Protection of fundamental rights in the European Union

INTRODUCTION

Until very recently international law limited its scope in regulation of international
relations that were established between sovereign states, neglecting the protection due to
individuals within each state in compliance with the principles of sovereignty and non-
interference. This does not mean that the protection of fundamental rights were ignored,
on the contrary, there has always been protection standards within the national legal
systems. After World War II the right international decided take the reins the protection
of fundamental rights. He then came to the Universal Declaration of Human Rights in
1948, the International Covenants on Economic, Social and Cultural Rights and Civil
and Political Rights in 1966. The Treaty of London signed in 1949, aimed at a "greater
unity" among its Member at the Council of Europe has developed its business around
two segments: the protection of fundamental rights at a European level, and
international cooperation among member states. Article 3 of the Statute of the Council
of Europe attaches everyone under its jurisdiction the enjoyment of human rights and
fundamental freedoms to which member states are obliged to develop all the activities
necessary to respect those rights. Later, paragraph 2 of Article 6 TEU came to refer to
"the Union shall respect fundamental rights, as guaranteed by the European Convention
for the protection of Human Rights and Fundamental (...) and as they result from the
constitutional traditions common to the member states as general principles of
Community law."

With the Lisbon Treaty, the movement for the protection of fundamental rights within
the EU gained new impetus due to the elevation of the Charter of Fundamental Rights
of the European Union legal value as the text equivalent of tratdos and with the
anticipation of joining the European Union-now equipped with international legal
personality-to the Convention.

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DEVELOPMENT

The European system is the most developed systems of protection rights, allowing the
construction of a space in which individuals are recognized substantive rights and rights
of complaint / action before international where those rights are violated. It should be
noted that the new model of protection of human rights, resulting in the assignment of
international responsibility of States, it considers that the breach of an international
standard for the protection of human rights on the part of a State entails the practice of
one internationally wrongful act and makes him liable.

In the point of view of the European Constitutionalism, the most impressive amendment
recognition by the Treaty of Lisbon is without any doubt the already mentioned
recognition of the rights, freedoms and principles set out in the Charter of the
Fundamental Rights of the European Union with the same legal value as the treaties
(article 6/1 TEU). Although the text of Charter is not contained in the Treaties, as it was
in the TECE, this amendment cannot be underestimated. The binding character of
Charter is submitted to some limitations. In fact, according to article 6/1 TEU, it shall
not extend the competences of the Union as defined in the Treaties and the rights,
freedoms and principles shall be interpreted in accordance with the general provisions in
the Title VII and with regard to the explanations referred to in the Charter. The Treaty
of Lisbon, consecrating the legal, equivalence between the Charter and the founding
Treaties of the union, transforms the Charter into hard law. This solution was not
accepted without any concessions to the Member States which were opposed to it.
Poland and the United Kingdom benefit indeed from an op-out concerning the
application of the Charter Fundamental Rights of the European Union provide for the
Protocol No 30.

Apart from the legal status of the Charter, the Treaty of Lisbon solves another important
issue related to the protection of fundamental rights. That is the question of the
accession of the Union to the European Convention for the Protection of Human Rights
and Freedoms (ECHR).

The proposal of the accession of the EU to the ECHR has been supported by some
institutions, as well as a by some scholars since the seventies. One of the most

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remarkable documents on this matter is a memorandum of the Commission from 1979,
where this institution pointed out some advantages of accession, such as the parallelism
between the Community and the Member States with regard to the control of
fundamental rights, the certainty of the bill of rights the Court should apply and the
incorporation of the ECHR in community legal order.

“One in two citizens of the European Union believes that the rights fundamental value
more important to defend. The Lisbon Treaty paves the way for a process more
legislative oriented fundamental rights. In many Member States, were positive
initiatives developed in 2009 to ensure the protection of rights fundamental. However,
in times of economic difficulties, the European Union should, more than ever, ensure no
setbacks in the protection of rights fundamental. In particular, Member States of the
European Union must act in towards ensuring that the agencies established to protect
and promote the rights Fundamental are able to do in practice, making the fundamental
one reality for everyone in the European Union”. The true value (social and legal)
fundamental rights translates into word: effectiveness (i.e., effective protection and
realization of assets and interests person's basic human level of existence, autonomy and
power). Now this effectiveness, is indeed primarily, must be combined with a set of
assumptions real (called assumptions of fundamental rights). It depends largely on the
existence of social prestige and the effective functioning of a judicial system capable of
ensuring that value.

To ensure the protection of fundamental rights of the European Union, allowed

individuals to resort to litigation. In this sense it is said that the Court of Justice of the
European Union (CJEU) has within its contentious jurisdiction, the ability to analyze
issues pre-judicial; judge the judicial review through various means, namely the action
for annulment, the action of omission and of illegality. You can also verify the
contractual liability and the infringement procedure.

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 I- Pre-judicial issues

There is pre-judicial court (article 267 the CJEU) raised questions arise when national
courts before the CJEU, with a return to the latter when a particular process (obviously
with parts request and cause of action) is requested cooperation between the judge
European and national courts. In this case the parties do not have the power to initiate
proceedings, only the national court. It is important to analyze the scope of Article 267,
since they are covered in pre-court issues, including questions of interpretation of law
Originating and validity of law derivative. The wording of article only requires the
national court raises the question pre-judicial if the judge ultimately. The national court
to resolve a case can see yourself faced with the need to implement a European
standard, since the law European enjoys direct applicability. It is also noteworthy that
national courts must ensure the primacy, however the judge may have doubts about the
interpretation or validity of European concrete standard or measure. If the national court
could resolve by themselves, questions that imply a fractionation of European Law
leading to the breakdown of uniformity to be achieved in the interpretation and
application of European Law. Article 267 provides a mechanism by which any national
court may refer to the CJEU questions of interpretation or validity of European Law.
There are cases in which the national court is required to refer the matter to the the
CJEU when judges ultimately. It is intended with this, ensure the correct application of
European law, putting in place for the national court a way to eliminate the difficulties
that could arise from the need to give the European law its full effect in various
jurisdictions of the United States.

The reasons for the operation of Article 267 can be objective (decentralized application
of European Law; ensure uniform interpretation and application of European Law;
ensure the stability of Law Derived; encourage the development of European Law) or
subjective (legal protection of individuals; compensation restrictions imposed on
individuals).

The pre-judicial question can focus on the interpretation of standards or European and
acts on their validity, and interpret means not only clarify the material sense of the
provisions of European law in question, but also to determine its scope and define its
effects . The ECJ considers that the interpretation of its jurisdiction extends to all acts of

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secondary legislation, including recommendations or non-binding acts, acts such as
atypical Council resolutions. The court considers is also competent to interpret the title
pre-judicial international agreements concluded by the union.

The CJEU has jurisdiction to determine the validity of acts adopted by the European
organs, and the legality validity covers internal and external. Controversial question is
whether it is possible to raise questions about pre-judicial acts and not binding on
individual acts. The thesis of the impossibility was defended on the basis of parallels
with the action for annulment. However the CJEU admits pre-judicial questions about
the validity of acts not mandatory and individual acts even in the case of decisions
addressed to member states since the fact that the parties in dispute, not having standing
to directly challenge the act in question not prevent the CJEU to enjoy the same validity
a pre-judicial process. Another issue that is not peaceful is whether issues are
admissible in determining validity in relation to international agreements. The CJEU
seems to have them admitted but the revocation can only take effect within the Union.
The CJEU did not accept, however, pre-judicial questions on the validity of their
judgments. Outside the competence of pre-judicial interpretation and assessment of
validity of the internal law of the CJEU; purely internal situations; international
agreements between Member States, the agreements between associations of private
insurers; decisions of the representatives of the Governments of Member States meeting
within the Council; agreements concluded by Member States, the EIB acts. All national
courts have the power to raise issues pre-judicial to the CJEU. When the decisions are
not subject to appeal, no obligation pre-judicial court. The CJEU in order to raise
questions pre-judicial must be the judge in order to obtain a decision by the court in its
judgment the ECJ 04.21.88 rejected a pre-judicial question in that instance had already
been extinguished. There are also issues voluntary pre-court, where the court does not
judge ultimately. According to the Foto-Frost, national courts may consider the validity
of a Community act. However, the courts themselves have no authority to declare a
Community act is invalid (in this case, a Commission decision). Only the Court of
Justice, responsible for ensuring that Community law is applied uniformly in all
Member States, has the power both to declare void or invalid an act of a Community
institution. The question should be formulated in such a way that allows the CJEU to
give a useful answer, so that the national court must, in formulating the questions,
explain the reasons why needs a response transmitting all important information’s. The

