UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B.A- LLB (Hon’s) CONSTITUITIONAL Law

BATCH 2

Semester X

Academic Year: 2022-2023

Assignment for Constitutional and International Law

Under the Supervision of:
Ms Shradha Baranwal

TOPIC- The Constitutional Protection of Human Rights in

the European Union

Name: Aliya Sheikh

SAP ID: 500070419
Roll No. 09
 DECLARATION/UNDERTAKING OF ORIGINALITY

I, ALIYA SHEIKH having SAP ID 500070419 declare that the Seminar

Paper titled “The Constitutional Protection of Human Rights in the
European Union” is the outcome of my original work conducted under
the supervision of Ms. / Mr ./Dr./Prof. Shradha Baranwal at School of
Law, University of Petroleum and Energy Studies, Dehradun.
I undertake full responsibility of the contents of this Research Paper
complying with the ‘Academic Integrity’ policy of UPES and I understand
that if this work is found in violation of the same, this may result in
rejection of Seminar Paper and entail appropriate disciplinary
proceedings as per Rules of the University.

Name of Author
ALIYA SHEIKH

Course & Batch

BA LLB, Constitutional laws
5TH year, 2018-2023 batch
 Abstract

The Constitutional Protection of Human Rights in the European Union

The Role of the European Court of Justice and the Limits of Member State Sovereignty. The
European Union (EU) has taken significant steps to ensure the protection of human rights
within its jurisdiction. This law seminar paper examines the role of the European Court of
Justice (ECJ) in safeguarding human rights and explores the limits of EU member states'
sovereignty in this area. By reviewing relevant case law, legal principles, and academic
literature, this paper seeks to provide a comprehensive understanding of the ECJ's role in the
European human rights landscape and assess the implications of the Union's human rights
jurisprudence on the sovereignty of its member states.
 FRAMEWORK OF THE PAPER

Introduction

A. Background
B. Aim and Scope
C. Methodology

II. European Human Rights Framework

A. The Charter of Fundamental Rights of the European Union
B. The European Convention on Human Rights
C. The Relationship between EU Law and National Constitutions

III. The Role of the European Court of Justice in Protecting Human Rights
A. The Court's Jurisdiction and Competence
B. Principles of Direct Effect and Supremacy
C. Preliminary Rulings and Dialogue with National Courts

D. Case Studies: Key ECJ Judgments on Human Rights

1. Right to Privacy and Data Protection

2. Freedom of Expression
3. Non-discrimination and Equality

IV. Limits of Member State Sovereignty in Human Rights Protection

A. The Principle of Subsidiarity
B. The Margin of Appreciation Doctrine
C. Proportionality and Balancing Competing Interests
D. The Principle of Conferral and Exclusive Competences

V. The Impact of Brexit on Human Rights Protection in the European Union

A. Legal Uncertainty and the Withdrawal Agreement
B. The Future Relationship between the UK and the EU

VI. Conclusion
A. Summary of Findings
B. Future Prospects for Human Rights Protection in the European Union
C. Final Remarks
 INTRODUCTION

The European Union (EU) has long been committed to the protection of human rights within its
borders. The EU's founding treaties, including the Treaty of Rome and the Treaty of Lisbon,
enshrine the protection of human rights as a fundamental value of the Union. The EU has also
developed a comprehensive framework for the protection of human rights, including the
European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the
European Union.

EU law is superior to national law. This means that Ireland (along with other
member states) cannot pass national laws that contradict EU laws. It also
means that an EU law can over-rule an Irish law, even if that Irish law was
enacted before the EU law came into effect. 1

The role of the European Court of Justice (ECJ) in the protection of human rights in the EU, as
well as the limits of member state sovereignty in this area. It will also explore some of the
challenges facing human rights protection in the EU and the prospects for the future.

The Role of the European Court of Justice in Human Rights Protection

The ECJ has played a significant role in the protection of human rights in the EU. The ECJ is
responsible for interpreting EU law and ensuring its consistency with the EU's treaties and
fundamental values, including the protection of human rights. The ECJ has developed a body of
case law on human rights protection in the EU, which has had a significant impact on EU law
and policy. 2

One of the most significant developments in the ECJ's case law on human rights protection has
been the incorporation of the ECHR into EU law. The EU acceded to the ECHR in 2013, which
means that the EU is now subject to the jurisdiction of the European Court of Human Rights
(ECtHR). The ECJ has also recognized the ECHR as a source of fundamental rights protection in
the EU, which has strengthened the protection of human rights in the Union.

1https://www.citizensinformation.ie/en/government_in_ireland/european_government/eu_law/european_laws.h
tml

2
https://www.humanrights.is/en/human-rights-education-project/complaints-procedures-of-the-international-
human-rights-supervisory-bodies/how-to-bring-a-complaint/european-court-of-human-rights
The Limits of Member State Sovereignty in Human Rights Protection

While the EU has developed a comprehensive framework for the protection of human rights,
member states retain a significant degree of sovereignty in this area. The principle of
subsidiarity, which requires that decisions be taken at the most appropriate level, means that
member states have a significant role to play in the protection of human rights.

This can create challenges for the protection of human rights in the EU, particularly in cases
where member states have divergent views on human rights issues. For example, the refugee
crisis has highlighted significant differences between member states in their approach to the
protection of refugees' human rights.

The EU has sought to address these challenges through its institutions, including the ECJ and
the European Parliament. However, it remains to be seen how effective these institutions will
be in ensuring that member states uphold their obligations under EU law and international
human rights law.

Challenges Facing Human Rights Protection in the EU

There are several challenges facing human rights protection in the EU, including the rise of
populism and nationalism in some member states. Populist movements have challenged the
EU's commitment to human rights, particularly in the areas of migration and refugee policy.

The refugee crisis has also posed significant challenges to human rights protection in the EU.
The EU has struggled to develop a coherent and effective response to the crisis, which has led
to significant violations of refugees' human rights, including the right to asylum and the right to
freedom from discrimination.

Finally, Brexit has created significant uncertainty about the future of human rights protection in
the EU. The UK's withdrawal from the EU has raised concerns about the potential impact on the
protection of human rights in the EU, particularly with regards to the legal uncertainty created
by Brexit.3

Prospects for the Future

The future of human rights protection in the EU is uncertain. The challenges facing the Union
are significant, but they are not insurmountable. The EU must continue to demonstrate its
commitment to human rights and work towards the protection of these rights for all
individuals, regardless of their nationality or background. 4

3
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 Background

The European Union (EU) has its origins in the aftermath of World War II, when the need for a
united Europe capable of ensuring peace and stability became increasingly apparent. Over the
years, the EU has evolved into an economic and political union that currently comprises 27
member states, with the primary goal of promoting cooperation and integration among them.
As part of this integration process, the EU has developed a comprehensive human rights
framework to guarantee the protection of fundamental rights within its jurisdiction.
The constitutional protection of human rights in the EU has its roots in the Treaty of Rome,
which established the European Economic Community (EEC) in 1957. Although the treaty did
not expressly mention human rights, the European Court of Justice (ECJ) began to develop a
body of jurisprudence that recognized the existence of certain fundamental rights as general
principles of EU law. This recognition was based on the common constitutional traditions of the
member states and the European Convention on Human Rights (ECHR), which was adopted by
the Council of Europe in 1950 and serves as a benchmark for human rights protection in the
region.

In 2000, the EU adopted the Charter of Fundamental Rights of the European Union (the
Charter) to provide a more coherent and visible framework for the protection of human rights.
The Charter became legally binding with the entry into force of the Treaty of Lisbon in 2009 and
now constitutes an integral part of EU law. It covers a broad range of rights, including civil,
political, economic, and social rights, and it applies to the EU institutions as well as to the
member states when they are implementing EU law.

The ECJ plays a pivotal role in the protection of human rights in the EU, as it is the ultimate
arbiter of EU law and is responsible for ensuring its consistent interpretation and application
across the member states. The Court's jurisdiction covers both actions brought by individuals
and by member states, and it has developed a range of legal doctrines and principles, such as
the direct effect and supremacy of EU law, which significantly impact the constitutional
landscape in the member states.5

The protection of human rights in the EU raises important questions about the limits of
member state sovereignty, as EU law often requires the member states to comply with human
rights standards that may differ from their own constitutional provisions. This tension between
EU law and national sovereignty has given rise to a complex legal framework, in which the ECJ
seeks to balance the need for uniformity and consistency with the recognition of the diversity
of the member states' legal systems.6

5
https://citizensassembly.co.uk/background-quick-introduction-eu/
6
https://www.investopedia.com/terms/e/europeanunion.asp
The principle of subsidiarity, enshrined in the Treaty on European Union, serves as a key
safeguard against the undue centralization of powers in the EU and aims to ensure that
decisions are taken as closely as possible to the citizens. Moreover, the margin of appreciation
doctrine, which was developed by the European Court of Human Rights (ECtHR) in its
interpretation of the ECHR, allows for a certain degree of flexibility in the application of human
rights standards, taking into account the specific circumstances and traditions of each member
state.
As the EU continues to evolve and expand its human rights framework, the role of the ECJ and
the limits of member state sovereignty in this area remain subjects of ongoing debate and
scholarly inquiry. The recent withdrawal of the United Kingdom from the EU (Brexit) has further
highlighted the complex relationship between human rights protection, EU law, and national
sovereignty, making it a timely and relevant topic for legal scholars and practitioners alike.

Aims and Scope

The primary aim of this paper is to provide an in-depth analysis of the constitutional protection
of human rights in the European Union, focusing on the role of the European Court of Justice
(ECJ) and the limits of member state sovereignty in this area. The paper seeks to examine the
interaction between EU law and national constitutions, as well as the legal principles and
doctrines that govern the protection of human rights within the EU. By investigating the
complex interplay between the various sources of law, institutions, and actors involved in the
human rights framework, this paper aims to contribute to the understanding of the EU's unique
human rights landscape and its implications for the sovereignty of its member states.
The scope of the paper encompasses the following key aspects:

1. European Human Rights Framework: The paper will explore the origins and
development of the EU's human rights framework, including the Charter of Fundamental Rights
of the European Union, the European Convention on Human Rights, and the relationship
between EU law and national constitutions.

2. The Role of the European Court of Justice in Protecting Human Rights: The paper will
analyze the jurisdiction, competence, and key legal doctrines of the ECJ, as well as its
interaction with national courts in the protection of human rights. This analysis will be
supported by a review of landmark ECJ judgments on human rights issues, such as the right to
privacy and data protection, freedom of expression, and non-discrimination and equality.7

3. Limits of Member State Sovereignty in Human Rights Protection: The paper will delve
into the legal principles and doctrines that govern the balance between EU law and member
state sovereignty in the field of human rights, including the principle of subsidiarity, the margin

7
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values_en#:~:text=The%20aims%20of%20the%20European,and%20prevent%20and%20combat%20crime
of appreciation doctrine, proportionality, and the principle of conferral and exclusive
competences.8

4. The Impact of Brexit on Human Rights Protection in the European Union: The paper will
examine the legal and political implications of the United Kingdom's withdrawal from the EU for
the protection of human rights within the Union, including the challenges posed by legal
uncertainty and the future relationship between the UK and the EU in this area.
By focusing on these key aspects, the paper aims to provide a comprehensive understanding of
the constitutional protection of human rights in the European Union and the role played by the
European Court of Justice in this regard. Furthermore, the paper seeks to assess the
implications of the EU's human rights jurisprudence for the sovereignty of its member states,
shedding light on the delicate balance between the need for a consistent and uniform
application of human rights standards and the respect for the diversity of the member states'
legal systems and traditions.

Ultimately, this paper aims to contribute to the ongoing debate on the protection of human
rights in the EU and the role of its institutions, particularly the ECJ, in shaping the human rights
landscape. By offering a thorough analysis of the legal principles, doctrines, and case law that
govern this area, the paper seeks to inform legal scholars, practitioners, and policymakers
about the challenges and opportunities presented by the EU's unique human rights framework
and its implications for the future of European integration and member state sovereignty.

Methodology

To effectively analyze the constitutional protection of human rights in the European Union, the
role of the European Court of Justice (ECJ), and the limits of member state sovereignty in this
area, this paper will adopt a multifaceted methodology that combines doctrinal, comparative,
and case study approaches. This methodology will ensure a comprehensive understanding of
the legal principles, doctrines, and case law governing the protection of human rights within the
EU, as well as the implications of the EU's human rights jurisprudence for the sovereignty of its
member states.9

1. Doctrinal Analysis: A significant part of the research will be dedicated to the

examination of the legal texts, treaties, and secondary legislation that constitute the European
human rights framework. This will include a thorough analysis of the Charter of Fundamental
Rights of the European Union, the European Convention on Human Rights, and the relationship
between EU law and national constitutions. The doctrinal analysis will also focus on the legal
principles and doctrines developed by the ECJ, such as the direct effect and supremacy of EU

8
http://en.euabc.com/word/743
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https://www.endevio.com/en/insights/what-is-the-european-union-a-summary
law, the principle of subsidiarity, the margin of appreciation doctrine, and the principle of
conferral and exclusive competences.

2. Comparative Analysis: To provide context and enhance the understanding of the

complex interplay between EU law and member state sovereignty, a comparative analysis will
be conducted. This analysis will involve a comparison of the EU's human rights framework with
the human rights systems of selected member states, highlighting the similarities and
differences between the EU and national approaches to human rights protection. Additionally,
the paper will draw on the jurisprudence of the European Court of Human Rights (ECtHR) and
the national courts of the member states, comparing their approaches to the interpretation and
application of human rights standards.

3. Case Study Approach: To illustrate the practical implications of the ECJ's human rights
jurisprudence and its impact on member state sovereignty, the paper will examine a series of
landmark ECJ judgments on human rights issues. These case studies will be carefully selected to
cover a wide range of rights, such as the right to privacy and data protection, freedom of
expression, and non-discrimination and equality. The case studies will be analysed in depth,
focusing on the Court's reasoning, the legal principles and doctrines applied, and the impact of
the judgments on the national legal systems of the member states.

4. Academic Literature and Commentary: Throughout the research process, the paper will
draw on relevant academic literature, commentaries, and expert opinions to support and
contextualize the findings. This will include journal articles, books, and reports from leading
scholars, practitioners, and organizations in the field of European law and human rights.

5. Qualitative Analysis: The paper will employ a qualitative approach to analyze the data
collected through the doctrinal, comparative, and case study research. This analysis will focus
on identifying patterns, trends, and key themes in the EU's human rights jurisprudence and its
implications for member state sovereignty. The findings will then be synthesized and presented
in a clear, coherent, and well-structured manner.
By employing this multifaceted methodology, the paper aims to provide a comprehensive and
nuanced understanding of the constitutional protection of human rights in the European Union,
the role of the European Court of Justice, and the limits of member state sovereignty in this
area.10

European Human Rights Framework

A. The Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union (the Charter) is a pivotal instrument
in the EU's human rights framework, serving as a comprehensive codification of the rights and
principles that are protected within the Union. Adopted in 2000 and becoming legally binding

10
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amental_rights.html
with the entry into force of the Treaty of Lisbon in 2009, the Charter aims to provide clarity and
visibility to the fundamental rights that apply at the EU level and to ensure that these rights are
respected in all EU policies and actions.11
Structure and Content: The Charter is organized into six distinct titles, each covering a particular
set of rights and principles:

1. Dignity: This title enshrines the inherent dignity of every human being, including the
right to life, the prohibition of torture and inhuman or degrading treatment, the prohibition of
slavery, and the right to the integrity of the person.

2. Freedoms: This section encompasses a wide range of civil and political rights, such as
the right to liberty and security, the right to privacy and data protection, freedom of thought,
conscience, and religion, freedom of expression and information, freedom of assembly and
association, and the right to property.

3. Equality: This title focuses on the principle of non-discrimination and the promotion of
equality, including the prohibition of discrimination on various grounds, such as sex, race, color,
ethnic origin, social origin, genetic features, language, religion or belief,
political or other opinions, membership of a national minority, property, birth, disability, age, or
sexual orientation. It also includes specific provisions on gender equality, the rights of the child,
and the rights of the elderly.

4. Solidarity: This section covers social and economic rights, such as the right to fair and
just working conditions, the right to collective bargaining and action, the right to social security
and social assistance, the right to access healthcare, and the right to environmental protection.

5. Citizens' Rights: This title is dedicated to the rights that are specifically linked to EU
citizenship, such as the right to vote and stand as a candidate in European and municipal
elections, the right to diplomatic and consular protection, and the right to petition the
European Parliament.

6. Justice: This section enshrines the rights and principles related to the rule of law and the
administration of justice, including the right to an effective remedy and a fair trial, the
presumption of innocence and the right to defense, the principles of legality and
proportionality of criminal offenses and penalties, and the right not to be tried or punished
twice for the same offense (ne bis in idem).
z

Application and Limitations: The Charter applies to the EU institutions and bodies, as well as to
the member states when they are implementing EU law. This means that the Charter does not
replace or override the national human rights systems of the member states but rather
complements and reinforces them in the context of EU law.

11
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It is important to note that the Charter does not create new rights or extend the competences
of the EU beyond those established by the Treaties. Furthermore, the Charter contains certain
horizontal provisions, such as the principles of proportionality and subsidiarity, which guide its
interpretation and application, ensuring that the rights and principles enshrined therein are
balanced against other legitimate interests and policy objectives.
The Charter of Fundamental Rights of the European Union plays a crucial role in the EU's human
rights framework by codifying a broad range of civil, political, economic, and social rights, as
well as by providing guidance and coherence in their application at the EU level. The Charter
serves as a testament to the EU's commitment to the protection and promotion of fundamental
rights, while also acknowledging the importance of preserving the diversity and autonomy

European Human Rights Framework

A. The Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union (the Charter) is a vital component of
the EU's human rights framework, acting as a consolidated source of the rights and principles
upheld within the Union. Adopted in 2000 and becoming legally binding with the Treaty of
Lisbon's enforcement in 2009, the Charter seeks to clarify and promote the fundamental rights
applicable at the EU level, ensuring their respect in all EU policies and actions. 12
Structure and Content: The Charter is divided into six titles, each addressing a specific set of
rights and principles:
1. Dignity: This title upholds every human being's inherent dignity, including the right to
life, prohibition of torture and inhuman or degrading treatment, prohibition of slavery,
and the right to personal integrity.

2. Freedoms: This section covers various civil and political rights, such as the right to liberty
and security, privacy and data protection, freedom of thought, conscience, and religion,
freedom of expression and information, freedom of assembly and association, and property
rights.

3. Equality: This title emphasizes the principle of non-discrimination and equality

promotion, prohibiting discrimination based on sex, race, color, ethnic origin, social origin,
genetic features, language, religion or belief, political or other opinions, membership of a
national minority, property, birth, disability, age, or sexual orientation. It also includes specific
provisions on gender equality, children's rights, and the rights of the elderly.

12
https://www.right-to-education.org/resource/charter-fundamental-rights-european-
union#:~:text=The%20Charter%20of%20Fundamental%20Rights,Treaty%20of%20Lisbon%20in%202009.
4. Solidarity: This section addresses social and economic rights, including the right to fair
and just working conditions, the right to collective bargaining and action, social security and
social assistance, access to healthcare, and environmental protection.

5. Citizens' Rights: This title focuses on rights related to EU citizenship, such as the right to
vote and stand as a candidate in European and municipal elections, the right to diplomatic and
consular protection, and the right to petition the European Parliament.

6. Justice: This section enshrines rights and principles concerning the rule of law and
justice administration, including the right to an effective remedy and a fair trial, the
presumption of innocence and the right to defense, and the principles of legality and
proportionality of criminal offenses and penalties.

Application and Limitations: The Charter applies to EU institutions and bodies, as well as to
member states when implementing EU law. This means that the Charter neither replaces nor
supersedes the national human rights systems of the member states but complements and
reinforces them in the context of EU law.
It is essential to note that the Charter does not create new rights or expand the EU's
competences beyond the Treaties' established scope. Additionally, the Charter contains specific
horizontal provisions, such as the principles of proportionality and subsidiarity, which guide its
interpretation and application, ensuring a balance between the rights and principles enshrined
and other legitimate interests and policy objectives.
The Charter of Fundamental Rights of the European Union plays a crucial role in the EU's human
rights framework by codifying a wide range of civil, political, economic, and social rights and
providing guidance and coherence in their application at the EU level. The Charter
demonstrates the EU's commitment to protecting and promoting fundamental rights while
recognizing the importance of preserving the diversity and autonomy of its member states.

B. The European Convention on Human Rights

The European Convention on Human Rights (ECHR) is a landmark international treaty designed
to safeguard human rights and fundamental freedoms in Europe. Drafted by the Council of
Europe in 1950 and entered into force in 1953, the ECHR has been ratified by all 47 Council of
Europe member states, including the European Union member states. While the ECHR is not an
EU instrument, it significantly influences the EU's human rights framework, and the EU has long
sought to accede to the ECHR. 13
Structure and Content: The ECHR comprises a preamble and several articles that protect a wide
array of civil and political rights, including:

1. The right to life (Article 2)

2. Prohibition of torture and inhuman or degrading treatment or punishment (Article 3)
3. Prohibition of slavery and forced labor (Article 4)

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4. The right to liberty and security (Article 5) 14
5. The right to a fair trial (Article 6)
6. No punishment without law (Article 7)
7. The right to respect for private and family life, home, and correspondence (Article 8)
8. Freedom of thought, conscience, and religion (Article 9)15
9. Freedom of expression (Article 10)
10. Freedom of assembly and association (Article 11)
11. The right to marry and found a family (Article 12)
12. The right to an effective remedy (Article 13)
13. Prohibition of discrimination (Article 14)
14. The right to property (Protocol 1, Article 1)
15. The right to education (Protocol 1, Article 2)
16. The right to free elections (Protocol 1, Article 3)

The ECHR also provides for certain derogations and limitations to these rights, allowing states
to strike a balance between individual rights and the public interest.
Monitoring and Enforcement: The ECHR established the European Court of Human Rights
(ECtHR), based in Strasbourg, as a supranational court responsible for monitoring compliance
with the Convention and adjudicating complaints brought by individuals, groups, or other states
alleging violations of the protected rights. The Court's judgments are legally binding, and states
are obliged to execute them, often requiring changes in national laws, policies, or practices.

Interaction with the EU: Although the ECHR is not an EU instrument, its principles have been
extensively incorporated into the EU's legal system through the case law of the European Court
of Justice (ECJ). The EU's Charter of Fundamental Rights also contains several rights and
principles derived from the ECHR. Furthermore, the Treaty of Lisbon obliges the EU to accede to
the ECHR, reinforcing the legal protection of human rights within the EU. However, the
accession process has faced legal and political challenges, and as of September 2021, the EU
has not yet acceded to the ECHR.

The European Convention on Human Rights plays a vital role in shaping the human rights
landscape in Europe, establishing a comprehensive set of civil and political rights and providing
an enforcement mechanism through the European Court of Human Rights. Though not an EU
instrument, the ECHR significantly influences the EU's human rights framework, with the EU
aiming to accede to the Convention to further strengthen human rights protection within its
borders.

C. The Relationship between EU Law and National Constitutions

14
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15
https://www.equalityhumanrights.com/en/human-rights-act/article-8-respect-your-private-and-family-
life#:~:text=Article%208%3A%20Right%20to%20privacy,his%20home%20and%20his%20correspondence.
The European Union (EU) is a unique supranational organization that has gradually expanded its
competences since its inception. EU law and national constitutions coexist, and their
relationship is characterized by a complex interplay of legal principles and doctrines that govern
the balance between the EU's supranational nature and the sovereignty of its member states.

Supremacy of EU Law: A cornerstone of the EU's legal system is the principle of supremacy,
which asserts that EU law takes precedence over national law, including national constitutions,
in areas where the EU has competence. This principle, established by the European Court of
Justice (ECJ) in landmark cases such as Costa v. ENEL (1964) and Simmenthal (1978), ensures
the uniform application and effectiveness of EU law across all member states. As a result,
national courts must apply EU law in preference to conflicting national law, even if the latter is
of constitutional status.
Direct Effect: Another critical principle in the relationship between EU law and national
constitutions is the doctrine of direct effect, which allows individuals to invoke certain
provisions of EU law directly before national courts. The ECJ introduced this principle in the
case of Van Gend en Loos (1963) to facilitate the enforcement of EU law at the national level
and to ensure that individuals can rely on EU law to protect their rights. The direct effect
doctrine applies to both EU primary law, such as the treaties, and secondary law, such as
regulations and, under certain conditions, directives.
Subsidiarity and Conferral: While the EU has gained extensive competences, it is also bound by
the principles of subsidiarity and conferral, which seek to preserve the autonomy and
sovereignty of the member states. The principle of conferral means that the EU can only act
within the limits of the competences conferred upon it by the member states through the
treaties. Any competence not explicitly conferred remains with the member states.

The principle of subsidiarity, enshrined in Article 5(3) of the Treaty on European Union, further
restricts the EU's exercise of power. It dictates that the EU can only act in areas that do not fall
within its exclusive competence if the objectives of the proposed action cannot be sufficiently
achieved by the member states, either at the central, regional, or local level, but can be better
achieved at the EU level.

Constitutional Identity and the European Dialogue: The principle of constitutional identity has
emerged in recent years as a potential limit to the supremacy of EU law. Some national
constitutional courts, such as the German Federal Constitutional Court and the Czech
Constitutional Court, have asserted the right to protect their national constitutional identity
against EU law that would infringe upon it. This development has led to a "European dialogue"
between the ECJ and the national courts, which aims to strike a balance between the EU's
supranational nature and the member states' constitutional autonomy. 16

The relationship between EU law and national constitutions is characterized by a complex set of
legal principles and doctrines that govern the balance between the EU's supranational nature

16
https://www.theguardian.com/media/2002/mar/27/pressandpublishing.privacy4
17
and the sovereignty of its member states. While EU law enjoys supremacy and direct effect,
principles such as subsidiarity, conferral, and constitutional identity serve to protect the
autonomy and constitutional traditions of the member states within the European legal order.

III. The Role of the European Court of Justice in Protecting Human

Rights
A. The Court's Jurisdiction and Competence
B.
The European Court of Justice (ECJ), based in Luxembourg, is the EU's highest court responsible
for interpreting and ensuring the uniform application of EU law. The ECJ's jurisdiction
encompasses a wide range of legal disputes, including those related to human rights, which
arise from the interpretation and application of EU law. The Court's competence extends to
reviewing the legality of EU institutions' acts, settling disputes between EU institutions and
member states, and providing guidance to national courts through preliminary rulings.

B. Principles of Direct Effect and Supremacy

The ECJ has developed two fundamental principles that shape its role in protecting human
rights: direct effect and supremacy. Direct effect allows individuals to invoke specific provisions
of EU law, including those related to human rights, directly before national courts. This doctrine
ensures that individuals can rely on EU law to protect their rights and facilitates the
enforcement of EU law at the national level. The principle of supremacy, on the other hand,
asserts that EU law takes precedence over national law, including national constitutions, in
areas where the EU has competence. This principle ensures the uniform application and
effectiveness of EU law across all member states, requiring national courts to apply EU law in
preference to conflicting national law, even if the latter is of constitutional status.

C. Preliminary Rulings and Dialogue with National Courts

One of the ECJ's essential functions is providing guidance to national courts through preliminary
rulings, as established under Article 267 of the Treaty on the Functioning of the European Union
(TFEU). This procedure allows national courts to request the ECJ's interpretation of EU law,
including human rights issues, to ensure its uniform application across the member states. The
dialogue between the ECJ and national courts through the preliminary rulings procedure is
crucial for the development and protection of human rights within the EU, as it fosters
consistency in the interpretation of EU law, clarifies the scope of human rights protection, and
enables national courts to play an active role in shaping the EU's human rights jurisprudence.

17
https://righttoremain.org.uk/toolkit/humanrights/
D. Case Studies: Key ECJ Judgments on Human Rights:

1. Defrenne v. Sabena (1976)18: In this landmark case, the ECJ held that the principle of
equal pay for equal work, enshrined in EU law, had direct effect, enabling individuals to rely on
it before national courts. This judgment significantly advanced gender equality in the workplace
and underscored the ECJ's role in protecting human rights within the EU.

2. Carpenter v. Secretary of State for the Home Department (2002) 19: This case involved a
British citizen's non-EU spouse, who was initially denied the right to reside in the UK. The ECJ
ruled that EU law protected the right to family life, requiring member states to respect the
family life of EU citizens who exercise their right to free movement.
3. Digital Rights Ireland (2014): The ECJ declared the EU Data Retention Directive invalid, as
it disproportionately interfered with the fundamental rights to privacy and data protection. This
judgment highlighted the Court's role in balancing human rights with other policy objectives,
such as public security.

4. Schrems v. Data Protection Commissioner (2015):20 In this case, the ECJ invalidated the
Safe Harbor Agreement between the EU and the US, as it failed to provide an adequate level of
protection for EU citizens' personal data. This ruling reaffirmed the importance of the right to
privacy and data protection within the EU's human rights framework.
These case studies demonstrate the ECJ's crucial role in protecting human rights within the EU.
Through its judgments, the Court interprets and clarifies the scope of human rights protection,
balances these rights against other legitimate interests

18
https://www.europeanpapers.eu/en/e-journal/defrenne-v-sabena-landmark-case-with-untapped-potential

19
https://www.refworld.org/cases,ECJ,58ab0b424.html#:~:text=Mrs%20Carpenter%20appealed%20against%20the
,United%20Kingdom%20under%20Community%20law.
20
https://globalfreedomofexpression.columbia.edu/cases/schrems-v-data-protection-commissioner/
 IV. Limits of Member State Sovereignty in Human Rights
Protection

A. The Principle of Subsidiarity:

The principle of subsidiarity seeks to strike a balance between the EU's supranational authority
and member state sovereignty in human rights protection. Enshrined in Article 5(3) of the
Treaty on European Union, subsidiarity dictates that the EU can only act in areas that do not fall
within its exclusive competence if the objectives of the proposed action cannot be sufficiently
achieved by the member states, either at the central, regional, or local level, but can be better
achieved at the EU level. 21 This principle ensures that decisions are taken as closely as possible
to the citizens while preserving member state autonomy in protecting human rights within their
jurisdiction.
B. The Margin of Appreciation Doctrine

The margin of appreciation doctrine is a concept developed by the European Court of Human
Rights (ECtHR) that acknowledges the diversity of legal, cultural, and social traditions among
Council of Europe member states, including EU member states. Although primarily applied by
the ECtHR, this doctrine has influenced the EU's human rights framework, allowing member
states some discretion in implementing human rights obligations. The margin of appreciation
recognizes that national authorities are often better positioned to assess local conditions and
balance competing interests when applying human rights standards, thereby preserving some
degree of member state sovereignty in human rights protection. 22

C. Proportionality and Balancing Competing Interests

The principle of proportionality is another essential element that limits member state
sovereignty in human rights protection. Both the European Court of Justice (ECJ) and the
European Court of Human Rights (ECtHR) apply the proportionality principle to assess whether
a restriction on a human right is justified by a legitimate aim and whether the means used to
achieve that aim are appropriate and necessary. This principle requires member states to
balance competing interests, such as individual rights and public policy objectives, ensuring that
any interference with human rights is proportional to the pursued goal. Proportionality thus
plays a crucial role in preserving the balance between EU law and national constitutions in the
area of human rights protection. 23

D. The Principle of Conferral and Exclusive Competences

21
https://www.europarl.europa.eu/factsheets/en/sheet/7/the-principle-of-subsidiarity
22
https://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp
23
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8694290/
The principle of conferral is another key factor in limiting member state sovereignty in human
rights protection. According to this principle, the EU can only act within the limits of the
competences conferred upon it by the member states through the treaties. Any competence
not explicitly conferred remains with the member states. The EU has exclusive competence in
specific areas, such as the common commercial policy, competition rules, and monetary policy
for eurozone members. In these areas, member states have transferred their sovereignty to the
EU, which has the sole authority to legislate and adopt binding acts. However, in the field of
human rights protection, the EU does not possess exclusive competence, and member states
retain significant powers, further limiting the extent to which their sovereignty is constrained.
In conclusion, the limits of member state sovereignty in human rights protection within the
European Union are shaped by principles such as subsidiarity, the margin of appreciation,
proportionality, and conferral. These principles seek to strike a balance between the EU's
supranational nature and the autonomy and diversity of its member states, preserving the
member states' ability to protect human rights within their jurisdiction while ensuring a
coherent and effective human rights framework at the EU level.

