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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
not the individual that is for the state, but it is the state that is for the individual. Although the Union is not
a state, the Charter names the Union together with its institutions and the Member States as the
addressees. 70 The protection of the essential content of the fundamental rights which can be regarded as
the sine qua non of the protection of fundamental rights appears expressis verbis in Article II-112 (1) of
the Charter of Fundamental Rights. 71 The recognition of the rights, freedoms and principles set out in the
Charter together with the way of thinking which places the individual at the heart of all activities – like in
the case of a state – entails the Union’s self-restraint and ‘self-obligation’ regardless of the Charter’s
laying down the respect for the powers of the Union. 72 Accordingly, the Charter does not establish any
new power or task for the Union, or modify powers and tasks defined in the other Parts of the
Constitution, 73 it only restricts the scope for action in respect of the fundamental rights. Without selfrestraint
the Charter would have no significance at all – beyond declaration.
The respect for fundamental rights, self-restraint and ‘(self)-obligation’, however, could be inferred from
the TCE even without this provision because of what is laid down in the Preamble of the Charter. A
preamble of a certain document (typically a constitution) as a part thereof may be perceived as a solemn
declaration which is of great significance when interpreting the document. In its Preamble, the Charter of
Fundamental Rights reaffirms the rights as they result, in particular, from the constitutional traditions and
international obligations 74 common to the Member States, international treaties and the case-law of the
Court of Justice of the European Union and of the European Court of Human Rights. In this context the
Charter is to be interpreted with due regard to the explanations prepared under the authority of the
President of the Convention which drafted the Charter and updated under the responsibility of the
President of the European Convention.
These provisions, however, are repeated in the purview, as pursuant to Article II-112 (3), insofar as the
Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of
Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as
those laid down by the said Convention. Pursuant to Article II-113, no provision of the Charter can be
interpreted as restricting or adversely affecting human rights and fundamental freedoms – as recognised in
their respective fields of application – by Union law and international law and by international agreements
to which the Union or all Member States are party 75 . Article II-112 (4) refers to the recognition of the
fundamental rights resulting from the constitutional traditions common to the Member States, as these
rights are to be interpreted in accordance with these traditions. Pursuant to Section (6), full account shall
be taken of national laws and practices as specified in this Charter. Section (7) defines that the explanation
drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall
be given due regard by the courts of the Union and of the Member States. Regarding these provisions, it
can either be inferred that the repeated part of the Preamble of the Charter may be omitted – due to
70 Pursuant to II-111 (1), the addressees of the provisions of the Charter are the institutions, bodies, offices and agencies of the
Union with due regard for the principle of subsidiarity and the Member States only when they are implementing Union law.
71 The exercise of the rights and freedoms acknowledged in this Charter can be limited only if provided for by law and by
respecting the essential content of these rights. With respect to the principle of proportionality, any limitation on them may be
made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to
protect the rights and freedoms of others. It will be interesting to observe how the Union will solve the conflicts between peace
and security-fundamental right and economic objectives-fundamental right.
72 Article II-111 (1)
73 Article II-111 (2)
74 From the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Social Charters
adopted by the Union and by the Council of Europe.
75 In particular the European Convention for the protection of Human Rights and Fundamental Freedoms.
DR. TÍMEA DRINÓCZI - SOME ELEMENTS OF THE ECONOMIC CONSTITUTION OF THE EU: SOCIAL MARKET ECONOMY AND RELEVANT FUNDAMENTAL RIGHTS 76