Review 759 (on Portugal).
123
See Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Post-communist States of Central
and Eastern Europe (Springer 2005) (on Poland, Hungary and Czechoslovakia) and Anneli Albi, EU Enlargment and
the Constitutions of Central and Eastern Europe (CUP 2005) (on the Baltic states).
124
See Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (OUP 2000).
125
See e.g. Paolo Carrozza, La Cour d’arbitrage belga come corte costituzionale (Cedam 1985) (on Belgium) and
Nicole Kuhn and Eric Rousseaux, ‘La Cour constitutionnelle luxembourgeoise: dernière pierre à l’édifice des cours
constitutionnelles en Europe occidentale’ (2001) 53 Revue internationale de droit comparé 453 (on Luxembourg).
126
See Loi constitutionnelle n° 2008-724, J.O.R.F., 24 juillet 2008, p. 11890 (Fr.).
127
See Gerhard van der Schyff, ‘Constitutional Review by the Judiciary in the Netherlands: A Bridge Too Far?’ (2010)
11 German Law Journal 275.
128
See 46 Eliz. 2, c. 42 (Eng.).
129
See Andrew Clapham, ‘The European Convention on Human Rights in the British Courts: Problems Associated with
the Incorporation of International Human Rights’ in Philip Alston et al (eds), Promoting Human Rights Through Bills of
Rights (OUP 1999) 233.
130
See e.g. Joakim Nergelius, ‘Judicial Review in Swedish Law. A Critical Analysis’ (2009) 78 Nordic Journal of
Human Rights 142 (on Sweden) and Tuomas Ojanen, ‘From Constitutional Periphery Toward the Centre:
Transformations of Judicial Review in Finland’ (2009) 78 Nordic Journal of Human Rights 194 (on Finland).
18
Overtime, the ECHR system of protection has made major improvements too. 131
In
particular, since the enactment of the 11th
additional Protocol to the ECHR in 1998, the ECommHR
filtering system has been abolished and the ECtHR has been transformed into a permanent
institution: the ressortissants of the signatory states may commence legal proceedings in front of
the ECtHR when they believe that an individual right proclaimed in the ECHR has been unlawfully
abridged by their state, and they have unsuccessfully exhausted all national remedies. In addition,
they can receive damages if the state is found guilty.132
The ECtHR therefore exercises an external
and subsidiary review on the national systems of fundamental rights protection by remedying
potential malfunctions at the state level. 133
The institutional reforms led to its progressive
constitutionalization of the ECtHR.134
But it also produced problems, and backlash. With thousands
of cases pending before the ECtHR, Protocol 14th
aimed at enhancing the capacity of the ECtHR to
cope with its soaring case law.135
And with increasing opposition to the performance of the ECtHR,
Protocol 15th
and 16th
sought to reduce the power of the ECtHR, enshrining the principle of
subsidiarity in the preamble of the ECHR, and allowing national courts to ask advisory opinions to
the ECtHR, the effect of which is to prevent cases from being admissible to the ECtHR after the
exhaustion of domestic remedies.136
In conclusion, if we regard the protection of fundamental rights in constitutional terms, as
the existence of substantive norms and of institutional mechanisms to enforce these norms, also
against action by the legislature, the EU appears to have had a longer tradition in human rights
protection than most other public authorities in Europe: from a comparative perspective, the EU has
been involved in the protection of rights longer than the vast majority of EU member states, and
arguably also of the Council of Europe. Certainly, several countries – including France and the UK
– had a political tradition of proclaiming human rights; and others – especially Germany and Italy –
had taken major steps toward constitutionalizing human rights after World War II. Moreover, the
ECHR had been established as an organization specifically tasked to promote and protect human
rights beyond the states – and overtime became a highly effective forum for human rights review.
However, the EU can certainly assert an important experience in the field of human rights, with a
history of fundamental rights recognition and enforcement which predates the norms and practices
of many European states, and the rise of the ECtHR as a permanent court for human rights in
Europe. This, in my view, represents another important facet of the foundational status played by
the human rights within the constitutional architecture of the EU.
131
See Robert Harmsen, ‘The Transformation of the ECHR Legal Order and the Post-Enlargement Challenges Facing
the European Court of Human Rights’ in Giuseppe Martinico and Oreste Pollicino (eds) The National Judicial
Treatment of ECHR and EU Laws. A Comparative Constitutional Perspective (Europa Law Publishing 2010) 27.
132
See ECHR Articles 34 (right to individual application) and 41 (right just satisfaction to the injured party).
133
See Helen Keller and Alec Stone Sweet (eds), A Europe of Rights (OUP 2008).
