Fundamental Rights Protection in the EU Post Lisbon Treaty

Abstract

The Lisbon Treaty, which entered into force on 1 December 2009, constitutes a major step forward as regards fundamental rights protection in Europe. First and foremost, the fact that EU Charter of Fundamental Rights has become a legally binding element of the Union's legal order means that the Charter should now be viewed as the primary source of EU fundamental rights to be relied on, where relevant, by EU as well as national courts when interpreting and applying Union law. While the Charter ensures a fine crystallisation of rights resulting from national, European and international sources, its legal impact, however, is likely to be anything but revolutionary, and one may also regret that its interpretation and application is made extremely complex by a certain number of byzantine, if not superfluous, provisions. Secondly, the Lisbon Treaty provides the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). As a matter of fact, new Article 6(2) TEU not only offers, at last, an explicit legal basis allowing the EU to accede to the ECHR but it actually imposes on the EU an obligation to seek accession. This obligation is not without raising a number of difficulties. This is particularly so because negotiation of the future agreement relating to the accession of the Union to the ECHR is conditioned to the respect of requirements that differ from those normally governing the accession of a state. For instance, the future agreement must make provision for preserving the specific characteristics of the Union and its law.