Option 2: Critically discuss whether or not EU Law has been and continues to be developed

consistently in the values enumerated in article 2 TEU.

Abstract:
Article 2 TEU enlist respect for human dignity, freedom, democracy, equality, the rule of law
and respect for human rights, including the rights of persons belonging to minorities as values
on which union is founded. Through my arguments I will provide evidence of recognition
and enforcement of fundamental rights through evolutionary thread leading to the ratification
of treaty of Lisbon which not only recognize fundamental rights as basic values under Article
2 TEU in the form of primary law but also made, promotion of fundamental rights, as an
objective of Union law under article 3(5) TEU. 1 Suffice it to say here that protection of
human rights was not among objectives of EEC that were purely economic in nature. Like
principle of supremacy of EU law, its direct applicability& direct effect etc and principle that
community law is based on rule of law, fundamental rights were recognized as general
principles of EC law subsequently gained political acceptance by firstly EC institutions and
secondly by member states in the form of TOL. So in this research work I will give a
background for this development and then I will analyse and compare the cases decided by
Court of Justice before the ratification of Lisbon treaty and then after the inclusion of The
charter of human rights through Lisbon treaty into European Union law. The charter of
human rights contains human dignity, freedom and equality then I will provide the
development of rule of law in union law to conclude that these values has been and continues
to be developed consistently.

I choose this option instead of option 1 because it also contain development of rule of law so
it cover more topics than option 1.

Development of human rights:

The basic aim of European Union was to develop economically and make an internal market
based on assurance of freedoms of free movement of goods, persons and services and a
healthy competition but soon ECJ encounter other concerns including the human right issues
initially in the case of Nold v Commission 2 wherein the Court of justice held human rights
are among general principles of Union law founded on common national constitutional
traditions and international human rights agreements in the case of Stauder 3 ECJ recognized
human rights. Article 6 and Article 7 TEU are also important here that give ground for
enforcement of human rights in union law but in Pre-charter cases like Cinetheque 4, ECJ
clearly hold that it has no power to examine the compatibility of national law with human
rights and that is the domain of nation legislation and also in Bosphorus 5 , Kadi6 and Yousuf7

1
C-156/21 Hungary v Parliament and Council
2
Case 4/73 Nold (J), Kohlen- und Baustoffgroßhandlung v Commission [1974] ECR 491
3
Case 29/69 Stauder v City of Ulm [1969] ECR 419
4
Cases 60 and 61/84 Cinéthèque [1985] ECR 2605,
5
e C-84/95 Bosphorus v Minister for Transport [1996] ECR I-3953
6
Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649
7
Case T-306/01 Yusuf and Al Barakaat Int’l Found v Council and Commission [2005] ECR II-3533
the ECJ refused to interfere on another recognized general principle of proportionality but in
Rundfunk8, ECJ ordered the national authority to give effect to the charter rights for
protection of human rights so from these examples we could conclude that ECJ was always
willing to expand his jurisdiction in the area of fundamental rights but there were no effective
footings to ground their jurisdiction and it was grafted on general principles of union law.
The Charter rights take effect through competent union law, there must be a challenge to
other union element and charter cannot be used to address internal situations of bad human
rights, as was held in Vinkov9. Article 51 makes it obligatory on union institutions and
member states to give effect to charter when implementing union law.

Rule of Law:
Rule of law10 was recognized as one of basic principles of union law through general
principles in the case of Les Verts11. Rule of law given statutory footings in article 2 of TEU
though Tol. Later in 2019, European commission admitted and presented rule of law ‘a well-
established principle’ and ‘well-defined in its core meaning’ which is ‘same in all member
states’ which was later adopted as regulation 2020/2092 and article 2 (a) of the regulation
provides as rule of law as union value enshrined in article 2 TEU. Hungary challenged
regulation 2020/2092 on vagueness of the definition of rule of law arguing that the rule of
law ‘cannot be the subject of a uniform definition in EU law and must be specifically defined
by the legal systems of each member state’ 12 but ECJ declined such an argument further in
Portuguese Judges case ECJ upheld the principle of judicial independence as a primary
obligation for the member states13 this principle is supplemented by article 47 which provides
right to fair trial by an independent and impartial tribunal previously established by law. In
Commission v Poland under article 157 TFEU and articles 5(a) and 9(1)(f) of directive
2006/54 and under article 19(1) TEU in conjunction with article 47 of the charter, the CJEU
held “when exercising that competence the member states are required to comply with their
obligations deriving from Union law” 14,15

Horizontal effect to directives:

Directives have only vertical effect while Bauer 16 is an authority to the proposition that a
directive to give effect to the Charter is horizontally applicable. First laws of member states
must be interpreted in conformity with charter rights and where the interpretation in
8
138 and 139/01 Österreichischer Rundfunk [2003] ECR I-4989
9
Case C-27/11 Vinkov ECLI:EU:C:2012:326
10
Rule of law includes the principles of legality implying a transparent, accountable, democratic and
pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers
effective judicial protection, including access to justice, by independent and impartial courts, also as
regards fundamental rights; separation of powers; and
non-discrimination and equality before the law.
11
294/83 Les Verts, para [23] –[24]
12
C-156/21, Hungary v European Parliament and Council, EU:C:2021:974 (supported by Poland)
13
Case C-64/16, Associação Sindical dos Juízes Portugueses
14
C-192/18 Commission v Poland (Independence of the Supreme Court) [2019]
15
K 3/21, Polish Response
16
Case 368/95 Familiapress v Heinrich Bauer Verlag [1997] ECR I-3689
conformity with charter is not possible then the right being mandatory in nature while
imposing a sufficiently clear obligation can be invoked in both public and private disputes
and courts are under obligation to give protection to these rights.

