OBSERVARE
Universidade Autónoma de Lisboa
ISSN: 1647-7251
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Notes
The Charter of Fundamental Rights of the European Union - The role of
the Court of Justice in the Jurisdiction of Fundamental Rights
Cristina Crisóstomo
email: anacristinaborges@zonmail.pt
Law Degree (Universidade Autónoma de Lisboa), Law Master degree in Juridical sciences and
Post Graduated studies on European Comunity Law and Integration Law (European Law Faculty
of Lisbon). University teacher and researcher.
Coordinator of the Graduate Banking and Insurance.
Has extensive experience as a consultant and Training designer, has collaborated with many
different entities, namely DECO, INA, CES and the Bar Association and in transnational projects ,
for example, “ Reestablishment of internal border control in the Schengen area”,” The internal
market of Financial Services”, “ Free Movement of citizens in the E.U.”.
Expert off CESE, for issues of Consumer Law and Banking , and the Odysseus Academic Network
- Observatory for Freedom of Movement of workers.
The original text of the Treaties establishing the three European communities did not
include any reference to the protection of fundamental rights. The original EU law was
intended to be more of a "bill of powers" than a "bill of rights". It was understood that,
that wasn’t the subject of the founding treaties of communities, they were on the one
hand, on the constitutions of Member States and on the other as part of the
attributions of the Council of Europe.
However, the process of European integration led to the creation of a supranational
legal structure, well beyond what was foreseen in the Treaties that would eventually
end in the generation of a potential conflict with the national Constitutional Rights,
regarding the need to seek mechanisms that would allow for the interpenetration of the
different legal systems. Originally designed as sectoral and related only to the economic
and trading areas, it acquired over time, a much broader scope than the envisioned by
its founders. Throughout this process, the legal issue has always been fundamental,
because the institution of a Common Market (original aim of the European Economic
Community in 1957) assumed not only "negative" steps of regional integration, such as
the abolition of tariff and nontariff customs barriers to trade within the EEC, but also
"positive" steps, such as the elaboration of a common body of law in areas such as
labour, consumer and environment protection, among others. On the other hand,
European integration has always had a strong legal component, since it has been "rule
oriented" from the beginning, ie, based on procedures that occur within legal
parameters, which restricted, significantly, the use of purely political mechanisms in
the mutual relations of Member States.
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Under the legal and institutional perspective, the one characteristic of the integration
process that has always been more surprising, was no doubt, the supranationality that
also indicates a sui generis political situation, in which sovereign states agree to the
imposition of decisions taken by the organization, even when they do not match their
own interests. The integration dynamics and the progress of the founding treaties
expanded considerably the transfer of competences, from the states in favor of the
Union. Currently the EU has competence in areas that extend from agriculture, steel,
atomic energy, competition, labor policy, social, fiscal, economic and monetary policy,
trade and development, research and technology, education, transport, culture, and
environment, to the provisions on foreign policy, security and defense policy, as well as
immigration and asylum policies. Thus, the powers and duties of EU cover almost all
sectors of State action, expanding, largely beyond the limits of a purely sectoral or
economic integration, including to the sensitive area of fundamental rights.
From an early age, the need to create an effective system of protection of fundamental
rights at Community level in which the development of a catalog of fundamental rights
would be an essential part, was found, however this catalog was absent from the
founding Treaties.
The Single European Act (SEA), which was the first major change of the founding
treaties, revised the Treaty of Rome with the aim of relaunching European integration
and the completion of the internal market. It has changed the operating rules of the
European institutions and extended Community competence, on research and
development, the environment and common foreign policy, furthermore it was inscribed
in the preamble of the act, and for the first time, a generic formula Bill of Rights:
“Determined to work together to promote democracy on the basis
of the fundamental rights recognized in the constitutions and laws
of the member states , in the convention for the protection of
human rights and fundamental freedoms and the european social
charter , notably freedom , equality and social justice”1
Nevertheless, it was between advances and retreats, that only the Maastricht Treaty
that would implement a protection more or less effective of fundamental rights within
the Union, modeled on the then Article F, paragraph 2, which now bind the European
Union in respect of “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”.
Moreover, the prediction of a status of Union citizenship, recognized to all citizens of
the Member States and involving the ownership of certain rights, including political
rights (Articles 17 to 22 of the Treaty on European Community) was a catalog of major
changes that were extended in its scope, by the Treaties of Amsterdam and Nice, but
failed the objective of providing the communities with an European catalog of
fundamental rights.
