The Consequences of the “Constitutionalization” of the Charter of Fundamental Rights of the European Union

Abstract

At their origin, the fundamental rights used to be considered as a peripheral element of the European Community construction, yet, with the development of the EC normative competencies, the gap of the Treaty of Rome regarding the protection of the fundamental rights soon became obvious and inacceptable. Therefore, the Court of Justice of the European Union elaborated by way of jurisprudence a system of protection of the fundamental rights, inspiring itself from the common constitutional traditions of the Member States and from the international instruments to which the Member States have adhered, especially the European Convention on Human Rights. The praetorian construction was then progressively constitutionalized by treaties until the adoption of the Charter of Fundamental Rights in the area of the EU, at the same time giving a great visibility to the values on which it is based. First proclaimed in Nice on 7 December 2000, then officially adopted in its definitive version by the presidents of the European Commission, of the European Parliament and of the EU Council on 12 December 2007, the Charter of Fundamental Rights has acquired a constraining juridical force after the Treaty of Lisbon for 24 Member States, the United Kingdom, Poland and the Czech Republic benefiting of a derogation concerning its application. The Charter is not included in the Treaty of Lisbon but it is annexed under the form of a declaration. The consecration of the Charter of Fundamental Rights, which until recently used to be just a political message of the Member States of the European Union addressed to the European citizens, is part of a larger will of the European Union of assuring the respect of these rights, which, from now on, have become “a part of the law of the European Union as general principles” (art. 6, par. 3 TUE).