“The EU Charter of Fundamental Rights cannot fully protect European citizens.

The EU
should accede to the European Convention of Human Rights.”

Discuss.

The original Treaties related to the European Union (EU) do not mention human rights (HR) or
fundamental rights (FR). In fact, until 1969, the issue wasn’t even considered. However, the
Courts in Germany and Italy pressurized the European Court of Justice (ECJ) to cater to FR.
Finally, in 2000, the Charter of Fundamental Rights (Charter) came into being that incorporated
the entire corpus of law of HR in the EU. However, it was only until 2007, when the Treaty of
Lisbon was legislated, that the Charter was officially part of EU legislation, to be taken into
consideration by the ECJ in all cases. This essay will establish that the rights of the EU citizens
are sufficiently protected by the ECJ through the Charter and that the accession to the European
Convention on Human Rights (ECHR) would be of little significance.

The applicability of the Charter is far and wide ranging, covering most, if not all, areas of
grievances of the EU citizens. Essentially, it applies when EU Law applies. Article 6 of the
Treaty on the European Union (TEU) states that the Charter has the same status as other Treaties.
The same article also mentions that the ECHR was a source containing rights that ‘shall
constitute general principles of the Union’s law’. This effectively reflects the reality that despite
not acceding to the ECHR by the EU, the Charter draws inspiration and immediate effect from it.

The Charter is of significant important, because it is the single, compact, HR legislation of the
EU, and in how it provides for the interpretation of EU law. Koen Lenaerts states that the Charter
can be used as an aid to interpretation of secondary EU legislation and Member State (MS) law
that falls within the scope of EU law. As held in the case of [Vinkov] the Charter does not apply
when the situation does not fall within the ambit of either the Charter or competence of EU.
That, and only that, seems to be its limitation.

Indeed, as per Article 51 of the Charter, even the EU institutions along with the MS are bound by
the Charter, when implementing EU law. That covers a wide range of cases, and certainly, most
cases in the ECJ, if not all. In [Fransson] the ECJ held that the application of EU law entails the
application of the Charter. This was widened in [Cruciano] where it was stated that where a
national measure had a degree of connection with EU law, the Charter would apply. This
provides aid to the thesis that the Charter is sufficiently capable of protecting rights due to its far-
reaching applicability as an initial form of control. The Court went even further when, in [Bauer
& Brossonn], it stated that the Charter is horizontally applicable. This essentially means that the
Charter applies, and may be invoked, in cases involving two individuals or private entities. Thus,
violation or breach of a right under EU law will invoke the Charter, triggering its protection.

In [Kucukdeveci] a discriminatory EU law was set aside as being contrary to Article 2(1) of the
Charter. In [Chakroun] an MS law restricting right to respect for family life was set aside, by
application of the Charter. In application of Article 51, a Council order has been annulled, not set
aside it must be noted, for violating the fundamental right of privacy – [European Parliament v
Council]. In [P Italian Republic v Commission] notices of competition were annulled for being
discriminatory, violating Article 21 of the Charter. The ECJ has also held a Commission decision
to be invalid for advocating for the US ‘Safe Harbor Scheme’ because it failed to provide an
adequate level of protection of personal data. Finally, in [Commission v Poland] in 2019, the
ECJ determined the constitutionality of an MS measure in light of the Charter. Essentially, what
this string of cases shows us is that the EU Charter has sufficiently protected the rights of EU
citizens in all the various matrices of situations.

It may, however, be argued that the UK – as it was previously part of the EU – Poland & the
Czech Republic signed Protocol 30, the opt-out Protocol from being bound by the Charter, and in
doing so, the Charter would not apply, thus rendering it as failing to provide protection in that
case. However, such is not the case. The Protocol 30 is more political than it is legal. The MS
will be bound by the ECJ decisions and national traditions. It was held in [NS v Secretary of
State for Home Department] that the protocol does not call into question the applicability of the
Charter in the UK – as it was part of EU then – and Poland. Therefore, despite the opt-out, the
Charter still applies to the MS. Furthermore, Horspool and Humphreys note that the ECJ can, at
any time, create a FR not in the Charter and no Protocol or Declaration will be able to absolve
the MS from legal responsibility. Effectively, the application, and the adequate application of the
Charter is entrenched within the legal framework of the ECJ and the EU. The case law above
proves that the Charter has a jurisprudence to prove the claim that it is adequately protecting the
citizens’ rights on its own.

This raises the question: Would the accession of the EU to the ECHR improve the protection of
citizen rights? It is argued that they would not. The starting point of this hypothesis is in the fact
that while the EU has not yet acceded the ECHR, despite it becoming a legal obligation under
Article 6(2) of the Treaty of Lisbon, all the members of the EU have, and thus, are bound by it.
Therefore, the ECHR provisions apply to any and all violations of HR within the MS, dealt with
under ECHR.

It must also be noted that the ECJ has used the ECHR as a source of inspiration for FR – [Nold].
AG Jacobs stated that the ECJ has treated the case of ECHR as if binding, despite not being a
party to it. It was held in [Rutilli] that the express provisions of secondary EU legislation were
specific manifestation of more general principles enshrined in ECHR. This essentially shows that
while the EU has not yet acceded to the ECHR, it has acceded to the nature and cause of the
ECHR, and in so incorporating and delineating towards, instead of away from, the jurisprudence
of the ECHR, the EU has de facto acceded to the ECHR. An accession, a de jure accession,
would merely formalize or crystallize the legislative and interpretative obligations under the
ECHR, the natural course of actions will continue as is.

Importantly, it must be noted that the general principles of law that are binding on MS under the
ECHR exist under Union law. For example, the requirement of judicial control was provided for
in [Johnston v RUC], the removal of sexual discrimination was decided by the ECJ in [P v S &
Cornwall CC] and data protection and privacy were given due notice in the case of [Rundfunk].
To quote what has been said elsewhere, ‘ECHR has special significance to EU law’ – [Elliniki]
& [Kremzow].

However, the fact that all MS have acceded to the ECHR, when EU has not, is crucial. It is a
situation pregnant with problems. The ECJ has to constantly adopt a test to ensure that the
decision given is in uniformity with that of the European Court of Human Rights (ECtHR) under
the ECHR. What is troubling is not the exercise, but rather the effect. According to John
Callewaert, FR must be promoted on the lines of harmony and not uniformity if these rights are
to be retained as a function of their nature which, he states, is the ‘precondition to their
effectiveness’.

Furthermore, in [Bosphorus] it was noted that the MS of EU are ‘absolved from responsibility
under the ECHR’ when they are applying EU law. Conclusively, then, accession is the only way
to close the legal loophole. The EU and ECHR also differ in their approach to certain things. For
example, the approach of the ECJ and the ECtHR differ when it comes to the detention of
asylum seekers. The ECtHR in [Saadi v UK] held the detention of an applicant to asylum as
being compatible with Article 5 ECHR for ensuring the speedy process of application amidst
administrative problems. On the other hand, the ECJ has prohibited detaining applicants for the
sole reason that they are applicants for asylum. John Callewaert states that the more different
versions and contents of FR exist, the more the FR will be eroded due to relativism. He predicts
that this would render the rights as losing their ‘fundamental’ nature. What this proposition
centers around is the fact that the ‘fundamental’ nature of any right is diluted due to the
oversaturation of official understandings of the right. EU accession would avoid this by having
to follow the single line of approach as established by the ECtHR under the ECHR.

A Draft Agreement was made for the accession of the EU to the ECHR in line with Article 6(2)
of the Lisbon Treaty. However, the Draft Agreement failed because it neglected the autonomy of
the EU fundamental to its functioning, ignored the monopoly of the EU for settling inter-state
disputes and gave the ECtHR a very wide scope in interpreting EU law – something only the
ECJ can do. It is highly unlikely that another Draft Agreement will be any different, as these
luxuries will have to be given up if the EU is to accede to the ECHR – that is, effectively, the
model of the ECHR.

The ECtHR itself stated in the [Bosphorus] case that ‘the EU is considered to protect FR…in a
manner which can be considered at least equivalent to that for which the Convention provides’.
Therefore, the ECtHR, too, considers the FR protection regime of the Charter to be sufficient.
Accession would, therefore, add little, if anything at all, to the protection provided as of right
now to the EU citizens. We may safely conclude, then, that the rights of the EU citizens are
sufficiently protected by the Charter and that the EU does not need to accede to the ECHR.