Picture by Djtm from wikipedia.de
Professor Eeckhout is Director of the Centre of European Law, at King’s College London. He is co-editor of the Yearbook of European Law, and also teaches at the College of Europe, Bruges. He is an associate academic member of Matrix Chambers, London.
20 years ago, the title of this post would have raised many eyebrows. There was of course, even then, some case law on human, or fundamental rights, as they are officially termed. But the EU was certainly not seen as a human rights organization. At most the Maastricht Treaty indicated a somewhat more important role for human rights. Today, it must be said, there is still a debate on whether it is proper to call the EU a human rights organization, but I am myself firmly on the side of those arguing that it is. Of course, in contrast with for example the European Convention system, the EU is clearly more than just a human rights organization - but it is clearly also that. The EU now has its own Charter of Fundamental Rights, which is becoming ever more significant in the case law. That is not all, however, we also have a Commissioner for fundamental rights, there is a Fundamental Rights Agency, and the EU is, notwithstanding Treaty language suggesting that it has no competence to legislate as regards human rights, doing exactly that. It has enacted impressive legislation in the field of anti-discrimination law; its legislative efforts to build a common asylum system are impregnated with mechanisms for human-rights protection; and there are a number of initiatives in the field of criminal law which are human-rights oriented. For the last five years or so the EU Courts have been at the forefront of the struggle to ensure that human rights are protected in the sensitive area of counter-terrorism policies.
Let us start by looking a little bit at the broader constitutional landscape, because there is a lot to see there. The Charter of Fundamental Rights has become binding, and has acquired Treaty status on 1 Dec 2009. In the last one-and-a half year or so, the EU Courts have been starting to apply it properly. I have not counted the cases, but there are very many, and it is therefore already clear that the Charter plays and will play a significant role in EU case-law. In addition, the Treaty provides that the EU shall accede to the ECHR. The process of negotiation is under way, but I understand it is not running entirely smoothly, and actual accession is probably still some way off. Even so, the relationship between the Charter and the Convention is already a live question, as the Charter incorporates Convention rights, but also others. Will the Charter end up being an instrument emphasizing more of an EU version of fundamental-rights protection, perhaps in some areas in tension, or even conflict, with the Convention? On top of this duality, the Lisbon Treaty drafters have, in their wisdom, also maintained "general principles of EU law" as a separate category. The EU constitutional system of human rights protection therefore resembles a 3D movie, the three dimensions being the three sources of fundamental rights: the Charter, the Convention and General principles of EU law. I am afraid though that, unless you have the right spectacles, the movie does not make too much sense. And as this is a kind of badly organized movie theatre, no one can tell you which are the right spectacles.