The Charter of Fundamental Rights: the ‘Bible’ of EU citizens’ rights or a voice crying in the wilderness?

Mehmed Yuseinov

LLB Law and European Studies graduate from the University of Portsmouth

Over the last two decades it has been demonstrated in a number of initiatives that human rights issues continue to be central within EU law and policy-making because of the Union’s determination to establish its credentials as an international human rights supporter. However, until the introduction of the Lisbon amendments, the protection of fundamental rights was limited. The Lisbon Treaty provided a new “façade” to the existing fundamental rights regime by resolving the status of the Charter of Fundamental Rights in Article 6 TEU.[i] This article will aim to identify the role and significance of the Charter in the evolution of EU fundamental rights protection. The main focus will be given to the question: is the Charter a fundamentally important “bill of rights” for the EU citizens, or another source of inspiration for political schizophrenia in the Union? This question will be examined by discussing the process by which the Charter was drafted and by considering its aim, scope and nature.

The Charter sets out in a single document the whole range of civil, political, economic and social rights of the Union citizens and all persons residing within the territory of the EU. The initiative for drafting the Charter dates back to the German presidency of the European Council in the first half of 1999. The fact that the starting point of this initiative was in Germany is not surprising. It is worth recalling that in Solange I,[ii]  the German Constitutional Court explicitly held that it would stop reviewing the compatibility of Union law with fundamental rights as long as the Union has its own catalogue of rights. This reaction was particularly as a result of the Court of Justice’s judgment in Costa,[iii] where the Court established the doctrine of supremacy. The academic critique stipulates that the German courts believed that development of the doctrines of direct effect and supremacy could potentially eliminate any national legislative or judicial control over Union law.[iv] Given that in the 1960s the EU was functioning as an economic entity, it was possible as a result of the lack of Treaty provisions that Union law, in some circumstances, could undermine the fundamental rights of individuals protected by the national courts of the Member States.

The Maastricht Treaty resolved the status of fundamental rights by indicating and confirming the EU’s determination towards human rights with the introduction of Article F TEU which stressed that ‘the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, and principles common to Member States.’[v] However, it did not clarify or specify the rights of the EU citizens protected under Union law.[vi] Although the Court had regularly expressed in its judgments that the Union was founded on the rule of law, the problematic pillar structure created by the Maastricht Treaty meant that Union acts and measures were not always subject to judicial review.[vii] One of the shortcomings of the pillar structure was that natural and legal persons were not always able to challenge the legality of any act which affected their Union rights and obligations.[viii]

The Charter initiative revealed Union’s aspirations for a Europe which is not solely about economics, but also about fundamental rights and freedoms. These are an indivisible part of the common European heritage of the Union citizens. The idea of having an EU Bill of Rights was particularly welcomed by those Member States which have constitutional ambitions for the Union.[ix] It also appealed to other Member States, as such development was seen as an effective and sensible tactic not only to ‘bring the EU closer to its citizens, but also gain support for the Union.’[x] As underlined by the President of the Commission in 2000, Romano Prodi, the role of the Charter was to fill this gap in order to make more explicit the EU citizens’ fundamental rights already enjoyed at a European level.[xi] Thus, the goal of the German Presidency was to launch an initiative which could create a high profile move as far as fundamental rights and the EU were concerned.[xii] However, such a move should neither introduce new policy changes, nor alter anything significant within the existing legal, political and constitutional framework.[xiii] All these developments imply that fundamental rights have an intrinsic character.  Human rights can operate as a ‘double-edged sword’,[xiv]  on the one hand, they can legitimise a political system thus creating feelings of a political union. On the other hand, the nature of rights might also lead to a disagreement if the Union had moved to include rights which fall within the competence of the Member States such as divorce, abortion and surrogacy.[xv]

The Charter was proclaimed as a Declaration in Nice on 7 December 2000. Since the beginning of the Charter initiative, the representatives of the EU repeatedly promoted the proposal of the EU’s bill of rights as a process which was aimed at ‘the peoples of Europe’. However, this was not a fully participative process[xvi]  because the members of the Convention[xvii] were only representatives of the national and European institutions and the members of the civil society were excluded from formal participation in the drafting process.

