Protection of Fundamental Rights in the European Union

Abstract

This paper addresses two issues of primary importance to the protection of fundamental rights in EU. First, it examines the future place of judgements of the European Court of Human Rights in EU jurisprudence against the backdrop of the recent (negative) Opinion of the Court of Justice on EU accession to the European Convention of Human Rights. Secondly, the paper explores the notion of the scope of application of EU fundamental rights with regard to Member States action in the light of the ruling of the Court of Justice in Arkerberg Fransson. With regard to the former question, it will be here argued that the case law of the Court of Human Rights maintains its position in the EU legal system due to the combined effects of Article 6 (3) TEU and Article 52 (3) of the EU Charter of Fundamental Rights. From the point of view of the Convention, the same is reflected in the 'Bosphorus' jurisprudence of the Court of Human Rights. As regards the second issue, the demarcation between the parameters of EU fundamental rights protection and the sphere in which Member State law retains exclusive responsibility over fundamental rights has been afforded deeper precision, both by the cases of Akerberg Fransson itself and in subsequent rulings. this is considered to be a welcome development.