1 Preamble to the Single European Act.
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However, the preparation of a catalog of fundamental rights was only decided at the
European Council in Cologne, on 3 and 4 June 1999, whose specificities were set out in
Annex IV to the Presidency conclusions of the said paper, from where we highlight the
following passage:
“… at the present stage of the Union's development, to establish a
Charter of fundamental rights in order to make their overriding
importance and relevance more visible to the Union's citizens.
The European Council believes that this Charter should contain the
fundamental rights and freedoms as well as basic procedural rights
guaranteed by the European Convention for the Protection of
Human Rights and Fundamental Freedoms and derived from the
constitutional traditions common to the Member States, as general
principles of Community law. The Charter should also include the
fundamental rights that pertain only to the Union’s citizens. In
drawing up such a Charter account should furthermore be taken of
economic and social rights as contained in the European Social
Charter and the Community Charter of the Fundamental Social
Rights of Workers (Article 136 TEC), insofar as they do not merely
establish objectives for action by the Union.”
The aim was to highlight and to give visibility, to the rights of citizens and for citizens,
through a catalog of fundamental rights endowed with normative primacy, legally
binding and directly applicable, not intended, however, to change the Community
competence in human rights. The contents of the future bill of rights should reflect the
European and communitarian acquis on fundamental rights and should contain three
broad categories of rights:
The personal rights and freedoms, as guaranteed by the Convention for the
Protection of Human Rights and Fundamental Freedoms and the constitutional
traditions common to the Member States.
The inherent rights of EU citizens, the rights associated to the status of Union
citizenship and therefore reserved for the citizens of the Member States (as
provided for in the Treaty establishing the European Community).
The rights of economic and social nature as they were enshrined in the
European Social Charter and the Community Charter of Fundamental Social
Rights of Workers.
On the other hand, the draft of the Charter would be participated by the main EU
institutions and would count on the contribution of national parliaments.
From a first analysis of the draft catalog of fundamental rights, we can immediately
draw two conclusions: that the Charter was not designed with the aim of expanding the
competences of the Union and that the European Council of Cologne made it very clear
that the issue of assigning a binding dimension to the Charter would be postponed
without a specific deadline: "... It will then have to be considered whether and, if so,
how the Charter should be integrated into the treaties..."
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The Charter was only assumed a purely political commitment.
The 15 and 16 October the same year, in Tampere, the statement of the Council of
Cologne was implemented and it was decided to set up a convention for drafting the
Charter designed in Cologne, this convention, for the first time, joined in a direct
process, the contribution of the representatives of national governments and
parliaments for the development of EU law. Having met for the first time in December
of that same year and approved a final draft on 2 October 2000 in Nice.
The drafting process of fundamental rights in the form of a Charter was developed by
representatives of national governments, the European Commission and members of
European and national parliaments. Chaired by Roman Herzog, former president of the
RFA and of the German Constitutional Court, this process introduces an innovation,
since it witnessed the participation of national parliaments and national governments,
strengthening, therefore, the level of decision making, visibility and legitimacy of the
catalog of fundamental rights, as well as the expression of several European
sensibilities.
The Tampere European Council established the principle of publicity of debates and of
documents submitted, therefore all documents of the presidency of the Convention, as
well as the contributions of all participants and other groups are available on the
Internet. The Convention completed its work and presented the draft Charter in its final
version on the second of October 2000 in order to enable the European Council to
discuss the text in the course of the informal summit on 13 and 14 October 2000, in
Biarritz having obtained assent. Similarly, the European Parliament also spoke
favorably about the text, on November 14, 2000 and December 7, the same year, so
the Charter of Fundamental Rights was proclaimed by the three institutions.
The Charter derives from the existence of a collection of rules on the protection of
fundamental rights, both in terms of the Member States and their constitutional
traditions, which embodies the general principles of Community law, either at the
international level, with the new paradigm of sovereignty based on the need to share
responsibility in the protection of these rights. It also intends to shape the rights of
European citizenship in particular the Community Charter of Fundamental Social Rights
of Workers and the European Social Charter, thus giving formal recognition to the vast
European Court of Justice rulings on Fundamental Rights. It becomes a Community
legal instrument, enjoying from its protection and support and going beyond the
member state reality.
The main functions assigned to the Charter are general functions as an instrument that
legitimizes the Union's political action and the co respective and legal security as well
as to provide the necessary visibility and proximity of citizens to the above mentioned
acquis.
