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).

***

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.

***

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.


***

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.


***

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

Monitoring the EU Charter of Fundamental Rights

The first Convention prepared the Charter of Fungamental Rights of the European Union, and it was solemnly adopted as politically binding at the European Council in Nice, in December 2000.

Later it was incorporated into the Treaty establishing a Constitution for Europe, as Part II, and published in the Official Journal of the European Union (OJEU) 16.12.2004 C 310.

When the ratification processes of the Constitutional Treaty had petered out, the Treaty of Lisbon proposed to make the Charter legally binding, but the text was published separately, OJEU 14.12.2007 C 303/1.

Cf. Article 6 of the amended Treaty on European Union, OJEU 9.5.2008 C 115/19.

In other words, the EU Charter of Fundamental Rights enters into force if the Lisbon Treaty does, but one should bear in mind that the United Kingdom and Poland opted out of the Charter. (The UK has embarked upon a disconnected exercise to craft a national Bill of Rights.)


The differences between the versions are small, so if you have no need for a certain version, it is convenient to use the latest one.

***

Monitoring

The Commission, which drafts legislative proposals, systematically check them against fundamental rights.

The Commission has now published an appraisal of its monitoring activities: The Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter of Fundamental Rights (Brussels, 29.4.2009 COM(2009) 205 final).



The Commission stresses the growing importance of fundamental rights issues in the area of justice, freedom and security (page 3), and it names the so called asylum package as a case in point. The obligations are not only procedural, but substantive as well.

The Commission then goes on to discuss improvements to the monitoring process.

The Commission concludes by underlining the need to foster a fundamental rights culture and that the respect for fundamental rights must be a common goal of all the institutions involved in the legislative process.



Ralf Grahn

Gordon Brown’s European mainstream

“So I stand here, proud to be British and proud to be European, representing a country that does not see itself as an island adrift from Europe, but as a country at the centre of Europe, not in Europe’s slip-stream but in Europe’s mainstream.”

Thus spoke UK prime minister Gordon Brown to the European Parliament on 24 March 2009.

***

Europe’s mainstream?

Recent UK polls show very little recognition of a country where the population sees itself as in Europe’s mainstream or desiring to become part of it.

Even if Brown equated country and government, the statement is far from convincing.

***

The UK government (not least Brown himself) has fought an ongoing battle to thwart or limit treaty reform aimed at making the European Union more effective, democratic and solidary, and British government representatives miss few opportunities to hamper progress during daily Council work.

Currently the United Kingdom has opt-outs from two crucial areas of EU policy: the Schengen agreement abolishing border controls and the third stage of economic and monetary union (the euro).

Under the Treaty of Lisbon, the British opt-outs would be extended to two new areas: the EU Charter of Fundamental Rights as well as police and judicial cooperation in criminal matters.

In each case the United Kingdom belongs to a fraction of EU member states outside the common framework (although only 16 have made it into the Eurozone as yet).

If Brown rejects the idea of his country being in the slip-stream of Europe, how about describing it as forming a counter-current to progress?


Ralf Grahn

EU reintroducing the death penalty?

Are these the words you would associate with an organisation bent on reintroducing the death penalty?

Here is the text from the Council of the European Union:

“COUNCIL OF THE EUROPEAN UNION
EN
Brussels, 25 April 2008
8767/08 (Presse 110)
P 57

Declaration by the Presidency on behalf of the EU concerning the death penalty in the USA

On September 11, 2007 the Ambassadors of the European Union in Washington appealed to the Governor of Kentucky, the Honorable Ernie Fletcher to spare the life of Mr Ralph Baze, whose execution would have broken a de facto moratorium that was in place within the State of Kentucky since 1999.

On 16 April 2008, the United States Supreme Court issued a ruling in Mr Baze's case which will allow the continued use of lethal injection as practiced by the State of Kentucky. The European Union notes with disappointment the United State Supreme Court's decision in this case and renews its call on Governor Fletcher to commute the
sentence of Mr. Baze.

The EU reiterates its longstanding position against the death penalty in all circumstances and accordingly strives to achieve its universal abolition, seeking a global moratorium on the death penalty as the first step. We believe that the elimination of the death penalty is fundamental to the protection of human dignity, and to the progressive development of human rights.

The EU recalls that on 18 December 2007, the United Nations General Assembly adopted a resolution on a Moratorium on the use of the death penalty, which explicitly calls upon all States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing the death penalty

The EU recalls that any miscarriage or failure of justice in the application of capital punishment represents an irreparable and irreversible loss of human life. No legal system is immune from mistakes and there is no reliable evidence that the death penalty provides added value in terms of deterrence.