The Charter was adopted by the EU institutions but one very important question was left open: what was its legal status? Given that it was proclaimed as a Declaration,[xviii] it did not have a legally binding effect on the EU institutions and the Member States. However, as demonstrated by the jurisprudence of the CJEU, speeches and reports of the EU institutions and the EU Ombudsman, the Charter did have special significance. In 2002, Söderman criticized the failure of the EU institutions to observe the rights enshrined in the Charter.[xix]  His speech indicated that special importance is attached to the role of the Charter because the failure to respect fundamental rights could lead to ‘a further step on the road of mistrust between the EU and its citizens’.[xx] In addition, the Advocates General of the Court of Justice and the General Court referred in several cases[xxi] to the Charter rights as a reaffirmation of the general principles of law common to Member States.[xxii] All these pre-Lisbon judgments reflect that the Charter was acting only as an inspirational source in determining the general principles.[xxiii] They also acknowledge that during the pre-Lisbon period, the Charter was only an authoritative statement that contained the rights which were fundamental to the EU.[xxiv]

Following the coming into force of the Lisbon Treaty in 2009, the legal status of the Charter was finally resolved. Article 6(1) TEU provides that the Charter has ‘the same legal value as the Treaties’. The Charter’s scope of application is defined in Article 51[xxv] which underlines that its ‘provisions (…) are addressed to the EU institution (…) and to Member States only when they are implementing Union law.‘ Article 51(2) particularly raised concerns in the UK, Poland and the Czech Republic. These Member States thought that it was not clear enough that the Charter did not extend the competences of the Union. The EU thus repeated this in Declaration No 1.[xxvi]

‘Schizophrenic reactions’ were particularly observed in Ireland and France[xxvii] with regard to the case of abortion and the interpretation of Article 2(1) of the Charter which states that ‘everyone has the right to life’.[xxviii] This provision is based on the first paragraph of Article 2(1) of the European Convention on Human Rights (ECHR).[xxix] The case of abortion was hotly debated in both Member States. In France, it was believed that the Charter could lead to the prohibition of abortion. In Ireland, it was speculated that the Charter could legalise abortion. The reactions in France and Ireland are ironic and are clearly a product of political speculation. This is evidenced if Article 52(3) is observed. It explicitly states that ‘[i]n so far as the Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning of those rights shall be the same as laid down by the said Convention.’ [xxx]

If the application and interpretation of Article 2 of the Charter is the same as the one defined in the ECHR then it is evident that these Member States’ reactions were unnecessary. The conclusions of the Council of Europe’s Human Rights Commission in 1980 suggested that neither the notion of everyone nor the notion of life was defined in the ECHR.[xxxi] The European Court of Human Right’s judgment in X v UK[xxxii] provides that the ECHR does not impede the national legislation from authorizing such acts. In all these debates, France and Ireland clearly failed to take into account Article 51 of the Charter[xxxiii] which clarifies that the provisions of the Charter are addressed to the EU institutions and Member States only when they are implementing Union law. Abortion is clearly a matter of national competence and it is not a right defined within the context of Union law. Thus, it falls within the margin of appreciation of the Member States and it should be concluded that the EU has no competence in this area either under the previous Treaty provisions or the current amendments introduced by the Lisbon Treaty.

It is concluded that the Charter did not create any new rights. This is why speculations in the Member States were needless. Those rights have already been known to the Member States as they result from their ‘common constitutional traditions’.[xxxiv] The Charter is a fundamental development under the current Treaty framework not only for the measures of the Member States when they are implementing Union law, but also for all the acts and measures of the Union institutions .