134
See Steven Greer & Luzius Wildhaber, ‘Revisiting the Debate about “Constitutionalising” the European Court of
Human Rights’ (2012) 12 Human Rights Law Review 655.
135
See Lucius Caflish, ‘The Reform of the European Court of Human Rights: Protocol No. 14 and Beyond’ (2006) 6
Human Rights Law Review 403.
136
See Jonas Christoffersen and Mikael Madsen (eds), The European Court of Human Rights between Law and Politics
(CUP 2011).
19
4. Critical perspective
As the previous sections have pointed out, the EU has been involved in the business of
human rights since the early phases of its existence; moreover, the EU has a longer experience in
the field of human rights protection than the majority of other public authorities in Europe. This
state of affairs is relevant for the last point I want to discuss in this chapter: it is important that the
EU continues to remain engaged in securing and promoting the protection of fundamental rights –
both at the national and transnational level. In recent years, in fact, respect for human rights in
Europe has been challenged by political and legal developments, which have increasingly
questioned past achievements in the protection of basic freedoms and the rule of law. This evolving
reality calls for action by the EU. As Antonio Cassese, Andrew Clapham and Joseph H.H. Weiler
argued a quarter of a century ago, “human rights protection is a question of constant vigilance.”137
And constant vigilance is certainly needed in Europe also today to ensure that its human rights
system continues to live up to its challenges.
Let’s be clear: the EU itself is not immune from pressure to compromise on the protection of
human rights for short term political goals – witness the recent deal brokered in March 2016 by the
European Council with Turkey to stem the flow of migrants escaping torn-war Syria and other
countries of the Middle-East:138
the agreement, which provides for the automatic return to Turkey
of migrants who arrive into the Greek islands, without allowing them to file an asylum application
claim, raises relevant issues of conformity with international and European law on the rights of the
refugee.139
But let’s be frank: today the main challenges to the protection of fundamental rights
come from the national level. In the face of growing centrifugal pressures at the state level, the EU
should become more vocal against possible human rights backsliding in Europe. The project of
European integration was driven by the desire to overcome the darkness of the past, restoring peace
and promoting human rights – so the preservation of these aims should remain a driving force of
EU action.140
Moreover, the EU has been able to experiment with the protection of human rights for
over 75 years – so it has acquired a substantial know-how in the field.141
All this legitimizes the EU to intervene whenever human rights values are under threat. In
fact, EU intervention in protecting human rights within the member states is consistent with the
principle of subsidiarity.142
As I have argued elsewhere,143
subsidiarity represents a constitutional
method to allocate authority in a multi-layered architecture in which several jurisdictions, each
endowed with legislative powers, overlap and interact. As a functional criterion for the relations of
powers in the European constitutional system, the principle of subsidiarity is a dynamic concept that
can, at times, curb the exercise of legislative powers by the EU, to the benefits of the autonomy of
the member states; and, at other times, endow the EU with the authority to regulate a field which
goes beyond the capabilities of the member states separately. In the field of fundamental rights,
therefore, the principle of subsidiarity calls for action by supranational authority whenever respect
137
Antonio Cassese et al ‘1992 – What are our rights? Agenda for a Human Rights Action Plan’ in Antonio Cassese et
al (eds), European union - The Human Rights Challenge: Volume II. Human Rights and the European Community:
Methods of Protection (Nomos Verlag 1991) 1, 75.
138
See EU-Turkey Statement, 18 March 2016, Doc. 144/16.
139
See United Nations High Commissioner for the Refugee, press release, ‘UNHCR Calls for Safeguards to be in Place
Before Returns Begin’, 1 April 2016.
140
See Klaus Günther, ‘The Legacies of Injustice and Fear: A European Approach to Human Rights and their Effects
on Political Culture’ in Philip Alston et al (eds), The EU and Human Rights (OUP 1999) 117.
141
See Robert Schütze, ‘Three “Bills of Rights” for the European Union’ (2011) Yearbook of European Law 1.
142
See Art 5 TEU.
143
Federico Fabbrini, ‘The Principle of Subsidiarity’ in Robert Schütze & Takis Tridimas (eds), The Oxford Principles
of European Union Law (OUP 2016).
20
for common human rights principles is challenged in a given member state by the resurgence of
intolerance and authoritarianism.144
Yet, from a critical perspective, this section points out that the ability of the EU to stand up
for the protection of fundamental rights is weakened by institutional problems: contrary to the EU
courts, which are well designed to take fundamental rights seriously, the EU political branches of
government are subject to political incentives and institutional constraints which reduce their
willingness and ability to become meaningful actors in the protection of human rights vis-à-vis
states which wilfully disregard the constitutional values on which the EU is founded. This state of
affairs has to be addressed through broader institutional reforms designed to enhance the
functioning of the EU system of governance. In fact, it is ironic that currently the European
Commission enjoys intrusive powers to intervene in the budgetary processes of the member states
to correct possible violations of EU fiscal rules, while instead it is largely powerless vis-à-vis
member states which flout EU common human rights values. This inconsistency – which is the
result of asymmetric rules and perverse political incentives – can, and should, be addressed within
the framework of the ongoing projects of institutional reform of the EU (and the Eurozone) – by
strengthening the EU executive power’s legitimacy and capacity of action.
