Pillar talk: fundamental rights protection in the European Union

AuthorNial Fennelly
PositionJudge of the Supreme Court
2008] Pillar Talk: Fundamental Rights Protection in the 95
European Union
The three parts of the Treaty on European Union (TEU) are
frequently, and perhaps misleadingly, dubbed “the three pillars”.
Within each of these three pillars, however, the European Union
is committed to respecting individual fundamental rights: a
commitment that is heavily dependent on both national and
Community judges for its effective achievement. This was not
always the case; indeed, the original Treaties were wholly
unconcerned with fundamental rights. Through judicial
development in the Community courts, however, a corpus of law
acknowledging fundamental rights and the role of community
courts in protecting them was developed, and fundamental rights
eventually achieved treaty status in Article F(2) of the TEU,
which provided: “[t]he Union shall respect fundamental rights, as
November 1950 and as they result from the constitutional
traditions common to the Member States, as general principles of
Community law”.
* Judge of the Supreme Court. This article is based on a paper presented to the
Bilateral Conference on 7 December 2007. It was prepared prior to the
decision of Advocate General Poiares Maduro of 16 January 2008 in Case C-
402/05, Kadi v. Council, which found that that the Community Courts have
jurisdiction to review measures enacted to give effect to United Nations
Security Council Resolutions. The prior case law relating to this issue is
considered in Part II of the paper below, which also includes a short note on
the Advocate General’s decision. The decision of the European Court of
Justice in relation to this case is awaited.
Judicial Studies Institute Journal [2008:1
Article F thus performed the dual function of
unambiguously asserting the Union’s concern with fundamental
rights, and tracing the pedigree of those rights: like a
thoroughbred racehorse, it is by “European Convention” out of
“national constitutions”. This treaty provision was, however, yet
another example of the Member States catching up with the court,
which had already established an acquis communautaire and had
established respect for fundamental rights as an essential
component of the general principles of Community law.
This article traces the development of the theory and
practice of rights-protection within the Union, with a particular
focus on the role of the judicial institutions of the Union and the
member states in this respect. The article also considers the
challenges to this fundamental rights guarantee posed by actions
taken in the second and third pillars, with a particular focus on
two issues of contemporary concern; actions (in the second pillar)
taken to implement United Nations (UN) Security Council
Resolutions relating to sanctions against individuals, and the
introduction and implementation (within the third pillar) of the
European Arrest Warrant.
The article considers firstly the development of the rights-
related jurisprudence in the first pillar and its eventual
enshrinement in the TEU. Part II of the article speaks to the
second pillar and the conundrum posed by occasional conflicts
between Member States’ obligations to implement Security
Council Resolutions under Article 103 of the Charter of the
United Nations and their obligations under the European
Convention on Human Rights. Part III of the article considers one
of the most profound modern challenges to the Union’s
commitment to fundamental rights: the European Arrest Warrant.
Throughout, the article is concerned with whether the European
Union does in fact feature a complete set of judicial remedies, at
national and supra-national levels, where individuals can assert
and vindicate their fundamental rights.

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