| Author (Person) | Thomson, Ian |
|---|---|
| Publisher | ProQuest Information and Learning |
| Series Title | In Focus |
| Series Details | 21.4.01 |
| Publication Date | 23/04/2001 |
| Content Type | News, Overview, Topic Guide | In Focus |
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At the meeting of the European Council in Cologne in June 1999 it was decided that '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'. The scope of the Charter was set out in more detail in a supplementary decision: 'this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights (ECHR), ECHR; see also Human rights) and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union's citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter on the Fundamental Social Rights of Workers'. The exact status of the Charter was left undecided, the European Council adding only that at some future date consideration would be given to 'whether, and, if so, how the Charter should be integrated into the treaties'. The background to this proposal was the strong feeling that if the European Union was to progress beyond being merely an essentially economic construct with political aspirations it was in need of a moral base. The possibility of becoming a signatory to the ECHR - and thereby incorporating its provisions into the Acquis communautaire - had been ruled out by the Court of Justice (Opinion 2/94). Accordingly, the only alternative was for the Union to draw up a Charter of its own. At its meeting in Tampere in October 1999 the European Council entrusted the drafting of the Charter to a Convention composed of
The Convention met for the first time in December 1999. The chairman was Roman Herzog, the former President of Germany. A small drafting committee composed of representatives of the constituent elements of the Convention (MEPs, national parliamentarians, the Council, the Commission) prepared texts for submission to the Convention. The Charter was completed in draft in September 2000, adopted at the meeting of the European Council in Nice in December 2000 and thereafter proclaimed by the European Parliament, the Commission, and the Council of Ministers. In a 'Declaration on the Future of the Union' annexed to the Treaty of Nice the Member States committed themselves to considering the status of the Charter in the course of the Intergovernmental Conference (IGC) (IGC) due to begin in 2004. The Charter of Fundamental Rights of the European Union, April 2001 [pdf] contains 54 Articles divided into seven chapters, Dignity, Freedoms, Equality, Solidarity, Citizens' Rights, Justice, and General Provisions. The rights contained in the Charter fall into three broad categories. First are the basic universal rights, such as the right to life, freedom from arbitrary detention, and so on, as set out in the ECHR and in the constitutions of most Member States. Second are the civil and political rights associated with Citizenship of the European Union. Third, and most controversial as far as differences between Member States are concerned, are the economic and social rights pertaining to employment, health care, living standards, working conditions and other areas covered by the European Social Charter and the Charter on the Fundamental Social Rights of Workers. On the one hand, there are Member States - such as the United Kingdom - in which there is little or no formal recognition of such rights and, on the other, Member States in which such rights are not only recognised but guaranteed. Apart from disagreements, major or minor, within the Convention on the substance or formulation of particular rights, certain differences of approach became evident in the Convention's proceedings. First, there were those who interpreted the Convention's mandate as exclusively one of consolidation, i.e. the Charter was not to break new ground but assemble and codify existing rights. Others regarded the drawing up of the Charter as an opportunity to move the European Union forward in an area not systematically touched on in the Treaties of Rome, Maastricht, and Amsterdam and the Charter itself as an essential component of a 'European Constitution'. Second, there was the question of whether the Charter should be declaratory only or whether it should possess the force of law. Third, should it be agreed to make the rights contained in the Charter enforceable at law, what should be the machinery for enforcement? Should it be through national courts, with or without an ultimate right of appeal to the European Court of Justice in Luxembourg? Or should enforcement - on the model of the ECHR - ultimately be entrusted to a body specially set up for the purpose? Fourth, what should be the relation between the Charter and the Treaties? Should it eventually be incorporated into the Treaties, or should it remain separate, even though this would mean that certain rights were in the Treaties (such as the right of free movement) and others - perhaps more fundamental - were not? Fifth, exactly who is bound to respect the rights in the Charter? The Union itself cannot be bound, since unlike the European Community it does not possess Legal personality; and even if a way were found of binding the Union's institutions, this might still not cover areas in which decision-making is largely intergovernmental, such as the Common Foreign and Security Policy (CFSP) and cooperation in the field of Justice and Home Affairs (JHA). Finally, given that all the Union's Member States and all the applicant states are signatories to the ECHR, there was thought by some to be a risk of confusion, duplication of effort, and conflicting jurisdiction arising from the existence of a Charter. Some of these arguments remained unresolved, as is evident from the