As Kim Lane Scheppele has argued, the European human rights architecture has been
dramatically shaken by the recent developments occurring in Hungary.145
Following a sweeping
electoral victory in 2010, the right wing government of Prime Minister Orban quickly took steps to
entrench its powers and overhaul the constitutional system. Without much debate, the new
government adopted in few months a new constitution, which significantly altered the protection of
fundamental freedoms recognized in the previous constitution.146
Moreover, the constitution created
new special legislation, to be approved by a super-majority in Parliament, tasked to set, among
others, the design of the electoral system – essentially granting to the governing party the possibility
to tailor electoral districts to its specific needs. Finally, the Orban government purged the judiciary
and the independent authorities, modifying the composition of the constitutional court so as to pack
it with loyalists, and shutting down the previous data protection authority, to replace it with a
government-controlled body, also charged of freedom of information.147
The Hungarian experience, however, has not remained exceptional. On the contrary, it
served as a template for recent developments in Poland. Following the victory of the conservative
Prawo i Sprawiedliwość (PiS) in both presidential and parliamentary elections in 2015, the new
ruling party opened a stand-off with the Polish constitutional tribunal – one of the key institutions
created by the Polish Constitution of 1997 to protect human rights.148
Whereas the departing
government had appointed five new judges to the 15-members tribunal (to fill three vacant seats,
and anticipate the vacancy of two more members), in November 2015 the new President of the
Republic refused to swore in all these judges, and appointed instead other five persons. Moreover,
when the constitutional tribunal ruled that the action of the President was unlawful, and that three of
the judges appointed by the previous government had to be sworn in, the government retaliated by
passing ordinary legislation changing the functioning of the constitutional tribunal, which
144
See Armin von Bogdandy et al, ‘Reverse Solange – Protecting the Essence of Fundamental Rights Against EU
Member States’ (2012) 49 Common Market Law Review 489.
145
Kim Lane Scheppele, ‘Understanding Hungary’s Constitutional Revolution’, in Armin von Bogdandy & Pál
Sonnevend (eds), Constitutional Crisis in the European Constitutional Area (Hart Publishing 2015) 111.
146
See Kriszta Kovacs and Gabor Attila Toth, ‘Hungary’s Constitutional Transformations’ (2011) 7 European
Constitutional Law Review 183.
147
See Joakim Nergelius, ‘The Hungarian Constitution of 2012 and its Protection of Fundamental Rights’ Swedish
Institute for European Policy Studies, European Policy Analysis No. 3/2012.
148
See Lech Garlicki, ‘La justice constitutionnelle en Pologne’ in Marc Verdussen (ed), La justice constitutionnelle en
Europe Centrale (Bruylant 1997) 89.
21
prohibited the tribunal from striking down legislation unless 2/3 of the judges voted for
unconstitutionality. 149
And when the constitutional tribunal ruled that this statute was
unconstitutional, the government refused to publish the tribunal’s judgment in the official state
gazette (as the Constitution would require it to do).150
Besides Poland, in addition, also Romania has been facing a constitutional crisis – with the
Prime Minister and the President of the Republic struggling to assert their power, even in disregard
of the decisions of the national constitutional court.151
But recent actions challenging principles of
protection of fundamental rights and respect for the rule of law are certainly not limited to Central
and Easter Europe.152
In Western Europe, France has stand out for its decision to introduce a
national state of emergency in November 2015, suspending constitutional rights and granting the
police unfettered powers to surveil, undertake searches and seizures and even detain persons
without a judicial warrant:153
while the state of emergency was taken after tragic terrorist attacks, it
was renewed twice – making the responses adopted by the Bush administration in the United States
(USA) after 9/11 look almost like a model of constitutional best practices.154
And in Northern
Europe, Denmark has distinguished itself for the adoption of legislation allowing the police to strip
search asylum seekers to appropriate any value in currency and gold over 10,000 Danish kronas155
–
re-evoking the sad days when the Jews were subject to the same treatment…
These recent developments have prompted reactions by the European institutions (as well as
by the USA, which has been forced to remain a strong voice for human rights and democracy, 75
years after the end of World War II, and 25 years after the end of the Cold War).156
Within the
Council of Europe, the Venice Commission on Democracy through Law – an advisory body
charged to assist and evaluate member states’ legislative activity 157
– has produced reports
criticizing the constitutional involution in Hungary,158
and Poland;159
the Commissioner for Human
Rights has raised concerns on the policy measures under considerations in Denmark;160
and the
Secretary General of the Council of Europe has expressed preoccupation for the use of the state of
emergency in France.161
Within the EU, then, the European Parliament has adopted stronglyworded
resolutions – although of a non-legally binding nature: in 2013 the European Parliament
condemned Hungary for the introduction of constitutional reforms which contrast with the funding
principles of the EU and demanded the Hungarian authorities to implement as swiftly as possible a
149
See Ustawa z dnia 22 grudnia 2015 r. o zmianie ustawy o Trybunale Konstytucyjnym (Dz. U. poz. 2217) (Pl.).
