The EU and Fundamental rights -
The wider context

The Charter of Fundamental Rights of the European Union has to be seen in the wider context of the EU's long lasting commitment to human rights and fundamental freedoms and of its policy in the areas of Justice, Freedom and Security.

The European Union has always stated its commitment to human rights and fundamental freedoms and has explicitly confirmed the EU's attachment to fundamental social rights. The Amsterdam Treaty, which came into force on 1 May 1999, established procedures intended to secure their protection:

• It established, as a general principle, that the European Union should respect human rights and fundamental freedoms, upon which the Union is founded ( Art 6 TEU)
• The Union can suspend certain rights of a Member State deriving from the application of the Treaty, if it has determined the existence of a serious and persistent breach of these principles by that Member State.(Art 7 TEU)
• Candidate countries will have to respect these principles to join the Union (Art 49 TEU)
• It has also given the European Court of Justice the power to ensure respect of fundamental rights and freedoms by the European institutions (Art 46 TEU)

The Amsterdam Treaty also represented a breakthrough in the area of Justice and Home Affairs (JHA) at EU level.

Back in 1986, the Member States had decided to co-operate on the entry of third country nationals into the European Community and on their rights of movement and residence in the EC. Then in 1992 common rules for citizens of non-EU countries crossing the EU's external frontiers and for immigration policy had been written into the Treaty on European Union or Maastricht Treaty, which had become operational in 1993.

Maastricht had formally recognized that JHA matters were a common concern and created a special lawmaking structure to handle legislation linked to justice and home affairs questions. Laws passed under the new rules were in effect intergovernmental agreements that were legally binding on the European Union.

But while bringing justice and home affairs within the ambit of the European Union was an important first step, lawmaking on these questions remained a slow and cumbersome process after Maastricht. All major JHA laws took the form of international conventions that had to be agreed unanimously by EU governments then formally ratified by each of the EU's national parliaments. This means that only a small handful of new laws were passed in the six years after Maastricht.

The Amsterdam Treaty, which up-dated Maastricht, moved several key JHA policy areas, including asylum and immigration policy and issues concerning co-operation between civil courts, into the EU's normal lawmaking structures. Amsterdam also saw the non-EU `Schengen' agreement, which eliminates borders between signatory States, incorporated into European law.

Equipped with their new Amsterdam tools, EU governments and the European Commission quickly set about drawing up plans to implement the EU's modified rules for justice and home affairs matters. At a special summit meeting in the Finnish city of Tampere in October 1999, EU governments pledged to adopt a whole series of new initiatives on asylum, fighting crime, and co-operation between courts and police forces.

They also asked the European Commission to keep track of their progress by publishing a `scoreboard', a set of tables listing the EU's objectives in the JHA field and action planned and taken on each point. This is updated every six months. It is likely to be some years before all of the planned new measures are in place. EU governments argue that when they are, their goal of creating a genuine `area of freedom, security and justice' within the EU will have been achieved.

In order to implement the Justice and Home Affairs provisions in the Amsterdam Treaty, the European Commission created a "Justice and Home Affairs" directorate general and appointed a Commissioner solely responsible for this area, Antonio Vitorino, who represented Commission President Romano Prodi at the Convention set up by the European Council to draw up the Charter of Fundamental Rights in the European Union.

Under the current European Commission (2004-2009) of President José Manuel Barroso, Vice-President Franco Frattini was the Commissioner responsible for Justice, Freedom and Security. After Mr. Frattini left the Commission, Vice-President Jacques Barrot took over as the responsible Commissioner.

The fundamental rights in the treaty on the European Union

Article 6 of the Treaty on European Union
1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles that are common to the Member States.

2. The Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
(....)

Article 7 of the Treaty on European Union
1. The Council, meeting in the composition of the Heads of State or Government, and acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the assent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of principles mentioned in Art. 6(1), after inviting the government of the Member State in question to submit its observations.

2. Where such a determination has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of this Treaty to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of a suspension of the rights and obligations of natural and legal persons.
(...)

Art. 49 of the Treaty on European Union
Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.
(...)

Art. 46 of the Treaty on European Union
The provisions of the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty:
(...)

(d) Article 6(2) with regard to action of the institutions, insofar as the Court has jurisdiction under the Treaties establishing the European Communities and under this Treaty;
(...)

 
The European Council in Nice in 2000 agreed some significant amendments to the European Treaties:

Article 7 of the Treaty on European Union:

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four-fifths of its members after obtaining the assent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of principles mentioned in Article 6(1), and address appropriate recommendations to that State. Before making such a determination, the Council shall hear the Member State in question and, acting in accordance with the same procedure, may call on independent persons to submit within a reasonable time limit a report on the situation in the Member State in question.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

Article 181 of the Treaty establishing the European Community, on Economic, Financial and Technical Cooperation with Third Countries:
Community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to the objective of respecting human rights and fundamental freedoms.