We can still identify as specific objectives; the Charter as a mechanism for monitoring
and regulating the exercise of Community competence, and this does not mean
increasing the powers of the Union, but rather the way in which they should be
exercised; The formal vinculation to the European Convention of Human Rights and its
submission to the Court of Justice, as well as clarification of the compatibility between
the Charter and the national constitutions, does not require changes in national
constitutional law, but rather arises as a criterion of interpretation; As a criterion for
guidance on the Union's relations and there maining international community,
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particularly in relation to the common foreign and security policy, on the relations with
third countries and more specifically in relations with the states of the enlargement;
Finally, the Charter guarantees the protection of existing rights in the Convention and
thus generates a match and the integration of these rights in the Union acquis.
Despite its solemn proclamation of the European Council in Nice in 2000, the Charter
has retained its non legally binding character until 2007, when the Lisbon Treaty has
conferred binding legal force recognizing its legal value at the treaties level.
Moreover, in this area, the Lisbon Treaty, which entered into force in December 2009,
already provided for the accession to the Convention and the Commission is provided
with a mandate to this effect, so the Stockholm Programme, adopted by the European
Council of 11 December 2009, also provided for the Union's rapid accession to the
European Convention of Human Rights, thus consolidating the legal framework for
protection of fundamental rights in the EU acquis
The multiannual Stockholm program (in force between 2010 and 2014) has for its
mission to deepen the progress made within the Area of Freedom, Security, and Justice
and to focus on the interests and needs related to citizenship. The challenge is to
achieve a balance between the need to ensure respect for fundamental rights and
freedoms of the individual and the need to ensure security in Europe. On the other
hand, the Stockholm Programme provides that the European Union should join as soon
as possible to the European Convention for the Protection of Human Rights and
Fundamental Freedoms and the European Commission presented a draft decision of the
Council of the European Union towards the authorization to negotiate the agreement on
Union accession to the Convention.2
The status of the European Charter of Fundamental Rights, only recently, with the entry
into force of the Lisbon Treaty, became clear within the Community legal order, strictly
speaking, in March 2010.
Behind, it was left a long experience, based on the Court of Justice rulings on the
enforcement of fundamental rights.
In fact, the scope of the treaties essentially economic, even alienating the issue of
protection of fundamental rights, allowed under the rules of conformation of economic
freedoms, for the rights, protected by the Community legal order, to have an effect on
EU citizens. Although indirect and instrumentally, these rights have been regulated and
assumed a key role in the acquis communitarian, the right to non discrimination on
grounds of nationality, the right to free movement and access to the exercise a
profession or economic activity in the territory of a member State, the freedom of
establishment, as well as some economic and social rights such as equal pay between
men and women.
In the absence of a declaration of rights, it fell on the Community Judge, based on a
case by case assessment, the definition of a community model of protection of
fundamental rights.
It is therefore important to examine the role of the Court of Justice of the European
Union in the jurisdiction of the fundamental rights that anticipated the consecration of
2 Reflection document of the Court of Justice of the European Union on certain aspects of EU accession to
the European Convention for the Protection of Human Rights and Fundamental Freedoms.
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these rights as a genuine Community policy, as the result of binding nature given by
the Treaty of Lisbon to the Charter.
The evolution of its jurisprudence illustrates the contribution of the Court of Justice to
create a legal space with respect to citizens by protecting the rights that EU law gives
them in different aspects of their daily lives. Thus, by holding that respect for
fundamental rights as an integral part of the general principles of law, also contributed
considerably to increasing levels of protection of those rights
The European Court of Justice includes the General Court and specialized courts, ot falls
on the ECJ, composed of these three jurisdictions, the main task of assessing the
legality of Union acts and ensure full compliance with the Treaties as well as ensure the
interpretation and uniform application of Union law.
The ECJ over the years has been creating, through its case law, the obligation of
legislators, public administrations and national courts to fully implement EU law within
their respective spheres and courts to protect the rights of European citizens. This law
consolidated the principle of primacy of Community law and the direct effect of EU law.
The normative deepening of the integration process, closely related to the assertion of
the primacy and direct effect, as the basic criteria of coordination between Community
law and national laws, inculcated in most of the Community rules the characteristic of
immediacy. The primacy and direct effect of Community rules gives the particular right
to enforce them at the expense of the national rule.
However, as direct recipient of the Community legal command, the individual might be
affected in its capacity as holder of the rights recognized by the national constitution or
by applicable international conventions, particularly with regard to fundamental rights.
As a result, the Court was faced with a dilemma, to abdicate of the primacy whenever
the binding force of Fundamental Rights was in question, or not to abdicate on the
absolute and unconditional nature of the requirement of the primacy. From the analysis
of the European Court of Justice jurisprudence, we can say that, at first, it has opted
for an agnostic view, regardless of how relevant were the fundamental rights in its
constitutional or international nature, the Community courts did not recognized them as
parameters of assessment of validity of Community acts.
The Court held that it should ensure the enforcement of the primacy and the
elimination of any exceptions that might weaken, even if it has to sacrifice fundamental
constitutional rights or international rules on human rights, not allowing the individual
invocation of the constitution or of international instruments to oppose the application
of a Community act potentially restrictive of Fundamental Rights. Thus, the Court
rejected the independent supervision of Fundamental Rights.
We can say that the Court violated the Treaty itself, in so far as the art. 19 TEU regards
the court as the body "to ensure the respect of law". Now, by historical legacy or under
the current constitutional experience, the law embodies the proclamation and effective
protection of fundamental rights.
This position of the Court undergoes a major change, with the ruling of 12 November
1969, delivered in the case Stauder, materializing shift from the "agnostic" phase to a
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phase of active recognition of Fundamental Rights, “... the fundamental human rights
enshrined in the general principles of community law and protected by the court”3.
The "communitarisation" of Fundamental Rights by reference to general principles of
law, had been suggested by the Attorney General Lagrange in the case Comptoirs. On
the other hand, we must stress that it is the Treaty itself, in art. 340° (EUT), that
recognizes the general principles common to the laws of the Member States concerning
extra-contractual liability.
In the sensitive area of Fundamental Rights the recourse to general principles of law as
technical integration and empowerment tool of rights and freedoms enshrined in the
national systems, would prove extremely fruitful. It is even an enhanced protection,
since the general principles have primacy over secondary Community law and on the
treaties themselves wherever basic rights inherent to the human dignity of a person,
which by its ethical-legal force are not subject to exemption.
The Court of Justice jurisprudence has given an important contribution to the
determination of a material notion of general principles of law inherent in the
constitutional traditions of Member States and integrated into the structures and
objectives of the Community acquis4.
The Court calls for himself, in collaboration with national courts, the protection of
Fundamental Rights, initiating a third phase in the EU5 jurisprudence, characterized by
the determination of material criteria of Fundamental Rights. The Common
constitutional traditions, the constitutions of the Member States and the international
instruments on human rights to which Member States have acceded or cooperated,
form a wide range of normative revelation of Fundamental Rights that must be
protected by Community Courts in cooperation with national courts. As general
principles of law their binding force on the legal system does not depend on any
common denominator, nor on the greater or lesser acceptance of the Member States to
identify their criteria, but on their functional adequacy. Being an EU body of limited
powers, according to the principle of jurisdiction by assignment, the interpretation of
the scope of competences both explicit and implicit, regarding the protection of
fundamental rights can only match this space of regulatory action.
The active recognition of fundamental rights has meant that we can find in the Court of
Justice jurisprudence direct references to international law as a source of rights
guaranteed by the Community Courts6. The first explicit mention of Charter of Human
Rights emerged in the case Rutili7 by considering that the limits of the competence of
the Member States regarding immigration policy, are the manifestation of a more
general principle enshrined in Articles 8, 9, 10 and 11 of ECHR and Article 2 of Protocol
No. 4.
In addition to the many explicit references and additional protocols to the ECHR, the
ECJ recognized in a 1991 ruling that the ECHR "has a particular meaning" between the
general principles of law whose protection is guaranteed by EU law.
3 Rulling, Stauder, Proc.29/69 of November 12, 1969, TJC Report 1969: 419.
4 Rulling, Handelsgesellsschaft Internationale, Proc. 11/70 of 12 December 1970, Report of TJC1970:1125.
5 Rulling Nold II, Proc. 4 / 73 to May 14, 1974, TJC Report 1974: 491.
6 In the Van Duyn case (Proc. 41/74 of 4 December 1974 Report of the TJC: 1337) characterized the right
of entry and residence of nationals in their own state as a principle of international law.
7 Rulling Rutili, Proc. 36/75 of 29 October 1974, Report of the TJC: 1219.
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The imperative nature of human rights in EU law also legitimizes the power of the EU
judge to, in cooperation with the national court, proceed to the supervision of
legislative acts and regulations of the Member States.
Nevertheless, the Court confirmed its intention to limit the enforcement of the
compatibility of national law with the ECHR provisions to those that run Community
regulations or which provide exceptions to Community freedoms, and not to syndicate
the compatibility with the ECHR of a national law that is located in the area of the
national legislator.
The relevance of the protection of fundamental rights in the Court of Justice as part of
the general principles of law, which are protected either by the Community judicature,
or by the national court, may be understood as a form of material reception.
In fact, the provisions on Fundamental Rights were incorporated into the constitutional
traditions of Member States and thus, in particular, the ECHR has been received and
incorporated into EU law as part of the general principles of law. Thus, the EU Courts
interprets and applies the fundamental rights of both national and conventional
sources, according to the rules and criteria of EU law. The Community Court did not
commit to a legal classification of fundamental rights in EU law, but in its jurisprudence
on the relevance and meaning of Fundamental Rights, the court points to its material
reception.
In a recent ruling on matters of competition concerning the right not to incriminate
oneself, protected by the presumption of innocence under article 6, paragraph 2 of the
ECHR, the Court concluded that "has no jurisdiction to rule on the legality of an enquiry
into competition law under the provisions of the ECHR, to the extent that these are not
part of Community law as such", stressing, however, that the Court has consistently
held that" fundamental rights are an integral part the general principles of law whose
observance is ensured by the Community Courts." Different position would be adopted
today because, under the Treaty of Lisbon, the ECHR became vinculative.
It is fair to say that the enactment of the Charter of Fundamental Rights of the
European Union does not add powers to the EU competences on Fundamental Rights,
nor has it revealed a new set of common values on which the Union is founded, but it
gives a new legitimacy to the protection of these rights, solidarity of form, democratic
legitimacy of the development, importance of codification and systematization and
symbolism inherent in a catalog which aims to express the principles and rights it
constitutes a fundamental pillar of a political community.
The jurisdictional acquis on the protection of fundamental rights in Europe whether
perfect or not, constitutes itself as a first step, on the protection of fundamental rights
of the European citizens and as a safeguard against violations of their legal rights by
the authorities that hold the prerogatives of power.
However, its casuistic basis and legal uncertainty do not fit the defense of what is the
deepest of human nature: human dignity and fundamental values.
In this regard, one must move towards a progressive deepening of an autonomous
legal order, coherent and uniform, that does not infringe , if possible, state sovereignty,
but that inevitably will end up restricting the freedom of state activity in areas that are
increasingly large and extensive.
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With the express consecration of Fundamental Rights, as a genuine Community policy,
by making it binding, with the Treaty of Lisbon, the instances with political legitimacy
and institutional competence took a step forward for the protection of Fundamental
Rights.
On the other hand, the ECJ got released from a position of constraint, between the
choice on the application of the Charter or the defense of European integration and
resolves definitively the question of the legitimacy of the ECJ regarding the protection
of these rights.
The Charter ceases to have a merely symbolic role and is set to fix the teleological
principles inherent to the European Union, translating them into Fundamental Rights.
With its binding nature, the Charter gives a qualitative leap, by stating that is not only
intended to crystallize and articulate the rights but, in fact, to ensure adequate
protection in the face of European public entities and powers.
The character of universality, found in this Letter shows that one of its objectives was
the dissemination among Europeans of the knowledge necessary for them to demand
and ensure an effective protection of their rights. In this sense, it provides an answer
to need for dissemination and information of these rights to its recipients.
In short, the Charter approach and announces its catalog of fundamental rights to
citizens, strengthening its legal security and certainty.
On the preamble of the Charter we can verify, the proclamation of EU common values
(human dignity, freedom, equality, solidarity, ...), the statement of basic principles (the
principle of democracy and the rule of law , principle of respect for fundamental human
rights, the principle of subsidiarity, ...), the promotion of core values (respect for the
diversity of cultures, traditions and identity of the people of Europe, balanced and
sustained development of economy, social progress, evolution technological and
scientific), the reaffirmation of compliance with the constitutional traditions of Member
States, of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, the Social Charter, as well as respect for the jurisprudence of
the ECJ and the European Court of Human rights and submission to the
superintendence of the ECJ and national courts of the Member States.
The Charter brings together a set of personal rights, such as civil and political rights of
citizens enshrined in treaties, economic rights and social rights, applying, clearly, the
principle of universality and indivisibility of rights. Concerning the structure, it does not
make the distinction, previously established in European and international texts,
including civil and political rights on one hand, and economic and social rights on the
other, but opts for a list of all the rights and freedoms in accordance with some
fundamentals essential to human dignity, fundamental freedoms, equality between
people, solidarity, citizenship and justice. Being systematized around basic legal rights
as those mentioned above.
