Austria: Legal Framework Regarding Fundamental Rights Protection Since The Lisbon Treaty

Last Updated: 18 September 2013
Article by Kerres Partners

1. Fundamental right protection before the Lisbon Treaty

Before December 1, 2009 fundamental right protection within the European Union was characterized by its inconsistent approach. In the early stage of European fundamental rights protection, the EC treaty originally contained no provisions on fundamental rights. This situation was exacerbated by ECJ decision on the primacy of Community law together with the fact that its newest jurisdiction differ from its earlier case law where it had recognized fundamental rights as part of the unwritten Community law. Due to the fact that systems of fundamental rights protection always reflect ideologically, religious, ethnic, cultural and social divergences, one may argue that universal human rights – respectively a "ius commune" - does not exist. A paradigm shift was for the first time indicated in 1969, when the ECJ ruled in the well-known case Erich Stauder v city of Ulm that "(...) fundamental human rights (are) enshrined in the general principles of community law and protected by the Court (...)". Nevertheless jurisdiction stayed strictly individual and inconsistent in its application and it became clear that the European Union and their institutions require an accompanying internal monitoring in respect of the protection of fundamental rights First steps towards a coherent approach to establish European fundamental rights independent from the ECHR were taken when Member States meet at Cologne in 1999 and agreed that a Charta, cataloguing fundamental rights on European level, need to be established. In December 2001 the European Council adopted the Laeken Declaration on the Future of Europe which expressively referred to the drawn up Charter of Fundamental Rights (hereinafter referred to as "ECFR"). Even before the Lisbon treaty entered into force European institutions had made full use of the European Charter. Especially the Commission utilized the Charter for an impact assessment on fundamental rights on its legislative proposals. As a result the Unions acquis regarding fundamental rights has been developed by the Treaty of Amsterdam and the – at that time – non-binding Charter. After 2001 it was intended to directly incorporate the ECFR within the Constitutional Treaty. Two years later, on July 10, 2003, the draft of the Treaty on establishing a Constitution for Europe was finished and submitted to the President of the European Council. As a next step all 25 EU Member States were asked to ratify the draft. The ratification process depends to the national order of the MS, namely if MS need to submit the Treaty to their National Parliaments or hold referenda instead. During that there was a stop when France as well as the Dutch referenda was rejecting the EU Constitution. After those two negative outcomes on the Constitutional Treaty further negotiations followed. Reflecting the efforts of Germany in 2007 a common agreement on a new Treaty (hereinafter referred to as "Lisbon Treaty") could be reached. At least the treaty was signed at the European Council of Lisbon on 13 December 2007 and ratified by all Member States.

2. Fundamental right protection since the Lisbon Treaty

The Lisbon Treaty entered into force on December 1, 2009. According to Art 47 TEU the European Union has also acquired legal personality. The conferral of legal personality on the EU means that it henceforth has the ability to conclude and negotiate international agreements in accordance with its external commitments, to become a member of international organizations and to join international conventions. Therefore Art 6 para 2 obliges the EU to accede to the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR). Although planned, the ECFR has not been introduced on constitutional level. Instead, Art 6 para 1 TEU now contains a referral provision. Nevertheless the ECFR enjoys the statues of primary law and can therefore be seen as of equal rank with TEU and TFEU. Protection of fundamental rights in the European Union is now based on three pillars:

1. The Charta of Fundamental Rights which is legally binding since the Lisbon Treaty.

2. The already exisiting European Convention on Human Rights together with the jurisprudence of the European Court of Human Rights.

3. All elementary legal principles laid down in the Member State`s constitutions regarding fundamental rights as they compose minimum standards.

2.1. Field of application of the Charter of Fundamental Rights

Art 51 para 1 ECFR sets out the field of application of the charter. The use of the conditional tense demonstrates clearly that the Charter has direct effect to the European institutions. This applies not merely to European legislative institutions but also executive and decentralized European agencies. Further on, Art 51 para 1 ECFR confirms that the EU only enacts their competences in conformity with the principle of subsidiarity. Regarding MS, the protection warranted by the ECFR is strictly confined to European matters. This became clear in Art. 6 paragraph 1 second sentences TEU, in connection with Art 51para 1 ECFR.

A new possibility for an appeal of individuals for ensuring assertion of claims for damages resulting from violations of fundamental rights was not introduced. For the enforcement of an infringement of fundamental rights, one is reliant on the already before existing judicial remedies (individual action, action for annulment, action for failure to fulfil obligations). In the event of a breach of fundamental rights by way of national law, individuals are able to gain remedy according to their national legal order. Regarding the ECFR the Austrian Constitutional Court issued that the ECFR must be seen equal to constitutional law (in terms of Art 144 and Art 144a B-VG) and must therefore not only be considered in national proceedings with an European context but can also be asserted before the Constitutional Court (VfGH on March 13, 2012, U466/11 and U 1836/11). The Constitutional Court postulates hence that it alone has the power to reject incompatible national law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions