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1 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing theEuropean Community, signed at Lisbon, 13 December 2007, OJ C 306, 17.12.2007, p. 1. The Lisbon Treatyis intended to replace the Treaty establishing a Constitution for Europe, signed in Rome on 29 October 2004,OJ C 310, 16.12.2004, p. 1, which did not enter into force mainly due to the negative outcomes ofreferendums in France and the Netherlands. The negative result of a referendum in Ireland on 12 June 2008has cast the fate of the Treaty of Lisbon into doubt as well.

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Included in: Catarina Krause and Martin Scheinin (eds), International Protection of Human Rights: A Textbook(Turku/Åbo: Institute for Human Rights, Åbo Akademi University, 2009).

20. THE EUROPEAN UNION AND FUNDAMENTAL RIGHTS/HUMAN RIGHTS

Allan Rosas

1. INTRODUCTION

This chapter will cover two different aspects of the question of fundamental rights andhuman rights in the European Union (EU). The main part will be devoted to the internal EUsituation, the protection of fundamental rights in the EU, including its 27 Member States. Asindicated by the term ‘fundamental rights’, this dimension is of a constitutional nature. But thechapter will also take into account the external aspect, relating to the status of human rightsin the relations of the EU with third countries. The first (fundamental rights) part will focus onthe case law of the EU courts, fundamental rights provisions in the basic Treaties establishingthe Communities and the Union, the Charter of Fundamental Rights of the European Unionand the new EU Agency for Fundamental Rights. The second (human rights) part will paymore attention to the practice of the political EU institutions, notably the Council and theCommission, in the formulation of an EU external human rights policy.

There is an issue transcending this distinction between fundamental rights and humanrights, namely the still pending question of the accession of the EU to the EuropeanConvention on Human Rights (ECHR), foreseen in the Treaty of Lisbon signed on 13December 2007 (not in force),1 and, as the case may be, other international human rightsconventions. To the extent that human rights conventions will become formally binding onthe EU, they will form an integral part of the EU legal order and will thus be relevant for theEU fundamental rights system. At the same time, adherence to international human rightsconventions constitutes a formal commitment, under public international law, vis-à-vis thirdstates and is thus part of the Union’s external human rights agenda.

It should be stressed at the outset that the EU is not a human rights organizationcomparable to the Council of Europe, nor are the EU courts human rights courts comparableto the European Court of Human Rights. The EU is an economic and political union of stateswhich promotes and protects fundamental rights and human rights much in the same way as

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2 Article 9 of the Treaty on European Union, as amended by the Treaty of Lisbon, lists as the Union’sinstitutions the European Parliament, the European Council, the Council, the European Commission, theCourt of Justice of the European Union, the European Central Bank and the Court of Auditors. The new EUAgency for Fundamental Rights (see infra, pp. 452–453) does not have the status of an EU institution but isone of the many administrative agencies of the EU.

3 See also Article 68 ECT and Article 35 the Treaty on European Union (TEU).

4 Article 225 ECT.

5 Article 225a ECT enabling the establishment of specialized tribunals and Council Decision2004/752/EC, Euratom of 2 November 2004 establishing the Civil Service Tribunal, OJ L 333, 9.11.2004,p. 7.

6 The number of new cases per year is for both the ECJ and the Court of First Instance in the areaof 500. In addition, the Civil Service Tribunal has received around 150 new cases during its first years ofexistence. See Court of Justice of the European Communities, Annual Report 2006 (Luxembourg, 2007).

7 The Treaty was scheduled to enter into force on 1 January 2009, or during spring 2009 at the latest(Article 6, paragraph 2, of the Treaty of Lisbon), but at the time of writing, it is uncertain whether Ireland will

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states do. The major EU institutions2 deal with the whole range of EU matters and none ofthem is devoted solely to fundamental rights internally or human rights externally.

As far as the EU courts in Luxembourg are concerned, they are general courts, withjurisdiction over the entire — and today extremely wide — range of EU law matters. Likenational courts, they are called upon to apply and interpret fundamental rights as an integralpart of their day-to-day activities. There is no specific human rights/fundamental rightsjurisdictional remedy open to the citizen but fundamental rights may be raised in the contextof the normal procedures before the courts, such as actions for annulment (Article 230 of theTreaty establishing the European Community, hereinafter ECT) and preliminary rulingrequests made by national courts (Article 234 ECT3). The national courts of the EU MemberStates, too, follow their normal procedures when dealing with EU law questions, also whenfundamental rights are involved.

While the focus will be on the case law of the European Court of Justice (ECJ), itshould be noted that the EU judicial system includes a Court of First Instance (since the late1980s)4 and a Civil Service Tribunal (since 2004–2005)5 and draws heavily upon the nationalcourts of the Member States, which can request preliminary rulings on questions of thevalidity and interpretation of EU law. According to the division of competence between theECJ and the Court of First Instance, actions by private parties are brought before the latter(or, in personnel cases, before the Civil Service Tribunal), the decision of which can beappealed to the ECJ (or from the Civil Service Tribunal, to the Court of First Instance). TheECJ, on the other hand, deals with all preliminary ruling requests made by national courts.While fundamental rights figure in perhaps 50 or so judgments per year given by the EUcourts, that is not a very significant number compared to the overall number of cases (morethan 1,000) handled each year by them.6

It should be underlined that the present chapter deals with issues which are, at thetime of writing, in a state of flux. The Treaty of Lisbon (the Reform Treaty), which introducessignificant amendments to the Treaty on European Union (TEU) and the ECT, the latterrenamed Treaty on the Functioning of the European Union (TFEU), will not enter into forcebefore it has been ratified by all the 27 Member States of the EU.7 In the following, some of

THE EU AND FUNDAM ENTAL RIGHTS/HUMAN RIGHTS

be able to ratify it (see supra, note 1).

8 Allan Rosas, ‘Fundamental Rights in the Case-Law of the Luxembourg and Strasbourg Courts’, inCarl Baudenbacher et al. (eds), The EFTA Court: Ten Years On (Oxford: Hart Publishing, 2005), pp. 163–175,at pp. 163–164.

9 Here account is not taken of the Preamble to the Treaty establishing the European EconomicCommunity of 1957, which refers to the need to preserve and strengthen ‘peace and liberty’. See PierrePescatore, ‘The Context and Significance of Fundamental Rights in the Law of the European Communities’,Human Rights Law Journal, vol. 2 (1981), pp. 295–308, at pp. 296–298.

10 Case 1/58 Stork v High Authority, Recueil 1959, 43; Joined Cases 36–38/59 and 40/59 Geitling v HighAuthority, Recueil 1960, 859. See also Giuseppe Tesauro, ‘The Role of the Court of Justice in the Protectionof Fundamental Rights’, in Ninon Colneric et al. (eds), Une communauté de droit: Festschrift für Gil Carlos RodríguezIglesias (Berlin: Berliner Wissenschafts-Verlag, 2003), pp. 103–110, at p. 104; Allan Rosas, ‘The Legal Sourcesof EU Fundamental Rights’, in Ninon Colneric et al. (eds), Une communauté de droit: Festschrift für Gil CarlosRodríguez Iglesias (Berlin: Berliner Wissenschafts-Verlag, 2003), pp. 87–102, at p. 87.

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the modifications introduced by the Lisbon Treaty which are of relevance for fundamentalrights and human rights will be considered, while not neglecting the law in force as it standsin late 2008.

2. HISTORICAL BACKGROUND

After World War II, European cooperation and integration efforts took two differentstrands.8 One strand consisted of a focus on democracy, human rights and the rule of law,with the Council of Europe (1949) and the ECHR and other human rights instrumentsadopted by the Council of Europe. Another strand consisted of economic integration, startingwith the European Coal and Steel Community (1952) the European Economic Community(1957, later to become the European Community, EC) and the European Atomic EnergyCommunity or Euratom (1957). The Council of Europe was entrusted with a fairly broadagenda but its level of integration was — and still is — rather modest. The Communityintegration process, again, started as ‘deep’ integration, with supra-national features, includingthe establishment of an independent Commission and an independent court, the ECJ. Butit covered a smaller group of countries (until the 1970s six Member States only, namely thethree Benelux countries, France, Germany and Italy) and had an integration agenda ofrelatively limited scope.

Apart from the provisions relating to freedom of movement of workers and the othereconomic liberties or the principles of non-discrimination on the basis of nationality orgender, there were no explicit human rights/fundamental rights provisions in the foundingTreaties of 1951 and 1957.9 And as the Communities were not a party to the ECHR or anyother human rights convention, the introduction into Community law of a system ofprotection of fundamental rights is essentially a story of judge-made law. While in the veryearly days of European integration, the Court had held that it was not competent to examinewhether European Coal and Steel Community decisions were in violation of fundamentalrights principles of a national constitution, refraining also from developing a fundamentalrights regime at Community level,10 the ECJ, through cases decided in the period 1969–1974,

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11 This development was foreseen by one of the judges of the Court already one year before the firstjudgment (Stauder, 1969) which announced the new approach. Pierre Pescatore, ‘Les droits de l’homme etl’intégration européenne’, Cahiers de droit européen, vol. 4 (1968), pp. 629–673, at p. 637.

12 Case 26/62 Van Gend en Loos [1963] ECR 1 (which established that not only regulations, but alsoprimary law may have direct effect and thus may be invoked directly by individuals before courts andauthorities); Case 6/64 Costa v ENEL [1964] ECR 585.

13 Pescatore, supra (note 11), pp. 634–636. See also the Order of 18 October 1967 of the GermanConstitutional Court, VVerfGE 22, 293, 298–299.

14 Case 29/69 Stauder [1969] ECR 419, Recueil 1969, 419. Opinion of Advocate General Roemer of29 October 1969, ibid., 428.

15 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125 (paras. 3–4). See also the Opinion ofAdvocate General Dutheillet de Lamothe of 2 December 1970, Recueil 1970, 1148–1149.

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made it clear that fundamental rights form part of the general principles of Community lawwhose observance the Court is called upon to ensure.11

During these early days of European integration, the development of an externalhuman rights policy was out of the question. The development of such a policy, in fact, hadto wait until the 1990s and thus took place much later than the articulation, by the ECJ, ofa fundamental rights regime. It is to the early fundamental rights case law of the ECJ that weshall now turn.

3. FUNDAMENTAL RIGHTS AS JUDGE-MADE LAW

During the 1960s, and particularly after the principles of direct effect and supremacy ofCommunity law had been asserted in Van Gend en Loos (1963) and Costa v ENEL (1964),12

concerns were expressed notably in German and Italian constitutional doctrine and case lawabout the possibility of conflict between a Community law declared supreme but bereft ofa system of protection of human rights/fundamental rights, on the one hand, and nationalconstitutional Bills of Rights, on the other.13 These national Bills of Rights could be seriouslycompromised if ‘human rights-free’ Community economic law prevailed over national law,including the national constitution, and could be directly invoked before national courts.

The first answer of the ECJ to these concerns came in Stauder (1969), where the Courtintroduced an express fundamental rights component into Community law. It referred to thefundamental rights of the person enshrined in the general principles of Community lawwhose observance the Court ensures (‘les droits fondamentaux de la personne compris dansles principes généraux du droit Communautaire, dont la Cour assure le respect’14). InInternationale Handelsgesellschaft, the Court underlined that the protection of fundamental rightsmust be ensured in the Community legal system and that, whilst the protection of such rightsat the Community level is ‘inspired by the constitutional traditions common to the MemberStates’, the validity of Community acts, in accordance with the principle of supremacy ofCommunity law, cannot be challenged on the basis of national constitutional Bills of Rights.15

In Nold, the ECJ added that ‘guidelines which should be followed within the framework of


16 Case 4/73 Nold [1974] ECR 491 (para. 13).

17 See, e.g., Takis Trimidas, The General Principles of EC Law (London: Oxford University Press, 2nded., 2006).

18 Allan Rosas, ‘The European Court of Justice and Fundamental Rights: Yet Another Case of JudicialActivism’, in Carl Baudenbacher and Henrik Bull (eds), European Integration Through Interaction of Legal Regimes(Oslo: Universitetsforlaget, 2007), pp. 33–63, at pp. 36–44.