150
See Joanna Berendt, ‘Polish Court Strikes Down Law Limiting its Powers, Inflaming a Crisis’, The New York
Times, 9 March 2016.
151
See Vlad Perju, ‘The Romanian Double Executive and the 2012 Constitutional Crisis’ (2015) 13 International
Journal of Constitutional Law 246.
152
See Carlos Closa & Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP
2015)
153
Loi n° 2015-1501 du 20 novembre 2015, JORF n°0270 du 21 novembre 2015 p. 21665 (Fr.).
154
See Scott Matheson, Presidential Constitutionalism in Perilous Times (Harvard UP 2008) (discussing measures
adopted after 9/11, but stressing that these never implied a suspension of the Constitution, or a state of emergency).
155
Lov nr 102 (Lov om ændring af udlændingeloven) af 03/02/2016 (Dk.).
156
See Daniel R. Kelemen & Mitchell Orenstein, ‘Europe’s Autocracy Problem: Polish Democracy’s Final Days?’
Foreign Affairs, 7 January 2016.
157
See Maartje De Visser, ‘A Critical Assessment of the Role of the Venice Commission in Processes of Domestic
Constitutional Reform’ (2015) 63 American Journal of Comparative Law 1.
158
Venice Commission Opinion of 20 June 2011 on the new Constitution of Hungary, no. 621/2011.
159
Venice Commission Opinion of 12 March 2016 on amendments to the Act of 25 June 2015 on the Constitutional
Tribunal of Poland, no. 833/2015.
160
Letter of Nils Muižnieks, Commissioner for Human Rights to Inger Støjberg, Danish Minister of Immigration,
Integration and Housing, 12 January 2016.
161
Lettre du Thorbjørn Jagland, Secrétaire Général du Conseil de l’Europe à François Holland, Président de la
République Française, 22 January 2016.
22
number of recommendations on a broad swath of measures.162
And in 2016 it condemned the Polish
authorities for flouting the rulings of the constitutional tribunal, and called on it to give proper
publication to its ruling under heightened European supervision.163
Also the European Commission has taken initiatives to stop the backsliding occurring in
several member states. Yet, notwithstanding calls by the European Parliament,164
the Commission
has consistently ruled out the possibility to activate Article 7 TEU, which, as mentioned, would
allow suspending voting rights for member states in breach of EU values.165
On the contrary, the
Commission has pursued other avenues. On the one hand, the Commission has started fast-track
infringement proceedings against Hungary, 166
for instance challenging in 2012 the legislation
adopted by the Orban government reducing the retirement age of judges, or modifying the
functioning of the national data protection authority.167
On the other, it has also designed a new
framework to supervise compliance with the rule of law,168
and has put that in practice for the first
time vis-à-vis Poland in January 2016. 169
However, while the action resulting in judicial
proceedings has been fairly successful, the political steps taken to initiate a structured dialogue with
the relevant member state have been largely ceremonial. In fact, the ECJ – building on its solid
track-record of protecting fundamental rights170
– has taken seriously the task of striking down
those pieces of national legislation which conflicted with the human rights values underpinning the
EU, including prohibition of discrimination based on age,171
and the protection of privacy.172
On the
contrary, the political negotiations undertaken by the Commission with Hungary and Poland have
so far lacked in credibility – and failed to deliver relevant change.173
As Dimitry Kochenov and Laurent Pech have explained, the new Commission rule of law
framework reflects a “light-touch” approach, which falls short of what is required to effectively
address internal threats to EU values.174
The toolbox created by the Commission to monitor and
enforce the rule of law and the protection of fundamental rights within the member states in its
“pre-Article 7 TEU procedure” consists of an assessment of the situation, coupled with the adoption
of recommendation and a follow-up. However, “[t]he proposal is based on the presumption that a
discursive approach, that is, a dialogue between the Commission and the member state possibly in
breach of [EU values] is bound to produce positive results.”175
But the Commission has effectively
162
European Parliament resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in
Hungary, P7_TA(2013)0315.
