Outdated or timely? The role of fundamental rights in the EU

Economic vs. political integration? The role of fundamental rights

The EU has no easy job in explaining what it is there for. Does it stand for economic integration? Well, then why focus on the size of cucumbers instead of developing a political profile? Is it about working towards an ever closer political union? Then the states must preserve their national identity. The apparent conflict between the economic and the political dimensions of European integration often generates confusion and opens the door to all possible interpretations of the role of the EU. In fact, there is simply no such thing as a distinction between the economic and the political dimension. And fundamental rights protection is quintessential to both.

Let’s take a long step back to fifty years ago: 1969. While the European Court of Justice had already made clear that the (then) European Community Law entails some fundamental, constitutional-like principles such as its primacy over domestic law and its direct effect on citizens, European integration was still perceived as distant from everyday live. Just as something impacting only on the (then few) companies exporting goods or services in one of the then six countries bound by the European treaties. Decisions in Brussels did not garner the same degree of public attention as the rules on the size of cucumbers would do some years down the road.

It was in this context that an extremely dry and boring decision was made by the Commission to allow the sale of butter at reduced price to beneficiaries under social benefit schemes. The provision was intended to stimulate the sale of surplus quantities of butter on the common market, making it available at a lower price to poorer people. To make sure that the favourable selling price was not abused by persons and companies not entitled to the benefit, thus distorting fair competition, the Commission required that anyone wishing to buy the low-price butter must produce “a coupon referring to the person concerned”. Funnily enough, the German version of the Commission’s decision, in a bid for greater precision, stated that the low-price butter could only be sold to beneficiaries who disclosed their name to retailers. However, one German potential beneficiary of low-priced butter challenged the decision, on the basis that the requirement to show his name was an infringement of his dignity.

When the case eventually reached the European Court of Justice, the judges found that the German text of the decision imposing to disclose the name was not correct. Noting that there were other ways to identify the beneficiary, it affirmed for the first time that “fundamental human rights [are] enshrined in the general principles of Community law and protected by the Court”.

Fundamental rights: no longer implicit

In the following years, the inextricable link between economic integration and the protection of fundamental rights became clear and more widely understood. Step by step, nearly all aspects of fundamental rights have been scrutinized by the European Court of Justice, raising fears and resistance from domestic constitutional courts. The “dialogue” among courts on these issues is still ongoing. It is accepted that there is a wide scope for fundamental rights in the EU, but at the same time, that Member States have the last word when it comes to national identity, including in constitutional and organizational terms, as well as in issues pertaining to national security, as now codified in article 5 of the Treaty on the European Union. The interpretation of and often the fight regarding the respective limits are of course a delicate matter with no clear-cut answer, despite the successive treaty reforms that have strengthened the fundamental rights protection and tried to divide the supranational and domestic scope in this area. In 1997 (Treaty of Amsterdam), the European Court of Justice was formally given jurisdiction over fundamental rights issues. In 2000, the Charter of Fundamental Rights of the European Union, drafted by the first European Convention, was solemnly adopted by the EU institutions and, in 2009, it became fully binding when the Treaty of Lisbon incorporated it into the EU Treaty (article 6).

The main challenges

In 2007, the EU established the Fundamental Rights Agency, in order to provide expert advice to EU institutions and to Member States on fundamental rights issues and to protect fundamental rights. The work of the Agency consists primarily of collecting pertinent data and information, with a view to sharing evidence-based insights and advice with decision-makers. This support is essential in order to enable the making of decisions based on information, not on emotions.

A closer look at the last multiannual framework for the work of the Fundamental Rights Agency, officially adopted by the Council of the EU, reveals what the main concerns currently are in terms of fundamental rights protection in the Union. These include: “a) victims of crime and access to justice; b) equality and discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation, or on the grounds of nationality; c) information society and, in particular, respect for private life and protection of personal data; d) judicial cooperation, except in criminal matters; e) migration, borders, asylum and integration of refugees and migrants; f) racism, xenophobia and related intolerance; rights of the child; g) integration and social inclusion of Roma”.

As to attitudes and level of protection of these various fundamental rights, while severe problems remain in all areas, trends reveal that in some there has been real progress made, while in others the situation is worsening. As to the former, there is at least growing attention being paid to the rights of children, people with disabilities and to gender-based discrimination. In the latter category are, in particular, the rights of migrants and of the Roma people.

A main area of growing importance is the impact of new technological developments on fundamental rights. The rapidly growing amount of data has enormous implications, both fascinating and worrying, for the enjoyment of fundamental rights, from the right to privacy to the rights of consumers, from secrecy of communication to the exclusion of persons cut off by the digital divide. All this makes threats to fundamental rights more subtle and sophisticated, and certainly not less dangerous.

Updated instruments for the better protection of fundamental rights are not only technological, but also legal in nature. One could think, for example, of the still incomplete EU legal framework for equal treatment and of the not yet concluded accession of the EU to the European Convention of Human Rights. These issues will be high on the agenda of the next European Parliament.

Finally, a major challenge is the awareness of the quintessential importance of the protection of fundamental rights for the very survival of the integration project. The discourse about the EU oscillates dangerously between accusations that it deals only with issues such as the size of cucumbers and claims it is seizing too much sovereignty from the Member States. Fundamental rights are also trapped in this dilemma. Paradoxically, many actors seem ready to give up several fundamental rights in order to protect “European culture”, which is however based precisely on the protection of fundamental rights. The decreasing attention afforded to most fundamental rights inevitably decreases awareness of their importance and could lead to a situation where some rights are prioritised at the expense of others which may be neglected if not utterly denied. This would have the potential to enlarge the marginalized groups with a predictable impact on social cohesion of and security for the whole population.

Fundamental rights are perhaps the biggest challenge for the next European Parliament. Believe it or not.

Francesco Palermo is Professor of Comparative Constitutional Law at the University of Verona and head of the Institute for Comparative Federalism at Eurac Research. Currently, he is member of the Scientific Committee of the European Union’s Fundamental Rights Agency. Palermo was member and president of the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities and Senior Legal Advisor to the OSCE High Commissioner on National Minorities. In his rare spare time, Palermo is an avid icehockey fan. His Twitter is: @franzpalermo