The Charter debate in the 1990s – Rationales
• Visibility - ‘at the present stage of development of the European Union,
the fundamental rights applicable at Union level should be consolidated in
a Charter and thereby made more evident’
• legitimising integration
• social and economic rights
• protecting rights
History
• June 1999: Cologne European Council entrusted the drafting of a Charter
to a Convention
• 13-14 October 2000 Biarritz: Charter unanimously approved and
forwarded to Parliament and Commission which approved, Nov-Dec 2000
• December 2000 Nice: Presidents of EP, Council and Commission sign and
proclaim the Charter of Fundamental Rights of the EU
• Incorporated in Constitutional Treaty (French and Dutch referenda in
2005)
• Lisbon Article 6(1) TFEU – legally binding (but without
constitutionally incorporating it which si what the treaty was
trying to do – check)
EU institutions and the Charter
• Since Nice, Commission considers itself to be bound by the Charter in
making proposals for legislation
• Whenever a draft directive is produced by the EC they will check
that it complies and is compatible with the charter
• AGs(advocate generals) (and later Court) referred to Charter soon after its
proclamation in Nice
• They never said it was legally binding cause they couldn’t but they
use it as persuasive authority
• The first big case where you can see this is a case called bectu
• The EP as an emerging actor (after getting many more powers after
Lisbon) in HR protection (and taking HR seriously) – the SWIFT decision
(the current account think for banking)
• The CoM had agreed with the previous US thingy that they should
be able to access this type of info; however with lisbond, this has
become a matter in which the EP has a strong competence and if
they don’t give their consent, none of this can carry on. And
overwhelmingly by a 2/3rd agreement in 2003, the EP said the swift
agreement should be suspended. Of course to protect privacy.
Charter’s main provisions
Some refer to civil and political rights, but some refer to social rights. E.g. chap 4
has protection of workers against unfair dismissal.
So you get a mix of old and new provisions which did exist in other charters but
these charters had never been given any legally binding force
• CHAPTER I DIGNITY
• CHAPTER II FREEDOMS
• CHAPTER III EQUALITY
• CHAPTER IV SOLIDARITY
• CHAPTER V CITIZENS’ RIGHTS
• CHAPTER VI JUSTICE
Mere codification?
• (if you look at the preamble the answer is yes) intended to confer no new
rights, but merely make the existing rights protected at European level
‘more visible’ (Preamble to the Charter)
• Article 51(2) of the Charter: “This Charter does not establish any new
power or task for the Community or the Union, or modify powers and tasks
defined by the Treaties”
• Social and economic rights?
• it’s very hard to reconcile the introduction of some important social
and economic rights
• ‘Rights’ v ‘principles’ distinction?
• There is a distinction in some of the chapters but does this affect
the substance of these rights. The justiciability of them. Paul Craig
thinks these labels mean nothing and it’s upto the ECJ to decide
whether a right is a justiciable right or a political objective or
whatever else.
The relationship between the EU Charter and the ECHR
• Article 52(3) of the Charter: accords deference to the jurisprudence on
the interpretation of Convention rights as laid down by the European Court
of Human Rights
• Whenever there’s a conflict b/w a something and something; one
prevales over the one which may be provided by the ECJ ?? check
• Article 6(2) TFEU (above) - the European Union now has the competence
to accede to the European Convention
• Art 6 of the treaty not the charter provides that the EU shall join the
convention of HR and there are discussions over whether that shall
should be read as a must join or a can join. But one thing we know
for sure is that hte EU has legal personality so from the intl. Pov it
can join the European charter on HR as a signatory
• Inconsistency between jurisprudential stands - e.g. ECJ in Viking and Laval
(right to strike in A 28) v ECtHR in Demir and Enerji Yapi Jol Sen v Turkey
(Article 11)
• Considering the str. And importance the EU gives to the ECJ and the
ECtHR. What happens whenever u have clashes b/w judgments of
the ECJ and the ECtHR
• The stance of something something eco freedoms prevail ove right
to strike. In the ecthr decisions, the Strasbourg court said that the
right to strike fundamentally the rights from art 11; freedom of
association covers ngo’s trade parties and unions. Workers are
allowed to associate and when they do, they get protection under
art 11. So what the court said is that from art 11, you can derive the
right to collective bargaining (why do workers associate and form
trade unions?) (this is what the court said in...)
• And from Enerji Yapi, the courts said in order to protect the right of
collective bargaining, they can also strike.
• Art 11(2) provides that restrictions can be brought to FoA but in
these decisions, the courts said these restrictions are necessary in a
democratic society.
• The ECJ view is that it doesn’t have to be compatible with just
democratic society, it has to be compatible with market principles.
• How is it gg to be resolved? We don’t know yet
Note: member states have soguth to and have succeeded in narrowing down the
scope of the ECHR.
(narrowing the) Scope of the Charter
(ECHR used to review the... and something and member states acting within the
thingy of comm. Law? Check)
A good e.g. found in art 51
Article 51: Scope
• 1. The provisions of this Charter are addressed to the institutions and
bodies of the Union with due regard for the principle of subsidiary and to
the Member States only when they are implementing Union law. They shall
therefore respect the rights, observe the principles and promote the
application thereof in accordance with their respective powers.
• 2. This Charter does not establish any new power or task for the
Community or the Union, or modify powers and tasks defined by the
Treaties.
What is probably more worrying is what some member states have managed to
carve out of the charter itself. E.g. the opt outs agreed before Lisbon on UK and
Poland and in Lisbon for the Czech republic
The Charter, Lisbon, and the UK
• Protocol on the Application of the Charter of Fundamental Rights of the
European Union to Poland and to the United Kingdom
• (protocol 30) ‘1. The Charter does not extend the ability of the Court of
Justice of the European Union, or any court or tribunal of Poland or of the
United Kingdom, to find that the laws, regulations or administrative
provisions, practices or action of Poland or of the United Kingdom are
inconsistent with the fundamental rights, freedoms and principles that it
reaffirms.
• So the charter can’t be construed to expand the current
jurisprudence of the ECJ or national courts with respect to these 2
member states
• 2. In particular, and for the avoidance of doubt, nothing in Title IV of
the Charter creates justiciable rights applicable to Poland or the United
Kingdom except in so far as Poland or the United Kingdom has provided
for such rights in its national law’.
• Says nothing in title 4 (right to strike and other social rights)
The Court’s interpretation of the opt-out
• ‘…the Charter cannot be invoked against the United Kingdom or Poland,
which are covered by a derogation the effect of which is that the Charter
will not extend the ability of the Court of Justice or of any court or tribunal
of those two Member States to find that laws, regulations or administrative
provisions, practices or actions are inconsistent with the fundamental
principles it reaffirms’ (ECJ Press release 104/09).
Repealing the HRA 1998 and Lisbon?
Can we repeal the HRA? Technically of course all we need is an act of parliament
and we can have sort of a UK charter of rights. However, no matter what we
repeal and what we adopt instead the fact remains that to stay members of the
EU, the ECHR is part of the system
• TFEU A 6(3) ‘Fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental
Freedoms and as they result from the constitutional traditions common to
the Member States, shall constitute general principles of the Union’s law’
• Article 52(3) of the Charter: accords deference to the jurisprudence on
the interpretation of Convention rights as laid down by the European Court
of Human Rights
• Article 6(2) TFEU (above) - the European Union now has the competence
(duty?) to accede to the European Convention:
