La consagración de los derechos fundamentales: de principios generales a texto fundacional de la Unión Europea

Abstract

The author argues that the formal recognition of fundamental rights as common foundations of the EU through the reference to the Charter of Fundamental Rights in the Lisbon Treaty (making that document legally binding and, therefore, elevating the Charter to the same legal value as the Treaties) has provided for more constitutional appearance to the EU, but not for a more generous level of protection and enjoyment of citizenship. Indeed, together with the noninclusion of specific guarantees, different unacceptable asymmetries have been introduced in the EU Charter, such as the breach of the principle of indivisibility (civil and social rights are not treated on an equal footing) or the presumed exclusion of different countries (Czech Republic, Poland and United Kingdom) from the applicability of the EU Charter. In this context, holding that the formulation of fundamental rights in the EU Charter cannot imply a narrower conception than that developed by the Court of Justice through its human rights jurisprudence (as a part of the general principles of Community law), the essay contains arguments to overcome these asymmetries by emphasizing the necessity of positive will in order to strengthen judicial dialogue on the basis of the EU Charter clauses which promote multilevel protection and favor libertatis principle. Finally, the author suggests that exploiting these synergies and taking into account other European human rights instruments will enhance the position of the Charter of Fundamental Rights even within the EU framework (e.g. against the austerity measures launched by the Troika) and, therefore, this will improve the efficiency and democratic legitimacy of the Union as well as the coherence of its action.

Received: 02 December 2013
Accepted: 07 January 2014
Published online: 15 April 2016