Fundamental values of the European Union

AuthorDr. Klaus-Dieter Borchardt

Page 11

The foundations of a united Europe were laid on fundamental ideas and values to which the Member States also subscribe and which are translated into practical reality by the Community`s operational institutions. These acknowledged fundamental values include the securing of a lasting peace, unity, equality, freedom, security and solidarity. The EU`s declared aims are to safeguard the principles of liberty, democracy and the rule of law which are shared by all the Member States (Article 6(1) EU). Together with the protection of human rights and basic freedoms, these principles have been reinforced in the EU Treaty in that, for the first time, it makes provision for measures to be taken if these principles are violated (Articles 7 and 8 EU). In practical terms, this means that if the Heads of State and Government, acting on a proposal by one third of the Member States or by the Commission, and after obtaining the assent of the European Parliament, declare that a serious and persistent breach of the EU`s underlying principles has occurred, the Council may, acting by a qualified majority, suspend certain of the rights deriving from the application of the EU Treaty and EC Treaty to the Member State in question, including voting rights in the Council. When doing so, however, the Council must give particular consideration to the possible consequences of such a decision for the rights and obligations of natural and legal persons. On the other hand, the obligations on the Member State in question under the EU Treaty and EC Treaty continue to be binding.

The EU as guarantor of peace

There is no greater motivation for European unification than the desire for peace. In Europe this century, two world wars have been waged between countries that are now Member States of the European Community. Thus, a policy for Europe means at the same time a policy for peace, and the establishment of the Community simultaneously created the centrepiece of a framework for peace in Europe that renders a war between the Community`s Member States impossible. More than 40 years of peace in Europe are proof of this.

Unity and equality as the recurring theme

Unity is the recurring theme. Present-day problems can be mastered only if the European countries move forward along the path that leads them to unity. Many people take the view that without European integration, without the European Community, it would not be possible to secure peace (both in Europe and worldwide), democracy, law and justice, economic prosperity and social security, and guarantee them for the future. Unemployment, inadequate growth and environmental pollution have long ceased to Page 12 be merely national problems; nor can they be resolved at national level. It is only in the context of the Community that a stable economic order can be established and only through joint European efforts that we can secure an international economic policy that improves the performance of the European economy and contributes to social justice. Without internal cohesion, Europe cannot assert its political and economic independence from the rest of the world, win back its influence in the world and retrieve its role in world politics.

Unity can endure only where equality is the rule. No citizen of the Community may be placed at a disadvantage or discriminated against because of his nationality. Discriminatory treatment on the grounds of gender, race, ethnic origin, religion or beliefs, disability, age or sexual orientation must be stopped. All Community citizens are equal before the law. As far as the Member States are concerned, the principle of equality means that no State has precedence over another and natural differences such as size, population and differing structures must be addressed only in accordance with the principle of equality.

The fundamental freedoms

Freedom results directly from peace, unity and equality. Creating a larger entity by linking 15 States immediately affords freedom of movement beyond national frontiers. This means, in particular, freedom of movement for workers, freedom of establishment, freedom to provide services, free movement of goods and freedom of capital movements. These fundamental freedoms under the founding Treaties guarantee businessmen freedom of decision-making, workers freedom to choose their place of work and consumers freedom of choice between the greatest possible variety of products. Freedom of competition permits businessmen to offer their goods and services to an incomparably wider circle of potential customers. Workers can seek employment and change their place of employment according to their own wishes and interests throughout the entire territory of the EU. Consumers can select the cheapest and best products from the far greater wealth of goods on offer that results from increased competition.

The principle of solidarity

Solidarity is the necessary corrective to freedom, for inconsiderate exercise of freedom is always at the expense of others. For this reason, if a Community framework is to endure, it must also always recognise the solidarity of its members as a fundamental principle, and share both the advantages, i.e. prosperity, and the burdens equally and justly among its members.

Respect of national identity

The national identities of the Member States is respected (Article 6(3) EU). The idea is not for the Member States to be Page 13 "dissolved" into the EU, but rather for them to contribute their own particular qualities. It is precisely this variety of national characteristics and identities that lends the EU its moral authority, which is in turn used for the benefit of the Community as a whole.

