The Court of Justice of the European Communities has been the real trailblazer for individuals’ rights in the European Communities, but the politicians have tried to catch up and to enshrine its jurisprudence in the treaties.
Presently, the Treaty on European Union, Article 6(1 and 2) states:
The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
The Nice summit of the European Council on 7 December 2000 saw the solemn proclamation of the European Parliament, the Council and the Commission of the Charter of Fundamental Rights of the European Union (published in the Official Journal of the European Communities on 18 December 2000; 2000/C 364/01).
The Proclamation is politically binding for the Union (Community) institutions, but it is not, strictly speaking, legally binding. In Nice the inclusion of the Charter in the Treaties was left open.
Even if the Charter draws heavily on, i.a. the European Convention for the Protection of Human Rights and Fundamental Freedoms, the drafting process of Charter made it possible to prepare one logical and updated document. Companies and private persons have a visible enumeration of their fundamental rights and freedoms at their disposal when they seek redress in their national courts or the European courts in matters pertaining to Community legislation.
If and when the ECJ includes the provisions of the Charter in its case-law, as general principles of Community law, they become legally binding.