Introduction

The protection of human rights is a central task of many modern constitutions. This protective task is principally transferred to the judiciary and involves the judicial review of governmental action. The protection of human rights may thereby be limited to a judicial review of the executive. But in its expansive form, it extends to the review of parliamentary legislation. And where this is the case, human rights will set substantive limits within which democratic government must take place. The European Union follows this second constitutional tradition. It considers itself to be ‘founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’. Human rights are thus given a ‘foundational’ status in the Union. They are – literally – ‘fundamental’ rights amid the rights granted by European law.

What are the sources of human rights in the Union legal order? While there was no ‘bill of rights’ in the original Treaties, three sources for European fundamental rights were subsequently developed. The European Court first began distilling general principles protecting fundamental rights from the constitutional traditions of the Member States. This unwritten bill of rights was inspired and informed by a second bill of rights: the European Convention of Human Rights. This external bill of rights was, decades later, matched by a written bill of rights specifically drafted for the European Union: the Charter of Fundamental Rights. These three sources of European human rights are now expressly referred to – in reverse order – in Article 6 of the Treaty on European Union:

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties . . .

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.