HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

Some might argue that the Charter lacks practical significance, given that all Member States are already signatories to the ECHR, whose level of protection is considered a minimum standard. Furthermore, EU law itself (regardless of future non-/accession to the ECHR) declares the human rights protected by the ECHR to be a general principle of the EU. 8 In response to this perspective, I would emphasize that it must be remembered that EU law is superior to the legal systems of the Member States 9 , even though certain constitutional courts express reservations about this assertion. For example, the Czech Constitutional Court limits the primacy of European law both by the scope of delegated powers (the observance of which it reserves the right to examine) and by the material core of the Czech Constitution, which must not be compromised by the primacy of European law. 10 As a result of the principle of EU law supremacy over the legal systems of Member States, there may be instances where an EU legal norm takes precedence over a national constitutional norm that protects human rights. Such a situation was particularly controversial when the EU lacked a functioning system to adequately guarantee the protection of human rights. When European law is given precedence over national law, the argument that the Member States are signatories to the ECHR cannot stand, because it fails to address a crucial question: How does the EU protect human rights when it derogates from a national norm? In the 1960s, the CJEU was hesitant to incorporate human rights into its rulings, often deferring to national courts. 11 Over time, with the expansion of EU policies and, notably, the establishment of the primacy of European law over national law (including constitutional law), a legally unjustified gap emerged. This gap allowed EU law to override national norms that protected human rights, without ensuring adequate protection of these rights directly within EU law. The CJEU’s approach to safeguarding rights through fundamental principles, which involved assessing both EU law interpretation and the actions of EU institutions 12 , proved inadequate in the face of EU law’s complexity and the gradual incorporation of additional policies. The formal reference to human rights, as outlined in the ECHR, and considered part of the Community’s general principles 13 , also provided insufficient protection. As early as the late 1960s, the absence of formally proclaimed human rights provisions caused considerable unease among the constitutional courts of several 9 As can be implied from Costa v ENEL (Case 6/64), para. 13; Internationale Handelsgesellschaft mbH v Einfuhrund Vorratsstelle fur Getreide und Futtermittel (Case 11/70), para. 3; Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77), para. 22 et al. 10 Ruling of the Constitutional Court of the Czech Republic of 8 March 2006, Pl. ÚS 50/2004, para. 56; Ruling of the Constitutional Court of the Czech Republic of 26 November 2008, Pl. ÚS 19/2008, para. 95; Ruling of the Constitutional Court of the Czech Republic of 3 May 2006, Pl. ÚS 66/2004, para. 44. 11 1/58 Stork v. High Authority, para. 15. 12 29/69 Stauder v. City of Ulm, para. 7 13 4/73 Nold v. Commission, para. 13; 36/75 Rutili v. Minister for the Interior, para. 27. 8 4/73 Nold v. Commission, para. 13.

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