← The hardest concepts in European Union law
In one breath
Fundamental rights in the Union come from two linked sources: the general principles of Union law developed by the Court of Justice, and the Charter of Fundamental Rights, which has the same legal value as the Treaties. The Charter binds the Union’s institutions, and it binds the Member States only when they are implementing Union law.
The picture
The foundations beneath the floorboards
When a house is built, the floorboards are what people see, and the foundations are what holds them up. Long before anyone wrote a detailed inventory of the rooms, the builders had to rely on principles of sound construction: level ground, strong footings, no walls that could not carry their weight. Those principles were never listed in the original plans, but a house built without them would not stand.
General principles of Union law are the foundations. The original Treaties had no list of fundamental rights, and the Court of Justice found rights in the general principles of law, drawing inspiration from the constitutional traditions common to the Member States and from international human rights treaties. The Charter later wrote many of them down, like a floor plan, and gave them the same legal value as the Treaties. The plan and the foundations now stand together, and the Court uses both.
Where the picture stops working
Foundations do not have a boundary, whereas the Charter does. It does not extend the Union’s powers, and it applies to Member States only when they implement Union law, which the Court reads broadly to cover national measures that fall within the scope of Union law. The picture also hides a distinction inside the Charter between rights, which can be invoked directly, and principles, which need implementing measures before a court can enforce them.
How it really works
- 1Know where the rule comes from. The general principles come from the Court’s case law (Stauder; Internationale Handelsgesellschaft; Nold). The Charter is a text with the same legal value as the Treaties, recognised in Article 6 of the Treaty on European Union.
- 2Identify the right or principle. The general principles include fundamental rights, and also legal certainty, legitimate expectations, equal treatment, proportionality and effective judicial protection.
- 3Check who is bound. Under Article 51(1) of the Charter, its provisions are addressed to the institutions and bodies of the Union and to the Member States only when they are implementing Union law.
- 4Check the scope. The Court has held that the Charter applies where national legislation falls within the scope of Union law (Åkerberg Fransson). It does not apply to purely national situations, and it does not create new Union competences.
- 5Check the nature of the provision. Charter rights can be relied on and weighed against measures. Charter “principles” may be implemented by acts of the institutions or States and are normally invoked only for the interpretation of such acts.
Why people get it wrong
- Thinking the Charter applies to everything a Member State does. It applies only within the scope of Union law.
- Treating the Charter as the only source of Union fundamental rights. General principles remain a source.
- Assuming that the Charter gives the Union power over human rights generally. It states that it extends no competences.
- Believing that every Charter provision can be invoked in court. Some are principles rather than rights.
- Confusing the Charter with the European Convention on Human Rights. They are different instruments with different courts (see the next page).
A worked example
The facts are invented
A Union directive protects job applicants with a disability from discrimination in recruitment. A national agency, in applying the national law that carries out the directive, rejects an applicant, Beatrice, without letting her answer the reasons given. Because the State is implementing Union law, the Charter binds it, and Beatrice can rely on the right to a fair hearing and to an effective remedy, and on the principle of non-discrimination.
Compare a purely national rule about hiring in the same agency, under a law that has nothing to do with any Union act. There the Charter does not apply, though the national constitution and the European Convention might. The difference between the two situations is the link to Union law, and that link is what decides whether Union fundamental rights can be invoked.
Try it
A Member State passes a law in an area wholly outside the scope of Union law. Does the Charter of Fundamental Rights apply to that law?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Stauder v City of Ulm, Case 29/69, 1969
- Nold v Commission, Case 4/73, 1974
- Åklagaren v Åkerberg Fransson, Case C-617/10, 2013
- Treaty on European Union, Article 6, Charter, Convention and general principles
Where to go next
More hard concepts in European Union law
- The EU and the European Convention on Human Rights (Fundamental rights)
- Effectiveness, equivalence and national procedural autonomy (Union law in national courts)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.