19 Order of 29 May 1974, BVerfGE 37, 271.

20 The exclusive right of the ECJ to declare EU legislative acts invalid was asserted by the ECJ itselfin Case 314/85 Foto-Frost [1987] ECR 4199.

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Community law’ may also be found in ‘international treaties for the protection of humanrights on which the Member States have collaborated or of which they are signatories’.16

It is obvious that the ECJ, taking into account both the principles of primacy(supremacy) and direct effect of Community law, and its tendency to broaden in scope, couldnot any longer tolerate a situation where Community law could be developed and applied indisregard of fundamental rights. Such a situation would not have been acceptable for theMember States unless, as the German Constitutional Court did in 1974, they would havecreated some national control mechanism, checking that Community law did not violate thenational Bill of Rights. But this latter option, again, would have posed a serious threat to theprinciples of primacy and uniform application of Community law, taking into account thatthe (then) six national Constitutions were far from uniform. The disparities between thenational Constitutions also explains why the ECJ did not opt for taking them as its formalsource of law but chose instead to apply the concept of general principles of Community law, asource of law with which Community lawyers were already familiar and which the Court hasapplied also outside the framework of fundamental rights.17 The national Constitutions werenot ignored but the ECJ declined to recognize any one of them as a directly binding source,stating as it did in Internationale Handelsgesellschaft that it was ‘inspired by the constitutionaltraditions common to the Member States’.18

The Nold judgment was delivered around two weeks before the German Constitu-tional Court handed down its decision in Solange I.19 The specifications offered by Nold didnot prevent the Constitutional Court from asserting its competence to assess the compatibilityof rules of Community law with the fundamental rights enshrined in the German Basic Law‘as long as’ (‘solange’) Community law was not endowed with a catalogue of fundamentalrights matching the catalogue of rights of the Basic Law. The Constitutional Court, to theextent that it took the fresh Nold decision into account, may have felt that the new case lawof the ECJ was too general, recent and uncertain to merit the full recognition in Germany ofthe primacy (supremacy) of Community law and any monopoly for the ECJ to declare EUlegislative acts invalid.20 As we shall see below, it was only in its Solange II judgment of 1986that the Community system for the protection of fundamental rights found more favour withthe German Constitutional Court.

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21 OJ C 103, 27.4.1977, 1. See also Pescatore, supra (note 9), pp. 301–303.

22 Case 36/75 Rutili [1975] ECR 1219.

23 Rosas, supra (note 8), pp. 168–171. See, more generally, Nanette Neuwahl and Allan Rosas (eds),The European Union and Human Rights (The Hague: Martinus Nijhoff, 1995); Elspeth Guild and GuillaumeLesieur, The European Court of Justice on the European Convention on Human Rights: Who Said What, When? (London:Kluwer Law International, 1998); Philip Alston (ed.), The EU and Human Rights (Oxford: Oxford UniversityPress, 1999).

24 See Article L (later to become Article 46) of the TEU as introduced by the Treaty of Maastricht,as compared to the version it obtained by the Treaty of Amsterdam.

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4. ECJ CASE LAW ENDORSED AT THE EU POLITICAL LEVEL

The Solange I decision of the German Constitutional Court served as an incitement toreaffirm, at the Community political level, the commitment of the Communities tofundamental rights. Thus, on 5 April 1977, the European Parliament, the Council and theCommission issued a Joint Declaration, which stated that, ‘as the Court of Justice hasrecognised … Community law comprises … the general principles of law and in particularthe fundamental rights, principles and rights on which the constitutional law of the MemberStates is based’.21 Recalling further that all the Member States were parties to the ECHR, thethree Community institutions underlined ‘the primary importance they attach to theprotection of fundamental rights, as derived in particular from the constitutions of theMember States and the [ECHR]’. This comes close to the formula used by the ECJ in Nold,as supplemented by a reference to the ECHR made in the case of Rutili.22

A further step was taken in the Preamble to the Single European Act of 1986, whichstates that the signatories are determined to work together ‘to promote democracy on thebasis of the fundamental rights recognized in the constitutions and laws of the MemberStates, in the [ECHR] and the European Social Charter, notably freedom, equality and socialjustice’.

The Treaty of Maastricht (1992), which introduced the concept of European Unionand established the TEU, included express clauses on fundamental rights and human rights.The most important novelty was Article F (later to become Article 6), paragraph 2, of theTEU, according to which the Union ‘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’. It will be noted that this provision, in line with theCourt’s case law, as it had evolved between 1974 and 1992,23 refers to the general principles ofCommunity law as the formal source of EU fundamental rights. The ECHR seems to enjoypride of place (‘as guaranteed’), as compared to the constitutional traditions (‘as they resultfrom’). That Article F, paragraph 2, was seen as a general political endorsement of the ECJ’scase law rather than as a specific source of law for the Court is evident from the fact that theprovision was not originally included in the list of provisions to which the jurisdiction of theECJ should apply. By the Treaty of Amsterdam (1997), the jurisdiction of the EU courts wasextended to this provision (now Article 6, paragraph 2) as well.24

While Article 6, paragraph 2, TEU highlights the ECHR, formal accession to theEuropean Convention remained a controversial subject. In 1996, the ECJ held that as


25 Opinion 2/94 European Convention on Human Rights [1996] ECR I–929.

26 See the report of a Comité des Sages (composed of Antonio Cassese, Catherine Lalumière, PeterLeuprecht and Mary Robinson) entitled ‘Leading by Example: A Human Rights Agenda for the EuropeanUnion for the Year 2000’, reprinted in Alston, supra (note 23), pp. 921–927, and many of the articles containedin the same volume edited by Alston.

27 OJ C 364, 18.12.2000, p. 1.

28 This refers to the 1989 Community Charter of the Fundamental Rights of Workers, originallyadopted in September 1989 by 11 out of 12 Member States, and the European Social Charter adopted by theCouncil of Europe, originally in 1961. Both instruments are today also mentioned in Article 136 ECT.

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Community law stood at the time, the Community lacked the competence to accede.25 Thisled to discussions about the possibility to amend the TEU or the ECT so as to provide forthe necessary competence to adhere to the ECHR. At the same time, discussions intensifiedon the need for an EU-specific Bill of Rights, so as to make the fundamental rights protectionregime more transparent and visible. At the end, it was decided to follow both tracks, in otherwords to prepare an EU Charter on fundamental rights and in addition to start thepreparations for EU accession to the ECHR.

It should be noted in this context that, as will be elaborated below, the 1990s saw theemergence of an EU external human rights policy. This, on the other hand, led to criticismthat the EU practised ‘double standards’ and to demands that the EU put its own house inorder before preaching human rights to the rest of the world.26 The Charter of FundamentalRights and accession to the ECHR were intended to meet these concerns. Accession to theECHR was also meant to address the anomaly created by the fact that matters that used tobe handled by the Member States and which had thus been subject to ECHR scrutiny inStrasbourg were increasingly transferred to the EU, which for its part was not directly subjectto the control of the Strasbourg human rights system.

On 7 December 2000, the European Parliament, the Council and the Commission,proclaimed the Charter of Fundamental Rights of the European Union.27 The Charter statesin its Preamble that it reaffirms rights ‘as they result, in particular, from the constitutionaltraditions and international obligations common to the Member States, the [ECHR], theSocial Charters adopted by the Community and the Council of Europe28 and the case law ofthe Court of Justice of the European Communities and of the European Court of HumanRights’. There is thus an express recognition of the fundamental rights case law of the ECJand some of the sources it has used as guidelines in the determination of the generalprinciples of Community law. While the Charter, as proclaimed in December 2000, is not alegally binding instrument per se, it has, as will be explained below, started to be used insecondary legislation and case law as an authoritative interpretation of what constitutes EUfundamental rights.

5. TREATY AMENDMENTS AND INSTITUTIONAL DEVELOPMENTS

The present section will provide an overview of the treaty provisions which have beeninserted in the TEU and the ECT through the Treaties of Maastricht (1992), Amsterdam(1997) and Nice (2001) as well as some institutional developments which reinforce the

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29 Rosas, supra (note 10), p. 94. The sanctions were taken because of the entry of the Freedom Partyin an Austrian government. The group of wise men consisted of Martti Ahtisaari, Jochen Frowein andMarcelino Oreja.

30 See also supra (note 28).

31 Case C–438/05 International Transport Workers’ Federation, judgment of 11 December 2007, para. 79;Case C–341/05 Laval an Partneri, judgment of 18 December 2007, para. 105. See also Allan Rosas, ‘The Roleof the European Court of Justice in the Application and Interpretation of Social Values and Social Rights’,in Elina Palola and Annikki Savio (eds), Refining the Social Dimension in an Enlarged EU (Helsinki: Stakes andMinistry of Social Affairs and Health, 2005), pp. 195–203.

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promotion and protection of fundamental rights and human rights in the EU. This overviewwill include some references to treaty provisions and institutional developments of relevancefor not only the protection of fundamental rights but also EU external human rights policies.

Article 6 TEU is not limited to the provision (paragraph 2) cited above, which declaresthat the EU shall respect fundamental rights as general principles of Community law.Paragraph 1 of the article declares that the ‘Union is founded on the principles of liberty,democracy, respect for human rights and fundamental freedoms, and the rule of law,principles which are common to the Member States’. This provision is of particularimportance for Article 7 TEU, which provides for the possibility of sanctions against MemberStates which are in ‘serious and persistent breach’ of the principles mentioned in Article 6,paragraph 1. As a sanction the Council may decide to suspend certain of the rights derivingfrom the application of this Treaty, including the voting rights in the Council (paragraph 3).There is a rather complex procedure to arrive at such a decision, involving, apart from theCouncil, the European Commission and the European Parliament. Article 7 has never beenresorted to in practice but in 2000 some informal political sanctions were adopted by 14Member States against Austria. They were lifted following a report by a group of wise men,which inspired an amendment made in the Treaty of Nice to Article 7. According to theamended provision, the EU may call on ‘independent persons’ to submit a report on thesituation in a given Member State.29

Article 7 was added to the TEU by the Treaty of Amsterdam. It is no secret that oneof the reasons was the impending enlargement of the EU to Central and Eastern Europeancountries, which had experienced dictatorial regimes until recently. But it should beremembered that some of the then 15 Member States had also experienced comparableregimes in the past. Article 7 is supplemented by Article 49 TEU, which provides that fullmembership in the EU can be applied only by a ‘European State which respects the principlesset out in Article 6 (1)’.

Mention should also be made of Article 136 ECT, which provides that theCommunity and its Member States, in pursuing social policies, shall have in mind ‘fundamen-tal social rights’ such as those set out in the European Social Charter of 1961 and theCommunity Charter of the Fundamental Social Rights of Workers of 1989.30 This provisionattests to the fact that the EU fundamental rights system includes social rights and that, as theECJ has stated recently, the EU has ‘not only an economic but also a social purpose’.31

Another stride in the EU’s approach to fundamental rights is the emphasis on non-discrimination, and not just the prohibition of discrimination on grounds of nationality andgender, which are traditional non-discrimination clauses in the ECT. According to Article 13


32 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatmentbetween persons irrespective of racial or ethnic origin, OJ L 199, 5.8.2000, p. 86; Council Directive2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment andoccupation, OJ L 2, 5.1.2001, p. 42.

33 Title V (Articles 11–28) of the TEU.

34 Supra (notes 1 and 7).

35 Supra (note 1).

36 Protocol No. 14 to the Convention for the Protection of Human Rights and FundamentalFreedoms, amending the control system of the Convention, Strasbourg, 13 May 2004. In December 2008,the Protocol has been ratified by 46 Member States of the Council of Europe but has not entered into force,due to the refusal of Russia to ratify. See Chart of signatures and ratifications published on the web site ofthe Council of Europe, <http://conventions.coe.int>. See also infra, pp. 457 and 458–459.