163
European Parliament resolution of 13 April 2016 on the situation in Poland, P8_TA(2016)00123.
164
See e.g. European Parliament resolution of 16 February 2012 on the recent political developments in Hungary,
P7_TA(2012)0053, para 7.
165
See supra n __
166
See Art 258 TFEU.
167
See European Commission press release, ‘European Commission launches accelerated infringement proceedings
against Hunagry’, 17 January 2012, IP/12/24.
168
European Commission Communication, ‘A New Framework to Strengthen the Rule of Law’, 11 March 2014,
COM(2014)158 final.
169
European Commission fact sheet, ‘College Orientation Debate on Recent Developments in Poland and the Rule of
Law Framework’, 13 January 2016, MEMO/16/62.
170
See supra Section 2.
171
See Case C-286/12 Commission v. Hungary, ECLI:C:2012:687 (holding that the radical lowering of retirement age
for Hungarian judges constitutes unjustified discrimination based on age).
172
See Case C-288/12 Commission v. Hungary, ECLI:C:2014:237 (holding that the premature termination of the term
of the national data protection authority infringed EU data protection and privacy law).
173
See Carlos Closa, ‘Reinforcing Rule of Law Oversight in the European Union’, EUI Working Paper RSCAS No.
25/2014.
174
Dimitry Kochenov & Laurent Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and
Reality’ (2015) 11 European Constitutional Law Review 512, 514.
175
Ibid 532.
23
no power to coerce a recalcitrant state: moreover, because the dialogue between the Commission
and the state concerned occurs confidentially, also the potential of a “name and shame” strategy is
hampered. Certainly, as Kochenov and Pech have explained, the Commission framework is better
that the annual rule of law dialogue activated in November 2014 by the Council176
– which is a
toothless peer-review process, largely aimed at weakening even further the initiative of the
Commission.177
However, the soft-law nature of the Commission’s initiative remains a problem
when dealing with countries which are willingly embracing illiberal democracy.178
The weakness of the Commission in policing member states’ compliance with human rights,
moreover, strikes when compared with the power that the Commission has to interfere in the
budgetary processes of the member states. As I have explained in a recent book,179
in the aftermath
of the Euro-crisis, new EU legislation,180
and intergovernmental agreements concluded by the
quasi-unanimity of the EU member states181
have entrusted to the Commission extensive authority
to surveil states’ fiscal policy. In particular, each member state of the Eurozone must submit its
annual budget bill to the European Commission before this is tabled for discussion in the national
Parliament, and the Commission can request sweeping changes if it finds that the draft bill fails to
comply with the deficit and debt rule of the so-called Stability and Growth Pact (SGP).182
Moreover, EU countries facing fiscal difficulties and receiving bail-outs, have been subject to even
greater scrutiny, with the European Commission (together with the International Monetary Fund,
and the European Central Bank) essentially taking over the management of national economic
policy under the conditions set in the program of financial adjustment.183
The decision to grant strong enforcement powers to the Commission in the field of EMU in
the aftermath of the Euro-crisis – while not unproblematic under many respects184
– stem from the
awareness that compliance with common budgetary rules could hardly be secured through peer
review in the Council: in fact, the SGP had become a paper tiger since in 2003 the Council
discretionally refused to follow up the request of the Commission to start an excessive deficit
procedure against Germany and France for violating EU deficit rules185
– a position upheld by the
176
Italian Presidency Note to the Council of the EU, ‘Ensuring respect for the rule of law in the EU’, Doc. 15206/14,
Brussels, 14 November 2014.
177
Kochenov & Pech (n ) 534.
178
See Kim Lane Scheppele, ‘Constitutional Coups and Judicial Review: How Transnational Institutions can
Strengthen Peak Courts at Times of Crisis (With Special Reference to Hungary)’ (2014) 23 Transnational Law &
Contemporary Problems 51.
179
Federico Fabbrini, Economic Governance in Europe (OUP 2016).
180
See especially the so-called “two-pack”: Regulation 473/2013 of 21 May 2013 of the European Parliament and the
Council on monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficits in euro-area
Member States OJ 2013 L 140/11; Regulation 472/2013 of 21 May 2013 of the European Parliament and the Council on
enhanced surveillance of euro-area Member States experiencing or threatened with serious difficulties with respect to
their financial stability OJ 2013 L 140/1.
181
See Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, 2 March 2012,
[hereinafter Fiscal Compact], available at http://www.eurozone.europa.eu/media/304649/st00tscg26_en12.pdf (last
visited 1 June 2014).
