Rolf Schwartmann

Europäischer Grundrechtsschutz nach dem Verfassungsvertrag

Rubrik: Beiträge und Berichte
Archiv des Völkerrechts (AVR)

Jahrgang 43 () / Heft 1, S. 129-152 (24)

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Modern Community Law provides for comprehensive protection of the basic rights of EU citizens vis-à-vis the European Communities. The protection is currently enshrined in the general principles of Community Law in accordance with the legal practice of the European Court of Justice and in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In future, it is to be strengthened on the basis of the Charter of fundamental rights of the European Union, which will represent a primary source of basic rights under Community Law. The application of three sources of basic rights with, in part, differing basic rights of varying origin represents a challenge under material law. In addition, there is the problem of application by different courts, the European Court of Human Rights on the one hand and on the other, the courts of the European Community. These courts ensure, independent of one another, European human rights protection and are positioned at different legal levels. As the body responsible for application of the law on behalf of the ECHR, the European Court of Human Rights only decides on violations of the ECHR on the basis of the ECHR. The European Court of the first instance and the European Court of Justice exclusively apply the laws of the European Communities and decide on any relevant violations. It should be noted, however, that with regard to compliance with Community Law, the European Court of Justice bases its decisions not only on Community basic rights but also on the international law aspects of the ECHR. It is therefore independently applying »foreign« legislation within its scope of legal competence. Although both courts apply, in part, the same standards to identical facts of life, their decisions sometimes vary. At the same time, any legal action before the two courts must be taken separately and one is independent from the other. This gives rise to an area of conflict in terms of granting uniform, effective and, at the same time, legally consistent protection of basic rights. The present paper examines the concept of European protection of basic rights, taking into account the treaty for a European constitution. In doing so, the relevant aims of the European Convention on the constitution are highlighted, and the solution of the constitutional treaty for the harmonisation of the sources of basic rights regarding their elements and limitations is presented. In addition, the options for standardising the disparate legislation of the ECHR and the European Court of Justice is to be discussed. To this end, the legislation of the European Court of Justice and that of the ECHR are analysed and compared. The focus is on the membership of the European Union, which will be a legal entity following the conclusion of the constitutional treaty, in the ECHR as the solution proposed by the constitutional treaty.

Rolf Schwartmann Geboren 1965; Studium der Rechtswissenschaften in Gießen, Bonn und Köln; 1995 Promotion; Fachanwalt für Verwaltungsrecht in Köln; 2004 Habilitation; Professor für Öffentliches und Internationales Wirtschaftsrecht an der Fachhochschule Köln sowie Privatdozent an der Universität Mainz und Geschäftsführer der Schule des Deutschen Rechts (Universitäten Krakau, Heidelberg, Mainz).