EC law and Human Rights

Article 6(2) of the Treaty of the European Union provides:

“The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Fundamental Freedoms signed in Rome …. And as they result from the constitutional traditions common to the Member States, as general principles of Community law”.

From the case law of both the European Court of Human Rights and the European Court of Justice, as well as the Treaty on the European Union itself, it is possible to derive the proposition that European Community law must not contravene the European Convention on Human Rights (ECHR). However, the manner adopted by Member States in order to give effect to their obligations under the Convention is a matter for their discretion.
In Kremzow v. Austrian State the ECJ recognised the importance of the ECHR as the foundations of the fundamental rights which are the integral part of the general principles of Community law:

“The [ECHR] has special significance… [I]t follows that measures are not acceptable in the Community which are incompatible with observance of the human rights thus recognised and guaranteed”.

Case law has served to reinforce the relationship between EU free movement law and human rights, demonstrating the ECJ’s determination to ensure the protection of the family life of Member State nationals in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty, even in the face of contrary domestic legislation:

In Carpenter v. Secretary of State for the Home Department C-60/00, 11 July 2002) - the Court found that notwithstanding that a family member (a spouse) of a provider of services had infringed the immigration laws of the United Kingdom, she was entitled to reside in the territory with the provider. In doing so, the Court read Article 49 of the EC Treaty in light of the fundamental right to respect for family life so as to infer a right of residence for the family member. In its judgment the ECJ explicitly relied on the right to respect for family life as guaranteed by Article 8(1) of the ECHR.

In Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX) (C-459/99, 25 July 2002) – the ECJ ruled, inter alia, that a Member State may not refuse to issue a residence permit to a third country national married to an EU national who entered its territory lawfully on the sole ground that the visa expired before they applied for a residence permit.