Fundamental rights explained for the Vivre Ensemble exam
Where fundamental rights come from, which ones appear in the Luxembourg Constitution, what limits them, and the difference between the European Convention and the EU Charter.
Contents
Ten questions out of forty deal with the fundamental rights of citizens. That is a quarter of the marks, and it is a subject where progress comes quickly: the number of notions is limited, and questions almost always turn on the same distinctions.
Where fundamental rights come from
Fundamental rights did not appear all at once. The syllabus asks you to know their four main sources, and above all not to confuse them.
1789 — The Declaration of the Rights of Man and of the Citizen
Adopted during the French Revolution, it is the first text to proclaim these rights as universal and inalienable. It inspires every later declaration.
Typical question: "During which event were the rights of man and of the citizen proclaimed for the first time?" — Answer: during the French Revolution.
1948 — The Universal Declaration of Human Rights
Adopted on 10 December 1948 in Paris by the United Nations, three years after the end of the Second World War. Its date has become International Human Rights Day.
This text is a declaration: it sets out principles without directly creating a judicial remedy.
The European Convention on Human Rights
This is the Council of Europe text, adopted in 1950. Unlike the Universal Declaration, it is binding and comes with a court: the European Court of Human Rights, which sits in Strasbourg.
The Charter of Fundamental Rights of the European Union
This is the European Union text. It brings together the civil, political, economic and social rights recognised in the Union's legal order, and its court is the Court of Justice of the European Union, which sits in Luxembourg.
The most-tested distinction in the exam.
Council of Europe European Union Text European Convention on Human Rights Charter of Fundamental Rights Court European Court of Human Rights Court of Justice of the EU Seat Strasbourg Luxembourg Two different organisations, two different texts, two different courts. The only thing they share is the word "European".
Fundamental rights in the Luxembourg Constitution
At national level, it is the Constitution that sets fundamental rights down in writing. It, and not a municipal by-law or an ordinary law, guarantees them — a classic opening question.
Luxembourg's constitutional tradition goes back to the Constitution of 1848, supplemented and revised many times since. A comprehensive revision entered into force on 1 July 2023.
The syllabus distinguishes several families of rights:
Protection of the individual against the State Individual liberty, inviolability of the home, respect for private life, secrecy of correspondence, prohibition of inhuman or degrading treatment.
Participation in public life Freedom of expression, freedom of the press, freedom of assembly and association, right of petition, electoral rights.
Rights of a person in legal proceedings Right to an independent and impartial judge, rights of the defence, presumption of innocence, legality of offences and penalties.
Civil liberties and collective entitlements Freedom of conscience and religion, freedom of trade and industry, right to work, access to education, social security.
Objectives with constitutional value Protection of the environment, management of natural resources, sustainable development, animal welfare — objectives that bind State action without creating a directly enforceable individual right.
Rights and duties go together
A point the course material stresses and the exam picks up: being a citizen of a State means having rights and duties. Complying with the Constitution and the laws, paying taxes, taking part in elections, sending your children to school.
Another useful nuance: the Constitution does not mention fundamental values such as tolerance, respect, humanity or solidarity. Those values may vary with culture, country or circumstances, yet they form part of the foundations of a society. These are two different registers: law and values.
The limits of fundamental rights
No right is absolute. Everyone's freedom stops where another's begins, and the syllabus asks you to know the main grounds of limitation:
- age — some rights are only exercised at majority, such as the right to vote;
- legal incapacity — protective measures for adults;
- convictions — a sentence may entail the loss of certain rights, notably electoral ones;
- nationality — several rights, in particular electoral rights and access to certain public posts, are reserved to nationals.
It is precisely this last point that gives meaning to an application for naturalisation: it opens access to rights, first among them the right to vote in legislative elections.
Note, however, that foreign residents may, subject to conditions, take part in municipal elections, and EU citizens in European elections. European citizenship, created by the Maastricht Treaty, is added to the nationality of a member state without replacing it.
Who protects these rights
Three levels overlap, and the exam asks you to tell them apart.
At national level, the ordinary courts apply the law with respect for fundamental rights, and the Constitutional Court checks that laws conform to the Constitution. It is seized by way of a preliminary question, when a judge hearing a case has a constitutional doubt.
At Council of Europe level, the European Court of Human Rights may be seized by an individual after domestic remedies have been exhausted.
At European Union level, the Court of Justice ensures the uniform application of Union law, including the Charter.
Details in Who protects fundamental rights.
Revision card
| Notion | To remember |
|---|---|
| 1789 | Declaration of the Rights of Man and of the Citizen, French Revolution |
| 1948 | Universal Declaration, UN, 10 December |
| European Convention | Council of Europe, Strasbourg court |
| Charter of Fundamental Rights | European Union, Court of Justice in Luxembourg |
| Luxembourg Constitution | The national text that sets fundamental rights |
| Constitutional Court | Conformity of laws with the Constitution |
| Limits | Age, incapacity, conviction, nationality |
Once this card is absorbed, test it: the free simulator contains five questions on fundamental rights, in the same proportion as the real paper.