LL.M., M.A., Adjunct Lecturer, University of Tartu
Discourse upon the Constituent Human Rights Developments in the European Union
The aim of this article is to answer questions of the theoretical and practical meaning of the legal developments in the European Union concerning protection of human rights - what are the reasons and possible consequences of such developments for the European Union and its member states?
To begin with, on 22 June 2007, the leaders of the European Union reached an agreement in Brussels on an outline of new rules with the aim to replace the failed Treaty establishing the Constitution for Europe, which was rejected by certain voters in the year of 2005. The Intergovernmental Conference has now been delegated the task of drafting a reformulated treaty by the end of the year 2007. The Reform Treaty is intended to be ratified by the Member States of the European Union, but, as the majority of the above-mentioned developments have not taken place yet and the reformulated Treaty is supposed to preserve many of the key features of the Constitutional Treaty, this article begins with reflection on some earlier relevant legal developments in the European Union: On 9 May 2006, the Republic of Estonia ratified the Treaty establishing the Constitution for Europe. By that act, Estonia demonstrated her approval of the developments in the Constitutional Treaty, including the recognition by the Union of the rights, freedoms, and principles set out in the Charter of Fundamental Rights, and the accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms. On 14 December 2005, Estonia ratified Protocol 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms Amending the Control System of the Convention, from 13 May 20041. By that ratification, the Republic of Estonia demonstrated her willingness to support the developments concerning human rights in Europe. Estonia has made clear that the accession of the European Union to the Convention on Human Rights would improve the image of the European Union, because such development prevents the creation of a Union's exclusive human rights protection system2.
In order to answer the main questions posed at the beginning of this article, the paper has been structured as follows: The first section outlines the historical development of human rights and their protection under European Union law. The second section asks whether human rights are protected effectively in the European Union and tries to establish general criteria for effectiveness of protection of human rights in the European Union. Next, the third section discusses the possible accession of the European Union to the European Convention on Human Rights and the status of the Charter of Fundamental Rights of the European Union.
The progress seen thus far is that the European Court of Justice (also referred to as the Court of Justice) has elaborated a unwritten quasi-charter of fundamental rights for the European Union 3 , because at the time of composition and conclusion of the establishing treaties of the European Communities, the parties to those treaties were most interested in economic integration, and they probably hoped that the treaties would apply in areas or by methods not likely to violate human rights4.
In addition, formally European Union law does not yet contain a legally binding human rights codification, although the EC Treaty refers to the principle of democracy and other values and today has embraced the four fundamental freedoms, some citizens' rights, and certain economic and social rights; the preamble of the Single European Act affirms the respect of the Member States toward the promotion of "democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter"5. Article 6 of the Treaty on EU states that "The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms [...] and as they result from the constitutional traditions common to the Member States, as general principles of Community law"6. The respect for fundamental rights was further strengthened in the Treaty of Amsterdam, by extending the jurisdiction of the Court of Justice to actions of the Community institutions7. The Treaty of Amsterdam introduced a suspension clause to the Treaty on EU, determining which action should be taken in cases where a MemberState seriously and persistently breaches the principles on which the Union is founded8. For a considerable time, those have remained the only written references to rights in primary European Union law.
The absence of a legally binding codification of human rights from European Union law could not have meant that the MemberStates or institutions of the European Union might violate the human rights of the citizens of the European Union by taking or failing to take action. As stated above, for a long time the task of constitutionalisation for the European Community of human rights belonged to the Court of Justice. The Court of Justice perhaps started to assume this role in the year 1969, in the case of Erich Stauder v. City of Ulm, pronouncing that it would protect "the fundamental rights enshrined in the general principles of Community laws"9. The pronouncement of the Court of Justice was developed further in dialogue with the constitutional courts of the Member States, and here is essential the famous case of Handelsgesellschaft10. The Court of Justice developed its pronouncements about human rights inter alia in the cases of Nold 11 , Prais 12 , National Panasonic 13 , Pecastaing 14 , Hauer 15 , and Familienpress16. These cases recognise the fundamental rights as part of the principles of Community law but do not solve the problem of identification of such rights. In these cases, the Court of Justice referred to the human rights in the Convention on Human Rights and the constitutions and legal acts of the Member States as part of the principles of Community law. The Court of Justice and the basic treaties of the European Union refer to the Convention on Human Rights, because some Member States of the European Communities had acceded to the Convention on Human Rights before the entrance into force of the treaties establishing the European Communities, and consequently the aim of the establishing treaties could not have been to help the Member States escape from their obligations under international law, including their obligations under the Convention on Human Rights. Since the Member States are responsible for European Community law, this law cannot violate the Convention on Human Rights.
The constitutionalisation of human rights by the Court of Justice has left unsolved the problem of certainty concerning such rights. That the Single European Act and the establishing treaties refer to the rights specified in the Convention on Human Rights and other human rights acts not in terms of rights but as to principles means that those rights do not have direct effect in the European Union. A brief explanation of the foregoing - in the case of Handelsgesellschaft, the Court of Justice stressed the supremacy of European Community law over the constitutional laws of the Member States 17 ; consequently, there might exist the possibility that the Court of Justice considers Community law to take precedence also where the Convention on Human Rights should be concerned. Therefore, the author of this article supports the view that today the rights protected in the Convention on Human Rights have in the European Community the status of customary law only.
In addition to the problems in the European Union resulting from non-codification of human rights that undermine the principle of legal certainty, there exist jurisdictional problems: the internal courts and the European Court of Human Rights (referred to in this paper also as the Court of Human Rights) supervise the correspondence to the Convention on Human Rights of the internal laws of the Member States and the law under the intergovernmental co-operation, whereas the Court of Justice oversees the Community law arena. At the same time, one cannot submit a complaint against the judgments of the Court of Justice to the Court of Human Rights, because the European Community is not a party to the Convention on Human Rights. Although it is not excluded that a question discussed in the judgment of the Court of Justice might arise indirectly in the Court of Human Rights, the latter court has for political reasons not been willing to review the judgments of the Court of Justice as of a court of an independent international organisation. One may say that double...