Protocol 30

European Union has adapted the Charter of Fundamental Rights at Strasbourg in 2007. Their intension was to make existing human rights more visible, instead of creating new ones. The Charter is not incorporated in the Treaty of Lisbon, but under the Article 51 TEU, it has ‘the same legal value as the Treaties’. Despite Article 6 TEU and Article 51 of the Charter, some EU states, like the UK and Poland were concern about the ability of ECJ to change their national law. Therefore, the UK and Poland secured the adoption of a special protocol where Charter does not apply fully in both states.

Protocol 30 was included in the Lisbon Treaty: ‘Protocol on the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom’. The UK was mainly concern about ECJ’s ability to force any kind of changes to UKs’ labour law, while Poland was mostly concerned about the same-sex marriage and abortion rights. This Protocol has been presented as an ‘opt-out’, which aims that the Charter will not bind Poland and United Kingdom. As stated by Article 1(1) of Protocol 30, ‘The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom’.

Thus, there are no clear legal rights that can be pleaded against the UK or Poland before national or Union courts. Additionally, Article 1(1) is unclear written and leads to different ways of interpretation, but cannot extended it . For example, there are numerous cases where UK court relies on ‘freedom of expression’ as the general principle law, thus Article 1(1) does not add much to the existing jurisprudence. Another interpretation would be that, if Charter of Fundamental...

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...in) per Munby J at paragraph 73: “the Charter is not at present legally binding in our domestic law and is therefore not a source of law in the strict sense. But it can, in my judgment, properly be consulted insofar as it proclaims, reaffirms or elucidates the content of those human rights that are generally recognised throughout the European family of nations, in particular the nature and scope of those fundamental rights that are guaranteed by the Convention”.

Treaty of Lisbon, 2009, Protocol 30, article 1(2)

European Union Law, pp 229

R (Saeedi) v Secretary of State for the Home Department (2010) EWHC 705 (Admin) ibid, Lord Cranston J, para 155

Treaty of Lisbon, 2009, Protocol 30, Article 2

Attorney General v X [1992] 2 CMLR 277

The Lisbon Treaty: A legal and Political Analysis, pg 162

European Union Law: Cases and Materials, pg 258 ibid, pg 259