Human dignity:
Through the case of Brüstle v Greenpeace17 that was related to the patenting of human
embryos through patented cloning ECJ recognized Article 1, right to human dignity being
part of charter hence any such law is in violation of union law.

Equality or protection from discrimination:

We can see from the example of Kücükdeveci18 that ECJ applied Article 21(1) of the Charter
to prevent discrimination of age.

Conclusion:
The evolutionary thread of case laws by CJEU provides us recognition of human rights like
dignity, freedom, equality/non-discrimination and rule of law through general principles
leading to the institutional and political acceptance of these rights and then ratification of
these rights in the form of basic values under Article 2 TEU in treaty of Lisbon and
promotion of such fundamental rights, as an objective of Union law under article 3(5) TEU is
sufficient to conclude that EU Law has been and continues to be developed consistently with
the values enumerated in article 2 TEU.

Bibliography

Books:
1. Alina Kaczorowska-Ireland, European Union Law (4th edn Taylor & Francis, 2016)
Chapter 8
2. Horspool, M., M. Humphreys and M. Wells-Greco European Union law. (Oxford:
Oxford University Press, 2018) 10th edition
3. Arnull, A. The European Union and its Court of Justice. (Oxford: Oxford University
Press, 2006) second edition
4. Barnard, C. and S. Peers European Union law. (Oxford: Oxford University Press,
2017) second edition
5. Craig, P. and G. de Búrca EU law text, cases and materials. (Oxford: Oxford
University Press, 2015) sixth edition
6. Takis Tridimas and Giulia Gentile, The Essence of Rights: An Unreliable Boundary?
German Law Journal. [2019]
Cases:
1. C-156/21, Hungary v European Parliament and Council, EU:C:2021:974 (supported by Poland)
2. K 3/21, Polish Response
3. C-192/18 Commission v Poland (Independence of the Supreme Court) [2019]

17
Cases C-34/10 Brüstle v Greenpeace [2011] ECR I-9821
18
C-555/07 Kücükdeveci [2010] ECR I-365
 4. Case C-64/16, Associação Sindical dos Juízes Portugueses
5. Cases C-34/10 Brüstle v Greenpeace [2011] ECR I-9821
6. Case C-27/11 Vinkov ECLI:EU:C:2012:326
7. C-555/07 Kücükdeveci [2010] ECR I-365
8. Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649
9. Case T-306/01 Yusuf and Al Barakaat Int’l Found v Council and Commission [2005] ECR II-3533
10. 138 and 139/01 Österreichischer Rundfunk [2003] ECR I-4989
11. Case 368/95 Familiapress v Heinrich Bauer Verlag [1997] ECR I-3689
12. C-84/95 Bosphorus v Minister for Transport [1996] ECR I-3953
13. Cases 60 and 61/84 Cinéthèque [1985] ECR 2605
14. 294/83 Les Verts, para [23] –[24]
15. Case 4/73 Nold (J), Kohlen- und Baustoffgroßhandlung v Commission [1974] ECR
491
16. Case 29/69 Stauder v City of Ulm [1969] ECR 419

Research papers:
1. Callewaert, J. ‘The European Convention on Human Rights and EU law – a long way
to harmony’ (2009) 6 European Human Rights Law Review 768–83
2. Costello, C. ‘The Bosphorus ruling of the ECHR – fundamental rights and blurred
boundaries in Europe’ (2006) 6(1) Human Rights Law Review 87–130
3. European Union Agency for Fundamental Rights and European Court of Human
Rights – Council of Europe ‘Handbook on European non-discrimination law’ (2011)
4. Fontanelli, F. ‘General principles of the EU and a glimpse of solidarity in the
aftermath of Mangold and Kücükdeveci’ (2011) 17(2) European Public Law 225–40
5. Jacobs, F.G. ‘Human Rights in the EU – the role of the Court of Justice’ (2001) 26
ELRev 336–37
6. Sánchez, S.I. ‘The Court and the Charter: the impact of the entry into force of the
Lisbon Treaty on the ECJ’s approach to fundamental rights’ (2012) CMLRev 1565.
Websites:
Court of Justice of the European Union: http://curia.europa.eu/
European Parliament: www.europarl.europa.eu
Council of the European Union: www.consilium.europa.eu/
European Commission: http://ec.europa.eu/
Research Papers Archive (ERPA): http://eiop.or.at/erpa/