37 Adopted by the UN General Assembly on 13 December 2006 and open for signature on 30 March2007, when the Convention was signed by the European Community. In December 2008, the Conventionhas entered into force but it has not yet been approved by the EC. According to Article 44 of the Convention,

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ECT, legislative action may be taken to combat discrimination based on ‘sex, racial or ethnicorigin, religion or belief, disability, age or sexual orientation’. While this provision onlyprovides the legal basis for legislative action, two central non-discrimination directivesadopted in 2000 provide relevant substantive rules.32

As far as human rights provisions of relevance for external relations are concerned,Articles 177 and 181a ECT stipulate that Community policies in the area of developmentcooperation and in the area of economic, financial and technical cooperation with thirdcountries shall contribute to the ‘general objective of developing and consolidating democracyand the rule of law’ and the objective of ‘respecting human rights and fundamental freedoms’.In the same vein, Article 11 TEU provides that one of the objectives of the Common Foreignand Security Policy (CFSP) of the EU33 is to ‘develop and consolidate democracy and the ruleof law, and respect for human rights and fundamental freedoms’. The CFSP — or as it isoften called in EU jargon, the ‘Second Pillar’ — was one of the novelties introduced by theTreaty of Maastricht and it is of a more intergovernmental nature than the supra-national‘First Pillar’ represented, inter alia, by the ECT.

There are no clauses in the TEU or the ECT providing explicitly for the accession ofthe EU to international human rights conventions. As was noted above, the ECHR ismentioned as an important guideline for the determination of EU fundamental rights inArticle 6, paragraph 2, TEU, while Article 136 ECT mentions the European Social Charter.Moreover, Article 63, paragraph 1, ECT states that EU measures on asylum should beadopted ‘in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31January 1967 relating to the status of refugees’. The entry into force of the Treaty of Lisbonof 2007,34 would change the situation as far as the ECHR is concerned, as according to anamended Article 6 TEU, repeating what was already envisaged in the abortive Treatyestablishing a Constitution for Europe of 2004,35 the Union ‘shall accede’ to the ECHR. Aclause opening up such accession of the EU has, from a Council of Europe and ECHR pointof view, been included in Protocol No. 14 to the ECHR (not yet in force).36 A similar clauseenabling EU accession has recently been included in the new UN Convention on the Rightsof Persons with Disabilities.37

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it is open for adherence not only by states but also by ‘regional integration organizations’, meaning essentiallythe EU.

38 For instance, the Council and its Legal Service still in the late 1990s asserted that the EuropeanCommunity lacked any competence to adopt legal acts in the field of external human rights policies. SeeBarbara Brandtner and Allan Rosas, ‘Human Rights and the External Relations of the European Community:An Analysis of Doctrine and Practice’, European Journal of International Law, vol. 9 (1998), pp. 468–490, at pp.472–473, 483.

39 In the report of a Comité des Sages of 1998, supra (note 26), it was proposed to appoint a separateHuman Rights Commissioner. Alston, supra (note 23), p. 927.

40 <http://ec.europa.eu/justice_home/cfr_cdf> (last accessed 1 December 2008).

41 Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights,COM(2005) 280 final of 30 June 2005. See also Philip Alston and Olivier De Schutter (eds), MonitoringFundamental Rights in the EU: The Contribution of the Fundamental Rights Agency (Oxford: Hart Publishing, 2005).

42 Council Regulation (EC) no. 168/2007 of 15 February 2007 establishing a European Union Agencyfor Fundamental Rights, OJ L 53, 22.2.2007, p. 1.

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Also from an institutional point of view, the development of an EU fundamental rightsand human rights agenda has brought about some changes and novelties. The driving forcesbehind an increased emphasis on fundamental rights and human rights have been theCommission and the European Parliament, while the Council, because of resistance fromsome Member States, has been much more hesitant.38 The Commission, on the other hand,has refrained from establishing any post of Commissioner or any Directorate-General dealingexclusively with fundamental rights and human rights.39 An important, but not exclusive, partof fundamental rights questions are dealt with by a Commissioner and Directorate-Generalresponsible for Justice, Freedom and Security, while (external) human rights questions arehandled mainly by the Commissioner and Directorate-General for External Relations but alsoby the Directorate-Generals for Development, EuropAid, Humanitarian Aid and Enlargement.In the European Parliament, a similar organizational structure emerges, with Committees, interalia, for Civil Liberties, Justice and Home Affairs, Foreign Affairs and Development. TheCommittee on Foreign Affairs does have a Subcommittee on Human Rights.

While legislative proposals, treaty negotiations with third countries and financialassistance are mainly the responsibility of the European Commission, it has sought assistanceand advice from independent experts and non-governmental organizations. In 2002–2006,the Commission drew upon a Network of Independent Experts in Fundamental Rights. Thisnetwork has published annual reports on the situation of fundamental rights in the EU andits Member States, with conclusions and recommendations as well as so-called thematiccomments and opinions on particular issues or questions.40 The annual reports have beendiscussed in the Civil Liberties, Justice and Home Affairs Committee of the EuropeanParliament.

In 2005, the Commission proposed the creation of a European Union Agency forFundamental Rights (FRA).41 After difficult discussions, the Council, on 15 February 2007,adopted a new regulation establishing such an Agency.42 According to Article 2 of theRegulation, the objective of the Agency is to provide the relevant institutions and bodies ofthe Community and its Member States when implementing Community law with ‘assistanceand expertise relating to fundamental rights in order to support them when they take


43 Council Regulation (EC) no. 1034/97 of 2 June 1997, OJ L 151, 10.6.1997, p. 1.

44 See <http://www.fra.europa.eu> (last accessed 1 December 2008). In addition to a ManagementBoard and an Executive Board, the new Agency also has a Scientific Committee and it has establish acooperation network called the Fundamental Rights Platform. The Agency cooperates with Member States’institutions and with the Council of Europe and other international organizations.

45 Under Article 226 ECT, the Commission may initiate infringement procedures before the ECJagainst a Member State for failure to fulfil its obligations under Community law. If a Member State does notcomply with an ECJ judgment, the Court may according to Article 228 ECT order the Member Stateconcerned to pay a lump sum or a penalty payment to the EU budget.

46 Article 27 of the Regulation.

47 See Article 195 of the EC Treaty and Ian Harden, ‘When Europeans Complain: The Work of theEuropean Ombudsman’, Cambridge Yearbook of European Legal Studies, vol. 3 (2000), pp. 199–237.

48 See, e.g., J.-P. Delevoye and P.N. Diamandouros (eds), Rethinking Good Administration in the EuropeanUnion (Luxembourg: Office for Official Publications of the European Union, 2008), which is based on theproceedings of the sixth seminar of the national ombudsmen of the EU Member States and Candidate

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measures or formulate courses of action within their respective spheres of competence tofully respect fundamental rights’. The Agency, which has its seat in Vienna, replaces theEuropean Monitoring Centre on Racism and Xenophobia established in 199743 as well as theNetwork of Independent Experts mentioned above. At the time of writing, the appointmentsto the Management Board, Executive Board and the post of Director have been completed.44

The new Agency will supposedly increase awareness and expertise concerning theprotection of fundamental rights notably in the preparation of EU legislative acts as well asthe application and implementation of such acts by the EU institutions and the MemberStates. It does not have competence to deal with individual complaints, nor to monitorMember States’ performance with a view to initiate procedures under the above-mentionedsanctions clause contained in Article 7 TEU or infringement procedures under Article 226ECT,45 but the Council, if it so wishes, may use the expertise of the Agency in a possibleArticle 7 procedure.

The tasks of the new Agency will be focused on the question of the protection andpromotion of fundamental rights in the EU rather than on the question of human rights inexternal relations. However, there will be a possibility for candidate countries and countrieswith which a stabilization and association agreement has been concluded to participate in thework of the Agency, in which case, if the respective Association Council agrees, the Agencymay deal with fundamental rights issues in the candidate or associated country concerned.46

Finally, it should be noted that the institution of European Ombudsman, too, playsa role in the promotion and protection of fundamental rights. According to Article 195 ECT,the Ombudsman is empowered to receive complaints from any citizen of the Union or anynatural or legal person residing or having its registered office in a Member State ‘concerninginstances of maladministration in the activities of the Community institutions and bodies’.47

He or she is thus not empowered to deal with complaints against the Member States’institutions, a task which belongs to the national ombudsmen or similar bodies. But theEuropean Ombudsman organizes regular seminars with the national ombudsmen of theMember States in order to discuss common problems notably relating to the application andimplementation, at national level, of EU law, including EU fundamental rights law.48

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Countries, Strasbourg 14–16 October 2007.

49 See, e.g., Rosas, supra (note 8); Neuwahl and Rosas, supra (note 23); Guild and Lesieur, supra (note23); Alston, supra (note 23), passim.

50 See, e.g., Case C–13/94 P v S [1996] ECR I–2143; Joined Cases C–270/97 and C–271/97 DeutschePost [2000] ECR I–929, para. 57.

51 This broad formulation was adopted already in the case of Nold (1974), supra (note 16).

52 Allan Rosas, ‘The European Union and International Human Rights Instruments’, in VincentKroenenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? (The Hague:T.M.C. Asser Press, 2001), pp. 53–67, at pp. 57–58. For recent examples, see Case C–540/03 Parliament vCouncil [2006] ECR I–5769, para. 37, where reference is made to the International Covenant on Civil andPolitical Rights, the Convention on the Rights of the Child and the European Social Charter, and the casesof International Transport Workers’ Federation, supra (note 31), para. 43, and Laval an Partneri, supra (note 31), para.90, where reference is made to the European Social Charter and ILO Convention No. 87 concerningFreedom of Association and Protection of the Right to Organise of 1948.

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6. FUNDAMENTAL RIGHTS AS GENERAL PRINCIPLES OF EU LAW

The case law of the EU courts of relevance for fundamental rights is by now extensive andcovers a wide array of Community law areas.49 The fundamental rights upheld byLuxembourg case law include civil rights (such as the right to fair trial, the prohibition ofretroactive penal legislation, the right to privacy and family life and children’s rights), politicalfreedoms (such as freedom of expression, freedom of assembly and freedom of movement),social rights (such as the right of men and women to equal pay, which has been described bythe ECJ as a fundamental right,50 and the right of trade unions to resort to collective action)and the principle of non-discrimination in relation to nationality, race, gender and sexualorientation, as so on.

The list of fundamental rights is not closed: As noted above, the Court has stated thatit draws inspiration ‘from the constitutional traditions common to the Member States andfrom the guidelines supplied by international treaties for the protection of human rights onwhich the Member States have collaborated or of which they are signatories’.51 The ECHRenjoys ‘special relevance’ and will therefore be discussed separately below. But the referencein Article 6, paragraph 2, TEU to the ECHR has not prevented the Court, also after the entryinto force of the Treaty of Maastricht, from citing occasionally some other human rightsconventions as sources of inspiration. Such citations include the European Social Charter of1961, the International Covenant on Civil and Political Rights of 1966, the Convention onthe Rights of the Child of 1989 and International Labour Organization Conventions.52

Moreover, the Preamble to the Single European Act of 1986, Article 136 ECT as wellas the EU Charter of Fundamental Rights make reference to the European Social Charter of1961. The EU Charter also refers in its Preamble, inter alia, to the ‘international obligationscommon to the Member States’. According to Article 53 of the Charter, nothing in theCharter shall be interpreted as restricting or adversely affecting human rights as recognized,inter alia, by ‘international law and by international agreements to which the Union, theCommunity or all the Member States are party’.

While the first fundamental rights cases concerned the conformity of Community actswith fundamental rights as general principles of Community law, a significant part of


53 Rutili, supra (note 22); Case 222/4 Johnston [1986] ECR 1651.

54 Case 63/83 Kent Kirk [1984] ECR 2689; Case 249/86 Commission v Germany [1989] ECR 1263.

55 Case 5/88 Wachauf [1989] ECR 2607, para. 19.

56 Case C–260/89 Elliniki Radiophonia Tileorassi (ERT) [1991] ECR I–2925. See also Case C–159/90Grogan [1991] ECR I–4605, para. 31, where the Court stated that it is competent to rule on the interpretationof Community fundamental rights in order to enable the national judge to assess the compatibility with thosefundamental rights of national legislation which ‘falls within the field of application of Community law’, whileit is not competent to do so in respect of national measures which fall outside the scope of Community law.

57 Grogan, supra (note 56); Case C–299/95 Kremzow [1997] ECR I–2405, para. 15; Case C–306/96Annibaldi [1997] ECR I–7493.

58 Case C–117/01 K.B. [2004] ECR I–541, para. 30. See also Case C–60/00 Carpenter [2002] ECRI–6279, paras. 36–39; Case C–71/02 Karner [2004] ECR I–3025, paras. 35–53.

59 On the definitive version of the Charter see infra (note 95). On the relationship between thisformula and the case law of the Court on Member States’ obligations, see, e.g., Gráinne de Búrca, ‘TheDrafting of the European Union Charter of Fundamental Rights’, European Law Review, vol. 26 (2001), pp.126–138, at pp. 136–137; Clemens Ladenburger, ‘L’application pratique de la Charte des droits fondamentauxpar la Commission européenne’, Revue européenne de droit public, vol. 14 (2002), pp. 817–837, at pp. 827–828.

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subsequent cases has also addressed measures taken by Member States in applying orimplementing Community law. Some of these cases led the ECJ to hold that Community lawprovisions, when applied at the national level, should be interpreted in the light offundamental rights.53 In some other cases the Court was faced more directly with nationalmeasures implementing Community acts or at least falling within the domain of Communitylaw.54 In Wachauf, the Court stated explicitly that the Community law requirements of theprotection of fundamental rights ‘are also binding on the Member States when theyimplement Community rules’.55 In the ERT case, the test was specified to be whether thenational measures ‘fall within the scope of Community law’.56

The border-line between the two situations may be tricky to establish in a concretecase, in view of the grey zone which exists between the scope of Community law and that ofpurely national law. In some cases, the Court has concluded that the link between the nationalmeasure and Community law was not sufficiently strong for a Community law controlexercised by the Court.57 In other cases, the Court has tilted in favour of a sufficient link. Forinstance, in K.B., at issue was national legislation limiting the right to marry to heterosexualcouples where neither partner’s identity was the result of surgical gender reassignment. Sucha provision would as such fall outside the field of application of Community law. Butmarriage was according to United Kingdom national legislation a precondition for the grantof a survivor’s pension. As pensions come within the purview of Community law, the Courtheld that there was inequality of treatment under Community law, even if the inequality didnot relate directly to the award of a pension ‘but to a necessary precondition for the grant ofsuch a pension: namely, the capacity to marry’.58

The EU Charter of Fundamental Rights (Article 51) includes among its addressees theMember States ‘only when they are implementing Union law’.59 This seems to confirm thatthere is consensus on the applicability, in principle, of EU fundamental rights to the MemberStates when they are implementing EU law, while the precise delimitation of the field ofapplication of this Community law from the scope of national law falling outside EU

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60 Case C–105/03 Pupino [2005] ECR I–5285.

61 See supra (notes 1 and 7).

62 See, e.g., Mats Lindfelt, Fundamental Rights in the European Union: Towards Higher Law of the Land?(Turku: Åbo Akademi University Press, 2007), passim.

63 Rosas, supra (note 8), pp. 167–168 and notably Cases C–112/00 Schmidberger [2003] ECR I–5659;paras. 64–81; International Transport Workers’ Federation, supra (note 31), paras. 42–47.

64 See Lindfelt, supra (note 62), pp. 298–299, who refers to Case C–432/04 Cresson [2006] ECRI–5769, in which (paras. 111–113) the Court examined the merits of a claim that a provision of writtenprimary law (Article 213 ECT) is in violation of fundamental rights.

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fundamental rights framework continues to provoke discussion in concrete cases. And as willbe explained below, a Protocol annexed to the TEU and ECT, as amended by Lisbon Treatyof 2007, and relating to the application of the Charter to Poland and the United Kingdomintroduces uncertainties as to the extent to which the Charter will be applicable in these twocountries.

The above discussion is relevant mainly for what has been termed Community or FirstPillar law. While the EU courts do not, generally speaking, have jurisdiction under the CFSP(Second Pillar), they have limited jurisdiction under Title VI TEU concerning Police andJudicial Cooperation in Criminal Matters (the Third Pillar). In Pupino, the ECJ referred to theneed for a Member State to respect fundamental rights also in a case falling under the ThirdPillar (interpretation of a framework decision).60 If the Treaty of Lisbon were to enter intoforce,61 the Third Pillar would be integrated into a common EU framework and gaps in thejurisdiction of the EU courts or in the fundamental rights regime relative to the present ThirdPillar should largely disappear.

Finally, it should be noted that different views have been expressed on the questionof what specific weight the EU courts have given to fundamental rights as compared notablyto the traditional economic freedoms contained in the ECT.62 While it is beyond doubt thatthe general principles of Community law, and thus fundamental rights, are seen as part ofprimary law and thus at the same hierarchical level as the basic Treaties (the TEU, the ECTand the Euratom Treaty), it is sometimes asserted that the EU courts do not take fundamentalrights seriously enough and in practice give preference to the economic freedoms or otherparts of written primary law. Without entering into this discussion in any greater detail, it isthe understanding of the present writer that in the case law of the ECJ, fundamental rightsare not in any way subordinate to written primary law. On the other hand, in the case offundamental rights which are not absolute but permit limitations and restrictions (which isthe case for most fundamental and human rights), it is a question of a balancing act betweenthem and other parts of primary law, in application also of the principle of proportionality.63

There may even be a certain tendency to give at least some fundamental rights more weightthan other parts of primary law.64


65 Supra (note 27) and infra (note 95).

66 Article 6, paragraph 2, TEU, as amended by the Lisbon Treaty (see supra, note 1 and p. 451), whichon this point confirms what is said in Article I–9 of the abortive Treaty establishing a Constitution for Europe(see supra, note 1). As noted supra (note 25), the ECJ held in 1996 (Opinion 2/94) that as Community lawstood at that time, there was no legal basis in the Community Treaties giving the EC the competence toaccede to the ECHR.

67 Rosas, supra (note 8), pp. 163–175.

68 Nold, supra (note 16), para. 12. This reference, it is true, figures in a paragraph citing the assertionsof one of the parties. For a reference to be found in the reasoning of the Court itself, see Rutili, supra (note22), para. 32. In the latter case, the Court noted that the ECHR had been ‘ratified by all the Member States’.

69 The first such statement seems to have been in Joined Cases 46/87 and 222/88 Hoechst [1989] ECR2859, para. 13. See also ERT, supra (note 56), para. 41.

70 P v S, supra (note 50), para. 16. For more recent citations of Strasbourg case law, see, e.g., Carpenter,supra (note 58), para. 42; Joined Cases C–238/99 P Limburgse Vinyl Maatschappij [2002] ECR I–8375; CaseC–94/00 Roquette Frères [2002] ECR I–9011, paras. 29 and 52; K.B., supra (note 58); Karner, supra (note 58);Parliament v Council, supra (note 52).

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7. EU LAW AND THE ECHR

Not only does Article 6, paragraph 2, TEU state that the fundamental rights to be protectedas general principles of Community law are ‘guaranteed’ by the ECHR but the EU Charterof Fundamental Rights65 goes further in providing (Article 52, paragraph 3) that in so far asthe Charter contains rights guaranteed by the ECHR, ‘the meaning and scope of those rightsshall be the same as those laid down by the said Convention’. The entry into force of theTreaty of Lisbon of 2007 would not only make the Charter legally binding but also providefor the formal accession of the EU to the ECHR (the EU ‘shall accede’ to the ECHR).66 Andaccording to Article 59 of the ECHR, as amended by Article 17 of its Protocol No. 14 (notin force), the EU ‘may accede’ to the Convention.

Accession to the ECHR would be the culmination of a long development. Therelationship between the Luxembourg and Strasbourg systems has been one of gradualrapprochement.67 In its first judgments citing fundamental rights, the Court of Justice did notrefer expressly to the ECHR. The first references came after France as the (then) last MemberState had ratified the Convention.68 The Court subsequently characterized the ECHR as aninstrument having ‘special significance’.69 And more recently, the ECJ has begun to refer toindividual judgments of the European Court of Human Rights.70 This is nowadays done onan almost routinely basis.

One can thus note the following ‘stages’ in the case law of the ECJ: fundamental rightsoutside the competence of the Court; fundamental rights as part of the general principles ofCommunity law (since 1969); explicit reference to the ECHR (since 1974–1975); characteriza-tion of the ECHR as having ‘special significance’ (since 1989); and reference to individualjudgments of the European Court of Human Rights (since the 1990s).

Given that the Court has started to refer to individual judgments of the Court ofHuman Rights, it is not surprising that it has also indicated a willingness to adjust its own case

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71 Thus in the Limburgse Vinyl Maatschappij cases, supra (note 70), para. 274, the ECJ noted that therehad been, since its Orkem judgment (Case 374/87 Orkem [1989] ECR 3283), further developments inStrasbourg case law that the Community judiciary should take into account in interpreting fundamental rights.

72 Roquette Frères, supra (note 70), para. 29. Cf. Hoechst, supra (note 69), para. 18.

73 See, e.g., Catherine Turner, ‘Human Rights Protection in the European Community: ResolvingConflict and Overlap Between the European Court of Justice and the European Court of Human Rights’,European Public Law, vol. 5 (1999), pp. 453–470, at pp. 457–463, with references.

74 Rosas, supra (note 8), p. 170.

75 Case C–145/04 Spain v the United Kingdom [2006] ECR I–7917; case of Matthews v. the United Kingdom(Application no. 24833/94), judgment of the European Court of Human Rights of 18 February 1999, Reportsof Judgments and Decisions 1999–I.

76 In Case T–112/98 Mannesmannröhren-Werke [2001] ECR II–729, the Court of First Instance put itin the following terms: While the Court had no jurisdiction to ‘apply’ the ECHR when reviewing aninvestigation undertaken by the Commission under competition law, as the Convention was not as such partof Community law (para. 59), the Community law principles of the right of defence and the right to fair legalprocess ‘offer, in the specific field of competition law … protection equivalent to that guaranteed by Article6 of the [ECHR]’ (para. 77).

77 See, e.g., Piet Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations(Oxford: Oxford University Press, 2004), pp. 274–344.

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law in the light of developments in Strasbourg case law.71 In Roquette Frères, the Court ofJustice referred expressly to the development of ECHR case law relating to the right toprivacy of commercial enterprises, in order to explain why, despite having suggested theopposite in its earlier judgment in Hoechst, such enterprises can, in principle, benefit fromArticle 8 of the ECHR.72

In the light of this case law, as well as the case law of the ECJ in general, the thesis,sometimes put forward in legal literature,73 that there is tension or even conflict betweenLuxembourg and Strasbourg case law, is somewhat exaggerated, to put it mildly. Harmony,rather than conflict, is a much more likely scenario.74 And in Spain v the United Kingdom (2006),the ECJ paid considerable attention to the fact that the extension, by the United Kingdom,of electoral rights in European elections to some residents of Gibraltar who were not EUcitizens, an extension that the Court accepted, had been made in order to implement theMatthews judgment of the European Court of Human Rights.75 On the other hand it is truethat as the EU is not a Contracting Party to the ECHR, the Convention is not a bindingCommunity law instrument but plays a role rather as an authoritative guideline fordetermining the general principles of Community law which the Court applies.76

Accession to the ECHR, foreseen in both the Lisbon Treaty of 2007 and in ProtocolNo. 14 to the ECHR, would make the Convention an integral part of the EU legal order.According to EU law, international agreements binding on the EU are directly applicable and,in many cases, have direct effect.77 Even if the Treaty of Lisbon and Protocol No. 14 to theECHR were to enter into force, accession to the ECHR would apparently take some time,as an agreement would first have to be concluded on the modalities of accession, including


78 See Protocol relating to Article 6(2) of the Treaty on European Union on the Accession of theUnion to the European Convention on the Protection of Human Rights and Fundamental Freedoms,annexed to the Lisbon Treaty, OJ C 306, 17.12.2007, p. 155.

