Tuesday, 2 June 2009

Disgraceful opt-out: EU Charter of Fundamental Rights

The European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are said to be common to the member states. The EU shall respect 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, as general principles of Community law.

This is the situation according to Article 6 of the existing Treaty on European Union (TEU).

The amending Treaty of Lisbon would be somewhat more specific about these principles (Article 2 TEU), and it would make the 2000 Charter of Fundamental Rights of the European Union (slightly adapted on 12 December 2007) legally binding. The European Union would also accede to the European Convention, already binding for every member state (Article 6 TEU).

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Poland and the UK

During the negotiations leading to the Lisbon Treaty, two member states decided to break the European consensus on fundamental rights for all EU citizens.

Poland, with Jaroslaw Kaczynski as Prime Minister and Lech Kaczynski as President, feared that the EU Charter would leave Poland open to attacks by a homosexualist lobby. The socially conservative Kaczynski twins demand a Christian and Catholic Europe.

Poland opted out of the Charter, and despite the resounding election defeat of the ultra-conservative Law and Justice Party (PiS), the new Prime Minister Donald Tusk of the winning Civic Platform had no option but to swallow the opt-out in order to secure the needed super-majorities needed for the ratification of the Lisbon Treaty. (President Lech Kaczynski has still not signed the ratification instrument.)

The Labour governments of Tony Blair and Gordon Brown watered down the Lisbon Treaty, both generally and with regard to Britain. Fears of fundamental rights for British people led to a break with the civilized European nations in the form of an opt-out from the EU Charter. In the United Kingdom, a somewhat desultory discussion is taking place about a British Bill of Rights, a national document with less teeth.

The Conservative opposition leader David Cameron goes even further in his rejection of European mainstream values and politics.

What Cameron calls a progressive reform agenda includes a referendum on the Lisbon Treaty (leading to the revocation of the UK’s ratification if the Lisbon Treaty is not yet in force, or the end of Britain’s EU membership if the Lisbon Treaty is in force). In any case, the Tories have promised to renegotiate Britains relationship with Europe, repatriating at least social and employment legislation, requiring unanimous treaty amendments.

Cameron also wants a limited British Bill of Rights, redistributing power from judges.

This could only happen by extending the parliamentary discretion. It would not give power to the people, but potentially give them less legal protection. For this to happen, the coming government has to abolish or weaken the Human Rights Act and to revoke the European Human Rights Convention, taking Britain an additional step away from the community of civilized nations.

We begin to see some profound similarities between the Kaczynski twins and the Cameron-Hague tandem.

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Symbolic value

The EU Charter is a fairly modern (mainly 2000) compilation of EU citizens’ rights, based on the European Convention and various rights under the EU treaties.

It does not create new rights for EU citizens, but the Charter makes them more visible and presents them in a systematic manner.

The Charters main function besides that is that it is an expression of a community of values, with the individual at its centre. Despite the underdeveloped political rights, the importance of the EU Charter is symbolic.

So is the rejection of these values.


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Opt-out Protocol

Despite the legalese, every EU citizen, especially each British and Polish national, should be aware of this hall of shame (OJEU 9.5.2008 C 115/313-314):


PROTOCOL (No 30)
ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE UNITED KINGDOM


THE HIGH CONTRACTING PARTIES,

WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union,

WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself,

WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article,

WHEREAS the Charter contains both rights and principles,

WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character,

WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles,

RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,

NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter,

DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom,

REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter,

REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States,

REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:


Article 1

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.

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.


Article 2

To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognized in the law or practices of Poland or of the United Kingdom.


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These are opt-outs by those who fear legal protection for their citizens and willingly part company with the civilized nations of Europe.



Ralf Grahn