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ECJ admitted initially, clear and concrete issues, not articulated, abstract and
complicated issues. But no longer admit any and all questions, the questions that are
manifestly inadmissible pre-judicial containing insufficient precise references to
situations of law or which have a purely hypothetical.

II- Action for annulment

This is a mere instrument of revocation. The article 263 admits an action for
annulment of unilateral acts of European organs other than recommendations and
opinions, excluding the provisions of the Treaty. Just be challenged acts which have
their legal basis in the Treaty. Acts are challenged regulations, directives and
decisions, but also any act which is intended to produce legal effects. It's constant
jurisprudence that it is possible to bring an action for annulment of provisions
adopted by all institutions irrespective of the nature and form. To define which acts
challenged the ECJ takes into account two criteria: the susceptibility of producing
legal effects (acts with external effectiveness) and finality of the act (the act must be
the ultimate manifestation of the will of the organ). Legitimacy is at once passive
acts of the European Investment Bank, including the deliberations of the Board of
Governors and the Board of Administration of the Bank may be subject to an action
for annulment before the CJEU. International agreements concluded by the Union
with third European are not actionable because the acts adopted by the European
Parliament are challengeable. For atypical acts, letters signed by officials are
challengeable, comfort letters, i.e., the decisions are also, and acts under delegated
powers be contested valid. There are therefore challengeable acts adopted by the
representatives of the Member States; agreements completed by the United States;
acts of Member States; agreements between an organ and a natural or legal person
and the provisions of the Treaties of Accession and revision of treaties originating.
Under Article 265 the CJEU court has jurisdiction to verify Wed abstention of the
organ appeal constitutes a violation of the treaty. There are judgments that seem to
see the action of omission as a particular case of an action for annulment of the
judgments in the case Nordgetreide; Eridania and Chevalley. The omission is
abstention from a European organ of practice because of an act and therefore is

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 obliged to practice. The legitimacy of the European Parliament is passive; council;
commission and the European Central Bank.

III- Plea of illegality

Through this medium allows the incidental control of the legality of an act of a
European organ during a process in which disputes the title page the illegality of an
implementing measure. This medium is intended to compensate the shortcomings of
judicial protection of individuals of European law, especially of individuals and ensure
respect for the principle of safeguarding the legality. The ECJ stated in its judgment that
this means Wohrmann aims to declaration of inapplicability of the regulation incidental
to title a process running in the CJEU. What is contested is not the rules but the extent
of application.

The acts which are liable to be challenged regulations are approved by the European
parliament and council, committee or council and European Central Bank.

IV- Infringement proceedings

The infringement procedure allows the establishment of an action against a Member

State that it considers is in breach of obligations under European Law. The definition of
failure is the violation by state authorities of rules, norms and principles of European
law required.

It requires the existence of an effective rule or act incompatible with European law. In
the case Commission c. Italy, the ECJ found that Italian law does not infringe European
law despite being contrary to this.

V- The action of tort

The action of tort gives the CJEU jurisdiction in disputes relating to compensation of
losses. As know many individuals are recipients of European standards suffer losses
with the application of certain standards, but also the inertia of the organs may involve
damage. It has been on the protection of individuals. This action is intended to
compensate the restrictions imposed by these means contentious and complement
national judicial means. The object of the action is the claim which can be enforced by

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an action for damages against the organs or European agents. For the action to be
admissible is that it is necessary and autonomous subsidiary.

BIBLIOGRAPHY

- MARTINS, Ana Maria Guerra, curso de direito constitucional da uniao europeia

- ROCHA, Armando, o contencioso dos direitos do homem no espaço europeu
- QUADROS, Fausto e MARTINS, Ana Maria Guerra Martins, Contencioso da
uniao europeia

Tânia Paiva, n 18429