Rights and Principles in EU Law: A Distinction without Foundation?
| DOI | 10.1177/1023263X0801500203 |
| Date | 01 June 2008 |
| Author | Chris Hilson |
| Published date | 01 June 2008 |
| Subject Matter | Article |
15 MJ 2 (2008) 193
RIGHTS AND PRINCIPLES IN EU LAW:
A DISTINCTION WITHOUT FOUNDATION?
C H*
ABSTRAC T
Both rights and principles have long existed in EU law. e Charter of Fundamental Rights
– made newly binding by the Lisbon Treaty – attempts to draw a distinction between the two
types of norm. i s article explores in depth the question of whethe r such a dierentiation
can easily be made, drawing from both the literature on right s and the Charter, and that
on principles (particularly environmental princ iples). It examines a range of ways in which
rights and principle s might be thought to dier – including in terms of autonomy, whether
they are single- or d ouble-sided in scope, their legal impacts (binding or non-binding),
forms of accountability (legal or political), and their jurispr udential nature. Having found
that similarities abound rather more than dierences, the article concludes by arguing that
the weight placed on the distinc tion by the Charter is untenable.
Keywords: Rights; principles; Char ter; jurisprudence; autonomy
§1. INTRODUCTION
When wr iting about principles, many legal authors – taking their lead from Dworkin1
and, to a lesser extent, Alexy2 – tend to distinguish between pri nciples and ru les, and
between principles and policies.3 However, the EU Char ter of Fundamental Rights draws a
* Professor of Law, University of Re ading. An ea rlier version of t his paper wa s presented at Su ssex Law
School. I am grateful to thos e present and also to Stuart Lakin and the jour nal’s anonymous referees for
comments. I am a lso grateful to L aura Graham for her edito rial assistanc e. Any errors remain mi ne.
1 R. Dworkin, Taking Rights S eriously (Duckwor th, 1978).
2 R. Alexy, A eory of Con stitutional Rights (OUP, 2002).
3 See e.g. M. Doherty, ‘Hard Cases and Env ironmental Princ iples: An Aid to Interpretation?’, 3 Yearbook
of European Environmental Law 57 (2002); N. Dhondt, ‘Envi ronmental Law Principles and the Case Law
of the Court of Justice’, in M. Sheridan and L. Lavrysen (eds.), Environmental Law Princ iples in Practice,
(Bruylant, 20 02), 141; J. Verschuuren , Principles of Enviro nmental Law (Nomos, 2003); G. Wi nter, ‘e
Legal Natu re of Environmental Principles in Inter national, EC and Ger man Law’, in R. Macror y (ed.),
Chris Hil son
194 15 MJ 2 (2008)
distinction between rights and principles. While numerous commentators have explored
this distinction in the speci c context of the Charter,4 there has been little attempt to
broaden out this discussion to see how rights and pri nciples compare juridically and
jurisprudential ly within EU law in general. is ar ticle aims to provide a rst step in that
direction. It wil l argue that the distinc tion drawn between rights and principles is a ne
one – arguably too ne to shoulder the weight placed on it by the framers of the Charter.
Given that the new Lisbon Treaty will make the Charter binding, 5 this conclusion is, of
course, all t he more signicant.
§2. THE DEVELOPMENT OF RIGHTS AND PRINCIPLES
Before the Cha rter, principles within EU law essentially fell into three c ategories. First,
there were ‘constitutional’ principles such as democracy, t he rule of law, funda mental
rights, t he separation of powers, and subsidiarity.6 e l atter two are l isted in Part 1 of
the EC Treaty (Articles 1–16), which includes, but is not li mited to, the key Community
purposes, activ ities and policies and is entitled ‘Principles’.7 Similarly, within the current
Treaty on Europea n Union (TEU), Art icle 6(1) st ates that the Union is founded on the
principles of liberty, democrac y, respect for huma n rights and fundamental freedoms and
the rule of law – principles which are expressed as being common to the Member States.8
While it may be tempting to view these as releva nt only in a theoretical sense when used
to ana lyse the EU as a constitut ional polity, such a view would be mistaken. It is clear
Principle s of E uropean Enviro nmental Law (Europa Law Publis hing, 20 04), 11; S. Prechal, ‘Rights v.
Principles, Or How To Remove Fundamental Rights From e Jurisdiction Of e Courts’, in J. de
Zwaan et al . (eds.), e European Union : An Ongoing Proce ss of Integration, (T MC Asser Press, 2004),
177.
4 See e.g. C. McCrud den, ‘e Future of t he EU Charter of Fund amental Right s’, Jean Monnet Working
Paper No.10/01, available http://www.jeanmonne tprogram.org/pap ers/01/013001.html, 17; Lord
Goldsmith, ‘A Chart er of Rights, Freedoms and Princ iples’, in M. Ande nas and J. Ushe r (eds.), e
Treaty o f Nice and Beyond: Enlarge ment an d Con stitutional Reform (Hart, 2003), 387, 39 4–396; P.
Craig, ‘e Com munity Rights and t he Charter’, 14 Eur. Rev. of Pub. L. 195 (2002), 209–212; E. Vranes,
‘e Final Clauses of the C harter of Funda mental Rights – Stumbling Blo cks for the Firs t and Second
Convention’, 7 European Integrat ion online Papers (EIoP) 7 (2003), availa ble at htt p://eiop.or.at/eiop/
texte/2003 –007a.htm, 7–8.
5 Although the UK and Poland secure d a binding protocol (Protocol 30), this merely seeks to prevent any
creeping intru sion by the Court onto their national compet ences and will not aect the overa ll binding
nature of the Cha rter.
6 See further A. von Bogda ndy, ‘Con stitutional Princ iples’, i n A . von Bo gdandy and J. Bast (eds.),
Principle s of European Consitituti onal Law (Hart, 20 06), 3.
7 Cf. the Lisbon Treaty on the Fu nctioning of t he Europ ean Union, Part 1 of w hich is also entitle d
‘Principles’, but which does not cont ain the pr inciples of sub sidiarity or the separation of powers
contained in Pa rt 1 of the EC Treaty (Arts. 5 a nd 7 respectively).
8 Cf. the Lisbon TEU, which (following the CT before it), in the prelimi nary Arts. 2–3, mainly now speaks
in terms of values and objectives rather tha n principles. Reference to the se constitution al ‘principles’
now comes in the Treaty prea mble (4).
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