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.
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