79 On this distinction, see Article 51, paragraph 1, and Article 52, paragraph 5, of the Charter as wellas the Explanations to these provisions prepared by the Praesidiums of the Convention preparing the Charterand the European Convention preparing the Treaty establishing a Constitution for Europe (see supra, notes1 and 66). The general idea is that ‘rights’ can be directly invoked by individuals while ‘principles’ should beimplemented through legislative or executive acts. It is not entirely clear, however, which provisions of theCharter constitute ‘rights’ and which provisions express ‘principles’ only.

80 See Articles 2, paragraph 2, and 3, paragraph 2, of the Charter.

81 See, e.g., María Amor Martín Estébanez, International Organizations and Minority Protection in Europe(Turku: Institute for Human Rights, Åbo Akademi University, 1996), pp. 149–180.

82 Article 21 does refer to the concept of ‘national minority’ but only in the context of a non-discrimination clause.

83 See supra (note 1).

84 See supra, p. 449.

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the question of specific arrangements for the EU’s possible participation in the control bodiesof the Convention.78

8. APPLICATION OF THE EU CHARTER OF FUNDAMENTAL RIGHTS

While it is not possible in this context to provide a full account of the rights and principles79

recognized in the Charter, it should be noted that it covers a fairly broad range of civil,political, economic, social and cultural rights and principles. While most of its provisionsexpress human rights recognized in the ECHR, the European Social Charter or otherinternational instruments, such as the two UN Covenants of 1966, there are some provisionswhich may go somewhat beyond such instruments or at least formulate rights which are moreprecise or unconditional than a mainstream standard in international human rights law. Thereare, for instance, unconditional prohibitions of the death penalty and of the reproductivecloning of human beings.80 On the other hand, the protection of minorities has been acontentious issue in the EU81 and the Charter is not very forthcoming on this point.82 TheTreaty of Lisbon of 200783 seems to enhance minority rights, listing as it does among theUnion’s basic ‘values’ on which it is founded, ‘respect for human rights, including the rightsof persons belonging to minorities’.

It will be recalled that the Charter, as proclaimed in December 2000, is not a legallybinding instruments per se.84 Already soon after its proclamation, however, the Charter seemsto have begun to assume a status as an authoritative interpretation of what constitutesfundamental rights as general principles of EU law.

In the EU judicial system, the first to cite the Charter as a guideline were theAdvocates General of the ECJ as well as the Court of First Instance. As to the opinions ofthe Court’s Advocate Generals, the first discussion on the legal relevance of the Charter isto be found in the Opinion of an Advocate-General of 8 February 2001, where it was heldthat in proceedings concerned with the nature and scope of a fundamental right, ‘the relevant

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85 Opinion of Tizzano AG in Case C–173/99 BECTU [2001] ECR I–4881, para. 28. Already in CaseC–340/99 Traco [2001] ECR I–4109, the Charter had been mentioned by Alber AG in an Opinion of 1February 2001, para. 94.

86 See, e.g., the Opinion of Kokott AG of 8 September 2005, para. 98, footnote 58, in Parliament vCouncil, supra (note 52).

87 Mannesmannröhren-Werke, supra (note 76), para. 76.

88 See Cases T–77/01 Territorio Histórico de Álava, order of the Court of First Instance of 11 January2001 (not reported), para. 35; T–54/99 Max.mobil [2002] ECR II–313, para. 48; T–177/01 Jégo-Quéré [2002]ECR II–2365, para. 42; T–116/01 and T–118/01 P & O European Ferries [2003] ECR II–2957, para. 209;Joined Cases T–67/00, T–68/00, T–71/00 and T–78/00 JFE Engineering Corp. [2004] ECR II–2501, para. 178,and as an example of more recent case law, Case T–170/06 Alrosa Company, judgment of 11 July 2007, para.188.

89 Supra (note 1).

90 Parliament v Council, supra (note 52), para. 38. Council Directive 2003/86/EC of 22 September 2003on the right to family reunification, OJ L 251, 3.10.2003, p. 12.

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statements of the Charter cannot be ignored’ and that, where its provisions so allow, it should‘serve as a substantive point of reference for all those involved’.85 Subsequently, referencesto the Charter in opinions of Advocates General have become almost a matter of routine.86

As to the Court of First Instance, it stated in the case of Mannesmannröhren-Werke (2001) thatthe Charter could not be used for the review of a measure which had been adopted prior to7 December 2000, the date of the proclamation of the Charter.87 This reasoning alreadyconstituted a hint that the Charter was not devoid of legal relevance. And starting withMax.mobil (2002), the Court of First Instance, without embarking on any analysis of the legalstatus of the Charter, began to cite individual provisions of the Charter as ‘confirming’ or‘reaffirming’ the existence of specific fundamental rights protected under Community law.88

By contrast, the ECJ at first chose not to cite the Charter in its judgments. This maybe due to the simple fact that in the cases which it happened to deal with at the time, theCharter was not considered to contain any added value as compared to the ECHR, the otherinternational human rights conventions the Court has cited or the constitutional traditionscommon to the Member States. But the ECJ may also have taken into account the fact thatin 2000, the Member States had decided not to refer to the Charter in the Treaty of Nice(2001) but had instead opted for a ‘soft law’ solution, consisting of the ‘solemn proclamation’made by the three political EU institutions. True, the Treaty establishing a Constitution forEurope,89 signed in October 2004, came to incorporate the Charter as Part II of the Treatyand would thus have made the Charter legally binding. At the same time, however, some ofthe provisions of the Charter were slightly modified, as compared to the proclamation ofDecember 2000. Moreover, the French and Dutch referendums of 2005 made the fate of theconstitutional Treaty highly uncertain.

The ECJ changed its practice in a case decided in June 2006 in which the EuropeanParliament challenged the validity of a Directive on family reunification. In one of the recitalsof this Directive, it is stated that it observes the principles recognized not only in Article 8 ofthe ECHR but also in the Charter of Fundamental Rights. The ECJ had the following to sayabout the Charter:90


91 Parliament v Council, supra (note 52), para. 58.

92 Case C–411/04 Salzgitter Mannesmann [2007] ECR I–965, para. 50; Case C–303/05 Advocaten voorde Wereld [2007] ECR I–3633, para. 46; Case C–432/05 Unibet, judgment of 13 July 2007, para. 37; InternationalTransport Workers’ Federation, supra (note 31), paras. 43–44; Laval an Partneri, supra (note 31), paras. 89–90; CaseC–275/06 Promusicae, judgment of 29 January 2008, para. 33; Case C–450/06 Varec, judgment of 14 February2008, para. 48; Case C–244/06 Dynamic Medien, judgment of 14 February 2008, para. 41.

93 Case F–1/05 Landgren, judgment of 26 October 2006, paras. 70–72 (not reported). On the CivilService Tribunal, see supra (note 5).

94 Supra (note 1). See also a Declaration concerning the Charter of Fundamental Rights of theEuropean Union, annexed to the Final Act, OJ C 306, 17.12.2007, p. 249.

95 This adaptation, published in OJ C 303, 14.12.2007, p. 1, is based on the version of the Charterincorporated in the abortive Treaty establishing a Constitution for Europe (supra, note 1).

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The Charter was solemnly proclaimed by the Parliament, the Council and the Commissionin Nice on 7 December 2000. While the Charter is not a legally binding instrument, theCommunity legislature did, however, acknowledge its importance by stating, in the secondrecital in the preamble to the Directive, that the Directive observes the principles recognisednot only by Article 8 of the ECHR but also in the Charter. Furthermore, the principal aimof the Charter, as is apparent from its preamble, is to reaffirm ‘rights as they result, inparticular, from the constitutional traditions and international obligations common to theMember States, the Treaty on European Union, the Community Treaties, the [ECHR], theSocial Charters adopted by the Community and by the Council of Europe and the case lawof the Court … and of the European Court of Human Rights’.

The Court then went on to cite the provisions of the Charter relating to family life andchildren’s rights, apparently considering that these provisions contained some added value.91

It should be noted, on the other hand, that in subsequent judgments, the ECJ has notmentioned whether the EU legislator has referred to the Charter in the recitals of legislationbut has simply cited a provision of the Charter mentioning that a given right has been‘reaffirmed’ by that Charter provision.92 It thus seems that the ECJ, in line with the case lawof the Court of First Instance, has started to use the Charter as a kind of authoritativeinterpretation for determining what fundamental rights constitute general principles ofCommunity law. And in a recent judgment, the new EU Civil Service Tribunal seems to havegiven considerable weight to a provision in the Charter as a tool for interpreting thepersonnel legislation of the EU.93

However, the Charter itself (Article 53) declares that it should not be interpreted asrestricting or adversely affecting human rights and fundamental freedoms as recognized byUnion law and international law and by international agreements to which the Union or allthe Member States are party, and by the Member States’ constitutions. The Charter shouldthus not be seen as an exhaustive list, closing the door for the recognition of rights which arenot mentioned therein. This conclusion seems to be confirmed by Article 6 TEU as amendedby the Lisbon Treaty of December 2007.94 While according to a new paragraph 1, ‘[t]heUnion recognises the rights, freedoms and principles set out in the Charter of FundamentalRights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12December 2007,95 which shall have the same legal value as the Treaties’, paragraph 3 restatesthe existing paragraph 2 of Article 6 concerning fundamental rights as general principles of

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96 The two Conventions mentioned in the text consisted of representatives of not only theGovernments of the Member States but also the European Parliament, the national Parliaments of theMember States and the European Commission.

97 See the introduction to the explanations, published as an Annex to the latest version of the Charterpublished in December 2007 (supra, note 95).

98 OJ C 306, 17.12.2007, pp. 156–157. See also Declarations by the Czech Republic and Poland onthe Charter of Fundamental Rights of the European Union, annexed to the Final Act, ibid., pp. 267–268, 270.

99 Declaration by the Republic of Poland concerning the Protocol on the application of the Charterof Fundamental Rights of the European Union in relation to Poland and the United Kingdom, annexed tothe Final Act. Ibid., p. 270. Whereas Article 1, paragraph 2, of the Protocol states that nothing in Title IV ofthe Charter, which, entitled ‘Solidarity’, concerns certain rights mainly of an economic and social character,creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the UnitedKingdom has provided for such rights in its national law, Poland, in the Declaration, ‘declares that, havingregard to the tradition of social movement of “Solidarity” and its significant contribution to the struggle forsocial and labour rights, it fully respects social and labour rights, as established by European Union law, andin particular those reaffirmed in title IV of the Charter of Fundamental Rights of the European Union’.


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the Union’s law. Even with the entry into force of the Lisbon Treaty, fundamental rightswould continue to be recognized as general principles of EU law, alongside the Charter and,in case of EU accession, the ECHR.

As to the possible future, more direct, application of the Charter as a legally bindinginstrument, Article 6, paragraph 1, as modified by the Lisbon Treaty, adds that the rights,freedoms and principles in the Charter shall be interpreted not only in accordance with itsown Title VII, but also ‘with due regard to the explanations referred to in the Charter, thatset out the sources of those provisions’. These ‘explanations’ were originally prepared underthe authority of the Praesidium of the Convention which drafted the Charter and they havebeen updated under the responsibility of the Praesidium of the European Convention96 whichdrafted the abortive Treaty establishing a Constitution for Europe.97 Only the future will tellwhat the weight of these explanations will be in the application and interpretation of theCharter.

The complexity of the fundamental rights regime which would be added by the LisbonTreaty if it were to enter into force is increased by a Protocol on the application of theCharter to Poland and to the United Kingdom,98 which raises a number of questions ofinterpretation. The Protocol does not constitute a complete opt-out from the binding forceof the Charter for these two countries but rather seems to establish reservations and caveatsrelating to judicial control and the justiciability of some of the social rights recognized in theCharter. A Polish Declaration which seems to qualify some of the reservations does not addto the clarity of the legal regime introduced by the Lisbon Treaty.99

9. THE EU OBTAINS BENEDICTION FROM KARLSRUHE AND STRASBOURG

The Solange I decision of the German Constitutional Court sitting in Karlsruhe functioned asa Damocles Sword over the EU, constituting a challenge to the primacy of EU law and themonopoly of the ECJ to rule on questions of validity of EU secondary legislation.100 But with


101 Order of 22 October 1986, BVerfGE 73.

102 Judgment of 12 October 1993, BVerfGE 89, 155. See also Article 23 of the German Basic Law,added in 1992 and inspired partially by the Solange II decision, according to which Germany participates inthe development of the EU which, inter alia, provides a protection of fundamental rights ‘essentiallyequivalent’ (‘die … einen diesem Grundgesetz im wesentlichen vergleichbaren Grundrechtsschutzgewährleistet’).

103 Order of 7 June 2000, BVerfGE 102, 147. See also Uta Elbers and Nikolaus Urban, ‘The Orderof the German Federal Constitutional Court of 7 June 2000 and the Kompetenz-Kompetenz in the EuropeanJudicial System’, European Public Law, vol. 7 (2001), pp. 21–32; Frank Hoffmeister, Case Note on Decisionsof 17 February and 7 June 2000 of the German Constitutional Court, Common Market Law Review, vol. 38(2001), pp. 791–804.


105 Case of Goodwin v. the United Kingdom (Application no. 28957/95), judgment of 11 July 2002,Reports of Judgments and Decisions 2002–VI, paras. 58 and 100.

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the expanding ECJ case law relating to fundamental rights and the commitments to respectfundamental rights made at the EU political level, the Karlsruhe Court changed tack and inits Solange II decision, handed down in 1986, more or less reversed the ‘as long as’presumption of the Solange I judgment.101 The Court now held that it will no longer exerciseits jurisdiction to decide on the applicability of secondary Community legislation and it willno longer review such legislation by the standard of fundamental rights contained in the BasicLaw. This was to apply ‘as long as’ the European Communities, and in particular the ECJ’scase law, ‘generally ensure effective protection of fundamental rights as against the sovereignpowers of the Communities which is to be regarded as substantially similar to the protectionof fundamental rights required unconditionally by the Basic Law, and in so far as theygenerally safeguard the essential content of fundamental rights’.

While the Maastricht judgment of the German Constitutional Court102 (relating to theGerman ratification of the Treaty of Maastricht) may have cast some doubts on the full effectof the Solange II decision, a more recent decision on an EC banana market regulation largelydispels these doubts and states that submissions from German courts questioning theapplicability of Community secondary legislation in Germany will be inadmissible unless theirgrounds state that the European evolution of law has resulted in a decline below the requiredstandard of fundamental rights protection at EU level.103

As to the European Court of Human Rights in Strasbourg, it has in various waysencountered problems relating directly or indirectly to the EU104 and has also cited the EUCharter of Fundamental Rights as an indication of trends in the protection of human rights.105

A particular problem has concerned the question of whether, and to what extent, EUMember States could be held responsible for violations of the ECHR committed by the EUinstitutions, given the fact that the EU itself has not been a Contracting Party. While thisquestion did not until recently receive an unequivocal answer, the Strasbourg Court in 2006took the position that the national application of EU law in a Member State does not, inprinciple, escape scrutiny by the Court. On the other hand, the Court held that as theprotection of fundamental rights by the Community is ‘equivalent’ to that of the ECHR

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106 Case of Bosphorus Hava Yollari Turizm v. Ireland (Application no. 45036/98), judgment of 30 June2005, Reports of Judgments and Decisions 2005–VI. See also the case of Matthews, supra (note 75).

107 Cases T–306/01 Yusuf [2005] ECR II–3533; T–316/01 Kadi [2005] ECR II–3649.

108 Cases C–402/05 P Kadi and C–415/05 P Yusuf.

109 Opinion of Poiares Maduro AG of 16 January 2008; judgment of the Court of 3 September 2008.

110 See, e.g., Eeckhout, supra (note 77), passim.

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system,106 there is a ‘presumption’ that an EU Member State does not depart from therequirements of the ECHR when it is implementing legal obligations flowing from itsmembership in the EU. That the EU, through an interplay of case law, political declarationsand Treaty changes and legislative developments, has developed a system which generallymeets European substantive and procedural standards for the protection of human rights hasthus been recognized not only by the German Constitutional Court but also by the EuropeanCourt of Human Rights.

In two cases decided by the Court of First Instance in 2005, the Court was faced witha similar problem concerning the relation between two legal regimes, in this case EU law andUnited Nations law and public international law.107 The Court held that sanctions undertakenby the UN Security Council are binding on the EU and escape, as a general rule, the judicialcontrol of the EU courts (with the exception of sanction decisions allegedly in violation ofjus cogens, that is peremptory rules of international law). The Court of First Instance in thiscontext did not consider it necessary to establish that, as far as the protection of fundamentalrights and human rights are concerned, the UN system was equivalent to the EU system orat least that it respects certain minimum standards of human rights protection. Thesejudgments were appealed to the ECJ.108 Following the Opinion of its Advocate General, theCourt, in a recent judgment, has annulled the judgment of the Court of First Instance,holding that the EU courts must control the legality of EU sanctions decisions even in casethey implement UN Security Council resolutions, given the lack of judicial review and humanrights scrutiny at the UN level.109

10. HUMAN RIGHTS IN EU EXTERNAL RELATIONS: GENERAL CONSIDERATIONS

With the Treaty modifications of the last 20 or so years mentioned above, the Europeanintegration agenda has broadened considerably in scope. The external relations of the EUhave undergone a similar development, although the integration intensity in this respect variesgreatly, ranging from an exclusive Community competence in matters of international tradeto a cooperation framework of a more intergovernmental nature in matters of foreign,security and defence policy regulated by Title V of the EU Treaty (the CFSP, or the SecondPillar of the EU).110 Both in the Community law framework of the First Pillar and in theCFSP context, human rights started to become a more important element of the Union’s


111 See, e.g., Daniela Napoli, ‘The European Union’s Foreign Policy and Human Rights’, in NanetteNeuwahl and Allan Rosas (eds), The European Union and Human Rights (The Hague: Martinus Nijhoff, 1995),pp. 297–312; Brandtner and Rosas, supra (note 38).

112 Supra, p. 451.

113 Opinion 2/94 European Convention on Human Rights [1996] ECR I–1759 and supra, pp. 448–449.

114 Brandtner and Rosas, supra (note 38), pp. 471–472.

115 Council Regulation 975/1999/EC of 29 April 1999 (OJ L 120, 8.5.1999, p. 1) and CouncilRegulation 976/1999/EC of 29 April 1999 (OJ L 120, 8.5.1999, p. 8).

116 Case C–268/94 Portugal v Council [1996] ECR I–6177.


118 Supra (notes 27 and 95).

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relations with third countries only in the 1990s.111 The amendments to the TEU and the ECTwhich reflect this trend have already been explained above.112

Especially before the addition of these Treaty clauses, there was disagreement as towhether, and to what extent, human rights were part of the policies and activities that theCommunities could lawfully promote and undertake. One of the most contentious issues waswhether the European Community could adhere to the ECHR. Opinion 2/94 of the ECJ,which held that as Community law stood at that time, the EC had no competence toaccede,113 was probably due to the specific features of the ECHR, involving as it does acompulsory control system, and should not be seen as a denial of any Communitycompetence in the human rights field.114

In any case, Opinion 2/94 did not stop the increasing activities of the EU in the fieldof human rights, as witnessed, inter alia, by the inclusion of human rights clauses in bilateraltrade and cooperation agreements concluded with third countries and in legislation dealingwith development cooperation and financial and technical cooperation with such countries,including the adoption of two human rights regulations of a general nature in 1999.115 Ahuman rights clause included in a trade and cooperation agreement concluded with India wasin fact explicitly approved by the ECJ in the same year as it handed down its Opinion on thelack of competence to accede to the ECHR.116

It should be noted in this context that while the EU has not yet formally adhered toany international human rights convention, the existence of internal Community competencesin fields such as gender equality, non-discrimination, social and labour matters or asylum andrefugee policy may well imply a competence to adhere to international conventionsspecifically dealing with such issues.117 It will be noted that the EU Charter of FundamentalRights118 presupposes in its Article 53 that the EU can be party to international human rightsagreements. True, international human rights conventions are normally open to states only.As the EU has not been recognized as a state within the meaning of the UN Charter, itsaccession to existing instruments requires amendments to each convention’s adherenceclause. Such an amendment has, in fact, been recently made to the ECHR by its Protocol No.

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119 Supra, pp. 451 and 458–459.

120 Supra (note 37).

121 See, e.g., Brandtner and Rosas, supra (note 38), pp. 473–477; Allan Rosas, ‘With a Little Help fromMy Friends: International Case-Law as a Source of Reference for the EU Courts’, The Global Community YILJ,vol. 5, 2005 (2006), pp. 203–230, at p. 220.

122 In Cases T–306/01 Yusuf and T–315/01 Kadi, the Court of First Instance examined whethercertain sanctions taken against individuals suspected of terrorism are lawful in respect of jus cogens binding onthe Community. These judgments were annulled on appeal to the ECJ. See supra, p. 464.

123 See the Communication from the Commission on the inclusion of respect for democraticprinciples and human rights in agreements between the Community and third countries, COM(95) 216 finalof 23 May 2005; Napoli, supra (note 111), pp. 306–308; Brandtner and Rosas, supra (note 38), pp. 473–477;Frank Hoffmeister, Menschenrechts- und Demokratieklauseln in den vertraglichen Aussenbeziehungen der EuropäischenGemeinschaft (Berlin: Springer, 1998); Mielle Bulterman, Human Rights in the Treaty Relations of the EuropeanCommunity: Real Virtues or Virtual Reality? (Antwerp: Intersentia – Hart, 2001); Elena Fierro, The EU’s Approachto Human Rights Conditionality in Practice (The Hague: Martinus Nijhoff, 2003).

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14 (not yet in force).119 And the new UN Convention on the Rights of Persons withDisabilities adopted in 2006 is open for adherence by the EU, which has already signed it.120

The EU, as a subject of international law, is also bound by general international lawin the field of human rights, whether seen as customary international law or general principlesof law recognized by civilized nations,121 and including so-called peremptory norms ofinternational law (jus cogens).122 The EU Charter of Fundamental Rights recognizes (Article 53)the existence of ‘international law’ in the field of human rights and states that the provisionsof the Charter should not be interpreted as restricting or adversely affecting such internationallaw. As will be further explained below, many of the human rights clauses inserted in bilateraltrade and cooperation agreements include a reference to the Universal Declaration of HumanRights (1948), which is seen by the EU as reflecting by and large general international law ofa universal nature.

As the EU is not a human rights organization in the strict sense of the term, there areno specific complaints mechanisms that could be used in relation to third countries. But theEU may, of course, exert economic and political clout in its dealings with third countries andin this respect also use the carrot and the stick. This brings us to the question of the powersof EU institutions and bodies to act in the case of alleged human rights violations andproblems in third countries.

11. THE HUMAN RIGHTS CLAUSE

Since the early 1990s, the EC has systematically included a so-called human rights clause inits trade and cooperation agreements concluded with third countries, including so-calledassociation agreements such as the Europe agreements concluded with the candidatecountries (before their accession to the EU in 2004 and 2007, respectively), agreementsconcluded with a number of Mediterranean countries and the Lomé/Cotonou agreementsconcluded with African, Caribbean and Pacific (ACP) countries.123 It should be noted that all


124 See, e.g., Bulterman, supra (note 123), pp. 151–184.

125 Portugal v Council, supra (note 116). See also supra, p. 465.

126 Brandtner and Rosas, supra (note 38), p. 474.

127 European Union Annual Report on Human Rights 1998–1999, adopted by the EU Council in October1999 (Brussels: Council of the European Union, General Secretariat, 1999), p. 22. See also Allan Rosas, ‘TheRole of the Universal Declaration of Human Rights in the Treaty Relations of the European Union’, in PeterBaehr et al. (eds), Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (Amsterdam:Koninklijke Nederlandse Akademie van Wetenschappen, 1999), pp. 201–209.

128 ACP-EU Partnership Agreement, signed in Cotonou on 23 June 2000 (OJ L 317, 15.12.2000, p.1), revised in 2005 (OJ L 209, 11.8.2005, and OJ L 287, 28.10.2005). See also Bernd Martenczuk, ‘From Lomé

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such agreements have been concluded in the name of the EC, and in the context of the FirstPillar.

According to a standard formula, the principal human rights clause stipulates thatrespect for fundamental rights and democratic principles, as laid down in the UniversalDeclaration of Human Rights (in a European context, reference has also been made to theHelsinki Final Act of 1975 and other Organization for Security and Cooperation in Europeinstruments), inspire the internal and external policies of the parties and constitute an‘essential element’ of the agreement.124 Another provision normally to be found among thefinal provisions of the agreement deals with the possibility of taking measures in cases of non-execution of the agreement (that is, of any provision of the agreement and not just of thehuman rights clause) by the other side, including suspension of the operation of theagreement, and requires each party to consult the other party before taking measures, savein cases of special urgency. There is normally also an interpretative declaration, specifying thatcases of special urgency include breaches of an ‘essential element’ of the agreement, that is,of the human rights clause.

As has been recognized by the ECJ, an important reason for including the humanrights clause in agreements with third countries is to spell out the right of the Community(and of the other Contracting Party concerned) to suspend the operation of the agreementor to take other countermeasures in case of non-respect of the clause.125 The human rightsclause thus does not seek to transform the basic nature of an agreement otherwise concernedwith trade, development cooperation, and so on, nor to establish new standards in theinternational protection of human rights.126 The EU’s approach to these matters is based onthe assumption that the basic terms of reference for the human rights clause, the UniversalDeclaration of Human Rights, largely reflects general international law on the subject. Itstreaty practice, accepted by the third countries parties to these agreements, accordinglycontributes to the reaffirmation of the Universal Declaration as an expression of generalinternational law.127

After the mid-1990s, the human rights clause — in variations not deviating too muchfrom the standard clause — has been included in all subsequently negotiated bilateral tradeand cooperation agreements of a general nature, concluded with some 150 third countries.The use of the human rights clause has been taken to a more refined level in the context ofthe association agreement concluded with the ACP countries. This agreement known inprevious versions under the names of Yaounde and Lomé agreements was re-negotiated andconcluded in 2000 as the Cotonou Agreement and revised again in 2005.128 The Cotonou

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to Cotonou: The ACP-EC Partnership Agreement in a Legal Perspective’, European Foreign Affairs Review, vol.5 (2000), pp. 461–487.

129 Zimbabwe: Council Decision 2002/148/EC (OJ L 50, 21.2.2002, p. 64), amended by CouncilDecision 2003/112/EC (OJ L 46, 20.2.2003, p. 25), extended several times, most recently by CouncilDecision 2006/114/EC (OJ L 48, 18.2.2006, p. 26); Liberia: Council Decision 2002/274/EC (OJ L 96,13.4.2002, p. 23), terminated by Council Decision 2006/450/EC (OJ L 179, 1.7.2006, p. 51); Togo: CouncilDecision 2004/793/EC (OJ L 349, 25.11.2004, p. 17); Fiji: Council Decision 2001/334/EC (OJ L 120,28.4.2001, p. 33); Guinea: Council Decision 2005/321/EC (OJ L 104, 23.4.2005, p. 33); Mauritania: CouncilDecision 2006/470/EC (OJ L 187, 8.7.2006, p. 28).

130 See Press Release of External Relations Council, <http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/gena/86441.pdf> (last accessed 1 December 2008). These restrictive measures were lifted inNovember 2006, EU Annual Report on Human Rights 2007, prepared by the Presidency of the EU, theEuropean Commission and the General Secretariat of the Council (Luxembourg: Office for OfficialPublications of the European Communities, 2007), p. 73.

131 These measures were approved by the ECJ in Case C–162/96 Racke v Hauptzollamt Mainz [1998]ECR I–3655. See also P.J. Kuijper, ‘Trade Sanctions, Security and Human Rights and Commercial Policy’,in Marc Maresceau (ed.), The European Community’s Commercial Policy after 1992: The Legal Dimension (Dordrecht:Kluwer, 1993), pp. 401–438, at p. 431.

132 Esa Paasivirta and Allan Rosas, ‘Sanctions, Countermeasures and Related Actions in the ExternalRelations of the EU: A Search for Legal Frameworks’, in E. Cannizzaro (ed.), The European Union as an Actorin International Relations (The Hague: Kluwer Law International, 2002), pp. 207–218.

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Agreement in its Article 9, paragraph 2, contains a detailed essential elements clause which,inter alia, affirms the commitment of the parties to the principles of universality, indivisibilityand interrelationship of human rights, be they civil and political, or economic, social andcultural, and provides for rule of law-related remedies and guarantees, and in Article 96, adetailed consultation procedure.

It is in the context of the Cotonou Agreement that the human rights clause has beenapplied most often. Appropriate measures have been taken, after consultations have beenheld under the above provision, against several ACP countries.129 These measures usually takethe form of suspension of certain funding provided for in the Agreement, and in particular,the European Development Fund (EDF). Outside the Cotonou Agreement, there is, forinstance, the case of Uzbekistan, where the Council, in October 2005, along with measurestaken under the CFSP (Second Pillar), suspended all scheduled technical meetings under thePartnership and Cooperation Agreement in response to the way a local uprising had beensuppressed and the refusal of the Government to launch an independent enquiry.130

The measures taken against ex-Yugoslavia in the early 1990s demonstrate thatsanctions (countermeasures) may be resorted to even in the absence of a human rights clause.In 1991, the EC suspended the operation of a cooperation agreement of 1983 (which did notcontain any human rights clause) by invoking a fundamental change of circumstances (rebussic stantibus) and the impossibility to continue applying the Agreement in the new situation(dissolution of Yugoslavia, war and human rights and humanitarian law violations).131 The ECalso imposed a flight ban as a response (countermeasure) to violations of human rights andhumanitarian law on the Serbian side.132

Human rights clauses have been included also in legislation establishing Communityassistance programmes with third countries or groups of third countries. Such clauses can be


133 Supra (note 115).

134 Regulation (EC) no. 1889/2006 of the European Parliament and of the Council of 20 December2006, OJ L 386, 29.12.2006, p. 1. This Regulation replaces the human rights regulations of 1999 (supra, note115).

135 Article 37 of Regulation (EC) no. 1905/2006 of the European Parliament and of the Council of18 December 2006 establishing a financing instrument for development cooperation, OJ L 378, 27.12.2006,p. 41. Other financial instruments include Regulation (EC) no. 1638/2006 of the European Parliament andof the Council of 24 October 2006 laying down general provisions establishing a European Neighbourhoodand Partnership Instrument, OJ L 310, 9.11.2006, p. 1 (see its Article 28) and Regulation (EC) no. 1717/2006of the European Parliament and of the Council of 15 November 2006 establishing an Instrument for Stability,OJ L 327, 24.11.2006, p. 1.

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used to suspend cooperation with a partner state in case of serious human rights violations.They can also be used as a basis for certain positive measures aimed at promoting humanrights and democracy in a partner country which depart from the normal assistanceprogramme in providing, for instance, for special direct support to non-governmentalorganizations.

While resorting to the human rights clause may imply the use of the stick, or acombination of the stick and the carrot, most Community assistance activities in the field ofhuman rights, democracy and the rule of law are primarily using the carrot, that is, providingfinancial assistance to various human rights-related projects in the target countries. Apartfrom the human rights-related activities which can be supported under various geographicaland sector programmes, two human rights regulations of 1999133 have provided the legal basisfor an European Initiative for Democracy and Human Rights (EIDHR), which has had anallocation of more than EUR 100 million in the EU budget.

The Community instruments for the provision of financial and technical assistance tothird countries have recently undergone a major re-structuring, with the adoption of severalnew instruments in 2006. The package includes a new financing instrument for the promotionof democracy and human rights worldwide, allowing for assistance to non-governmentalorganizations and projects independent of the consent of the third country governmentconcerned.134 As to the human rights clause, the instrument regulating financial assistance todeveloping countries contains the following provision:135

Without prejudice to the provisions on suspension of aid in partnership and cooperationagreements with partner countries and regions, where a partner country fails to observe theprinciples referred to in Article 3(1), and where consultations with the partner country donot lead to a solution acceptable to both parties, or if consultations are refused or in casesof special urgency, the Council, acting by a qualified majority on a proposal from theCommission, may take appropriate measures in respect of any assistance granted to thepartner country under this Regulation. Such measures may include full or partial suspensionof assistance.

The human rights clause is thus here to stay, concerning both international agreementsconcluded by the EC and Community assistance programmes. The initiative for resorting tothe human rights clause may come from various sources, such as Member States, theEuropean Parliament, the Commission, non-governmental organizations or even individuals,but there are no specific procedures for such initiatives and the EU institutions do not seem

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136 Cf., however, Joined Cases T–186/97 et al. Kaufring AG [2001] ECR II–1337, where the Court ofFirst Instance spoke of a ‘duty’ of the Commission, as Guardian of the Treaties, to ensure the properimplementation by a third country of the obligations it has contracted under an association agreementconcluded with the EC. See Allan Rosas, ‘International Dispute Settlement: EU Practices and Procedures’,German Yearbook of International Law, vol. 46 (2003), pp. 284–322, at pp. 319–320.


138 The first such Regulation was Council Regulation no. 3567/91 of 2 December 1991 concerningthe arrangements applicable to imports of products originating in the Republics of Bosnia-Herzegovina,Croatia, Macedonia and Slovenia, OJ L 342, 12.12.1991, p. 1.

139 Council Conclusions on the principle of conditionality governing the development of theEuropean Union’s relations with third countries of south-east Europe, adopted on 29 April 1997, Bull. EU4–1996, points 1.4.67 and 2.2.1.

140 See Council Regulation (EC) no. 2007/2000 of 18 September 2000 introducing exceptional trademeasures for countries and territories participating in or linked to the European Union’s Stabilisation andAssociation process, OJ L 240, 23.9.2000, p. 1, most recently amended by Regulation no. 530/2007 of 8 May2007 (OJ L 125, 15.5.2007, p. 1) and <http://ec.europa.eu/enlargement/potential-candidate-countries/serbia/> (last accessed 1 December 2008). At the time of writing, a stabilization and association agreementhas been signed with Serbia but it is an open question whether the agreement will be concluded.

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to be under a legal obligation to act upon them.136 This is so, a fortiori, with respect toproposals to initiate or increase positive support programmes. Decision-making on sanctions,in particular, is influenced by political and pragmatic considerations, and it would be futileto expect full consistency in this regard.

