The origins of the EU Charter of Fundamental Rights

The original EC Treaty did not make any reference to fundamental rights. It was the 1992 Maastricht Treaty which inserted Article 6(2) in the EU Treaty, providing that ‘the Union shall respect 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, as general principles of Community law’. Before that, the EU Court of Justice had, as early as in 1969, stated that fundamental human rights are ‘enshrined in the general principles of Community law and protected by the Court’. Thereafter, the Court continued strengthening this protection so that ‘respect for human rights is … a condition of the lawfulness of Community acts’.

Such a guarantee was a prerequisite for the acceptance by Member States of the principle that EU law has primacy over national law, a principle which the Court of Justice had already enunciated in 1964. Without a guarantee that fundamental rights were properly protected at EU level, the conferral by Member States of competences on the EU might have entailed a lowering of the level of protection of human rights. This link with primacy was made very clearly by the German Constitutional Court in its case law which became known as Solange (meaning ‘as long as’ in German).