The need for security

Lastly, all these fundamental values depend on security. In the most recent past, a period of movement and change - and one in which many unknown challenges had to be faced - security has become a basic need which the Community must also try to satisfy. Every action by Community institutions must bear in mind that people and firms need constancy, consistency and reliability in terms of job security, general economic and business conditions and social security.

Fundamental rights in the EU

Against the background of fundamental values and the concepts that underlie them, the question necessarily arises of the fundamental rights of individual citizens of the Community, especially since the history of Europe has, for more than 200 years, been characterised by continuing efforts to enhance the protection of fundamental rights. Starting with the declarations of human and civil rights in the 18th century, fundamental rights and civil liberties have now become firmly anchored in the constitutions of most civilised States. This is especially true of the EU Member States, whose legal systems are Page 14 constructed on the basis of the rule of law and respect for the dignity, freedom and right to self-development of the individual. There are also numerous international conventions on the protection of human rights, among which the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 4 November 1950 is of very great significance.

A search through the Community Treaties for express provisions concerning the fundamental rights of individual Community citizens is disappointing. In contrast to the legal systems of the Member States, the Treaties establishing the European Communities do not contain any enumeration of fundamental rights. However, the European Parliament, the Council and the Commission, as the policy-making bodies of the EU, solemnly issued a joint declaration on fundamental rights on 5 April 1977. They underscored the importance of securing these rights in the Community and undertook to preserve them in the exercise of their powers and in the pursuit of the Community`s objectives. At the Copenhagen European Council on 7 and 8 April 1978, the Heads of State or Government of the Member States issued a declaration on democracy in which they endorsed the 1977 declaration. The two declarations may not generate directly exercisable rights for the Community`s citizens, but they are of great political significance as evidence of the status accorded to human rights in the Community. The EU Treaty now also gives this commitment legally binding form by stipulating that the EU 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 6(2) EU).

However, a Community legal order safeguarding fundamental rights was relatively late in coming; it was not until 1969 that the Court of Justice of the European Communities had established a body of case law to serve as a basis. This was because in the early years the Court had rejected all actions relating to basic rights on the grounds that it need not concern itself with matters falling within the scope of national constitutional law. The Court had to alter its position not least because it was itself the embodiment of the primacy of Community and its precedence over national law; this primacy can only be firmly established if Community law is sufficient in itself to guarantee the protection of basic rights with the same legal force as under national constitutions.

The starting point in this case law was the "Stauder" judgment, in which the point at issue was the fact that a recipient of welfare benefits for war victims regarded the requirement that he give his name when registering for the purchase of butter at reduced prices at Christmas time as a violation of his human dignity and the principle of equality. Although the Court of Justice came to the conclusion, in interpreting the Community provision, that it was not necessary for recipients to give their name so that, in fact, consideration Page 15 of the question of a violation of a fundamental right was superfluous, it declared finally that the general fundamental principles of the Community legal order, which the Court of Justice had to safeguard, included respect for fundamental rights. This was the first time that the Court of Justice recognised the existence of a Community framework of fundamental rights of its own.

Initially, the Court developed its safeguards for fundamental rights from a number of provisions in the Treaties. This is especially the case for the numerous bans on discrimination which, in specific circumstances, address particular aspects of the general principle of equality. Examples are the prohibition of any discrimination on grounds of nationality (Article 12 EC), preventing people being treated differently on the grounds of gender, race, ethnic origin, religion or beliefs, disability, age or sexual orientation (Article 13 EC), the equal treatment of goods and persons in relation to the four basic freedoms (freedom of movement of goods - Article 28 EC; freedom of movement of persons - Article 39 EC; the right of establishment - Article 43 EC; and freedom to provide services - Article 50 EC), freedom of competition (Article 81 f. EC) and equal pay for men and women (Article 141 EC). The four fundamental freedoms of the Community, which guarantee the basic freedoms of professional life, can also be regarded as a Community fundamental right to freedom of movement and freedom to choose and practise a profession. Specific guarantees are also provided for the right of association (Article 137 EC and Article 48(1) ECSC), the right to petition (Article 21 EC and Article 48(2) ECSC) and the protection of business and professional secrets (Article 287 EC, Article 194 Euratom and Article 47(2) and (4) ECSC).

