Fundamental Rights in the European Context
Fundamental Rights
Concept
Fundamental rights differ from human rights in their international scope. At the international level, rights are less protected. The law defines a fundamental right based on two perspectives:
- Material Character (Luigi Ferrajoli): A right is fundamental if it has a universal character, applying to all persons or entities. This criterion suggests that even countries without a constitution could have fundamental rights (e.g., the United Kingdom). However, this theory has limitations, as some fundamental rights, like academic freedom, can be restricted. It doesn’t clearly distinguish between human and fundamental rights.
- Formal: A right is fundamental because it is enshrined in the fundamental law of the State (e.g., a constitution). This implies that fundamental rights are specific to each country’s constitution, even if there are no universal fundamental rights. This theory also has limitations, as it doesn’t account for countries without a written constitution (e.g., England). It allows for a distinction between human rights (enshrined in international declarations) and fundamental rights (enshrined in a specific constitution).
Fundamental rights have a dual dimension:
- Objective: They are objective elements of the legal system that embody its highest values (freedom, equality, justice). This means that all laws must be interpreted in accordance with fundamental rights. When a Constitutional Court protects a fundamental right, it effectively removes any laws that contradict it.
- Subjective: Fundamental rights grant their holder a certain legal status and the ability to defend that status in court. This distinguishes them from human rights, which may lack specific enforcement mechanisms. The European Convention on Human Rights provides a mechanism for protecting fundamental rights.
EC Fundamental Rights
The Constitutional Court (TC) often uses a narrow definition of fundamental rights, and not all fundamental rights within the European Community (EC) have the same level of protection. According to the EC, the fundamental rights outlined in Chapter 2, Part I of the Treaty on the Functioning of the European Union (TFEU) have a substantive nature, distinct from the guiding principles of social and economic policy in Chapter 3.
Article 53.3 of the TFEU states that the guiding principles can only be invoked before courts according to the laws governing them. To determine which rights should be protected by the TC, the Organic Law (LO) specifies that the rights in the first section of Chapter 2 are protected, as per Article 81 of the TFEU.
Fundamental rights can be categorized based on various criteria: protection mechanisms, nature, content, and effectiveness.
Categorization by Security:
- Enhanced Protection (Article 53.2 TFEU): Rights such as the right to conscientious objection (Article 30.2 TFEU) and the right to equality (Article 14 TFEU) are guaranteed by Article 53.2 and can be defended through specific legal procedures, including appeals to the TC. These rights are typically found in Section One, Chapter 2, Title I (Articles 15-29).
- Ordinary Protection: Rights in Section Two, Chapter 2 (Articles 31-38) have their essential content protected by Article 53.1 TFEU and are subject to ordinary law. They apply to all public authorities, and their protection mechanism is through appeals to ordinary courts.
- Attenuated Protection: The guiding principles of social and economic policy (Chapter 3, Articles 39-52) have a weaker level of protection under Article 53.3 TFEU. They lack direct enforceability and can only be invoked in accordance with the laws implementing them.
Categorization by Nature:
- Freedom Rights: These grant the holder an area of freedom where public authorities cannot interfere (e.g., freedom of expression).
- Provision Rights: These are economic and social rights that entitle the holder to claim benefits from public authorities (e.g., right to education).
Some rights have both aspects, requiring both freedom from interference and the provision of benefits by the government (e.g., right to information, freedom to teach – Article 45 TFEU).
Categorization by Content:
- Personal Sphere: Rights related to life, physical integrity, ideology, religion, inviolability of domicile, etc.
- Freedom Rights: Personal freedom, freedom of expression, freedom of information.
- Political Rights: Assembly, demonstration, association, political participation (voting, access to public office).
- Right to Effective Judicial Protection: Access to courts, legal remedies, presumption of innocence, reasoned decisions.
- Work Environment Rights: Freedom of association, collective bargaining, right to strike.
- Economic and Social Rights: Private property, free enterprise, right to education.
Limitations of Rights
Fundamental rights are not absolute. Their limitations can be intrinsic to the law itself, meaning that rights cannot be exercised in a way that violates other laws. Limitations can be expressed or implied by the EC:
- Express Limits:
- Generic: These apply to all fundamental rights (Article 10.1 Spanish Constitution). They require respect for the law and the rights of others.
- Specific: These are limitations explicitly stated in the EC for a particular right. For example, freedom of expression is limited by the right to honor.
- Implicit Limits: These are not explicitly stated in the EC but are derived logically from its provisions.