Fundamental Rights
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There is no explicit list or charter of fundamental rights protected in the EU's constitutional order.  Instead, fundamental rights are protected as general principles of law.

In Internationale Handelgesellschaft, the ECJ held that the principle of supremacy was paramount, even when there was a conflict with the provisions of a MS constitution.  If a MS has a written constitution, it makes it more difficult for the EU to override those provisions.  In So Lange I, it was held that the general principles could not contradict fundamental rights.  The ECJ would look to two factors to determine fundamental rights:

(1)  MSs' constitutional traditions.

(2)  ECHR - Nold v. Commission, although this was not officially incorporated into EU.

If fundamental rights are breached, a challenge can be raised in the ECJ.  This applies to EC institutions and MSs' governing bodies.  Since the ToA, these provisions are to be found in Arts. 6, 7, 49 TEU.

The protection of fundamental rights is an example of the scope of EU law, the competence of the EU institutions and the MSs, and the "constitution" of the EU.

In Brunner v. The EU Treaty, the German Federalist Constitutionalist Court claimed jurisdiction to review the actions of European institutions and agencies (which presumably includes the ECJ) to ensure that they remain within the limits of their powers and that they do not transgress the basic constitutional rights of German inhabitants.

In Germany v. Commission (Bananas Case), Germany ignored a ruling on German banana imports because she felt that it infringed the right to pursue trade and property rights guaranteed in the German constitution.  The ECJ felt that it would have undermined the freedom of movement of goods if it did not implement the ruling.  EC rights, therefore, overrode fundamental rights.

Other Notes in this Category

1. Competence and Legal Basis
2. Court-Made Sources of EU Law
3. Flexible/Variable Geometry
4. Fundamental Rights
5. General Legislative Processes
6. Legislation
7. Subsidiarity

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