The Court of Justice has steadily developed and added to these initial attempts at protecting fundamental rights through Community law. It has done this by recognising and applying general legal principles, drawing on the concepts that are common to the constitutions of the Member States and on the international conventions on the protection of human rights to whose conclusion the Member States have been party. Prominent among the latter is the ECHR, which helped to shape the substance of fundamental rights in the EC and the mechanisms for their protection. On this basis, the Court has recognised a number of freedoms as basic rights secured by Community law: right of ownership, freedom to engage in an occupation, the inviolability of the home, freedom of opinion, general rights of personality, the protection of the family (e.g. family members` rights to join a migrant worker), economic freedom, freedom of religion or faith, as well as a number of fundamental procedural rights such as the right to due legal process, the principle of confidentiality of correspondence between lawyer and client (known as "privileged communications" in the common-law countries), the ban on being punished twice for the same offence, and the requirement to provide justification for a Community legal act.

Page 16

One particularly important principle, regularly invoked in disputes with the Community, is the principle of equal treatment. Put simply, this means that like cases must be treated alike, unless there is some objectively justifiable ground for distinguishing them. But the Court of Justice has held, contrary to international custom, that this principle does not preclude nationals and home-produced goods from being subjected to stricter requirements than citizens or products from other Member States. This "reverse discrimination" is the inevitable result of the limited scope of the Community`s powers. Under the Court`s judgments issued up to now, the Community rules requiring liberalisation, which flow from the fundamental freedoms, apply only to cross-border trade. Rules regulating the production and marketing of home- produced goods or the legal status of nationals in their own Member State are affected by Community law only if the Community has introduced harmonisation measures.

The cases decided by the Court of Justice have given the Community an extensive body of quasi-constitutional law. In practical terms, the principle of proportionality is foremost among these. What this means is that the objectives pursued and the means deployed must be weighed up and an attempt made to keep them in proper balance so that the citizen is not subjected to excessive burdens. Among the other fundamental principles underlying Community law are the general principles of administrative law and the concept of due process: legitimate expectations must be protected, retroactive provisions imposing burdens or withdrawing legitimately acquired advantages are precluded and the right to due legal process - natural justice is the traditional term for this - must be secured in the administrative procedures of the Commission and the judicial procedures of the Court of Justice. Particular value is also attached to greater transparency, which means that decisions should be taken as openly as possible, and as closely as possible to the citizen. An important aspect of this transparency is that any EU citizen or legal person registered in a Member State may have access to Council or Commission documents.

With all due respect for the achievements of the Court of Justice in the development of unwritten fundamental rights, this process of deriving "European fundamental rights" has a serious disadvantage: the Court of Justice is confined to the particular case in point. The result of this can be that it is not able to develop fundamental rights from the general legal principles for all areas in which this appears necessary or desirable. Nor will it be able to elaborate the scope of and the limits to the protection of fundamental rights as generally and distinctively as is necessary. As a result, the Community institutions cannot assess with enough precision whether they are in danger of violating a fundamental right or not. Nor can any Community citizen who is affected judge in every case whether one of his fundamental rights has been infringed.

Page 17

For a long time, EC accession to the ECHR was regarded as a way out of this situation. In its Opinion 2/94, however, the Court held that, as the law now stands, the EC has no competence to accede to the Convention. The Court stated that respect for human rights was a condition for the lawfulness of Community acts. However, accession to the Convention would entail a substantial change in the present Community system for the protection of human rights in that it would involve the Community entering into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order. The Court took the view that such a modification of the system for the protection of human rights in the EC, with equally fundamental institutional implications for the Community and for the Member States, would be of constitutional significance and would therefore go beyond the scope of the dispositive powers provided for in Article 308 of the EC Treaty.

The only possible way to solve once and for all the question of fundamental rights in the EC is to create a body of such rights applying specifically to the EU by means of amendments to the existing EC and EU Treaties. The European Parliament`s "Declaration of fundamental rights and freedoms", which set out a comprehensive catalogue of human rights, could serve as a basis for this. This is the only way to effectively enhance the protection of human rights in the EU - assuming, of course, that all Member States are in agreement about the nature and scope of these rights. It is quite obvious that this consensus has been lacking up to now; the Member States have not gone any further than a general, but nevertheless binding, commitment to respect and safeguard fundamental freedoms in the context of the EU.

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT