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Towards the Definitive Status of the Charter of Fundamental Rights of the European Union: Political Document or Legally Binding Text?

Published online by Cambridge University Press:  06 March 2019

Michiel Brand

Extract

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At the Nice summit in December 2000, we witnessed the solemn proclamation of the Charter of Fundamental Rights of the European Union, which can be seen as the remarkable product of a revolutionary process. The Convention that drafted the Charter had adopted the approach ‘as if’ it were to be incorporated into the European Treaties. However, the question as to the final status of the Charter had not yet been decided when it was proclaimed. Instead, the issue was placed on the post-Nice and post-Laeken agenda and is currently being discussed in the Convention on the future of Europe.

Type
Legal Culture
Information
German Law Journal , Volume 4 , Issue 4 , 01 April 2003 , pp. 395 - 409
Copyright
Copyright © 2003 by German Law Journal GbR 

References

1 OJ 2000 C 364/01.Google Scholar

2 In the words of McCrudden: “It is elegantly conceived, beautifully drafted, and a masterly combination of pastiche, compromise and studied ambiguity.”; see C. McCrudden, The Future of the EU Charter of Fundamental Rights, <http://www.jeanmonnetprogram.org/papers/01/013001.html>..>Google Scholar

3 de Búrca, G., The Drafting of the European Union Charter of Fundamental Rights, (2001) 26 European Law Review 126.Google Scholar

4 COM (2000) 644, para. 7.Google Scholar

5 See declaration no. 23 on the future of the Union, annexed to the Treaty of Nice.Google Scholar

6 See Laeken Declaration on the Future of the European Union, annex I to the Conclusions of the Laeken European Council of 14-15 December 2001.Google Scholar

7 Note that this issue is closely connected to the longstanding debate on a possible EC/EU accession to the ECHR. On balance, such an accession is desirable (see also earlier M. Brand, Quo Vadis Europa? Thoughts on the Future of the European Union, (2002) 10 Tilburg Foreign Law Review 106, at 118-119). This issue will however not be discussed in this article.Google Scholar

8 See e.g. A-G Alber in Case C-340/99, TNT Traco SpA, [2001] ECR I-4109, para. 94; A-G Tizzano in Case C-173/99, BECTU, [2001] ECR I-4881; and A-G Léger in Case C-353/99, Hautala, [2001] ECR I-9565.Google Scholar

9 See e.g. Case T-54/99, max. Mobil Telekommunikation Service, [2002] ECR II-313 and the groundbreaking Case T-177/01, Jégo-Quéré, [2002] ECR II-2365; see hereto Dominik Hanf, Facilitating Private Applicants’ Access to the European Courts? On the Possible Impact of the CFI's Ruling in Jégo-Quéré, in: 3 German Law Journal No. 7 (1 July 2002), available at: http://www.germanlawjournal.com/past_issues.php?id=166; see the ECJ's judgment on Jégo Quéré of 25 July 2002 - Case C-50/00 P Unión de Pequeños Agricultores and hereto the first commentary published: Dominik Hanf, Kicking the Ball into the Member States’ field: The Court's response to Jégo-Quéré (Case P 50/00 P Unión de Pequeños Agricultores, Judgment of 25 July 2002), in: 3 German Law Journal No. 8 (1 August 2002), available at: http://www.germanlawjournal.com/past_issues.php?id=171.Google Scholar

10 Menéndez, A.J., Chartering Europe: Legal Status and Policy Implications of the Charter of Fundamental Rights of the European Union, (2002) 40 Journal of Common Market Studies 471 at 476.Google Scholar

11 See Hirsch Ballin, E.M.H., Een wezenlijke maatstaf voor alle actoren in de Gemeenschap; De voorlopige juridische status van het Handvest van de Grondrechten van de Europese Unie, (2001) 49 SEW 330, at 335.Google Scholar

12 There, it was decided that first, the Charter should be solemnly proclaimed and that “it will then have to be considered whether and, if so, how the Charter should be integrated into the treaties”. See annex IV to the Presidency Conclusions of the Cologne European Council of 3-4 June 1999.Google Scholar

13 Morijn, J., Judicial Reference to the EU Fundamental Rights Charter; First experiences and possible prospects, <http://europa.eu.int/futurum/documents/other/oth000602_en.pdf>, at 11-12.,+at+11-12.>Google Scholar

14 See e.g. A-G Léger in Case C-353/99, Hautala v. Council [2001] ECR I-9565: “As the solemnity of its form and the procedure which led to its adoption would give one to assume, the Charter was intended to constitute a privileged instrument for identifying fundamental rights.”, at para. 83 (emphasis added).Google Scholar

15 Though similar, there would of course be differences nonetheless. Incorporation would formally give the Charter a higher status, creating a situation in which the European Courts would simply be forced to treat the Charter as the most important, primary source of human rights, whereas this would not directly be the case if Option 1 – formal political status and de facto legal development – were to be pursued.Google Scholar

16 This may of course very well be one of the most important reasons for the Court's reluctant attitude towards the Charter. In fact, it can be argued that the ongoing work of the Convention has already specifically resulted in a display of a hands-off-attitude by the ECJ, namely with regard to the issue of the liberalisation of access to Community courts in the light of the fundamental right to effective judicial protection: see Johanna Engström, Turning a deaf ear to effective judicial protection? – The ECJ's judgement in C-50/00 P Unión de Pequeños Agricultores, forthcoming in Tilburg Foreign Law Review.Google Scholar

17 Obviously, this would require the Court to take a very progressive stance towards the Charter, which may be undesirable if seen as another example of the ECJ violating the limits of its powers by circumventing the explicit will of the Member States. This could of course be remedied if the Member States decided explicitly to delegate the matter of the Charter's status to the ECJ at the next IGC.Google Scholar

18 Morijn, , op. cit. Supra n. 13, at 24.Google Scholar

19 Lenaerts, K. and Smijter, E. de, A “Bill of Rights” for the European Union, (2001) 38 Common Market Law Review 273, at 281. Emphasis added.Google Scholar

20 See supra n. 4.Google Scholar

21 Morijn, op. cit. Supra n. 133, at 24.Google Scholar

22 See Goldsmith, , A Charter of Rights, Freedoms and Principles, (2001) 38 Common Market Law Review 1201 at 1215: “[I]n the end, I believe the Charter lacks the precision of language necessary to allow it legal force. (…) So whilst it should be acceptable and valuable as a political statement, my own view is that this text is not suitable for incorporation in the Treaties whether directly or by cross-reference.”Google Scholar

23 For example, Weiler states that the Charter [although only where conceived of as an exclusive instrument] “runs the risk of inducing a more inward looking jurisprudence and chilling the constitutional dialogue”, see J.H.H. Weiler, Editorial: Does the European Union Truly Need a Charter of Rights?, (2000) 6 European Law Journal 95, at 96.Google Scholar

24 COM (2000) 559, Commission Communication on the Charter of Fundamental Rights of the European Union, para. 7. However, it should be noted that even though the Charter's provisions are based on recognised human rights, it nevertheless “essentially contains new descriptions of existing fundamental rights”: Lenaerts and de Smijter, op. cit. supra n. 19, at 281. Gráinne de Búrca describes the Charter as “a creative distillation of the existing fundamental rights-commitments from the fluid EU acquis“: see G. de Búrca, Human Rights: The Charter and Beyond, Jean Monnet Working Paper No.10/01, <http://www.jeanmonnetprogram.org/papers/01/013601.html>..>Google Scholar

25 “This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights.”, para. 5 of the preamble.Google Scholar

26 “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.”Google Scholar

27 As Lammy Betten has put it: “There is nothing in the EU Charter that indicates that the Court can no longer make use of its method of protection of fundamental rights by referring to this protection as a general principle of law. Of course, a binding EU-Charter would be then first port of call for the Court. However, in so far as the Charter does not (adequately) protect the right in question, the Court must still refer to general principles of law, to fill the remaining gaps.” L. Betten, The EU Charter on Fundamental Rights: a Trojan Horse or a Mouse?, (2001) 17 International Journal of Comparative Labour Law and Industrial Relations 151, at 160.Google Scholar

28 Regarding the Charter's references to other human rights sources, Gráinne de Búrca points out: “However [as regarding the references in the preamble], this seems merely to suggest that the rights actually specified in the Charter are derived from national constitutions and from these common international obligations, rather than that the EU continues to hold itself bound or at least inspired by international human rights obligations and standards more broadly. Further, while Article 53 of the Charter makes mention of human rights derived from international law and international agreements to which the Member States are party, this is done merely to affirm that the Charter should not be used in such a way as to restrict those rights within their proper sphere of application.” She adds that what is missing, is any equivalent to the ECJ's more fluid and non-exhaustive approach to human rights sources. See G. de Búrca, Fundamental Rights and Citizenship, in: B. de Witte (ed.), Reflections on the Constitutional Treaty for Europe (EUI, Robert Schuman Centre, 2003).Google Scholar

29 See CONV 116/02, pp. 9–10 (all Convention documents are accessible at <http://european-convention.eu.int>), where also some arguments for deletion of Art. 6(2) TEU are presented. In my opinion, however, there are no convincing arguments for not keeping an extra safeguard clause in the new Constitutional Treaty.),+where+also+some+arguments+for+deletion+of+Art.+6(2)+TEU+are+presented.+In+my+opinion,+however,+there+are+no+convincing+arguments+for+not+keeping+an+extra+safeguard+clause+in+the+new+Constitutional+Treaty.>Google Scholar

30 Witte, B. de, The Legal Status of the Charter: Vital Question or Non-Issue?, (2001) 8 Maastricht Journal of European and Comparative Law 81, at 89.Google Scholar

31 Annex IV to the Presidency Conclusions of the Cologne European Council (3-4 June 1999).Google Scholar

32 Búrca, De, op. cit. Supra n. 24. It should furthermore be noted that in fact some Advocates-General have already referred to the special process in which the Charter was drafted so as to strengthen its force: See e.g. Advocate-General Mischo in Joined Cases C-20/00 and C-64/00, Booker Aquaculture Ltd, (not yet reported): “I know that the Charter is not legally binding, but it is worthwhile referring to it given that it constitutes the expression, at the highest level, of a democratically established political consensus on what must today be considered as the catalogue of fundamental rights guaranteed by the Community legal order.”, at para. 126.Google Scholar

33 Walker, Neil, The Charter of Fundamental Rights of the EU: Legal, Symbolic and Constitutional Implications, in: P.A. Zervakis and P.J. Cullen (eds.), The Post-Nice Process: Towards a European Constitution?, Nomos Verlagsgesellschaft, Baden-Baden, 2002, at 125.Google Scholar

34 Walker, , op. cit., at 125. Similarly, one could argue that “[t]he Court may come to confirm the legal status of the Charter in such a way that it would appear to be pointless to resist formal incorporation into the treaties”, McCrudden, op. cit. supra n. 2.Google Scholar

35 See e.g. the Franco-German Declaration, Nantes, 23/11/2001, available at: <http://europa.eu.int/futurum/documents/offtext/doc231101_en.htm>, (01/12/02); COM (2000) 644; European Parliament Resolution A5-0064/2000 on the elaboration of a Charter of Fundamental Rights.,+(01/12/02);+COM+(2000)+644;+European+Parliament+Resolution+A5-0064/2000+on+the+elaboration+of+a+Charter+of+Fundamental+Rights.>Google Scholar

36 See e.g. the Final Report of Working Group II on incorporation of the Charter and accession to the ECHR (CONV 354/02, at 2) and, notably, the drafts of the Constitutional Treaty CONV 369/02, Art. 6 and CONV 528/03, Art. 5.Google Scholar

37 See also CONV 354/02, at 3 and CONV 369/02, Art. 6. More options were presented by Working Group II in an earlier stage, see CONV 116/02, at 7 et seq.Google Scholar

38 As will be clear, the term ‘incorporation’ is used here, in line with the approach of the Working Group, “in the broad sense covering several forms and degrees of acknowledgement of the legal value of the Charter in the Treaties or in connection with them”, CONV 116/02, at 7, n. 2.Google Scholar

39 CONV 354/02, at 3.Google Scholar

40 Búrca, De, op. cit. supra n. 28.Google Scholar

41 With its first, skeleton draft of the Constitutional Treaty CONV 369/02, the Convention essentially opted for a single text, the first part forming the true, constitutional part of the document and the second, more technical, part pertaining to Union policies and their implementation.Google Scholar

42 Note that the first part of the framework draft Constitutional Treaty, CONV 369/02, contains no more than 46 articles.Google Scholar

43 However, it can be objected that “[a]ll contemporary constitutions are ‘long’ constitutions because the catalogue of fundamental rights that citizens want to be granted has widened and the complexity of procedures concerning the exercise of public powers in modern States has grown” and that “[t]his is all the more so for such a complex supranational entity like the European Union”, see Contribution of Elena PACIOTTI – MEP, Convention Document WG II – WD 02, at 2.Google Scholar

44 See Bruno de Witte, Simplification and Reorganization of the European Treaties, (2002) 39 Common Market Law Review 1255. Such an impression would be distorted because, as de Witte states, the role of human rights “is limited to the scope of EU activity (excluding the policy sphere left to the member states) and there are severe legal and practical limits to their effective enforcement”, at 1280.Google Scholar

45 Think of, for example, Art. 21 Charter and Art. 12 and 13 TEC (freedom from discrimination), and; Art. 23 Charter and Art. 141 TEC (equality between men and women).Google Scholar

46 “Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.”Google Scholar

47 Article 311 TEC provides: “The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.”Google Scholar

48 Búrca, de, op. cit. Supra n. 28.Google Scholar

49 Paragraph 2 of Article 5 specifically provides the legal basis for a possible accession to the ECHR.Google Scholar

50 CONV 528/03. At the outset, it should be pointed out that this document of course is merely a draft, which moreover has been created solely by the Convention's Praesidium. Many critical opinions regarding the draft have already been voiced and thus far, more than 1000 amendments have been put forward with regard to the first 16 draft articles, 62 of which related to Article 5 of the draft (all proposed amendments can be consulted at the Convention's website <http://european-convention.eu.int>). See further 1000 Amendments to First Treaty Articles, <www.euobserver.com> of 19/02/2003 and Giscard tries to soothe critics of constitution, The Times, 8 February 2003.).+See+further+1000+Amendments+to+First+Treaty+Articles,++of+19/02/2003+and+Giscard+tries+to+soothe+critics+of+constitution,+The+Times,+8+February+2003.>Google Scholar

51 “Constitutional Treaty” was mentioned early on by President Giscard d'Estaing as the term to be used in the Convention's final document: see Introductory Speech by President V. Giscard d'Estaing to the Convention on the future of Europe, 26 February 2002, http://european-convention.eu.int/docs/speeches/1.PDF: “In order to avoid any disagreement over semantics, let us agree now to call it: a ‘constitutional treaty for Europe'”, at 11. It is noteworthy however that the provisions of the drafts put forward so far, consistently refer to the term “Constitution”, rather than “Constitutional Treaty”, whereas the document itself is entitled “Treaty establishing a Constitution for Europe”. However, the name of the resultant text is ultimately not of vital importance (see also Brand, op. cit. supra n. 7, at 136-137). It could be argued that the term “Constitution” is more loaded and thus controversial, and that therefore the term “Constitutional Treaty” is to be preferred (see e.g. the amendment to Article 5 proposed by Mrs. Sandra Kalniete et al.). However, the use of the term “Constitution” has perhaps also been normalised, as it is used in certain Member States’ contributions to the debate on the future of Europe and features in the Laeken Declaration. Moreover, a number of scholars contend that Europe is already endowed with its own “Constitution” (e.g. A. F⊘llesdal, Drafting a European Constitution – Challenges and Opportunities, Constitutionalism Web-Papers, ConWEB No. 4/2002, <http://les1.man.ac.uk/conweb> and J.H.H. Weiler, The Constitution of Europe; “Do the New Clothes Have an Emperor?” and Other Essays on European Integration. Cambridge University Press, 1999).+and+J.H.H.+Weiler,+The+Constitution+of+Europe;+“Do+the+New+Clothes+Have+an+Emperor?”+and+Other+Essays+on+European+Integration.+Cambridge+University+Press,+1999).>Google Scholar

52 The explanatory note to Article 5 of the draft Constitutional Treaty (see Annex II of CONV 528/03) provides the particular rationale behind the specific content of Article 5, which is similar to the arguments presented above. It is stated that “[a]s to the technique for incorporating the Charter, the fact that the complete text (…) will appear either in a separate second part of the Constitution or as a Protocol annexed to it will safeguard its fully binding legal nature and allow the general rules concerning future amendments of the Constitution to be applied to the Charter. Moreover, that technique will also keep the structure of the Charter intact and avoid making the first part of the Constitution more lengthy. At the same time, the reference to the Charter in the first few articles of the Constitution will underline its constitutional status.” With regard to the need for non-exclusivity, the notes state that: “[p]aragraph 3 [of Article 5] draws on Article 6(2) TEU as it now stands and is intended to indicate clearly that, in addition to the Charter, Union law recognises additional fundamental rights as general principles resulting from two sources – the [ECHR] on the one hand and the constitutional traditions common to the Member States on the other. (…)[T]he usefulness of this provision is to make clear that incorporation of the Charter does not prevent the Court of Justice from drawing on those two sources to recognise additional fundamental rights which might emerge from any future developments in the ECHR and common constitutional traditions.”Google Scholar

53 Of course, stating that the Charter is an integral part of the Constitution also has the de facto effect that the Union will respect the contents of the Charter. It does not however imply this by the wording itself and therefore, for purely symbolic reasons, the alternative wording suggested is arguably preferable. See also e.g. the proposed amendments to Art. 5 by the representatives of the assembly of the republic of Portugal and by Ms. Palacio.Google Scholar

54 See also the amendment to Art. 5 proposed by Joschka Fischer.Google Scholar

55 Ibid.Google Scholar

56 At Maastricht, only the core of the ECJ's human rights case law was codified. Article 6(2) TEU makes only explicit reference to the ECHR, whereas the ECJ draws inspiration more generally from “international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories”: see Case 4/73, Nold [1974] ECR 491, at para. 13. In this light, the Court has referred to e.g. the ILO Convention and the Covenant on Civil and Political Rights. Even though it may be assumed that the current wording of Art. 6(2) TEU does not intend to interfere with the Court's wider jurisprudence (see Lenaerts and de Smijter, op. cit. supra n. 19, at 277), it is the opinion of this author that there is no particular good reason not to bring the Constitutional Treaty's wording more in line with the ECJ's case law.Google Scholar

57 See e.g. the proposed amendments by Elmar Brok et al. and that by Hannes Farnleitner.Google Scholar

58 See the amendments proposed by David Heathcoat-Amory and by Tim Kirkhope.Google Scholar