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Origin and development of fundamental rights protection in the EU

Origin and development of fundamental rights protection in the EU. The missing rights (1957). Treaty of Rome: No list of fundamental r ights Prohibition of discriminations based on nationality and equal pay principle. Rebellion of Constitutional Courts.

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Origin and development of fundamental rights protection in the EU

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  1. Origin and development of fundamental rights protection in the EU

  2. The missingrights (1957) Treaty of Rome: • No list of fundamental rights • Prohibition of discriminations based on nationality and equal pay principle

  3. Rebellion of Constitutional Courts • GermanConstitutional court, 1974: « So lange » case • Court of Justice (Stauder, 1969, Internationale Handelsgesellschaft, 1970): Fundamentalrights are protected as generalprinciples of EU Law, inspired by the constitutional traditions common to Member states

  4. Whatrights? • No list • Sources of inspiration ? - Common constitutional traditions - International law (the ECHR, mostly)

  5. Introduction of a reference to FR in the treaty TUE (Maastricht, 1992) Art. 6 : the EU respects fundamentalrights, as guaranteed by the European Convention for the Protection of HumanRights and FundamentalFreedomssigned in Rome on 4 November 1950 and as theyresultfrom the constitutional traditions common to the Member States, as generalprinciples of Communitylaw

  6. The adoption of a charter of fundamentalrights • A « convention » is set up to draft the charter • Nice 2000 : the charter is proclaimed by the Commission, Council & European Parliament • Legal value ? Effect ?

  7. Lisbontreaty (2009) Art. 6 TUE: The charter has the samelegal value as the treaties NB: some states do not accept the change (Poland, the UK and Ireland)

  8. The limits of Union’spowers to protectfundamentalrights A long list of protectedrights BUT: onlyprotected in the field of EU law… • EU law protection does not cover as many situations as the ECHR • Preliminaryrequirement: « does the situation fallunder EU law ? »

  9. Accession of the EU to the European Convention for the Protection of Human Rights Lisbontreaty, Article 6(2) « The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms » Reasons ? Risks ?

  10. Reasons for the EU accession to the ECHR • Fostering HR protection in the EU • Avoidingconflicts (EU isbound, as Member states were) SeeECtHR, Bosphorus case, 2005

  11. Risks ? • Losingautomy (comp. Kadi case, 2005) • The ECJ issubmitted to the authority of another court

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