12. UNILATERAL TRADE PREFERENCES

The EU grants trade preferences to third countries not only in the context of multilateral andbilateral trade agreements but also by autonomous legislative acts in the form of regulations.Already in the early 1990s, tariff preferences originally granted by a trade and cooperationagreement with Yugoslavia of 1983 and later terminated,137 were reintroduced, as ‘positiveincentive measures’ with respect to those Republics which actively contributed to the peaceprocess.138 In 1997, a strategy of ‘conditionality’ was adopted for the EU’s relations with thecountries of the Balkans, which provided that relations will be developed within a frameworkwhich promotes democracy, the rule of law and higher standards of human and minorityrights. On this basis, trade preferences were granted to some countries pending theconclusion of more elaborate association agreements.139

Such schemes have subsequently been overtaken by, on the one hand, Slovenia’saccession to full membership in 2004 and, on the other hand, the conclusion of stabilizationand association agreements (containing human rights clauses) with some of the othercountries of the region, with the gradual phasing in of unilateral concessions into a bilateralreciprocal framework. With regard to Serbia, in particular, trade preferences are still mainlybased on unilateral concessions, and negotiations on stabilization and association agreementshave been frozen due to lack of cooperation of Serbia with the International CriminalTribunal for the former Yugoslavia.140


141 See, e.g., Articles 9–10 of Council Regulation (EC) no. 3281/94 of 19 December 1994 and ofCouncil Regulation (EC) no. 1256/96. For the definition of forced labour reference was made to the SlaveryConvention, signed at Geneva on 25 September 1926, and the Supplementary Convention on the Abolitionof Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, adopted on 7 September 1956,and the Forced Labour Convention No. 29 of 1930 and Abolition of Forced Labour Convention No. 105of 1957 of the International Labour Organization. See also Barbara Brandtner and Allan Rosas, ‘TradePreferences and Human Rights’, in Philip Alston (ed.), The EU and Human Rights (Oxford: Oxford UniversityPress, 1999), pp. 699–723, at pp. 713–721, and Allan Rosas, ‘Human Rights in the External Trade Policy ofthe European Union’, in World Trade and the Protection of Human Rights: Human Rights in the Face of Global EconomicChanges (Brussels: Bruylant, 2001), pp. 193–215.

142 Council Regulation (EC) no. 552/97 of 24 March 1997 temporarily withdrawing access togeneralised tariff preferences from the Union of Myanmar (OJ L 85, 27.3.1997, p. 8), see also Recital 19 andArticle 29 of Council Regulation (EC) no. 980/2005 of 27 June 2005 applying a scheme of generalised tariffpreferences (OJ L 169, 30.6.2005, p. 1).

143 Council Regulation 980/2005, supra (note 142). It is applicable until 31 December 2008.

144 See Commission Decision of 21 December 2005 (OJ L 337, 22.12.2005, p. 50), which lists 15countries which have been accepted for the special incentive arrangement.

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The use, or suspension, of trade preferences may again be inspired by initiatives fromvarious sources, including non-governmental organizations, but those putting forward suchproposals have no particular standing before the Commission or other EU institutions. Thesituation is somewhat different as far as the Community scheme of generalized tariffpreferences (GSP) is concerned. This scheme, in fact, has contained a redress systemproviding for a right of initiative of various actors with respect to the alleged violation bythird countries benefiting from the GSP programme of fundamental labour standards.

In the earlier texts, benefits granted to a particular country could be temporarilywithdrawn if the country was found to violate fundamental labour standards such as theprohibition of forced labour.141 There was also an explicit reference to complaints fromnatural or legal persons who could ‘show an interest in such withdrawal’. On the basis of ajoint complaint by two Trade Union Confederations, the Commission initiated, in early 1996,an investigation against the Union of Myanmar (Burma) for alleged use of forced labour.Having found that the practice of forced labour was ‘routine and widespread’, theCommission proposed withdrawal of all tariff concessions under the GSP. The concessionswere suspended in March 1997.142

The GSP scheme has been amended several times. The regime in force is based ona Regulation of 2005.143 There is, in addition to the general scheme, a special incentive schemefor sustainable development and good governance, devised for countries that have, inter alia,committed themselves to a number of international conventions, notably 16 human rightsconventions listed in Annex III of the Regulation, including not only International LabourConventions on core labour standards but also most of the central UN human rightsconventions.144 There is also the possibility to withdraw temporarily the preferences in case,inter alia, of ‘serious and systematic’ violations of the ‘principles’ laid down in the 16 humanrights conventions, ‘on the basis of the conclusions of the relevant monitoring bodies’.

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145 But see the Thematic Comment on ‘Fundamental Rights in the External Activities of theEuropean Union in the Fields of Justice and Asylum and Immigration’, synthesis report of 2004 from the EUNetwork of Independent Experts on Fundamental Rights, <http://ec.europa.eu/justice_home/cfr_cdf/doc/thematic_comments_2003_en.pdf> (last accessed 1 December 2008) (on this Network, see supra, p. 452).

146 See Articles 13–15 and 24 of the TEU and Ramses A. Wessel, The European Union’s Foreign andSecurity Policy: A Legal Institutional Perspective (The Hague: Kluwer, 1999). On the status of human rights in theCFSP, see, e.g., M. Fouwels, ‘The European Union’s Common Foreign and Security Policy and HumanRights’, Netherlands Quarterly of Human Rights, vol. 15 (1997), pp. 291–324.

147 See Articles 60 and 301 ECT, which provide that the Council can take such measures only on thebasis of a common position or joint action adopted under the CFSP. It should be noted that such unilateraleconomic sanctions do not include the suspension of the operation of agreements already concluded, whichis a measure to be adopted exclusively on the basis of Community law (Article 300, paragraph 2, of the ECT).See also Paasivirta and Rosas, supra (note 132).

148 Article 62 ECT.

149 See <http://ec.europa.eu/comm/external_relations/cfsp/sanctions/measures.htm> (last accessed1 December 2008), which contains a complete list of sanctions or restrictive measures in force adopted in theframework of the CFSP.

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13. CFSP ACTION AND POLITICAL DIALOGUE

The above instruments and mechanisms are governed by Community law under the Union’sFirst Pillar. Human rights are also an important part of the Second Pillar or the CFSP, basedon Title V TEU, and to some extent also the Third Pillar concerning Police and JudicialCooperation in Criminal Matters. The focus here will be on the CFSP, as the Third Pillar ispredominantly concerned with internal EU developments rather than EU external relations.145

The main institution responsible for the CFSP is the Council, the Commission being‘fully associated’ to its work while the European Parliament is merely to be kept informed.It should be noted that Title V TEU, despite its more intergovernmental nature, enables thetaking of binding decisions in the form of Common Strategies, Common Positions, JointActions and the conclusion of international agreements.146 This includes the possibility toinitiate the interruption or reduction of economic relations with third countries and to imposearms embargoes and individual visa bans on political leaders of such countries. Economicsanctions need to be implemented by Community law measures, however,147 and visa bansaffecting a whole third country also need to be taken under Community law.148

Restrictions on admission of political leaders and other special categories of personsand/or arms embargoes have been imposed, inter alia, on Belarus, Bosnia and Herzegovina,Democratic Republic of Congo, Croatia, Ivory Coast, Democratic People’s Republic ofKorea, Lebanon, Liberia, Macedonia, Myanmar, Serbia, Sierra Leone, Somalia, Sudan, Syria,Uzbekistan and Zimbabwe.149 Human rights considerations have certainly played a role in theimposition of most of these sanctions.

The CFSP as such does not fall under the jurisdiction of the EU courts, which meansthat sanctions undertaken in this framework alone probably cannot be challenged before oneof the EU courts (but it is not to be excluded that the matter could be brought before a


150 Concerning the Third Pillar on Police and Judicial Cooperation in Criminal Matters, see CasesC–354/04 P Gestoras Pro Amnistía [2007] ECR I–1579; C–355/04 P Segi [2007] ECR I–1657.

151 See supra, pp. 464 and 466.

152 See the EU Annual Reports on Human Rights (for the most recent report of 2007, see supra note 130),and the European Union Guidelines on Human Rights Dialogues of 2001, available on the web site of the Council(<www.consilium.europa.eu>, last accessed 1 December 2008).


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national court in a Member State150). If economic sanctions are implemented by a Communityregulation, the latter can be challenged by individuals before the Court of First Instance.Several cases have in fact been brought before the Court of First Instance by persons whobelieve that they have been wrongfully targeted by EU sanctions applying to terroristorganizations. The most well-known cases have already been mentioned above and concernthe legality of EU sanctions implementing UN sanctions implying the freezing of funds ofcertain individuals.151

Apart from sanctions and other restrictive measures, a number of human rightsinitiatives and coordinated action are taken within the framework of the CFSP. A central rolein this regard is played by the Council Working Party on Human Rights (COHOM),consisting of representatives of the Member States and the Commission. Since January 2005,the High Representative for the CFSP and Secretary-General of the Council has also had aPersonal Representative for Human Rights. The European Parliament has a Subcommitteeon Human Rights, but as was noted above, the Parliament has no formal decision-makingpowers with regard to the CFSP.

CFSP activities in the field of human rights include human rights dialogues conductedwith third countries, either within a broader framework of political and legal cooperation,often taking place on the basis of a cooperation agreement concluded between theCommunity and the third country concerned, or in the form of a specific and regular stringof seminars and meetings devoted to human rights issues (the latter form of cooperation takesplace in relation to China, in particular).152 There is also significant coordination of theMember States’ participation in the former UN Commission on Human Rights, in 2006succeeded by the Human Rights Council, and the Third Committee of the UN GeneralAssembly. The thematic issues highlighted in EU coordination are illustrated by the themesof the general guidelines the Council has adopted: in addition to guidelines on human rightsdialogues with third countries, they concern the fight against the death penalty (1998) andagainst torture and other cruel, inhuman or degrading treatment (2001), children in armedconflict (2003) and the protection of human rights defenders (2004).

Civil society has no direct role in CFSP decision-making, and as was noted above, therole of the European Parliament and of the Commission are much more limited than in theCommunity law framework. Civil society can of course try to influence the work of theCouncil by approaching Member States’ representatives or its Secretariat or through theCommission or the Parliament. As indicated earlier, the mandate of the new EU HumanRights Agency,153 is focussed on the question of the protection and promotion of humanrights in the EU (fundamental rights) rather than the question of human rights in externalrelations, even if there will be a possibility for candidate countries and countries with which

Allan Rosas

154 See supra (note 1).

155 See Articles 18 and 27 TEU as amended by the Lisbon Treaty.

156 See Article 27, paragraph 3, TEU, as amended by the Lisbon Treaty.

157 But contrary to the current situation under the CFSP, the courts will have jurisdiction to reviewthe legality of decisions ‘providing for restrictive measures against natural or legal persons’ adopted by theCouncil under the CFSP. See Article 24, paragraph 1, TEU and Article 275 TFEU, as amended by the LisbonTreaty.

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a stabilization and association agreement has been concluded to participate in the work of theAgency.

Finally, it should be emphasized that the Treaty of Lisbon of 2007,154 if it were to enterinto force, would bring important changes to the current structure of the TEU and the ECT.For EU external relations, the most important changes would be that the CFSP Second Pillarwould be more integrated into the general EU, including what is still today called theCommunity First Pillar and the ECT (to be renamed Treaty on the Functioning of theEuropean Union, TFEU). Among the institutional changes which would be introducedshould be mentioned the new post of High Representative of the Union for Foreign Affairsand Security Policy, who, unlike the current High Representative for the CFSP, would notbe the Secretary-General of the Council but instead one of the Vice-Presidents of theEuropean Commission. He or she would preside over the Foreign Affairs Council (consistingof the Foreign Ministers of the Member States) and in the Commission be responsible for allexternal relations matters.155 There would also be a European External Action Servicecomprising of officials from both the General Secretariat of the Council and the Commissionas well as staff seconded from national diplomatic services of the Member States.156 Theseand other reforms are designed to render the EU’s external action more efficient andcoherent, including in the human rights field. What would still remain as a CFSP part ofexternal relations, however, would continue to be largely outside the jurisdiction of the EUcourts.157

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