Pillar talk: fundamental rights protection in the European Union

• Author: Nial Fennelly
• Position: Judge of the Supreme Court
• Pages: 95-120

2008] Pillar Talk: Fundamental Rights Protection in the 95

European Union

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PILLAR TALK: FUNDAMENTAL RIGHTS

PROTECTION IN THE EUROPEAN UNION

THE HON. MR. JUSTICE NIAL FENNELLY*

INTRODUCTION

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

guaranteed by the European Convention for the protection of

Human Rights and Fundamental Freedoms signed at Rome on 4

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

96

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.