Promoting and protecting fundamental rights in the EU: The relations between the European Convention of Human Rights, the European Charter and the EU member states constitutions

This briefing note examines the consequences which result from the fact that the same rights and freedoms, sometimes with identical or almost identical formulations, are guaranteed in the European Convention on Human Rights, in the EU Charter of Fundamental Rights, and in national constitutions of the EU Member States. These rights and freedoms, in addition, are considered to belong to the general principles of law which the European Court of Justice ensures respect for in the field of application of EU Law, in accordance with Article 6(2) of the EU Treaty. The briefing note examines the problems which, according to certain commentators, such coexistence may create. Two sets of problems are considered.

One set of problems relate to the integrity of the EU legal order. This includes the question whether the ‘level of protection’ clause (Article 53 of the EU Charter of Fundamental Rights) results in a threat to the primacy of EU law – a question which will be examined taking into account the position of national courts in applying EU law in circumstances where this may result in a violation of a fundamental right recognized in the national constitution –; and whether the autonomy of the EU legal order might be undermined by the obligation to refer to the European Convention on Human Rights in the interpretation of the corresponding clauses of the EU Charter of Fundamental Rights (Article 52(3) of the Charter).

A second set of problems relates to the coexistence of norms emanating from the Council of Europe and norms adopted within the European Union, which some allege may create the risk of ‘double standards’ (or of a ‘two-speeds Europe’ in the field of human rights). The note shows that these fears, expressed both in legal doctrine and in institutional settings, are ill-founded, and that a sound understanding of both the interpretation of the EU Charter of Fundamental Rights and its scope of application should reassure those who entertain such fears.

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Promoting and protecting fundamental rights in the EU: The relations between the European Convention of Human Rights, the European Charter and the EU member states constitutions