Thus and for the first time, all the rights that were scattered through various
legislations, such as national legislation and international conventions of the Council of
Europe, the United Nations and the International Labour Organization, among others,
were assembled in a single document.
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Providing visibility and clarity to Fundamental Rights, the Charter helps to develop the
concept of political union as well as to build a European area of freedom, security and
justice.
For the future and regarding implementation of the Charter, it is important to give it
credibility and invest in a wide dissemination of its contents, thus fulfilling one of the
objectives of the project, to make it visible. On the other hand, the principles enshrined
in the Charter shall serve as criteria guiding the development of EU policies and
parameters for the activity of EU institutions.
We highlight some recent initiatives, which we reported as a breakthrough in the
protection of Fundamental Rights and the application of the Charter; in September
2002 a network of independent experts on human rights was created, after an
European Parliament recommendation. These same experts submitted their first report
on the situation of Fundamental Rights in the European Union and its Member States on
31 March 2003. The report presents a synthesis of national reports produced by each of
the experts and recommendations to the institutions and the Member States. The
network was funded as a preparatory action8, with a limited duration to three years
that cannot be renewed.
In February 2007, the European Union Agency for Fundamental Rights (FRA) was
created9, based in Vienna, whose main purpose is to provide information, assist and
provide competences to the EU and national institutions in the field of Fundamental
Rights. The agency coordinates its activities by establishing a network of cooperation
with civil society, exchanging information, sharing knowledge and ensuring close
collaboration between agencies and other stakeholders. It also establishes institutional
relations at the international, European and national levels, including the Council of
Europe, the Organization for Security and Cooperation in Europe (OSCE), the relevant
community agencies, government organizations and public agencies, including the
National Institutes of defense of human rights.
It aims to analyze of the main problems of each state, allowing the Union to
increasingly act in accordance with the needs and interests of their members, looking
for the effectiveness of their decisions and the consistent application of measures in the
field of fundamental human rights.
In conclusion, the Charter adds legal certainty with regard to the protection of
fundamental rights, to date this was only granted by the Court of Justice and Article 6
of the Treaty of the European Union..
For this reason, we cannot fail to highlight the role that the law played in the
determination of the precise legal boundaries of the Charter and on the maturation of a
system of protection of fundamental rights. This Court's role is and was so important
that the Charter was to become mandatory by its interpretation as a source integrated
in the general principles of Community law. In this sense, the letter was destined to be
incorporated in the Treaties, sooner or later, which turned out to be implemented on
the Lisbon Treaty.
8 In accordance with Article 49 of the Financial Regulation (Regulation 1.605/2002 Council)
9 By Regulation 168/2007 of 15 February establishing the Fundamental Rights Agency of the European
Union
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In a time where international relations are governed both by its complexity, the
diversity of their stakeholders and are characterized by the existence of multiple legal
systems that are intertwined, resulting in a dispersed and fragmented normative order,
the adoption of the Charter of Fundamental Rights European acquires a special
importance.
With its enforced application, the debate about its necessity is ended it is now clear
that states, citizens and the magistrates should consider its content as a criterion for
decision-making and implementation of all public policies.
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How to cite this note
Crisóstomo, Cristina (2011). "The Charter of Fundamental Rights of the European Union - The
role of the Court of Justice in the Jurisdiction of Fundamental Rights". Notes, JANUS.NET e-
journal of International Relations, Vol. 2, N.º 2, Autumn 2011. Accessed [online] on date of last
view, observare.ual.pt/janus.net/en_vol2_n2_not3
JANUS.NET, e-journal of International Relations
ISSN: 1647-7251
Vol. 2, n.º 2 (Autumn 2011), pp. 134-148
The Charter of Fundamental Rights of the European Union
Cristina Crisóstomo
145
Appendix
The Court Of Justice of European Union
Stems from the December 10, 1952 with the establishment of the ECSC Court of
Justice in Luxembourg. Through the Treaty of Paris in 1951, later adopted by the
Treaties of Rome in 1957 was created the Court of Justice of European Communities, to
ensure an accurate and uniform application of Community law by its Member States.
With the creation of the communities a new autonomous law was born, to regulate
relations not only between member states, but also among its institutions, businesses
and citizens themselves.