182
See Paul Craig, ‘Economic Governance and the Euro Crisis: Constitutional Architecture and Constitutional
Implications’ in Federico Fabbrini et al (eds), The Constitutionalization of European Budgetary Constraints (Hart
Publishing 2014).
183
See Lina Papadopoulou, ‘Can Constitutional Rules, even if ‘Golden’, Tame Greek Public Debt?’ in Federico
Fabbrini et al (eds), The Constitutionalization of European Budgetary Constraints (Hart Publishing 2014) 223.
184
See Alicia Hinarejos, ‘Fiscal Federalism in the European Union: Evolution and Future Choices for EMU’ (2013) 50
Common Market Law Review 1621.
185
See Stefan Collignon, ‘The End of the Stability and Growth Pact?’ (2004) 1 International Economics and Economic
Policy 15.
24
ECJ.186
Within the Council, in fact, political dynamics work to chill any serious efforts at enforcing
binding rules.187
Since the Council represents state government, the pressure for national ministers
to reciprocally shield themselves is strong: when a member state is disobeying the rules, other
countries have therefore limited incentives to sanction that behaviour, since they know that in the
future they may find themselves in the same position.188
In fact, just as much as the Council has
traditionally been unwilling to enforce the SGP in the field of economic governance, the European
Council and the Council have also been unwilling to resort to Article 7 TEU (or, for that matter, to
any other action) in the field of human rights protection.189
The logic of empowering the European
Commission was driven therefore by a desire to avoid politicization.
However, as Daniel Kelemen has argued, the problem is that the European Commission has
increasingly been dragged into a dynamic of politicization too.190
In particular, following the
decision by the main political parties to present at the May 2014 European Parliament elections
Spitzenkandidaten for the post of European Commission President,191
the EU has moved towards a
parliamentary form of government.192
By accepting to appoint as Commission President the leader
of the party winning the highest percentage of popular votes, the European Council has legitimated
(albeit perhaps pro tempore)193
a relation of confidence between the European Parliament and the
head of the European Commission.194
While many aspects of the system of governance of the EU
are not those of a parliamentary regime, the Juncker Commission has clearly sought to construe its
role as that of the cabinet of a parliamentary government. Yet, this has taken a toll in terms of
respect for the rule of law: because a parliamentary government depends on the support of members
of parliament (MEPs) to function, the Commission has become wary of prosecuting alleged state
violations of EU rules in the name of party politics.195
Leaving aside the discretion exercised by the
Commission in the application of EU budgetary rules in light of the political affiliation of the
member states concerned, in the area of human rights the Commission has down-played its criticism
of the Orban’s government, because MEPs of the Fidesz party made up a substantial delegation
within the European Peoples’ Party backing the Barroso and Juncker Commissions.196
Thus, as Kelemen put it, “ironically, the drive to enhance EU democracy by politicizing the
selection of the Commission Presidency may actually create incentives for EU leaders to tolerate
threats to democracy at the national level.”197
Considering the other problems associated with a
parliamentary form of government for the EU, therefore, consideration should be given to other
institutional solutions for the future of Europe.198
In particular, elsewhere I have made the case in
186
See Case C-27/04, Commission v. Council [2004] ECR I-6649 (recognizing Council’s discretion whether to impose
sanctions under the SGP or held in abeyance the excessive deficit procedure recommended by the Commission).
187
See Christian Calliess, ‘The Governance Framework of the Eurozone and the Need for a Treaty Reform’ in Federico
Fabbrini et al (eds), What Form of Government for the European Union and the Eurozone? (Hart Publishing 2015) 37.
188
See Dorothee Heisennberg, ‘The Institution of ‘Consensus’ in the European Union: Formal versus Informal
Decision-Making in the Council’ (2005) 44 European Journal of Political Research 65.
189
See supra n __
190
Daniel Kelemen, ‘Towards a New Constitutional Architecture in the EU?’ in Federico Fabbrini et al (eds), What
Form of Government for the European Union and the Eurozone? (Hart Publishing 2015) 197.
191
See European Parliament Resolution of 22 November 2012 on the Elections to the European Parliament in 2014,
P7_TA(2012)0462, para 1.
192
See Simon Hix, What’s Wrong with the European Union and How to Fix it? (Polity Press 2008) 162.
193
See European Council Conclusions, 27 June 2014, EUCO 79/14, para 27 (stating, to address the concerns of the UK,
that “the European Council will consider the process for the appointment of the President of the European Commission
for the future, respecting the European Treaties.”).
194
European Parliament press release, ‘Parliament Elects Jean-Claude Juncker as Commission President’, 15 July 2014.
195
Kelemen (n ) 210.
196
Ibid 212.
197
Ibid.
198
See Sergio Fabbrini, Which European Union? Europe after the Euro Crisis (CUP 2015).