In light of this US Supreme Court decision, we strongly encourage the continuation of the de facto moratorium in place within the United States allowing the ongoing debate on the complex issues involved to be thoroughly deliberated.

The Candidate Countries Turkey, Croatia* and the former Yugoslav Republic of Macedonia*, the Countries of the Stabilisation and Association Process and potential candidates Bosnia and Herzegovina, Montenegro, Serbia, and the EFTA countries Iceland, Liechtenstein and Norway, members of the European Economic Area, as well as Ukraine, the Republic of Moldova and Azerbaijan align themselves with this declaration.

* Croatia and the former Yugoslav Republic of Macedonia continue to be part of the
Stabilisation and Association Process.”

***

The pan-European Council of Europe has pioneered the work to abolish the death penalty, and membership in the Council of Europe can be seen as part of the admission criteria for membership in the European Union. The goal has been to abolish the death penalty once and for all, but the work has advanced in stages.

First came the abolition of the death penalty in general, but left the possibility for member states to use it in war or when war was imminent.

***

The EU Charter of Human Rights was prepared by the first EU Convention led by Roman Herzog, following the conclusions of the European Council in Cologne in 1999. The Charter was declared politically binding by the EU institutions in Nice in December 2000.

***

The Council of Europe Protocol number 13 on the abolition of the death penalty in all circumstances was signed 3 May 2002, and it entered into force 1 July 2003 after ten ratifications, just days before the European Convention published its final text of the draft Constitution. Anyway, the European Convention adopted the 2000 Charter and the Explanations with mainly technical modifications.

The Treaty establishing a Constitution for Europe took over the Charter inserted into the Treaty (as Part II), with technical adjustments and some limitations concerning its scope. Many of the EU member states ratified the Council of Europe Protocol 13 later, the latest entry into force seems to be France, 1 February 2008.

***

Today, there are still three EU members which have signed, but not ratified the Protocol numbered 13 on the abolition under all circumstances: Italy, Poland and Spain.

In other words, it has not been possible for the EU to update its reference to the European Convention on Human Rights or the Explanations (basically by the first European Union Convention in 2000), even in the context of the Treaty of Lisbon, because it would not have been covered by all members by the way of the additions (protocols) to the Human Rights Convention of the Council of Europe.

***

But if every single member state of the European Union is not yet legally bound by the Protocol 13 on the total abolition of capital punishment, it does not mean that the European Union is about to make a U-turn and start reintroducing the death penalty.

***

To conclude: 24 out of 27 member states are individually bound by their commitments to the European Human Rights Convention. There has been no opportunity to update the EU Charter or its Explanations. The EU as an organisation is dead set against the death penalty. The press release above is only the latest manifestation of the political will of the European Union.

To allege that the European Union has, on purpose, left a backdoor open in the Constitutional Treaty or the Treaty of Lisbon with the intent to reintroduce the death penalty, is contrary to facts and unsupported in law.


Ralf Grahn


P.S. Correction, 25 April 2008: There seems to be a fourth laggard among the EU member states in ratifying Protocol 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances: Latvia. - So 23 have ratified and four are still lagging behind. I hope that I got it right this time around. :-)

EU against the death penalty

Is the European Union going to re-introduce the death penalty, as claimed as gospel truth by at least Wonko’s World, Why England Needs A Parliament, John Trenchard, PJC Journal and by now a host of other blogs read by thousands of impressionable readers?

None of the above seems to have done any research on their own, but they seem to have been more than willing to publish as a fact that the European Union ‘in a footnote of a footnote’ is making the death penalty possible.

By the look of it, the likely ultimate source is a June 2005 interview with Professor Karl Albrecht Schachtschneider in German, with the double headline ‘Europa nicht als Groβstaat, sondern als “Republik der Republiken” organiseren – Interview mit Prof. Karl Albrecht Schachtschneider über die EU-Verfassung’, posted on the web pages of BüSo, Bürgerrechtsbewegung Solidarität.

The interview contains a heading ‘Wiederkehr des Todesstrafe?’ (Return of the death penalty?), and Schachtschneider’s answer that Article II-62 of the Constitutional Treaty (and the Charter of Fundamental Rights) is untrue. His gives the explanations relating to the Charter as his reasons for two claims: 1) that there is no Constitutional protection of the right to life anymore in the case of war or imminent danger of war, and 2) that the death penalty is possible and will come.

