Charter of Fundamental Rights - Frequently Asked Questions

Written by Andrew Duff MEP on Sun 11th Feb 2001

WHO INVENTED THE CHARTER?

The European Council of heads of government, meeting in Cologne in June 1999, decided to "establish a Charter of Fundamental Rights of the European Union in order to make their overriding importance and relevance more visible to the Union's citizens". A body - which later decided to call itself the 'Convention' - was set up to draft the Charter. The European Council agreed that it would invite the European Parliament and the European Commission to join in a 'solemn proclamation' of a final Charter. After that, "it will then have to be considered whether and, if so, how the Charter should be integrated into the treaties".

WHAT HAPPENED IN THE CONVENTION?

The Convention, which began work in December 1999, was composed of 62 members (16 MEPs, 30 national parliamentarians, 15 representatives of the heads of government, one Commissioner, plus an equal number of proxies). Its chairman was the wise Dr Roman Herzog, former President of Germany. The Convention was an important constitutional innovation for the Union in that it directly involved Members of the European Parliament and that it met in public. The Convention praesidium was made up of the president and the four vice-presidents representing the Commission, the Council, the national parliaments and the European Parliament. This body produced various draft texts that attracted over 2000 amendments. All these texts were published on the internet. On 2 October 2000 a final draft text, Convent 50, was produced. Convent 50 was accepted by the heads of government, albeit with varying degrees of enthusiasm, meeting in Biarritz on 13-14 October. The European Parliament adopted the Charter on 14 November by a large majority of 410 votes to 93. The European Commission officially approved the Charter on 6 December. On 7 December, the three Presidents of the Council, the Commission and the Parliament duly signed and proclaimed the Charter in Nice.

WHAT DOES THE PROCLAMATION MEAN?

A majority of member states, the Commission and the Parliament wanted the Charter to have immediate mandatory effect and to insert it firmly within the Treaty of Nice. This approach was strongly opposed by the UK, which even resisted making a reference to the Charter in Article 6.2 of the Treaty, alongside that to the existing European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of the Council of Europe. Paradoxically, the fact that the Charter was only (if solemnly) proclaimed could well induce the very legal confusion that the British government claimed it was so anxious to avoid. The UK argues that it was able to accept the Charter because no new rights were thereby created. Others, notably the Germans, emphasised the innovatory character of the Charter. Either way it is difficult to argue that the Charter should never be enforceable in law. After all, the Charter was drafted by the Convention on the presumption that it would be legally binding upon the EU institutions and their agencies, including member state governments when they implement EU law and policy. Adherents of this approach argue that the Charter should be fully justiciable in the European Court of Justice in order to ensure legal certainty and comprehensive, systematic protection of rights.In any case, and despite the fact that it has not been installed in the Treaty, the Charter is bound to have a gradual effect on the case law of the Court of Justice, as its observer in the Convention confirmed. And the Commission and Parliament have affirmed that they will be guided by the Charter's provisions as they formulate and implement policy. The European Ombudsman has already begun to deploy the Charter. The big question is will the Charter be adhered to by the Council? Can the Council ignore it now that both the Parliament and the Commission have pledged to abide by it? The EU institutions, indeed, should be properly anxious to avoid the accusation that the Charter is merely rhetorical. The public would be right to be cynical about a Charter that proved to be merely declaratory.

WHAT, THEN, IS THE CHARTER FOR?

There is already a large concentration of power at the level of the European Union. The Charter is to protect the citizen from any abuse of that power. The Charter sets out as clearly as possible how the individual stands with regard to the European Union. The Charter codifies the rights of the person as they are now affected by the supranational authority of the Union. This involved the Convention in trying to define EU competencies, an exercise that had never before been officially attempted.

WHAT DOES THE CHARTER SAY?

The content of the Charter was broadly defined by the European Council in giving the mandate to the Convention, as follows:

fundamental rights and freedoms as well as basic procedural rights guaranteed by the ECHR and as derived from the constitutional traditions common to the member states as well as the general principles of Community (or Union) law.

account has also been taken of economic and social rights as contained in the European Social Charters and the Community Charter of the Fundamental Social Rights of Workers, in so far as they do not merely establish objectives for action by the Union.

