EU법상 인권보호체계의 연원과 발전

Abstract

Under the Lisbon Treaty, the formal sources of human rights law of the European Union(hereinafter as “EU”) can be categorized as the followings; first, it provides the Charter of Fundamental Rights of the EU under Article 6(1) of EU Treaty. Now the Charter obtained the same legal status as the EU Treaties, so-called primary source of EU law. Second, it lays down the European Convention on Human Rights(hereinafter as “ECHR”) under Article 6(2) of EU Treaty. This Convention has been regarded for a long time as a source of special inspiration with respect to human rights protection in the EU legal order. Furthermore, it will have a legal binding through the accession to the ECHR of the EU after both the Lisbon Treaty and the Protocol No. 14 to the ECHR entered into force. Third, it regulates the general principles of the EU law under Article 6(3) of EU Treaty, as elaborated and developed through the jurisprudence of the Court of Justice of the EU(hereinafter as “CJEU”). These principles result from the constitutional traditions common to the Member States as well as the ECHR and international human rights treaties which the Member States signed or collaborated. Even though these three sources could cause legal confusion because of overlap in many respects, it is clear that these have played an important part in providing legal foundation in human rights protection under EU law. The legal sources of EU human rights law are different from those of international and other regional human rights systems in that they have been established and progressed, in particular, through the decisions of the CJEU. Although the CJEU is not a court created with the aim of protecting human rights, the preliminary rulings of the CJEU have not only contributed to reinforcing and promoting fundamental rights of individuals, but also concentrated upon the respect of human rights as a justification concerning derogations from the principle of free movement under EU law. In the future, EU human rights protection system will make a significant contribution on the development of international and other regional human rights systems as well as be much stronger because of the EU’s accession to the ECHR. In addition, the role of the CJEU in developing human rights law could give national courts of Korea an advice that they should take into consideration the practice of making judgments on the basis of human rights by the CJEU as a good example.