The evolution of fundamental rights protection within the eu legal order

• Author: Konstantinos Margaritis
• Position: PhD candidate, Faculty of Law,National and Kapodistrian University of Athens - Greece
• Pages: 93-98

AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 3 (2013), pp. 93-98

93

THE EVOLUTION OF FUNDAMENTAL RIGHTS PROTECTION

WITHIN THE EU LEGAL ORDER

K. Margaritis

Konstantinos Margaritis

PhD candidate, Faculty of Law,

National and Kapodistrian University of Athens, Athens, Greece

Attorney at Law

E-mail: konstantinos_margaritis@yahoo.com

Abstract

The issue of fundamental rights protection in the European Union is of highest

importance. The discussion on the topic has been started as early as the beginning of 1970s,

although the founding Treaties did not include any catalogue of fundamental rights. After a

long evolutionary process with many actors involved, the final result is shown in the Treaty of

Lisbon.

Keywords: fundamental rights, EU primary law, ECJ case law

Introduction

Already from the 17

th

century, the notion of fundamental rights as a burden in the

arbitrariness of the rulers has been crystallized as an essential element of the polity

organization in Europe. The father of classical liberalism, John Locke, has described the

limitation of public authority based on the rights of the person; their protection and peaceful

enjoyment is, according to the philosopher, the rationale for establishment of political

society. We can clearly understand that in the European classical thought the concepts of

fundamental rights and authority are mutually connected. The aim of this paper is to clarify

the steps of fundamental rights protection in the peak of European civilization, the European

Union.

In the case of the Communities and the Union, the public authority derives from the

member states under the method of competence transfer. Hence, to the extent that the public

authority is transferred, the protection of fundamental rights should follow the same way.

Otherwise there would be no framework for the citizens of EU to be protected in cases of

power abuse.

The absence of fundamental rights protection in the founding Treaties

At the time the Communities were established, the protection of fundamental rights

seemed to be totally absent from the Treaty of Paris as well as from the Treaty of Rome. The

creation of a common market in the European area and its development through the adoption

of certain policies was the main aim during the first phases of the new organization, as proven

by the wording of article 2 Treaty of Rome. The adoption of the so called Community

freedoms (services, capital, good, workers)

1

acted as an important mean to the achievement of

the above mentioned aim. The general institutional structure of the Treaties left no space for

interpretation as to the approach on the protection of fundamental rights; it was the outcome

of lack of political will on behalf of the founding member states to establish a protection

mechanism and to include certain rights in the Treaties.

This lack of political will was not expressed for the first time at the establishment of

the ECSC or the EEC. An entirely general provision, without any specific inclusion of rights

1

For an extensive analysis of the Community freedoms, see Catherine Barnard, The Substantive Law o f the EU:

The Four Freedoms, Oxford University Press, 2

nd

edition, Oxford, 2007.