The European Parliament, in its resolution of 16 March 2000, insisted that the Charter should be:

¯ innovative in nature by giving legal protection in respect of new threats to fundamental rights, for example in the fields of information technology and biotechnologies;

¯ confirms as an integral part of the Charter women's' rights, a general non-discrimination clause and reference to environmental protection.

The Convention largely followed this advice. The classical rights of the ECHR form the core of the new Charter. Other, more modern rights, drawn mainly from the EU Treaties and the acquis communautaire, have also been included. These range from economic and social rights to the right to good administration, freedom of information and sustainable development. The special privileges enjoyed by EU citizens as a result of the application of the principle of freedom of movement, such as the franchise, are also recognised.

There is a short Preamble, followed by six chapters entitled Dignity (Articles 1-5), Freedoms (Articles 6-19), Equality (Articles 20-26), Solidarity (Articles 27-38), Citizens' Rights (Articles 39-46), and Justice (Articles 47-50). A final chapter of General Provisions (Articles 51-54) contains horizontal clauses that define the scope of the Charter and its limitations, and insure against any regression in the level of protection afforded in contrast to existing rights regimes.

WILL THE CITIZEN BE ABLE TO INVOKE THE CHARTER DIRECTLY?

As things stand, the citizen lacks the privilege of direct appeal to the Court of Justice (ECJ) in Luxembourg unless he or she is explicitly, directly and individually affected. A major change would be needed to the Treaty to allow all individuals to have direct access to the ECJ, and a sifting system would have to be introduced in order to screen applications.

WON'T THERE BE CLASHES BETWEEN THE LUXEMBOURG AND STRASBOURG COURTS?

Everyone recognises the need for legal certainty and political consistency between the fundamental rights regimes of the European Union on the one hand and the Council of Europe on the other. Accordingly, the Convention has tried to minimise the danger of conflict between their respective courts in Luxembourg and Strasbourg by insisting that the meaning and scope of the classical rights in the Charter should be the same as those laid down in the ECHR. The ECJ, therefore, will have a similar sort of relationship with the Court of Human Rights as that of any national judiciary of a member state of the Council of Europe. Undoubtedly, there will be the occasional appeal to Strasbourg, but the bulk of the adjudication on fundamental rights will be undertaken by the EU's own judges.

To simplify things and to ease coordination, the European Parliament has proposed that the European Union itself signs up to the ECHR. This would allow for the establishment of a formal protocol to manage relations between the two courts. The European Court of Human Rights in Strasbourg is in some danger of becoming overwhelmed by its workload (mostly from Russia). It is important that any change in the relationship between Luxembourg and Strasbourg does not add to the problems of the latter.

AREN'T WE IN DANGER OF CREATING DIFFERENTIATION IN EUROPE'S FUNDAMENTAL RIGHTS?

Indeed. But why shouldn't the European Union have higher standards than the rest of Europe? The Charter says that its provisions should not be weaker than that of the ECHR, but that Union law can provide more extensive protection.

WILL THE CHARTER HARM ENLARGEMENT?

In one sense, the Charter raises the threshold for membership. But it also serves to clarify precisely what membership of the Union entails. By setting out the values and principles that inform European integration it should help candidate countries.

WHAT NEXT?

As we know, the European Council at Nice failed to integrate the Charter into the Treaty. However, a Declaration annexed to the new Treaty opens up a debate on the future development of the European Union by establishing yet another Intergovernmental Conference in 2004. One of four specific items for inclusion on the agenda of the next IGC is "the status of the Charter of Fundamental Rights".Despite the protestations of the British government, the new Treaty is likely to have more of a constitutional character than its predecessors. Truly important things, like the Charter, will become entrenched to form the basic law of the Union. The European Council of Laeken in December 2001 will make a Declaration that establishes these objectives and the process by which they are to be achieved. Many, including the Parliament, are pushing for the experiment of the Convention to be repeated in order to prepare the IGC. In this context, therefore, the Charter should be seen as a principal building block and focal point of Europe's future constitution.

WHERE CAN I FIND THE CHARTER?

www.europarl.eu.int/charter/default_en.htm