Fundamental rights are adequately protected under the European Union law.

The

EU is a limited body of powers and only holds power that is provided to it by the treaties.

I first argue that the EU treaties deliver their aims, which is to provide rights to

individuals and MS. This is demonstrated through defining the legal base of the treaties

and referring to the principle of conferral. These treaties are directly enforceable in

national courts. I then show how the Court of Justice plays a role in ensuring the rights

of individuals are protected through the Rule of Law. Lastly, the development of the

Charter of Fundamental rights after the Treaty of Lisbon reaffirms existing rights of

individuals on a more secure basis.

Firstly, the treaties, TFEU and TEU promote socioeconomic rights for individuals.

The aims of the EU are set out in Articles 2 and 3 TEU1. These rights focus on the

peace and well-being of its people. The treaties provide a legal base for the EU to act

under Article 114 TFEU2. EU either has exclusive competence to legislate or shares

competence with MS. Article 4 TEU3 aims at reflecting the shared competencies by

ensuring the EU only legislates if they can achieve the objective more effectively than

the MS. EU is subject to the principle of subsidiarity which states, laws should only be

made at the EU level when MS and the EU share competence and when the objective

cannot be achieved by the MS acting independently. EU is a minimum necessary

legislation; thus, to ensure the proportionality principle, the legal base allows EU law to

only act out of necessity and effectiveness.4 They have a minimum need to reach the

objective hence, EU is bound by union competence and cannot act in ultra vires.

Furthermore, the legal base leads to the principle of conferral where the EU

cannot legislate unless the treaty explicitly provides the power to do so. This plays a

significant role in ensuring EU acts in the benefit of the fundamental rights of MS. It

ensures that the EU only has those powers which is conferred on it by the treaties and

the powers not conferred remains with the MS. The EU ‘s powers are granted by the

MS. Article 19 TEU5 confirms that EU law should not undermine or restrict general

principles of law within the MS. The right and aims of the treaties only come into force

because the MS has approved it and negotiated them. These rights are legally binding

and subject to review by the CJEU.

The case 26/62 of Van Gen den Loos demonstrates the development of judicial

review through teleological reasoning. In this case judges interpreted the treaty’s

meaning and effects and concluded that without the principle of supremacy, EU

integration would not be possible. This gives rights to import goods without paying tariffs
so EU law must be followed.6 It was held that EU constitutes a new legal order that not

only imposes obligation on individuals but intends to confer upon them rights which

become part of their legal heritage. Individuals may rely directly on these rights in their

own national courts and where national courts conflicts with EU law, national law is set

aside. The supremacy of EU law is based on ensuring the rights are available to all

citizens. The principle of supremacy guarantees uniformity, so laws are applied the

same way across all MS and prevents them from pursuing self-interests. However, EU

will only act as far as it needs to.

This leads to the second argument that, CJEU has developed several ‘general

principles’ of EU law. By doing so it has drawn on the legal traditions of the MS.

Fundamental rights are protected by the Rule of Law. Courts are prepared to intervene

and challenge legislation; this is the process of judicial review which ensures legitimacy

and accountability of the EU. The role of CJEU is to uphold the treaties and ensure

these rights are protected. The CJEU polices EU to ensure they are not acting out of

their powers. They will ensure there is a clear treaty base and that they are following the

correct one. The court will take into consideration subsidiarity, the fundamental right

integration, equality, non discrimination and procedural fairness when deciding. CJEU

ensures the interpretation is observed but in doing so they also observe law and

practice in MS. The law should be upheld to add to their rights; and decision should not

be made that takes away a person’s rights.7

In Case 11/70 Internationale Handelsgesellschaft8, the applicants argued that the

EU restricts rights to property. CJEU held that EU rights are absolute, but EU law will

always be compatible with rights common to the MS. MS cannot use the convention to

create a barrier with the EU law because EU law will always ensure its compatibility. EU

upholds a minimum standard of protection and does not undermine domestic human

rights provisions which cannot be used as an argument against the supremacy of EU

law. Although EU law is supreme, this supremacy is consistent with the protection of

fundamental rights as EU law complies with the ECHR and which is common to all MS.

Lastly, fundamental rights are an EU created document which contains a large

range of socioeconomic rights reflecting the values of MS. After the Treaty of Lisbon9,

which developed the fundamental rights, the CJEU ensures the EU law is compatible

with the convention. The protection of fundamental rights can be remarkably powerful

and will on occasion require the courts to consider whether the protection of

fundamental rights should take priority over the provision in the EU treaties. Despite the
developments, the absence of a visible list of fundamental rights and freedoms attracted

adverse comments. This is where the Charter of Fundamental Rights came in. Under

Article 6 TEU10 the union recognises rights, freedoms and principles set out in the

Charter. EU supports the Charter and ensures JR for all powers and legislations made.

The CJEU has shown itself much more willing to refer to the charter since it has the

same legal value as the treaties. It addresses the problem of the lack of transparency of

EU human rights by effectively codifying the rights already recognized by the EU

treaties. EU recognizes the necessity to protect against the risk of the abuse of human

rights when implementing EU law.11

In the joined case of Kadi and AL Barakaat12, the applicants were named in a list

within the annex of the UN resolution for being linked to funding of terrorist activities. UN

implemented in EU law by a council regulation to seize property of both applicants.

Since EU regulations did not permit JR, it took away their free movement right under the

EU treaty and infringed their rights to seek an effective remedy under Article 47

Charter13. CJEU annulled a regulation freezing the assets of the individuals because the

process did not give them a right to be heard or any ability to challenge the inclusion of

their names on the UN list. Private individuals did not have the right to go before courts

to challenge EU law since this regulation is only aimed at MS. The CJEU took

responsibility to interpret the law fairly to ensure judicial protection in all circumstances.

EU law should be there to protect fundamental rights and add to them, not to reduce

them. EU has a distinct legal order which includes an obligation by the CJEU to protect

fundamental rights.

Therefore, EU treaties provide aims and functions for EU powers which ensure

that rights of MS and citizens are compatible with EU law. The CJEU is responsible for

interpreting the treaties to ensure that they are used to add and protect rights of MS and

individuals. Finally, the Charter assists in reaffirming important rights and making them

more transparent and accessible for EU, MS and individuals. Thus, EU has set up a

framework that works together to protect fundamental rights and be an addition to MS

regulations