***

Let us take a look at the EU position on the death penalty. Here is the political answer, the one which came out on top when I googled ‘EU death penalty’. The Delegation of the European Commission to the USA has a web page dedicated to ‘EU policy & action on the death penalty’. The following categorical statement can be found there:

“The European Union (EU) is opposed to the death penalty in all cases and has consistently espoused its universal abolition, working towards this goal.”

The web pages contain 73 links to various policy documents, action in the United Nations, action on US death row cases, European and international agreements and policy makers as well as archived documents relating to earlier years.

See for yourself:

http://www.eurunion.org/legislat/deathpenalty/deathpenhome.htm

Fairly conclusive for a normal person, one would think: The European Union is against capital punishment.

***

The motives and working ethics of bloggers like the above are such that I do not want to begin dissecting them.

But how is it possible that the EU institutions and the governments of the member states let such wildfires start and spread without actively, visibly and instantly rebutting malicious rumours devoid of factual basis?


Ralf Grahn

Isolationist UK

Yesterday I wrote about the new core areas of European integration, with new member states steadily advancing into the growing Schengen area, the expanding Eurozone and the shared values of the Charter of Fundamental Rights of the European Union, as well as most of them being dual EU and NATO members.

The more striking contrasts between old and new members are gradually disappearing, and the core groups are growing.

***

The coin has a flip side. The old member states staying aloof from these areas of deeper integration are gradually marginalising themselves.

Rickety rules for unanimous decision making give ample scope for obstructionist tactics, but blocking decisions and hailing aborted deals as success stories is hardly a constructive line to take. It is hard to believe that isolationist policies are going to win friends and help to influence people within the European Union in the long run.

***

One example of the political price self-imposed marginalisation may entail, came when Valéry Giscard d’Estaing answered a question about the new President of the European Council on his blog. VGE emphasised that the person should be selected with care, and he went on to say that he or she should come from a country which belongs to the Schengen area and the Eurozone and adheres to the Charter.

Any British candidate (including Tony Blair) was eliminated 3 to 0.

Of course, VGE is not part of the European Council now, but I imagine that his line of reasoning strikes a note with many European leaders.

***

No wonder that the new Danish government wants to offer its people a chance to abolish the peculiar opt-outs of the country.

Not surprisingly the new Polish government wants to repair the damages caused by its predecessor.

***

The United Kingdom has shown few such signs. These last months Great Britain seems to have drifted farther out into the Atlantic, without getting closer to the United States. The UK used the negative referendums on the Constitution for Europe for domestic purposes, having little to do with the reasons for failure in France and the Netherlands.

The UK launched new demands to generally weaken the treaty it had already signed in 2004 and to introduce non negotiable specific “red lines”. Once again, the European partners showed flexibility.

***

Prime Minister Gordon Brown has not visited the European institutions specifically, something Chancellor Angela Merkel and President Nicolas Sarkozy did instantly after being installed.

The present European Commission is fairly pro-business, pro-globalisation and pro-enlargement. As such it could be an important ally for Britain, but nurturing constructive alliances does not seem to top the British agenda.

Brown has said little about the European Union, except that it should have a more global view and stop reforming its institutions. By signing the Treaty of Lisbon but missing the ceremony, Brown managed to harvest scorn from both anti-EU and pro-EU quarters. This snub to Britain’s oldest ally can have done little to enhance Brown’s prestige among European leaders or further British interests.

There are few indications that Brown’s grumpiness has placated the rabid domestic EU detractors, egged on by an imaginative tabloid press. (Calling this crowd eurosceptic is a euphemism.)

Failing to communicate clearly, why Britain’s interests lie within Europe, is a long term legacy of successive British governments, but Gordon Brown has let the situation worsen.

The Tory opposition has done its utmost to make Gordon Brown look like a real statesman, painting itself into a corner on European affairs, should it win a majority with an obligation to pursue real British interests.


***

Perhaps we have to admit that Schengen, the euro and shared values are hopeless causes in Britain for domestic reasons, in spite of the negative consequences of being an outsider. There is one area, crucial for the future, where the United Kingdom could make a signal contribution, if it wanted to: defence.

The UK is a leading member of NATO and it has the best military capabilities among the EU countries. Here it is more difficult to see domestic reasons for the lack of progress. It rather looks like the umbilical cord tying Britain to the USA is the main reason for the failure to advance decisively to build a common European defence.

In the long run there seem to be few options to a common European defence (built on democratic accountability) in conjunction with the transatlantic ties offered by the intergovernmental NATO alliance. In these questions President Sarkozy seems to be somewhat closer to the truth.

As it is, Britain is decidedly an EU outsider, a leader of steadily shrinking groups of like-minded self-marginalising powers.

***

The regional parliament in Scotland has demanded a British referendum on the Lisbon Treaty. This is only an opinion, since ratification is to be decided by the UK Parliament. But it shows that the pressure is growing.

At the same time, Labour is sinking like a stone in opinion polls. This might lead to Brown’s choice of parliamentary ratification being defeated, by the parliament most keen to be seen as the hallmark of parliamentary sovereignty. Hardly anyone believes that a referendum on an EU Treaty (regardless of content) can be won in Britain.

If the ratification process fails in Britain, it is hard to believe that EU leaders, fed up with 35 years of British obstructionism, would embark on a new round of negotiations to bring the UK on board.

A more probable scenario would be that the rest of the European Union, or at least the more willing member states, would re-establish the EU and upgrade its capacity at the same time.

The end result might come as a blessing for secessionist opinion, but it is hard to see how British long term interests would be served by reverting to isolationist policies.

For Great Britain insularity, isolation and exclusion may soon be more than mere mindsets, unless Scotland and Wales decide on a change of Union, leaving England behind.


Ralf Grahn

EU Treaty of Lisbon: Fundamental Rights

Slowly but surely the people, the citizens of the European Union, emerge with legal rights and obligations.

The Charter of Fundamental Rights of the European Union was prepared by the first broadly based Convention, encompassing members of the European Parliament and national parliaments. At the summit in Nice, in December 2000, the member states were not yet unanimously ready to incorporate the Charter into the Treaty of Nice.

The Charter was jointly proclaimed by the European Parliament, the Council and the European Commission on 7 December 2000, and it became politically but not legally binding (OJ 18.12.2000, C 364/1).

The second Convention incorporated the Charter into the Treaty establishing a Constitution for Europe signed in Rome on 29 October 2004 (OJ 16.12.2004, C 310/1), where it became Part II.

Since the Constitutional Treaty was not ratified by all member states, the Charter has continued to live on as a solemn political proclamation.

***

The intergovernmental conference (IGC 2007) decided, in line with its June mandate, to make the Charter legally binding without incorporating the text into the Reform Treaty, now called the Treaty of Lisbon.

One day before the signing of the Treaty of Lisbon, the Charter was solemnly proclaimed in Strasbourg by the European Parliament, the Council and the European Commission. The Charter of Fundamental Rights of the European Union has been published in the Official Journal of the European Union (OJ 14.12.2007, C 303/1) with the Explanations relating to the Charter of Fundamental Rights (C 303/17).

***

Since the solemn proclamation ceremony in Strasbourg was marred by unseemly protests in the European Parliament, it is appropriate to mention that the 27 member states’ governments and the European Commission have acted unanimously, and that the groupings against citizens’ rights had suffered a resounding defeat, 534 MEPs voting in favour of the Charter, 85 against and 21 abstentions.

This disgraceful tumult against the rights of EU citizens has been justly reprimanded, although friends of loutish behaviour have done their utmost to turn their soul buddies into champions of free speech for trying to disrupt a solemn and, for most Europeans, joyful occasion.

***

This is not the place for detailed analysis of the Charter, but a brief look at the headlines of the Articles gives an overview of the freedoms, rights and principles it contains:


TITLE I DIGNITY

Human dignity
Right to life
Right to the integrity of the person
Prohibition of torture and inhuman or degrading treatment or punishment
Prohibition of slavery and forced labour


TITLE II FREEDOMS

Right to liberty and security
Respect for private and family life
Protection of personal data
Right to marry and right to found a family
Freedom of thought, conscience and religion
Freedom of expression and information
Freedom of assembly and of association
Freedom of the arts and sciences
Right to education
Freedom to choose an occupation and right to engage in work
Freedom to conduct a business
Right to property
Right to asylum
Protection in the event of removal, expulsion or extradition


TITLE III EQUALITY

Equality before the law
Non-discrimination
Cultural, religious and linguistic diversity
Equality between women and men
The rights of the child
The rights of the elderly
Integration of persons with disabilities


TITLE IV SOLIDARITY

Workers’ right to information and consultation within the undertaking
Right of collective bargaining and action
Right of access to placement services
Protection in the event of unjustified dismissal
Fair and just working conditions
Prohibition of child labour and protection of young people at work
Family and professional life
Social security and social assistance
Health care
Access to services of general economic interest
Environmental protection
Consumer protection


TITLE V CITIZENS’ RIGHTS

Right to vote and to stand as a candidate at the elections to the European Parliament
Right to vote and to stand as a candidate at municipal elections
Right to good administration
Right of access to documents
European Ombudsman
Right to petition
Freedom of movement and of residence
Diplomatic and consular protection


TITLE VI JUSTICE

Right to an effective remedy and to a fair trial
Presumption of innocence and right of defence
Principles of legality and proportionality of criminal offences and penalties
Right not to be tried or punished twice in criminal proceedings for the same criminal offence


TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER

Field of application
Scope and interpretation of rights and principles
Level of protection
Prohibition of abuse of rights

***

Why is the Charter important?

Indeed, the Charter contains no new rights. They all exist in the EU Treaties, in the the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe) and various other human rights documents.

But bringing these various rights together, and making them visible for the citizens of the Union, is a manifestation of shared European values. The result is the most up to date legally binding human rights document on earth, and it offers the citizens a basis for scrutiny of EU institutions and member states when they implement European Union law.

The political rights of the Union’s citizens are still underdeveloped, but otherwise the Charter is a step towards recognition of the interests of the citizens as the foundation for the European project.
The Charter is a source of pride for the EU citizens, and it is going to be a source of reference for human rights in the world.

Naturally, the Charter would have been more visible if it had become a part of the Lisbon Treaty (and of future consolidated versions of the Treaty).

***

The European Union is given leave to accede to the European Convention for the Protection of Humans Rights and Fundamental Freedoms.

The constitutional traditions common to the Member States form part of the general principles of European Union law.

***

The Treaty of Lisbon (Official Journal of the European Union 17.12.2007, C 306/1) repeals Articles 4 and 5 of the Treaty on European Union (latest consolidated version OJ 29.12.2006, C 321 E/1). Consequently, the following Article is numbered 6, the present one being replaced by the following

Article 6

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union 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.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

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.

***

Unanimity among the member states’ governments has come at a price. The unity of EU law is diminished by the opt-outs of the governments of the United Kingdom and Poland.

See Protocol Number 7 on the application of the Charter of Fundamental Rights to Poland and the United Kingdom, as well as the Polish declarations 51 and 53 annexed to the Treaty of Lisbon.

The new Polish government has not been able to relinquish the opt-out, since it needs the support of the morally conservative opposition to ratify the Treaty of Lisbon. But the new government wants Poland to become a constructive force in EU politics, so a future renouncement of the opt-out seems to be hanging in the air.

That would leave Great Britain as the only member state fundamentally out of tune with mainstream European values on human rights.


Ralf Grahn

EU core areas

Quite a lot has been written about it already. Yesterday nine new countries, Estonia, the Czech Republic, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia became part of the Schengen area. Internal controls at land and sea borders were lifted, and the airports will follow shortly. The people of these new member states became equal EU citizens in an area of free movement consisting of 24 countries.

A year ago Slovenia was the first new member state to introduce the euro currency, and at the beginning of 2008 the country will be the first of the new members at the helm of the European Union, responsible for the Council presidency. At the same time Malta and Cyprus are going to become eurozone countries. New candidates are striving to achieve the criteria.

The Charter of fundamental rights of the European Union (OJ 14 December 2007, C 303/1) is set to become legally binding along with the Treaty of Lisbon (OJ 17 December 2007, C 306/1). This manifestation of shared European values is going to unite all but two member states, Poland and Great Britain.

The new Polish government looks set to become a constructive force within the European Union. It has not been able to renounce the opt-out from the Charter yet, because it needs the support of the populist and moral conservative opposition to secure ratification of the Treaty of Lisbon. But in due course the values of the Charter may join all the countries save one.

Ten out of twelve new member states are already dual EU and NATO members. Only Cyprus and Malta joined the group of militarily uncommitted (Austria, Finland, Ireland and Sweden). Sooner or later the European Union should be able to establish a common defence (democratically accountable) strengthened by the intergovernmental transatlantic NATO tie.

***

Increasingly the core areas of deeper European integration – Schengen, the euro, the Charter, and prospectively defence – attract new members. Ever more the advance groups are made up of both old and new member states. Progressively the distinctions between old and new are erased.


Ralf Grahn


Sources:

European Commission: Enlargement of the Schengen area: achieving the European goal of free movement of persons; Press release, 20 december 2007; http://europa.eu

European Commission: Background on Schengen enlargement; Memo, 20 December 2007; http://europa.eu

European Commission: Sixth report on practical preparations for the euro: countdown for Cyprus and Malta; Press release, 27 November 2007; http://europa.eu

Nato: NATO Member Countries; http://www.nato.int

EU Treaty of Lisbon published

Thanks to the EU Law Blog I noticed that the Charter of Fundamental Rights of the European Union had been published sooner than I had thought, on 14 December (2007/C 303/1) along with the explanations.

Official publication of The Lisbon Treaty too, was swifter than anticipated. On 17 December (2007/C 306/01) we find the headline: Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007.

The Treaty has been partitioned into quite a few files. My basic computer skills were not up to downloading the whole thing at a go, and if you are no better, some patience may be called for.

Sadly, the published version is no consolidation. You are going to find just the amendments.


Ralf Grahn


Source:

EU Law Blog: Lisbon Treaty and Charter Published; December 17, 2007; http://eulaw.typepad.com

Anti-Europeans showed their true ilk

The anti-European MEPs who launched their demonstration in the European Parliament yesterday really showed the stuff they are made of.

Trying to disrupt the proclamation of the EU Charter of Fundamental Rights, endorsed by a vast majority of the Parliament, as well as the governments of the Member States and the European Commission, is in extremely bad taste.

Euphemistically calling themselves Eurosceptics, they have nothing philosophical about their manners or aims. Loutish behaviour seems to be pack and parcel with their anti-European ilk.

Choosing the proclamation of the Charter of Fundamental Rights as the setting for their disruptive and childish behaviour must have emanated from a highly insular kind of genius.

Largely symbolic, the Charter is one of the signs that the citizens of the European Union were not totally forgotten in the process leading up to the Treaty of Lisbon.

The Charter embodies, in a coherent manner, freedoms as well as political, economic and social rights and principles concerning citizens. The Charter is the most comprehensive and up to date codification of legally binding human rights on this planet.

It is not the fault of 25 Member States that Poland and the United Kingdom chose to opt out of the Charter. There must be interesting reasons for these two countries to disenfranchise their own citizens, but the new Polish government seems to have understood that these reasons are unconvincing in the long run.

And Great Britain? But that is a story for grown-ups, said Kipling.


Ralf Grahn

Who is the best anti-European?

The Kosmopolit blog looked at the relative merits of Jaroslaw Kaczynski, Gordon Brown and Nicolas Sarkozy on blocking or undermining the European Union: The quiet, the loud and the hyperactive: Who is the best anti-European?

Yesterday the Charter of Fundamental Rights of the European Union was proclaimed in Strasbourg and today we are going to witness the signing ceremony of the Treaty of Lisbon.

We should be overjoyed, shouldn’t we? Why these doubting questions from Kosmopolit?

***

I posted a comment, which I am going to repeat here:

Who will be successful in blocking decisions?

Your question is sadly revealing of the mindset of national leaders (feudal lords) trying to insulate Europe against success in the world and to ensure that intergovernmentalism is enshrined instead of democratic accountability in foreign, security and defence policies.

The Treaty of Lisbon, to be signed later today, separately by Mr Brown, is no quantum leap for the security, prosperity and democratic rights of EU citizens.

The bickering leaders may be tired of institutional reform, but they have left the European project in a state of infirmity and disarray.

Europe is, in a way, the “old Continent”, but must it also be decrepit?

Let other politicians, think-tanks, researchers, journalists, NGOs and democratically inclined citizens of the European Union keep up the pressure, in spite of our weary leaders.

***

It is impossible to speak with one voice in the world, if one voice is all it takes in the European Council or Council to block decision-making and when the individual states safeguard their freedom to act independently on the international stage.

It is inconsistent to enshrine values of openness, transparency and democracy, when back-room dealing between state governments leave the European Parliament and the Union’s citizens as mere spectators.

Let it be said, the Charter of Fundamental Rights and the Treaty of Lisbon are improvements on the Nice Treaty, but they fall far short of the effective, democratic and solidary European Union the collective interests of its citizens call for.


Ralf Grahn


Source:

Kosmopolit: The quiet, the loud and the hyperactive: Who is the best anti-European? 13 December 2007; http://kosmopolit.wordpress.com

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.”

***

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.

***

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)

***

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).

***

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.

***

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

Save the Charter, says EP

The Constitutional Affairs Committee of the European Parliament wants an Intergovernmental Conference to convene soon to reach a settlement on institutional reforms for the European Union.

According to a press release from the EP, the committee said that it would reject any outcome which, if compared to the Constitutional Treaty, would lead to a diminution of the protection of the rights of citizens or to less democracy, transparency and efficiency in the functioning of the Union.

The committee called for the preservation of the basic principles of Part I of the Constitutional Treaty in the future agreement on the institutional reforms.

The Charter of Fundamental Rights, whose inclusion in the new treaty is still being debated by governments, is one of the reforms the committee deems indispensable.

In addition, the report lists the recognition of the Union’s values, the clarification of respective competencies at national and EU level, the respect of subsidiarity and an increased involvement of citizens in the EU’s political life among the crucial achievements of the draft Constitution to be upheld.

The plenary is going to debate and vote on the report on 5 and 6 June 2007.

The citizens of the Union have at least some friends in high places, namely in the European Parliament, but it is hard to know how much of a consolation that is going to be, when the governments of the member states start wrangling in earnest behind closed doors, each according to its perceived national interest.

Ralf Grahn

Chucking out the Charter?

European leaders try to reach agreement on a restricted treaty revision, which would improve the decision making of the European Union.

We seem to be heading towards a more minimalist text than the Treaty Establishing a Constitution for Europe, already agreed between all the 27 member states.

Most reports on the ongoing discussions the Charter of Fundamental Rights of the Union is going to be chucked out of the new treaty.

But why on earth do the rights of individual Europeans have to be among the first victims, as now looks highly probable?

The United Kingdom, once again, as well as some other governments even expend prestige and energy in order to restrict the freedoms and rights of their own and other European citizens. How can this be sold to reflecting parts of the public?

Ralf Grahn

Fundamental rights monitoring: European Parliament

From modest beginnings to a better future has been the history of the Assembly. Today the European Parliament is directly elected by EU citizens and a real co-legislator in many areas of European Community law.

Since the European Parliament represents us Europeans, it is only natural that it shows concern for our fundamental rights.

One example of this primary task is the European Parliament resolution of 15 March 2007 on compliance with the Charter of Fundamental Rights in the Commission’s legislative proposals. The resolution was based on a report by the Committee on Civil Liberties, Justice and Home Affairs (rapporteur: Johannes Voggenhuber; Green, Austria).

The EP notes that a genuine “fundamental rights culture” should include the Council and decisions in the field of intergovernmental cooperation.

The EP wants to establish the Charter of Fundamental Rights as legally binding.

The EP calls on the Commission to create a specific category entitled ‘Effects on fundamental rights’ in its impact assessments and it calls on the Commission to make more extensive use of independent external human rights bodies.

The EP contemplates the possibility to amend its own procedures to make its own monitoring more effective.

The Parliament calls on the Council to strengthen the systematic monitoring of fundamental rights also in areas covered by intergovernmental cooperation, to publish the results and likewise to secure the support of the Fundamental Rights Agency.

The European Parliament requests Member State parliaments, in particular in the fields of police and judicial cooperation and the common foreign and security policy, to verify the compatibility of all decisions and measures with the Charter of Fundamental Rights.

The European Parliament’s and the individual citizen’s viewpoint are more or less the same: more transparency, better protection of individuals’ rights and, especially, shedding light on the murkier corners of intergovernmental cooperation, which remain outside the scope of parliamentary scrutiny and judicial review.

Ralf Grahn

Fundamental rights monitoring: Commission

Fundamental rights as shared values of the European Union and as solemn declarations are all very well, but how about their practical effects?

There is, clearly, rising awareness within the EU institutions of the EU Charter of Fundamental Rights.

The Commission of the European Communities monitors compliance of its legislative proposals with fundamental rights according to the principles the Commission adopted in its 27 April 2005 Communication: Compliance with the Charter of Fundamental Rights in Commission legislative proposals – Methodology for systematic and rigorous monitoring, COM(2005) 172 final.

The Commission has integrated fundamental rights scrutiny into the pre-existing instrument of impact assessment, which looks at economic, social and environmental impacts of proposals.

Proposals with a special link with fundamental rights have a special recital, which formally state that they respect fundamental rights.

Further reasons may be given in an explanatory memorandum which accompanies the proposal.

Generally, the Commission guidelines have been welcomed, but many human rights activists have pointed out that fundamental rights ought to be made a fourth category (heading) in impact assessments, since economic, social or environmental aspects do not necessarily catch these aspects.

The interested reader can find an intelligent discussion in the House of Lords European Union Committee’s report: Human Rights Proofing EU Legislation (16th Report of Session 2005-06).

Ralf Grahn

EU Charter intro

The Charter of Fundamental Rights of the European Union (2000) brings together, in up-to-date form, the various international and European human rights conventions.

The Charter encompasses freedoms as well as economic and social rights. Its 54 articles form the backbone of individuals’ rights within the European Union, and the Community institutions pay increasing attention to the compatibility of all new legislation with the provisions of the Charter.

The Court of Justice has affirmed that the Charter may be invoked before the Court.

A quick overview of the headings gives an impression of the scope of the Charter:



CHAPTER I DIGNITY

Article 1 Human dignity
Article 2 Right to life
Article 3 Right to the integrity of the person
Article 4 Prohibition of torture and inhuman or degrading treatment or punishment
Article 5 Prohibition of slavery and forced labour



CHAPTER II FREEDOMS

Article 6 Right to liberty and security
Article 7 Respect for private and family life
Article 8 Protection of personal data
Article 9 Right to marry and right to found a family
Article 10 Freedom of thought, conscience and religion
Article 11 Freedom of expression and information
Article 12 Freedom of assembly and of association
Article 13 Freedom of the arts and sciences
Article 14 Right to education
Article 15 Freedom to choose an occupation and right to engage in work
Article 16 Freedom to conduct a business
Article 17 Right to property
Article 18 Right to asylum
Article 19 Protection in the event of removal, expulsion or extradition



CHAPTER III EQUALITY

Article 20 Equality before the law
Article 21 Non-discrimination
Article 22 Cultural, religious and linguistic diversity
Article 23 Equality between men and women
Article 24 The rights of the child
Article 25 The rights of the elderly
Article 26 Integration of persons with disabilities



CHAPTER IV SOLIDARITY

Article 27 Workers’ rights to information and consultation within the undertaking
Article 28 Right of collective bargaining and action
Article 29 Right of access to placement services
Article 30 Protection in the event of unjustified dismissal
Article 31 Fair and just working conditions
Article 32 Prohibition of child labour and protection of young people at work
Article 33 Family and professional life
Article 34 Social security and social assistance
Article 35 Health care
Article 36 Access to services of general economic interest
Article 37 Environmental protection
Article 38 Consumer protection



CHAPTER V CITIZENS’ RIGHTS

Article 39 Right to vote and to stand as a candidate at elections to the European Parliament
Article 40 Right to vote and to stand as a candidate at municipal elections
Article 41 Right to good administration
Article 42 Right of access to documents
Article 43 Ombudsman
Article 44 Right to petition
Article 45 Freedom of movement and of residence
Article 46 Diplomatic and consular protection



CHAPTER VI JUSTICE

Article 47 Right to an effective remedy and to a fair trial
Article 48 Presumption of innocence and right of defence
Article 49 Principles of legality and proportionality of criminal offences and penalties
Article 50 Right not to be tried or punished twice in criminal proceedings for the same criminal offence



CHAPTER VII GENERAL PROVISIONS

Article 51 Scope
Article 52 Scope of guaranteed rights
Article 53 Level of protection
Article 54 Prohibition of abuse of rights


The ones who rant against “Brussels” rarely point out that European integration is based on the rule of law, including protection of human rights and fundamental freedoms.

Often the detractors’ point of view seems to be to banish one set of European Community “red tape” with 27 different national sets of discrimination based on nationality and 27 incompatible sets of bureaucratic obstacles to the fundamental freedoms guaranteed by the treaties.

Is this progressive? Is it wise?


Ralf Grahn

EU Charter Preamble

The Preamble of the EU Charter of Fundamental Rights (2000) presents the main reasons behind the Charter and the general principles on which it is founded.

Today, on Europe Day, the Preamble reminds us of the basic values of the European Union, values which need to be upheld every single day of the year.

Preamble

“The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.

Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.

The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment.

To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter.

This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights.

Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations.

The Union therefore recognises the rights, freedoms and principles set out hereafter.”



Democracy, human rights and the rule of law have to be at the centre of an ever closer union among the peoples of Europe.

Ralf Grahn

EU Charter of Fundamental Rights

The Court of Justice of the European Communities has been the real trailblazer for individuals’ rights in the European Communities, but the politicians have tried to catch up and to enshrine its jurisprudence in the treaties.

Presently, the Treaty on European Union, Article 6(1 and 2) states:

The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

The Nice summit of the European Council on 7 December 2000 saw the solemn proclamation of the European Parliament, the Council and the Commission of the Charter of Fundamental Rights of the European Union (published in the Official Journal of the European Communities on 18 December 2000; 2000/C 364/01).

The Proclamation is politically binding for the Union (Community) institutions, but it is not, strictly speaking, legally binding. In Nice the inclusion of the Charter in the Treaties was left open.

Even if the Charter draws heavily on, i.a. the European Convention for the Protection of Human Rights and Fundamental Freedoms, the drafting process of Charter made it possible to prepare one logical and updated document. Companies and private persons have a visible enumeration of their fundamental rights and freedoms at their disposal when they seek redress in their national courts or the European courts in matters pertaining to Community legislation.

If and when the ECJ includes the provisions of the Charter in its case-law, as general principles of Community law, they become legally binding.


Ralf Grahn