10.2 Other underpinning principles – CFR
The Charter of Fundamental Rights (CFR) is the EU’s own human rights charter and is therefore different from the (non-EU) ECHR. Article 6 TEU recognises the CFR as a legal document. It is referred to in Declaration 1 of TEU, which states that it has binding effect. The UK added a clarificatory protocol to the CFR but is still a signatory.
One issue that has arisen is the question of the relationship between the CJEU and European Court of Human Rights (ECtHR). Despite the lack of a concluded accession, CJEU has consistently looked to the ECHR for guidance to ensure that its judgments are compatible with the basic standards of human rights. For example, in Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications, Ireland and the Attorney General (Case C-84/95)  ECR I-3953 the applicant challenged an EU Regulation and its compatibility with the ECHR and whether there is access to an effective remedy under EU law.
Activity 15 Commentators’ concerns about the court’s approach
Readand answer the following questions:
How do Craig and de Búrca explain the omission of fundamental rights provisions from the Treaties?
The authors noted that the court cited the special significance of the ECHR as being the key source for general principles of EU law which meant that rights in it were a floor from which EU rights could go further. Implicit in this was that the rights were adequately imbedded without the need for further Treaty provision.
What are the three main concerns about the court’s approach raised by commentators, according to Craig and de Búrca?
- EU fundamental rights should be indexed to international human rights standards in order to avoid member states having to choose between the two.
- The CJEU’s emphasis on the EU’s constitutional autonomy disconnects it from the wider international human rights system.
- The use of such devices as disconnect clauses might lead to a lowering of EU fundamental rights standards below the floor set by international human rights laws.
A preoccupation, which seems to be holding up accession, is the jurisdictional relationship between the two courts after accession. If you are interested in jurisdictional issues and forum conveniens, a recent opinion of the CJEU to reject the Commission’s proposed agreement on accession is worthwhile reading. The underlying issue is judicial economy.
In Opinion 2/13 of the Court (Full Court) 18 December 2014 – the CJEU rejected the Commission’s proposed agreement on accession to ECHR as being incompatible with Article 6 TEU and with Protocol (No.8) relating to Article 6(2) TFEU on the accession of the EU to the ECHR. The overriding theme of the CJEU’s objection was the overriding need to preserve the autonomy of the EU’s own legal order and its own exclusive jurisdiction. Some might say, its own sovereignty.