If members of a society do not have rights, there is no or only a weak base for making rules for that society. Rights reflect values, and it is upon values — intended to prop up the common good — that a society is built. Rules cannot exist without rights, as they are based upon them, rather than vice versa: It would not make sense for a society to construct rules and then base the rights on them afterwards.
Nevertheless, this is more or less what happened during the first half century of the European Communities’, and later the European Union’s, existence. In the beginning, the formalised cooperation between six independent countries was mainly a political project calling for a common approach within a few rather specific areas. With time, this cooperation grew larger in terms of participating countries, wider in terms of policy areas falling under its wings, and deeper in terms of involving not just the upper spheres of political decision-makers but also going further and further down into people’s lives.
This is where a common approach to the basic aspect of rights starts to become a necessity. Each society, each member state of the European Union is built on rights for its citizens or inhabitants — be it explicitly, formally or informally. These rights may differ from country to country, and in an ever more tightly-knit community between nations, agreeing on a set of common rights for each and every of its meanwhile half a billion inhabitants would seem to be essential in order to continue the progression towards common goals that serve the European Union as a whole, and each person as an individual.
2. The past
Certain specific rights were laid down already in earlier treaties, such as equality between the sexes in 1957 by means of Article 119 of the Treaty establishing the European Economic Community 1 (now Article 157 in the Lisbon Treaty), and consumer protection in 1992 by means of Article 129a of the Treaty on European Union 2 (now Article 12 in the Lisbon Treaty).
Perhaps more importantly, the Treaty on European Union also established that:
‘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.’ 3This was the first time that a European Community or Union treaty directly mentioned fundamental rights. However, without establishing its own definitions of the rights, it instead referred to those set out by the Council of Europe 42 years before. As every member state of the European Union was already a member of the Council of Europe at its time of accession 4, it was nothing new to commit to this Convention. What was new was that the European Union as such committed to them, formally.
Until then, the protection of fundamental rights had been taken care of not through treaties but through case law. During the years, the European Court of Justice has ruled in a number of interesting cases involving questions of fundamental rights. One such case was the Schmidberger case, in which the Court of Justice ended up ruling that freedom of speech prevails over the free movement of goods principle. 5 Other examples include the Nold case, emphasising that the European Communities’ citizens are protected by international and national human rights principles, 6 and the Stauder case, which can be considered an early example of protection of personal data. 7
3. The present
Since late 2000, the fundamental rights of the citizens of and inhabitants in any European Union member state are protected by the Charter of Fundamental Rights of the European Union. 8 That is the theory. For, proclaimed by the three legislative institutions of the European — the Council, the Parliament and the Commission — there were doubts whether the charter was actually legally binding. Moreover, the United Kingdom had reserves about the Charter, as had both the meanwhile new member states Czech Republic and Poland when the Charter was referred to directly in the Lisbon Treaty, 9 amending the Treaty on European Union, and thus making it legally binding from 1 December 2009 when the Lisbon Treaty entered into force. All of these three member states were granted an opt-out in a Protocol to the Treaty.
The Lisbon Treaty also includes a Protocol to the Treaty on European Union, opening up for the possibility of applying for accession to the European Court of Human Rights 10 — again, as an entity, as the ‘European Union’ in itself, in addition to its member states already being members of the Court.
Meanwhile, in 2007, the European Union Agency for Fundamental Rights was established. 11 This advisory body was set up to observe and verify whether the people of European Union have the rights granted to them by the agreed charters.
4. The future
In a time where the European Union, the entire European continent, and the World as a whole seems to be in a phase of transition, discussions on fundamental rights mushroom perhaps more than ever. Ever more apocalyptic predictions on our Planet’s ecological balance together with a financial end economical crisis raise questions on how our current way of life can, could, should or even must be reshaped into a future society based on sustainability.
This is why fundamental rights in a not very distant future might have a less individualistic focus, along the line of the ideas of Jeremy Rifkin, adviser to the European Union and to heads of state around the World:
‘We are so used to thinking of property as the right to exclude others from the use or benefit of something that we’ve lost sight of the fact that in previous times property was also defined as the right not to be excluded from the use or enjoyment of something. […] In a collaborative economy, the right of inclusion becomes more important in establishing economic and social relationships than the right of exclusion.’ 12
by Bjørn Clasen
1 European Economic Community: Title III — Social Policy, Chapter 1 — Social Provisions, Article 119 of Treaty establishing the European Economic Community (Publishing Services of the European Communities, Luxembourg 1957). Quoted here from Centre Virtuel de la Connaissance sur l’Europe (http://tiny.cc/rometreaty)
1 European Communities: Title XI — Consumer Protection, Article 129a of Treaty on European Union, signed at Maastricht on 7 February 1992. Official Journal of the European Communities C 191 of 29 July 1992 (Office for Official Publications of the European Communities, Luxembourg 1992), p 25
3 Ibidem, Title I — Common Provisions, Article F(2). p 5
4 Member states of the Council of Europe, 2011, Wikipedia 11 December 2011 (http://en.wikipedia.org/wiki/Member_states_of_the_Council_of_Europe)
5 Court of Justice of the European Union: Judgment of the Court of 12 June 2003, Case C-112/00 — Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich. European Court reports 2003 (Office for Official Publications of the European Communities, Luxembourg 2003), pp I-5694 – I-5725
6 European Court of Justice: Judgment of the Court of 14 May 1974, Case 4-73 — J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities. European Court reports 1974 (Office for Official Publications of the European Communities, Luxembourg 1974), p 491
7 European Court of Justice: Judgment of the Court of 12 November 1969, Case 29-69 — Erich Stauder v City of Ulm - Sozialamt. European Court reports 1969 (Office for Official Publications of the European Communities, Luxembourg 1969), p 419
8 European Parliament, Council, Commission: Charter of Fundamental Rights of the European Union. Official Journal of the European Union C 303 of 14 December 2007 (Office for Official Publications of the European Communities, Luxembourg 2007), pp 1-35
9 European Union: Title I — Common Provisions, Article 6 of Consolidated version of the Treaty on European Union (Publications Office of the European Union, Luxembourg 2010), p 19
10 European Union: Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms, to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007. Official Journal of the European Union C 306 of 17 December 2007 (Office for Official Publications of the European Communities, Luxembourg 2007), p 155
11 Council of the European Union: Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights. Official Journal of the European Union L 53 of 22 February 2007 (Office for Official Publications of the European Communities, Luxembourg 2007), pp 1-14
12 Jeremy Rifkin: From Belongings To Belonging, in The Empathic Civilization — The Race To Global Consciousness In A World In Crisis (Jeremy P. Tarcher/Penguin, New York 2009), pp 541-542