V. The Impact of Brexit on Human Rights Protection in the European Union

A. Legal Uncertainty and the Withdrawal Agreement

Brexit, the process of the United Kingdom (UK) leaving the European Union (EU), has raised
significant concerns about the impact on human rights protection in the EU. This article will
examine the key issues and potential challenges, including legal uncertainty and the future
relationship between the UK and the EU. 24
Legal Uncertainty and the Withdrawal Agreement
One of the main concerns about Brexit is the legal uncertainty it has created. The EU Charter of
Fundamental Rights, which was incorporated into EU law in 2009, provided a comprehensive
framework for the protection of human rights in the EU. However, the UK opted out of the
Charter when it was introduced, meaning that it did not apply to the UK.
The Withdrawal Agreement, which was negotiated between the UK and the EU and came into
force on 1 February 2020, contains provisions on citizens' rights, including the right to family
life, education, and healthcare. However, the agreement only protects the rights of UK citizens
living in the EU and EU citizens living in the UK up to the end of the transition period on 31
December 2020.25
The Withdrawal Agreement also contains a protocol on Northern Ireland, which aims to avoid a
hard border between Northern Ireland and the Republic of Ireland. However, this has raised

24
https://publications.parliament.uk/pa/jt201617/jtselect/jtrights/695/695.pdf
25
https://ohrh.law.ox.ac.uk/wp-content/uploads/2021/04/The-Impact-of-Brexit-on-Equality-Rights-1.pdf
concerns about the potential impact on human rights, particularly with regards to the right to
freedom of movement.26

B. The Future Relationship between the UK and the EU

The future relationship between the UK and the EU will also have a significant impact on human
rights protection in the EU. The UK and the EU are currently negotiating a trade deal, and the
UK has indicated that it does not wish to be bound by EU human rights standards.
If the UK diverges significantly from EU human rights standards, this could create a race to the
bottom in terms of human rights protection. The UK could become a low-regulation country,
which could have a negative impact on workers' rights, environmental protection, and other
areas.27
Another concern is the potential impact on EU citizens living in the UK and UK citizens living in
the EU. If the UK does not continue to adhere to EU human rights standards, this could lead to a
reduction in the rights of these citizens.

26
https://ohrh.law.ox.ac.uk/wp-content/uploads/2021/04/The-Impact-of-Brexit-on-Equality-Rights-1.pdf
27
https://www.equalityni.org/Brexit
 Conclusion

Brexit has created significant uncertainty about the future of human rights protection in the EU.
Legal uncertainty, particularly with regards to the application of the EU Charter of Fundamental
Rights, remains a key concern. The future relationship between the UK and the EU will also be
crucial in determining the impact on human rights protection. If the UK diverges significantly
from EU human rights standards, this could have far-reaching consequences for workers' rights,
environmental protection, and other areas.

This article has explored the role of the European Court of Justice (ECJ) in the protection of
human rights in the European Union (EU), as well as the limits of member state sovereignty.
This conclusion will provide a summary of the key findings and future prospects for human
rights protection in the EU, as well as final remarks.

Summary of Findings

The ECJ has played a significant role in the protection of human rights in the EU, particularly
through its interpretation of EU law. The Charter of Fundamental Rights of the European Union,
which was incorporated into EU law in 2009, has provided a comprehensive framework for the
protection of human rights in the EU.

However, there are limits to the ECJ's power in the protection of human rights. The principle of
subsidiarity, which requires that decisions be taken at the most appropriate level, means that
member states retain a significant degree of sovereignty in the area of human rights protection.
Future Prospects for Human Rights Protection in the European Union
The future of human rights protection in the EU is uncertain. The UK's withdrawal from the EU
has raised significant concerns about the impact on human rights protection, particularly with
regards to the legal uncertainty created by Brexit.
The ongoing refugee crisis, as well as the rise of populist movements in some member states,
also pose significant challenges to human rights protection in the EU. It remains to be seen how
the EU will respond to these challenges and whether it will be able to maintain its commitment
to the protection of human rights.

Final Remarks
Human rights protection is a crucial aspect of the EU's identity and values. The ECJ has played a
significant role in the protection of human rights in the EU, but there are limits to its power.
The principle of subsidiarity means that member states retain a significant degree of
sovereignty in the area of human rights protection.
The challenges facing human rights protection in the EU are significant, but they are not
insurmountable. The EU must continue to demonstrate its commitment to human rights and
work towards the protection of these rights for all individuals, regardless of their nationality or
background. Only then can the EU remain true to its values and ensure that human rights are
protected for generations to come.
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