The Charter of Fundamental Rights of the European Union after Lisbon

This working paper is based on the Distinguished Lecture given by Advocate General Kokott at the Academy of European Law Summer School on 29 June 2010.This working paper examines the legal nature, interpretation and scope of application of fundamental rights in the European Union in light of the Charter of Fundamental Rights. The authors review the sources of fundamental rights protection and confirm that this protection, as applied prior to the Charter coming into force, remains in effect. In spite of the Charter, due regard should continue to be given to the shared constitutional traditions and the case-law of the Strasbourg Court, in particular when it comes to the interpretation of the Charter. The paper also addresses issues that arise with regard to the future accession of the Union to the European Convention of Human Rights. Additionally, close examination of the position of EU fundamental rights in the legal order of the Union reveals that Member States are bound by these rights only when they act within the scope of application of EU law. The Charter does not alter this system either. Finally, following discussion of the opt-outs from the Charter, it is concluded that the overall impact of the Charter is likely to be anything but revolutionary. Moreover, the paper offers a special perspective on EU fundamental rights: it suggests that the Kücükdeveci case reaches beyond the Charter in that it introduces direct horizontal application of an EU fundamental right in cases of age discrimination. However, the authors also caution that this judgment should not be overrated, as it seems unlikely that the Court intended to systematically extend the effect of EU fundamental rights