In the European Union, principles and established rules on the free movement of goods, services, persons and capital are now confronted with the expanding set of human rights, as introduced by several decisions of the European Court of Justice. This commentary, written by authors Tanel Kerikmae and Kari Kasper, two experts on European Union law, analyses the influence of human rights concerns culminating in the drafting of the Charter of Fundamental Rights.
The authors write: Community law includes well-developed rules on the four fundamental economic freedoms (free movement of goods, workers, services and capital). For a while, these were the “rights” that the EU was aggressively safeguarding. However, as the EU legal order has matured into a fuller, more complete system, human rights can no longer be ignored. The intrinsic clash between economic interests and the protection of human rights became more apparent and required action both on part of the European Court of Justice (ECJ) and other EU institutions.
This has long been an issue – that alongside the European Union, the Council of Europe’s regional system of human rights protection has developed relatively effective jurisprudence under the European Convention of Human Rights and Fundamental Freedoms. All EU Member States are also parties to the Convention, which places them in a difficult position, for example, if an alleged human rights violation arises from a legal act or action undertaken by a Member State pursuant to EU law.
A reference to the European Convention of Human Rights and Fundamental Freedoms was inserted into EU law by Article 6(2) of the Treaty of European Union adopted in 1992, according to which the “Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Free doms 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”.