Charter of Fundamental Rights of The European Union - Legal Status

Legal Status

Following the entry into force of the Lisbon Treaty in 2009 the fundamental rights charter has the same legal value as the European Union treaties. The Charter referred to in the Treaty is an amended version of the 2000 document which was solemnly declared by the same three institutions a day before the signing of the Lisbon Treaty itself.

Article 51(1) of the Charter addresses the Charter to the EU's institutions, bodies established under EU law and, when implementing EU laws, the EU's member states. In addition both Article 6 of the amended Treaty of European Union and Article 51(2) of the Charter itself restrict the Charter from extending the competences of the EU. A consequence of this is that the EU will not be able to legislate to vindicate a right set out in the Charter unless the power to do such is set out in the Treaties proper. Further, individuals will not be able to take a member state to court for failing to uphold the rights in the Charter unless the member state in question was implementing EU law. It is this last element that has been subject to the most debate.

The Charter is not the first attempt to place human rights principles at the core of European Union law. All EU member states are, and candidate states are required to be, signatories to the Council of Europe's European Convention on Human Rights, so that many principles from the Convention, such as the right to a fair trial, were taken as the baseline for European Court of Justice jurisprudence even before their formal reiteration in Charter. In interpreting the human rights protections provided by the general principles of EU law (described in the Court cases section above), the ECJ had already dealt with the issue of whether the rights protected by those general principles applied to member states. Having ruled in Johnston v Royal Ulster Constabulary that a right to fair procedures was one of the general principles of EU law, in Kremzow v Austria the ECJ had to decide whether or not a member state was obliged to apply that principle in relation to a wrongful conviction for murder. Kremzow's lawyers argued that his case came within the scope of EU law on the grounds that his wrongful conviction and sentence had breached his right to free movement within the EU. The ECJ responded by saying that since the laws under which Kremzow had been convicted were not enacted to secure compliance with EU law, his predicament fell outside the scope of EU law.

However, the wording in Kremzow, referring to the "field of application of EU law", differs from the wording in the Charter which refers to the implementation of EU law. However the amended explanatory memorandum issued alongside the Charter in 2007 describes the wording used in the Charter as reflecting ECJ precedent.