25
favor of endowing the EU with a new executive institution, a European President, institutionally
separate from the legislative branch, albeit controlled by the latter, entrusted with effective powers,
and to be popularly elected through an electoral mechanism which reconciles majoritarianism with
federalism’s concerns.199
This institutional proposal revives ideas already advanced in 2003during
the Constitutional Convention,200
and builds on the recent incremental build-up of the President of
the European Council.201
In fact, while the need to “reinforc[e] the capacity of the European level to
take executive [...] policy decisions”202
has been regarded as essential at the highest EU decisionmaking
level, proposal to the strengthen executive power in the EU along a presidential logic has
gained approval from several member states, including France,203
and Italy.204
While all the debate on strengthening the executive authority of the EU has been focused on
the advantages that this would produce in the field of economic governance, it is clear that a
reformed European presidency would have positive effects also for the protection of human right. In
fact, an executive authority, which neither depends from horse-trading in the European Parliament
nor suffers from peer-pressure in the European Council, could police more effectively states’
compliance with EU fundamental rights. As any student of US history knows, after all, it was the
US President that eventually enforced desegregation in the Southern states – at one point by sending
the 101° Airborne Division to Little Rock to escort black students into their schools.205
Of course, it
is unlikely that an EU President would yield equivalent powers.206
But as an institution elected by
the people across Europe it would have greater legitimacy to speak against a member state which
flouts EU values.207
And, if entrusted with adequate means, also of an economic and financial
nature, it could have a greater leverage vis-à-vis heads of state or government who run amok.208
For the purpose of this chapter, I cannot discuss how the proposal briefly articulated above
could come into effect. Elsewhere, nonetheless, I have discussed the legal and political windows of
opportunity to reform the EU institutional system,209
including the need to reincorporate the Fiscal
Compact within the EU by 2018,210
and to accommodate the British requests for a new settlement in
199
Fabbrini (n ) 233.
200
See Georgios Papandreou, contribution to the debate of the European Convention, amendment No. 43, in
Convention Secretariat, Summary sheet of proposals for amendments, 9 May 2003, CONV 709/03 (making the case for
the direct, popular election of the President of the European Council).
201
See President of the European Council, Herman Van Rompuy, Speech, Brussels, 1 December 2014, EUCO 257/14
(defining the President of the European Council as the President of the Union as a whole).
202
Four President Report “Towards a Genuine EMU”, 25 June 2012, 17.
203
See French President François Hollande, “Intervention liminaire de lors de la conférence de presse”, Paris, 16 May
2013, 6 (speaking of “un gouvernement économique qui se réunirait, tous les mois, autour d’un véritable Président
nommé pour une durée longue et qui serait affecté à cette seule tâche.”).
204
See Italian Prime Minister Matteo Renzi, Speech at the European Parliament, Strasbourg, 2 July 2014. See also
Italian Secretary for EU Affairs, Sandro Gozi, Op-Ed, “Europa, quegli scossini che facilitano il rilancio di una nuova
governance”, Il Sole 24 Ore, 28 May 2015 (stating that Europe needs “un Presidente della zona euro a tempo pieno”).
205
See David Armor, Forced Justice: School Desegregation and the Law (OUP 1996).
206
It also goes without saying that the stronger the presidency, the greater the threat that it may itself pose a threat to the
protection of rights. See Eric Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic
(OUP 2010). This is why the presidency must be designed within a system of checks and balances.
207
See also Joseph H.H. Weiler, Editorial, “Fateful Elections? Investing in the Future of Europe” (2014) 25 European
Journal of International Law 361, 365 (stating that the selection of the Commission President in light of the result of
the election of the European Parliament “compromises the ability in a political sense for this or that candidate to say
with authority ‘I was elected by the peoples of Europe’.”).
208
See Uwe Puetter, The European Council and the Council: New Intergovernmentalism and Institutional Change
(OUP 2014).
209
See Fabbrini (n ) 277.
210
See Art 16 Fiscal Compact.
26
the EU.211
Policy awareness of the need to improve the system of governance of the EU is
widespread and growing, at least within the Eurozone.212
And even though, as mentioned, this
ongoing debate does not consider at all the rule of law crisis of the EU, steps to handle the Eurocrisis
would produce unexpected benefits also in terms of human rights protection.
In conclusion, however, the following point has to be made: if the EU is to remain a vocal
actor in the protection of fundamental rights today – as this Section has argued – it must reform its
institutional system, so as to be able to tackle threats emerging from the member states effectively.
