Who protects fundamental rights? Constitutional Court, ECtHR and CJEU
The three levels of protection for fundamental rights — national, Council of Europe, European Union — and how to stop confusing the two European courts.
Contents
Proclaiming rights is useless without a mechanism to enforce them. The official syllabus devotes a whole section to this question, and it generates several exam questions — almost always built on the same confusion.
Three overlapping levels
| Level | Court | Text applied | Seat |
|---|---|---|---|
| National | Ordinary courts + Constitutional Court | Constitution, laws | Luxembourg |
| Council of Europe | European Court of Human Rights | European Convention on Human Rights | Strasbourg |
| European Union | Court of Justice of the EU | Treaties and Charter of Fundamental Rights | Luxembourg |
These three levels do not replace one another: they add up. The same situation may go before the national judge and then, once domestic remedies are exhausted, before a European judge.
Level 1 — National protection
The ordinary courts
They are the first guardians of fundamental rights. A civil, criminal or administrative judge applies the law with respect for the rights guaranteed by the Constitution and by the treaties Luxembourg has ratified.
An important syllabus point: duly ratified international treaties hold a particular place in Luxembourg's legal order, and a judge may set aside a national law that conflicts with them.
The Constitutional Court
Its mission is specific: checking that laws conform to the Constitution.
How it is seized comes up repeatedly in questions. It is seized by way of a preliminary question: when a court hearing a concrete case doubts the constitutional conformity of the law it must apply, it suspends its judgment and asks the Constitutional Court. The latter settles that point of law, and the case resumes before the original judge.
Remember: a citizen does not seize the Constitutional Court directly to "challenge a law". The constitutional doubt always arises from a real dispute.
Level 2 — The Council of Europe
The Council of Europe is a pan-European organisation dedicated to human rights, democracy and the rule of law. It brings together far more states than the European Union.
Its main instrument is the European Convention on Human Rights, adopted in 1950. Unlike the 1948 Universal Declaration, which states principles, the Convention is binding and comes with a court.
The European Court of Human Rights, in Strasbourg, may be seized by an individual who considers that a state party has violated their rights — but only after domestic remedies have been exhausted, that is, after going as far as national justice allows.
Level 3 — The European Union
The European Union is an organisation of economic and political integration. Its reference text for fundamental rights is the Charter of Fundamental Rights of the European Union.
The Court of Justice of the European Union, in Luxembourg, ensures the uniform application of Union law in all member states. It is mainly seized through a preliminary reference from a national judge or by the European Commission: direct access by an individual is tightly framed.
The confusion to eliminate once and for all
This is the most frequent trap in the entire paper.
| Council of Europe | European Union | |
|---|---|---|
| Nature | Cooperation organisation, human rights | Integration organisation |
| Number of states | Far wider than the EU | 27 |
| Text | European Convention on Human Rights | Charter of Fundamental Rights |
| Court | European Court of Human Rights | Court of Justice of the EU |
| Seat of the court | Strasbourg | Luxembourg |
| Creation | 1949 | Process since 1951, EU since Maastricht (1992) |
Three memory aids that work:
- Convention → Council. Both start with "Co".
- Human rights → Strasbourg. Justice of the Union → Luxembourg.
- The Council of Europe has no currency, no single market, no common borders. It is an organisation of rights, not of economic integration.
Why does the CJEU sit in Luxembourg?
This is not trivia and can be the subject of a question. Luxembourg was a founding member of the ECSC in 1951 and hosted its High Authority from the 1950s. The city has remained one of the Union's three institutional hubs, alongside Brussels and Strasbourg, and hosts the Court of Justice, the European Investment Bank and the Secretariat of the European Parliament.
See: Luxembourg and European integration.
The path of a claim
To fix ideas, here is the typical route for someone who believes their rights have been violated:
- National justice — competent court, then appeal, then cassation or last instance.
- If a constitutional doubt arises, the judge seizes the Constitutional Court by preliminary question.
- If a doubt concerns the interpretation of EU law, the judge may seize the Court of Justice of the EU by preliminary reference.
- Once domestic remedies are exhausted, the person may seize the European Court of Human Rights if they invoke a violation of the Convention.
This sequence shows the essential point: the European courts are not a shortcut, they operate alongside a national justice system that remains the first line.
Revision card
- Constitutional Court: conformity of laws with the Constitution, seized by preliminary question.
- Administrative Court: last instance in disputes with the administration — not to be confused with the above.
- ECtHR, Strasbourg: European Convention, Council of Europe, seized after domestic remedies are exhausted.
- CJEU, Luxembourg: Union law and the Charter of Fundamental Rights.
- Convention ≠ Charter. Council of Europe ≠ European Union.
Check that these distinctions hold under pressure: the free simulator contains several questions built precisely on this trap.
Read next: fundamental rights explained.