final text of the Charter. The Charter goes beyond the ECHR, not least because it addresses problems which have only arisen relatively recently (human cloning, for example (Article 3.2) or data protection (Article 8)). However, in some of these areas the absoluteness of the right in question is qualified by the addition of the phrase 'in accordance with the national laws governing the exercise of this right' (for an example, see Article 10.2 on conscientious objection). In other cases, the right is not proclaimed but merely 'recognised' (see Article 25 on the rights of the elderly). It may be questioned whether some of the rights are really fundamental, such as 'the right of access to a free placement service' (Article 29), and there are other inclusions of questionable relevance to a Charter of Fundamental Rights, such as the observation that 'political parties at Union level contribute to expressing the political will of the citizens of the Union' (Article 12.2). At present, the Charter does not possess the force of law. However, as solemnly proclaimed by the institutions of the Union, it is of political significance, and is already a point of reference for legislative action and for decisions of the Court of Justice. Clearly, the Charter will assume the role currently played by the ECHR in Article 6 of the Maastricht Treaty, which obliges the Union to respect fundamental rights. Formally, the Charter is addressed 'to the institutions and bodies of the Union ... and to the Member States only when they are implementing Union law' (Article 51). The same Article asserts that the Charter 'does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties'. Unlike the ECHR, the Charter establishes no machinery for enforcement. Chapter VI, 'Justice', contains only generalities about the legal process (presumption of innocence, the right to a fair trial, and so on). Some of the Charter's provisions would be certain to give rise to disputes were they ever to be given the force of law (such as the unqualified right to Council, Commission, and European Parliament documents (Article 42); see Transparency) or the right not to be 'removed, expelled or extradited to a State where there is a serious risk [of facing] the death penalty, torture or other inhuman or degrading treatment or punishment' (Article 19.2)). The legal uncertainty to which the existence of a legally-binding Charter would give rise is minimised by Article 52, which says that where rights in the Charter correspond to those in the ECHR the two should be regarded as identical in meaning and scope. However, the vagueness with which some of the Articles are worded must vitiate their usefulness in legal proceedings. In some quarters - notably the European Parliament - it is hoped that the composition and working-methods of the Convention which drafted the Charter will be the model for future intergovernmental conferences. [Text written by Timothy Bainbridge, March 2001] Further information within European Sources Online: European Sources Online: Topic Guide: European Sources Online: European Voice European Sources Online: Financial Times Further information can be seen in these external links: The Charter of Fundamental Rights of the European Union was published in the Official Journal C364, 18.12.00, p1-22. The text was also published in the Bulletin of the European Union, No.12, 2000, p171-177. Both the Council of the European Union and the European Parliament have websites established during the period of the creation of the Charter of Fundamental Rights. At the time of compilation of this In Focus (April 2001) both sites remain. DG Justice and Home Affairs of the European Commission have also created a significant website on the Charter. The Council site aimed, during the creation of the Charter, to keep the public informed concerning the background to the work on the draft Charter and the timetable of the work, and to make available the paperwork associated with the Convention including both agendas and minutes of meetings and the text of the many contributions submitted to the Convention from outside bodies. For the last named enter Search database and click on the box for 'authors'. Council of the European Union
- Text of Charter [pdf] The European Parliament site is equally informative, with some similar material to that of the Council site, but with some information unique to the site. European Parliament
European Parliament European Parliament: DG Research Andrew Duff, MEP European Commission European Commission: DG Justice and Home Affairs Committee of the Regions Council of Europe Council of Europe: Parliamentary Assembly: Committee on Legal Affairs and Human Rights United Kingdom: House of Commons: Library United Kingdom: House of Lords: Select Committee on the European Union Finland: Ministry of Social Affairs and Health European Trade Union Confederation (ETUC) Platform of European Social NGOs / European Trade Union Confederation EURONET: The European Children's Network European Institute of Public Administrations (EIPA) The European Policy Centre United Kingdom: Trades Union Congress Germany: Bundesverband der deutschen Industrie (BDI): Many other organisations and individuals submitted papers to the Charter Convention during 2000. Many of these can be located on the Council's Charter website and search in the author field. Further and subsequent information on the subject of this week's In Focus can be found by an 'Advanced Search' in European Sources Online by inserting 'Charter of Fundamental Rights' or 'charter and rights' in the keyword field. Ian Thomson Overview of the origins and content of the Charter of Fundamental Rights of the European Union. |
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