—Goran Selanec, Constitutional Court of Croatia
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2025 columnists, see here.]
This year the EU legal order marks an important milestone: The Charter of Fundamental Rights marks its 25th anniversary. The Charter was proclaimed at the dawn of the new Millenium on December 7, 2000, in Nice. The Charter has been a primary source of law for EU institutions, bodies, offices, and agencies, as well as on the Member States when they implement EU law since December 1, 2009, when it became legally binding with the Treaty of Lisbon.
The Past
The Charter marks the Court of Justice of the European Union’s (CJEU) effort to give the EU legal system legitimacy akin to that inherent to constitutional democracies. Initially, member states didn’t design the EU legal order in its current form; instead, the CJEU shaped it by interpreting founding documents with a unique constitutional perspective. This approach achieved the “holy trinity” of effectiveness for any legal system. It ensured that the EU legal order could provide individuals with concrete rights that are directly applicable and enforceable before the national courts of the Member States (the principle of direct effect). Furthermore, it established that EU law takes precedence over national law in cases of conflict (the principle of supremacy). Additionally, the CJEU recognized that the rights conferred on individuals by the EU legal order are underpinned by the principle of effective judicial protection. This principle has had—and will continue to have—a profound impact on the evolution of the Charter. The principle of effective judicial protection requires that national courts ensure effective judicial control and provide remedies to protect individual rights under EU law. While Member States can set up their own courts and rules, they must also offer adequate remedies, with procedures for enforcing EU rights being at least as favourable as those for similar national cases.[1] Should a national legislature fail to do so, national courts are required to address the issue and provide proper procedural solutions.[2] The Lisbon Treaty, specifically Article 19 TEU, explicitly states this obligation.
The three principles form the basis of EU law, recognised as fundamental (general) by the CJEU. However, as the EU legal system developed, it became clear that these principles alone did not ensure democratic legitimacy, notably due to a lack of guaranteed fundamental rights, which were initially under Member States’ control and absent from the founding treaties. This created a paradox: EU law’s primacy could override national constitutional guarantees of fundamental rights, an unsustainable and undemocratic outcome. The CJEU resolved this by establishing that the protection of fundamental rights is an inherent general principle of EU law.[3] Thus, any EU act conflicting with fundamental rights can be invalidated[4] and courts must not apply EU law in ways that breach such guarantees.[5]
Nevertheless, a few problems persisted. The CJEU was repeatedly accused of lacking constraints in its use of power to determine which rights attained the status of being fundamental within the EU legal order. In response, the Court insisted that the EU legal order incorporates those fundamental rights that are common to the constitutional traditions of its Member States.[6] However, not all Member States shared the same bill of fundamental rights, nor did they consider that the shared rights were of the same scope. Consequently, the Court also emphasised the relevance of the European Convention on Human Rights of the Council of Europe, which has been signed by all EU Member States.[7] Nonetheless, the criticism highlighted the need for a formal “Bill of Rights” document. The Charter thus emerged as an effort to consolidate the existing case law of the CJEU regarding the protection of fundamental rights within the EU legal order, the common constitutional traditions of EU Member States, and rights from the European Convention on Human Rights (ECHR).
The Present
Established at the start of the millennium, the Charter aims to be a contemporary Bill of Rights, reflecting constitutional democracy and the rule of law in the EU. The Charter comprises a Preamble and 54 articles, grouped under six broad titles that encapsulate the core values of the EU. It is committed not only to individual rights but also to the collective social welfare of its diverse peoples. Accordingly, on paper, it stands as a robust reference point for the protection of fundamental rights. During its first quarter of a century, it has become a cornerstone of CJEU case-law. The number of notable CJEU decisions relating to its implementation is rising almost annually. At the same time, it is difficult to determine the Charter’s exact effect beyond the EU level. The EU still lacks a systematic and comprehensive method of monitoring EU law developments at the level of national jurisprudence.[8] As a result, empirical evidence is scarce. Thus, based primarily on preliminary references, certain areas of Charter protection have clearly dominated its first quarter-century. Most notable progress involves effective judicial protection, echoing trends from before the Charter’s adoption.
Article 47 of the Charter is the most cited provision, guaranteeing individuals the right to an effective remedy and fair trial. It serves as the EU’s equivalent of the due process clause. Ironically, its current prominence is not the result of its use by individuals. The right to a fair trial in Article 47 of the Charter protects individuals from the misuse of judicial power. As such, it encompasses the notion of an independent and impartial judiciary. Unsurprisingly, this concept has become a crucial tool of resistance against rule of law regressions in a worrying number of Member States, where the political branches of government have engaged in court capture. The resistance has been led by defiant judges who have relied primarily on the notion of an independent and impartial judiciary.[9] Yet, in their official state capacity, they cannot rely directly on Article 47 of the Charter.[10] Guided by the CJEU, they have learned to invoke the general principle of effective judicial protection, which is expressed in Article 19 TEU and in the enduring case law of the CJEU.[11] This has enabled them to use the preliminary reference procedure to refer their grievances to, and seek protection from, the CJEU. In other words, the principle of effective judicial protection has “supercharged” the standard of an independent and impartial judiciary by significantly expanding use of the preliminary reference procedure, allowing judges (in their official state role) to seek protection from the CJEU.
The supercharging effect also influenced the CJEU’s approach to fundamental rights, which traditionally depended on enforcing specific provisions of EU acts.[12] More precisely, the general (fundamental) principles of EU law applied only when another enforceable provision was relevant, as outlined in Article 51 of the Charter—limiting Charter guarantees to EU institutions and Member States implementing EU law.[13] This principle was almost sacrosanct. However, concerns about rule of law backsliding, bolstered by Article 19 TEU, enabled national judges to appeal to the CJEU about threats to their independence even without a direct link to other EU provisions. This made judicial independence a standalone basis for preliminary references, reshaping interpretations of Articles 47 and 51 and indirectly strengthening Charter protections through the principle of effective judicial protection.
In any case, Article 47 is an undisputed popularity champion, often used alongside others. The CJEU frequently refers to Article 47 with Article 18 in cases regarding asylum protection and with Article 8 in data protection cases.[14] Its guarantee of a fair trial has notably influenced administrative law, where the Charter covers areas excluded from Article 6 ECHR protections, reflecting the significance of administrative courts in EU law fields such as migration, environmental protection, and taxation. Of course, the Charter is not limited to Article 47. In addition to those already mentioned, Articles 21 (non-discrimination), and 23 (gender equality) are often referenced in EU case law, reflecting the historical significance of anti-discrimination rights—particularly gender equality—in shaping EU fundamental rights. Article 7, which protects private and family life, home, and communications, is commonly invoked in privacy-related cases such as surveillance or data retention. Other frequently cited articles include Article 16 (freedom to conduct a business), relevant for competition and regulatory matters, and Article 15 (freedom of occupation and work), particularly in free movement of workers cases.
The Future
When considering the future, two trends are likely to shape the further development of the Charter.
First, the supercharging effect is expected to persist, particularly if the regression of the rule of law continues or devolves further towards authoritarianism. The strategy used to resist authoritarian attempts at court capture is not difficult to replicate in other instances where constitutional democracy is being undermined. For example, the notion that some Member States might actively undermine the constitutional principle of free and fair elections is, regrettably, not implausible. In principle, the Charter does not guarantee the right to vote in national elections.[15] Its political safeguards are limited to elections for the European Parliament and municipal elections. However, Article 10 of the Treaty on European Union explicitly states that the EU is founded on representative democracy, where citizens are directly represented at the Union level in the European Parliament, while Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, who are themselves democratically accountable either to their national parliaments or to their citizens. Building on the approach developed in the context of rule of law disputes, the fundamental democratic principles provided by Article 10 TEU could enhance certain provisions of the Charter, such as freedom of expression in Article 11, freedom of assembly in Article 12, or the right to non-discrimination in Article 21 of the Charter. As a strategy for resisting authoritarian tendencies, this could empower citizens to seek protection against actions by their own governments that undermine democratic elections within the EU legal order.[16] Accordingly, many are closely following case C-769/22, in which the Commission has brought proceedings against Hungary before the CJEU for enacting legislation restricting freedom of assembly and freedom of expression in support of LGBTQ+ rights.[17] The Commission claims these actions violate various aspects of EU law, including the principle of democratic governance listed as one of the fundamental values in Article 2 of the TEU. Notably, the Commission is supported by fifteen Member States, which is unprecedented.
The second foreseeable trend concerns remarkable technological advancements. The Charter has already had a significant effect on the IT sector through Article 8. The body of case-law concerning personal data protection is only expected to expand further with the rise of AI technology.[18] However, the principal future intersection between AI and the Charter is likely to involve freedom of expression, particularly media freedom. The EU is notably proud to have been the first to introduce comprehensive AI regulation.[19] The AI Act explicitly acknowledges the potential impact that the technology may have on a wide array of fundamental rights. As such, it classifies AI tools into three basic categories: prohibited, (highly) regulated, and (relatively) safe. It is true that the AI Act does indeed prohibit some of the most concerning systems—for instance, those that manipulate individuals’ decisions or exploit their vulnerabilities, systems that evaluate or classify people based on their social behaviour or personal traits, and systems that predict a person’s risk of committing a crime. These restrictions will undoubtedly be challenged by technology companies, potentially even on the grounds of the Charter itself (the right to property and the right to do business). Such cases will serve as a significant test for the EU legal order both legally and politically.
At the same time, it is challenging to ascertain how the AI Act can effectively mitigate risks arising from legally permitted AI applications. The well-documented danger of AI-generated misleading or fabricated content, which is increasingly indistinguishable from reality, remains a serious concern. Furthermore, AI technology is rapidly becoming integral to the majority of software platforms, embedded across a wide array of devices, thereby positioning itself as a primary source of information dissemination. Concurrently, there appears to be a growing inclination among technology proprietors to tailor training datasets in ways that may advance political perspectives aligned with corporate interests. Safeguarding independent, objective, and ethically responsible sources of information—an imperative for sustaining democratic processes—from potential misuse of AI technologies represents one of the most significant challenges to freedom of expression.
Suggested citation: Goran Selanec, EU Fundamental Rights at a Crossroads: Reflections on the Charter’s 25th Anniversary, Int’l J. Const. L. Blog, Sept. 18, 2025, at: http://www.iconnectblog.com/eu-fundamental-rights-at-a-crossroads-reflections-on-the-charters-25th-anniversary/
[1] See, Case 222/84 Johnston v Chief Constable of the RUC, ECLI:EU:C:1986:206. See also, for instance, Case C-276/01 Steffensen, paragraph 60, ECLI:EU:C:2003:228.
[2] See C-213/89 Factortame, ECLI:EU:C:1990:257 or Case C-312/93 Peterbroeck, paragraph 14, ECLI:EU:C:1995:437.
[3] See Case 11-70 Internationale Handelsgesellschaft, paragraph 4, ECLI:EU:C:1970:114.
[4] See Case C-293/12 Digital Rights Ireland, ECLI:EU:C:2014:238
[5] See Case C-60/84 Cinéthèque, paragraph 26,
[6] See Case 4-73 Nold, paragraph 13, ECLI:EU:C:1974:5.
[7] See Case C-260/89 ERT, paragraph 42, ECLI:EU:C:1991:254.
[8] See Danai Petropoulou Ionescu, „Comparative remarks on Article 47 of the Charter and effective judicial protection before national courts – Volume II, by M Bonelli, M Eliantonio and G Gentile“ at https://realaw.blog/2023/07/21/comparative-remarks-on-article-47-of-the-charter-and-effective-judicial-protection-before-national-courts-volume-ii-by-m-bonelli-m-eliantonio-and-g-gentile/#:~:text=As%20noted%20earlier%2C%20while%20Article,a%20sense%2C%20this%20is%20natural.
[9] See Case C‑64/16 ASJP, ECLI:EU:C:2018:117.
[10] See in that respect, Case C-176/12 Association de médiation sociale, ECLI:EU:C:2014:2.
[11] C-585/18, C-624/18, C-625/18 Disciplinary Chamber, ECLI:EU:C:2019:982.
[12] See Case C-617/10 Åkerberg Fransson, ECLI:EU:C:2013:105.
[13] The European Commission’s Guidance on ensuring the respect for the Charter of Fundamental Rights of the European Union when implementing the European Structural and Investment Funds (“ESI Funds”) includes a useful list of the national measures which constitute implementation of EU law within the meaning of Article 51(1) of the Charter (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=oj:JOC_2016_269_R_0001).
[14] For example, Case C-293/12 Digital Rights Ireland, ECLI:EU:C:2014:238.
[15] See Case C-650/13 Delvigne, ECLI:EU:C:2015:648.
[16] See in that respect the most recent development described by Vissers, Nora: Enforcing Democracy: How the European Commission is Testing out the Legal Waters, VerfBlog, 2023/6/13, https://verfassungsblog.de/enforcing-democracy/, DOI: 10.17176/20230613-231122-0.
[17] See Uitz, Renáta: How Hungary’s Pride Ban Tests the EU’s Commitment to Democracy, VerfBlog, 2025/4/02, https://verfassungsblog.de/how-hungarys-pride-ban-tests-the-eus-commitment-to-democracy/, DOI: 10.59704/96dfd1f203d84cd6.
[18] See The FRA report ‘Getting the future right – Artificial intelligence and fundamental rights in the EU’ at https://fra.europa.eu/sites/default/files/fra_uploads/fra-2021-artificial-intelligence-summary_en.pdf
[19] For a comprehensive analysis of the EU AI Act see at https://artificialintelligenceact.eu/.
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