From a critical perspective, the EU is currently lacking adequate mechanisms to vigilate against
illiberal backsliding within the EU member states – arguably the greatest threat to the peace and
human rights achievements of 75 years of European integration. While EU courts constitute a vital
force for the protection of fundamental rights in Europe, also the political branches of government
must raise up to the challenge. Since that current regime produces the wrong political incentives on
the Council, but also on the Commission, it is worthwhile to start thinking about alternative models
of institutional design, which may endow the EU with the power and legitimacy to tackle
effectively human rights challenges within the states. In this regard, the proposal to create a
European President, advanced in the context of the debates about the future of EMU, may represent
a step forward also as far as the protection and promotion of human rights is concerned.
5. Conclusion
This chapter began citing Auschwitz, it continued mentioning Srebrenica and concluded
indicating the challenges ahead in the protection of fundamental rights in Europe. In a continent like
Europe, with such a dramatic history, it is imperative that strong substantive norms and institutional
mechanisms to protect human rights remain in place. In fact – as this chapter has claimed – human
rights are a foundational element of the project of European integration, and the mission of
promoting and protecting fundamental rights ought to remain a clear component of the action of the
EU, including through new and improved institutional solutions.
This chapter sought to examine the normative value of human rights within the legal order
of the EU. The examination has been carried out through three perspectives.
As Section 2 has explained from an historical perspective, the EU has been built on ruins of
the Holocaust, and the protection of human rights has prominently featured in the political ideas and
constitutional proposals of the early European Communities. Moreover, human rights have
remained a key concerns at each and every stage of the process of European integration: from the
1960s to the 1990s, the ECJ complemented the common market with an unwritten catalogue of
fundamental rights, with constitutional status. During the 1990s, the transformation of the EU, with
steps toward EMU and CFSP among others, prompted the codification of new rights, and new
mechanisms to protect them. And at the dawn of the 21st
century, the EU has been endowed with a
full-fledge Charter of Fundamental Rights – arguably the most articulated and advanced human
rights document to date. This striking continuity in the importance that human rights have played
throughout EU history reveal the deep normative importance that they play for the EU.
As Section 3 has pointed out from a comparative perspective, the EU has also been involved
in the business of protecting fundamental rights for longer than most other public authorities in
Europe. If contemporary conceptions of constitutionalism require human rights to be protected
through supra-legislative norms and judicial review of legislation, the EU can be credited for having
211
See European Council Conclusions, 18-19 February 2016, EUCO 1/16.
212
See Five President Report, “Completing Europe’s Economic and Monetary Union”, 23 June 2015.
27
features such guarantees since its early existence. Yet, while a handful of European countries had
some kind of tradition of human rights protection, or human rights rhetoric, the vast majority of the
current 28 member states of the EU lacked effective mechanisms of human rights review – or were
still tout court authoritarian regimes – by the time the EU had already an advanced human rights
architecture. Moreover, while the Council of Europe had been created to entrench rights, the
blossoming of the ECHR would only occur after important institutional reformed overhauled the
institution later in history. While of course the EU has not been the only European player in the
field of human rights it can certainly assert a long and continuous experience – a further evidence of
how much engrained human rights are within the constitutional architecture of the EU.
As Section 4 claimed from a critical perspective, however, the EU human rights system is
currently facing important challenges – and its political branches of government may not be
institutionally fit to live up to these challenges. Because the achievements of 75 years of peace and
freedom cannot be given for granted, special vigilance is needed – also (in fact: particularly) vis-àvis
the member state. However, while the EU courts have proved to be willing and able to take
fundamental rights serious, the European Commission and the Council have failed to tackle
adequately the growing threats to the EU human rights acquis stemming from several member
states. In order to address this state of affairs, new institutional solutions have to be considered and
promoted for the EU – and the debate about reforming the EMU can offer a major opportunity to
eventually endow the EU with a strong executive power, directly legitimated by the European
citizen, and capable to police compliance with EU human rights principles across the Union.
Cynical observer will argue that such proposals are too ambitious and that it is hard to move
forward on integration. Yet, we should all be aware that it is all too easy to move backward, and
reawaken the dark clouds of Europe’s past. This should serve as an additional encouragement to put
even more effort to relaunch the EU human rights project even further.
28
Author(s): Federico Fabbrini
Title: Human Rights in the EU: Historical, Comparative and Critical Perspectives
iCourts Working Paper, No. 63, 2016
Publication date: 10/May/2016
URL: http://jura.ku.dk/icourts/working-papers/
© Author
iCourts Working Paper Series
ISSN: 2246-4891
Federico Fabbrini, Associate Professor of European & International Law, Centre of
Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen.
E-mail: federico.fabbrini@jur.ku.dk
The iCourts Online Working Paper Series publishes pre-print manuscripts on
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and society and takes an explicit interdisciplinary perspective.
Papers are available at http://jura.ku.dk/icourts/
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