EU Fundamental Rights

The Charter of Fundamental Rights of the European Union was originally proclaimed by the EU institutions in Nice in December 2000. It was, and still is, a politically binding document.

The Charter, with minor modifications, was then supposed to become the legally binding Part II of the Treaty Establishing a Constitution for Europe, signed by the governments of all the member states in October 2004.

The Charter then lapsed along with the Constitutional Treaty.

The 2007 intergovernmental conference agreed to make the Charter legally binding, but leave it outside the text of the amended Treaty on European Union (Treaty of Lisbon). The relevant provision is Article 6, paragraph 1:

“The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000, as adapted [at Strasbourg, on 12 December 2007], which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.”

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Interestingly, the Charter does not confer any new rights on the citizens of the European Union. The rights and principles mentioned are all derived from the Treaties and existing EU legislation, the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms and other international documents.

Materially the Charter means no revolution, no evolution even. Well, what is the point of the exercise?

The Charter brings these different rights and principles together and shapes them into a visible and logical whole. It is a statement of the values the European Union is founded on and set to promote internally and externally.

The Charter is the most up to date human rights document in the world, a source of pride for the citizens of the European Union. It is going to be a source of reference for human rights in the EU and around the world.

Naturally, the Charter would have been more visible if it had become an integral part of the Treaty of Lisbon, but legally it does not matter.

Thursday 29 November the European Parliament gave its assent to the Charter with 534 votes in favour, 85 against and 21 abstentions, clearing the way for the joint proclamation on 12 December 2007 in Strasbourg, one day before the signing of the Lisbon Treaty.

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Despite the mainly symbolic character of the Charter, it is not going to apply to all EU citizens. Both the United Kingdom and Poland opted out. (Protocol No 7 on the application of the Charter of Funadmental Rights to Poland and to the United Kingdom)

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The new Polish government, which needs the support of the morally conservative opposition egged on by the Catholic Bishops, has chosen to let the opt-out stand in order to secure ratification of the Treaty of Lisbon.

The former Polish government wanted no spill-over in the sphere of public morality, family law, as well as the protection of human dignity and respect for human physical and moral integrity (Declaration 51). On the other hand, the then Polish government stressed that it fully respects social and labour rights (Declaration 53).

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In the Britain the House of Commons European Scrutiny Committee has expressed doubts on the effectiveness of the Protocol on the Charter of Fundamental Rights. The Committee does not consider that the Protocol guarantees that the Charter can have no effect on the law of the United Kingdom when it is combined with consideration of the implementation of Union law (Conclusion 73).

The Committee wanted the matters (red lines) raised to be debated on the Floor of the House before the Treaty is signed, and it therefore decided to hold the draft Treaty under scrutiny.

The Parliament in the homeland of Magna Carta is afraid that the future Court of Justice of
the European Union might some day by some back door extend unwanted rights to UK residents. Perhaps the very social and labour rights respected by Poland (and the other member states) are at the centre of UK apprehension.

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The MEPs urged Poland and the UK to make every effort to arrive, after all, at a consensus on the unrestricted applicability of the Charter, but it looks as if the citizens of these two countries have a long wait ahead of them.

Is European mainstream thinking on fundamental rights wrong and Poland and the United Kingdom misunderstood geniuses?


Ralf Grahn


Sources:

European Parliament approves the Charter of Fundamental Rights and urges UK and Poland to apply it; Press release, 29 November 2007; http://www.europarl.europa.eu

Treaty Establishing a Constitution for Europe; (Official Journal of the European Union, 16 December 2004, C 310)

IGC documents; http://www.consilium.europa.eu

House of Commons, European Scrutiny Committee: European Union Intergovernmental Conference: Follow-up report; 27 November 2007; http://www.publications.parliament.uk/pa/cm/cmeuleg.htm