HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

Member States, notably in the Federal Republic of Germany. 14 This discontent led to the development of the German Solange doctrine 15 , derived from the German word “ solange ” (meaning “until”). According to this doctrine, the German Federal Constitutional Court declared that, until the protection of human rights at the EU level was deemed sufficient - ideally, through a comprehensive catalogue of human rights - the Court reserved the right to assess, on a case-by-case basis, whether the existing level of protection was adequate. It was evident that the issue of inadequate human rights protection needed to be addressed. The situation was far from ideal in terms of legal certainty or practicality. There was no consistent framework for protection, and it was unclear which specific human rights were safeguarded at the EU level. This was further complicated by the fact that each Member State had its own constitutional traditions, and the ECHR did not encompass all possible rights, such as the right to a healthy environment. The European Community had two options: to adopt its own human rights catalogue or to accede to the ECHR. Therefore, it is not surprising that the Community decided to embed human rights in the Charter. This approach offers the highest legal certainty by clearly defining the human rights protected by the EU and ensuring they can be reliably invoked before the CJEU. I am convinced that this outcome is the logical conclusion of many years of development. A community founded on values should have a human rights document to refer to. For instance, individual states may be signatories to the ECHR while also having national constitutional laws that protect human rights. In terms of the practical significance of the Charter, Article 51, which addresses its scope and applicability, is crucial, as it sets important legal boundaries from which we can infer the intentions behind the drafting of the Charter. Article 51 specifies that the provisions of the Charter are addressed to the institutions, bodies, offices, and agencies of the EU, as well as to the Member States, but only when they are implementing EU law. During the drafting of the Charter, and even more so following its incorporation into primary EU law, it was crucial to define its jurisdiction. This was particularly important for clarifying the situations to which the rights and principles of the Charter apply. The precise delineation of its scope can significantly prevent potential issues regarding the overstepping of assigned powers, thus maintaining the balance between the EU and the Member States and respecting the principle of subsidiarity. This precise delineation of its scope in Article 51 has tried to ensure legal certainty for both Member States and EU bodies, as well as for citizens. By explicitly stating 14 MCCRUDDEN, Ch. The Future of the EU Charter of Fundamental Rights [online]. March 2002. p. 3 [cit. 2024-07-3]. Available at: https://ssrn.com/abstract=299639 or http://dx.doi.org/10.2139/ ssrn.299639. 15 For further reference, see Solange I (1974) – 2 BvR 197/73, para. 2 and Solange II (1986) – BverfGE 73, 339, para. 49.

36