Since inception in 1952, the Court of Justice of the European Union carries with itself
the jurisdictional administrative, international, constitutional, labor, civil, tax and
customs functions, it is the jurisdiction responsible for the interpretation and application
of Community law. The ECJ cooperates with the judicial authorities in the Member
States to ensure uniform application of Community law, acting as interpreter ultimately
responsible of Community law. As part of its contentious jurisdiction, whether or not
resulting from the Treaties, it settles disputes between institutions and bodies of the
EU, between Member States, between Member States and institutions, bodies or
agencies of the EU and between individuals and Union institutions.
The Court is, therefore, the judicial authority of the European Union and its mission is
to ensure "respect for the law in the interpretation and application" of the Treaties, in
collaboration with the courts of member states.
The Court of Justice of the European Union, is composed of three courts: the Justice
Court, the General Court (established in 1988) and the Civil Service Tribunal
(established in 2004).
The Court of Justice is composed of 27 judges and 8 advocates-general. The Judges
and Advocates General are appointed by common accord of the governments of the
Member States, after consultation with a committee to advise on the suitability of the
candidates proposed to perform the duties in question. Their terms are for six years,
renewable. They are chosen from persons whose independence is beyond doubt and
who possess the ability required for appointment in their respective countries, of high
judicial office and have recognized competence.
The judges of the Court of Justice shall elect the president for a period of three years,
renewable. The President directs the work of the Court and presides at hearings and
deliberations of the major formations of the Court.
The General Advocates assist the Court. They are responsible to publicly present, with
complete impartiality and independence, legal opinions, called "conclusions", in cases in
which they were appointed.
The Court of Justice can function in Full Court, a Grand Chamber (thirteen judges) or in
chambers of three or five judges.
The Full Court is responsible to assess particular situations envisaged by the Statute of
the Court of Justice (including when to declare the resignation of the Ombudsman or
compulsorily retire a Commissioner who has failed to fulfill the duties incumbent on
him) and when considering that a specific cause as an exceptional importance.
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It sits in a Grand Chamber when a Member State or an institution that is party to the
proceedings so requests and processes are particularly complex or important.
The other cases are heard in chambers of three or five judges.
The General Court is composed of at least one judge per Member State (27 in 2007).
Judges are appointed by common accord of the governments of the Member States,
after consultation with a committee to advise on the suitability of candidates. Their
terms are for six years, renewable. From among their number for a period of three
years, the President of the Court appoint a Registrar for a term of six years.
Judges shall perform their duties with complete impartiality and independence.
Contrary to the Court of Justice, the General Court has no permanent General
Advocates. This function can, however, be exceptionally entrusted to a judge.
The General Court works in Chambers of five or three judges or, in some cases, a
single judge. It can also sit as a Grand Chamber (thirteen judges) or in full court, when
the legal complexity or importance of the case justifies it. Over 80% of the cases
submitted to the General Court are heard by a Chamber of three judges.
The General Court have jurisdiction on: the actions brought by individuals or legal
persons (institutions, companies, ...) against acts of the institutions and bodies of the
European Union that are recipients or directly affected by the case, and against
regulatory acts (directly affecting them respect and do not require implementing
measures), or against a failure of these institutions and bodies. It is, for example, the
action brought by a company against a Commission decision imposing a fine; actions
brought by Member States against the Commission or, in actions brought by Member
States against the Council in relation to acts adopted in the field of State aid, trade
protection measures and the acts by which the Council exercises its competences.
The Civil Service Tribunal of the European Union is composed of seven judges
appointed by the Council for a renewable period of six years, after a call for proposals
and advice of a committee composed of persons chosen from among former members
of the Court of Justice and the General Court and jurists of recognized competence.
When appointing judges, the Council must ensure that the composition of Civil Service
Tribunal is balanced and based on the broadest possible geographical basis from among
nationals of Member States and national legal systems.
The judges of Civil Service Tribunal shall designate among their number and for a
renewable period of three years, its chairman.
The Tribunal meets in chambers of three judges. However, when the difficulty or the
importance of questions of law warrant, a case may be referred to the Full Court.
Moreover, in some cases and in the light of its Rules of Procedure, the Court may
decide in sections of five judges or as a single judge. The judges shall appoint a
secretary for a term of six years.
Regarding the litigation the Civil Service Tribunal is within the judicial institution of the
Union, the specialized jurisdiction of litigation in the field of civil service of the European
Union, previously exercised by the Court of Justice and, from its creation in 1989 by
the Court of First Instance. It has jurisdiction to hear at first instance, disputes between
the Communities and their servants pursuant to Article 270 EUFT. These disputes are
related not only to issues relating to labour relations themselves (pay, career
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Cristina Crisóstomo
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development, recruitment, disciplinary action, etc, ...) but also on the social security
system (illness, retirement, invalidity, accidents at work , family allowances, etc, ...). It
also has jurisdiction for disputes between all bodies or agencies and their personnel, for
which jurisdiction is conferred on the Court of Justice of the European Union (eg.
disputes between Europol, the Office for Harmonisation in the Internal Market (OHIM)
or European Investment Bank and their agents). On the other hand, has no jurisdiction
to hear disputes between the administrations of their respective national agents.
Regarding the contentious mechanism, the default action is intended to monitor
compliance by member states of their obligations under the law of the Union to the
Court of Justice is preceded by a previous procedure initiated by the Commission that
gives the member State the opportunity to respond to charges. If this does not lead the
state to terminate the infringement the State may be brought before the Court on an
action for breach of EU law.
This action may be brought by the Commission (it often the case) or by a Member
State. If the Court declares the breach, the State concerned must terminate it without
delay. If, after bringing a new action by the Commission, the Court finds that the
Member State concerned has not complied with its ruling, it may order the payment of
a lump sum or a penalty. However, in case of failure to notify measures transposing a
directive to the Commission, the Court may, on proposal of the latter, apply a financial
penalty on the Member State concerned, at the stage of the first ruling of non-
compliance.
Another important mechanism is the action for annulment, through this type of
application the applicant seeks the annulment of an act of an institution, of an organ or
agency of the Union (including a regulation, directive, decision) because they are
wounded with irregularities under EU law. Its main goal is to eliminate wounded legal
acts from the EU. When it comes to judicial review of EU legality the Proceedings for
failure to act allows for the control of the legality of the inaction of the institutions of an
organ or a body of the Union. Proceedings for failure to act are legal proceedings
brought before the Court of Justice of the European Union (CJEU). They enable the
Court to control the inaction of a European Union (EU) institution, body, office or
agency. This type of action may only be brought after a procedure of pre -litigation,
and the institution concerned is urged to act. When the legality of the omission is
declared, it is up to the institution concerned by the non-compliance to take
appropriate measures to correct the omission.
Regarding the review of decisions they may be brought before the Court of Justice via
appeal limited to the points of law, judgments and orders of the General Court. If the
appeal is admissible and well founded, the Court of Justice annuls the decision of the
General Court. If the process is able to be tried, the Court of Justice may decide the
dispute definitively. Otherwise, it must refer the case to the General Court, which is
bound by the decision given on the appeal.
Another review mechanism allows for the decisions of the General Court on appeals
against decisions of the EU Civil Service Tribunal to can be exceptionally reviwed by the
Court of Justice, in accordance with the Protocol on the Statute of the Court of Justice
of the European.
Finally, the ECJ has advisory jurisdiction on the form of opinions on the compatibility of
international treaties with EU law, art. 218 of the Treaty of Lisbon.
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The Court of Justice, is also responsible for the development an action for judicial
cooperation under the preliminary ruling, working in collaboration with all the courts of
the Member States.
To ensure an effective and uniform application of Union law and avoid divergent
interpretations, national courts can, and sometimes must, address the Court of Justice
to request clarification on the interpretation of Union law, and allowing them to check
the conformity of its laws. The preliminary ruling may also have intended to review the
legality of an act of the Union.
The Court of Justice answers by reasoned rulling or decision and the recipient national
court is bound by the given interpretation. The ruling of the Court of Justice is binding
on other national courts to whom it may be submitted a similar problem.
It is also under the preliminary ruling procedure that any European citizen can ask for
clarification of EU rules the concern him. In fact, although the preliminary ruling
procedure can only be triggered by a national court, the parties already present in
national courts, the member states and EU institutions can participate in the
proceedings before the Court of Justice. That is the way in which some structural
principles of EU law were from preliminary rulings, namely the development of the
jurisprudence of the protection of the rights enshrined in the Charter of Human Rights.
How to cite this Note
Crisóstomo, Cristina (2011). "The Charter of Fundamental Rights of the European Union".
JANUS.NET e-journal of International Relations, Vol. 2, N.º 2, Autumn 2011. Accessed
[online] on date of last visit, observare.ual.pt/janus.net/en_vol2_n2_not3
