The original treaties of the European Communities did not contain any reference to human rights or their protection. However, as cases came before the ECJ alleging human rights breaches occurring in areas within the scope of EU law, the ECJ devel- oped a new approach to grant protection to individuals by including fundamental rights in the so-called ‘general principles’ of European law. According to the ECJ, these general principles would reflect the content of human rights protection found in national constitutions and human rights treaties, in particular the ECHR. The ECJ stated that it would ensure compliance of EU law with these principles.
In recognising that its policies could have an impact on human rights and in an effort to make citizens feel ‘closer’ to the EU, the EU proclaimed the Charter of Fundamen- tal Rights of the European Union in 2000. The Charter contains a list of human rights inspired by the rights enshrined in EU Member State constitutions, the ECHR, the ESC and international human rights treaties, such as the United Nations (UN) Convention on the Rights of the Child (CRC). The EU Charter of Fundamental Rights as proclaimed in 2000 was merely a ‘declaration’, meaning it was not legally binding. The European Commission, the primary body for proposing new EU legislation, soon thereafter stated that it would ensure compliance of legislative proposals with the Charter.
When the Treaty of Lisbon entered into force on 1 December 2009, it altered the status of the EU Charter of Fundamental Rights, making it legally binding. As a result, EU institutions (as well as EU Member States) are bound to comply with the Charter “when implementing EU law” (Article 51 of the Charter).
A Protocol has been adopted interpreting the Charter in relation to Poland and the UK. In a 2011 migration case before the CJEU, the Court held that the main purpose of such Protocol was to limit the application of the Charter in the field of social rights. The Court furthermore held that the Protocol does not affect the implementation of EU asylum law.
Article 18 of the EU Charter of Fundamental Rights contains – for the first time at European, level – a right to asylum. According to Article 18, it is a qualified right: “[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention […] and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union […].” Article 19 of the Char- ter includes a prohibition to return a person to a situation where he or she has a well-founded fear of being persecuted or runs a real risk of torture or inhuman and degrading treatment or punishment (principle of non-refoulement).
Moreover, other Charter provisions on the protection granted to individuals appear to be relevant in the context of migration. Article 47 of the Charter provides for an autonomous right to an effective remedy and lays down fair trial principles. The principle of judicial review enshrined in Article 47 requires a review by a tribunal. This provides broader protection than Article 13 of the ECHR which guarantees the right to an effective remedy before a national authority that is not necessarily a court. Furthermore, Article 52 of the EU Charter of Fundamental Rights stipulates that the minimum protection afforded by the Charter provisions are those provided by the ECHR; the EU may nevertheless apply a more generous interpretation of the rights than that put forward by the ECtHR.
13. ECJ, Case C-44/79  ECR 3727, Liselotte Hauer v. Land Rheinland-Pfalz, 13 December 1979, para. 15.
14. CJEU, Joined Cases C-411/10 and C-493/10, N. S. v. Secretary of State for the Home Department and M. E. and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, 21 December 2011.