Draft Charter of Fundamental Rights, July 2000

The group of national and EU officials, government representatives and parliamentarians (the 'Convention') working on compiling a draft Charter of Fundamental Rights in the European Union had their 11^th informal meeting in Brussels 17-19 July 2000. Over the weekend of 29-30 July 2000 the first complete draft of the Charter was issued for the Convention to study during August.

Background

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] 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 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 4/94). Accordingly, the only alternative was for the Union to draw up a Charter of its own.

The European Council entrusted the drafting of the Charter to a Convention composed of

The Convention met for the first time in December 1999 [Press Release (Council), PRES/99/418], under the Presidency of 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) prepares texts for submission to the Convention. The Charter should be completed in draft by September 2000 and adopted at the meeting of the European Council in Nice in December 2000. The European Council will then propose to the European Parliament, the Commission and the Council of Ministers that they 'solemnly proclaim' the Charter, following which 'it will then have to be considered whether, and if so, how the Charter should be integrated into the Treaties'.

The rights contained in the Charter fall into three broad categories.

• First are the basic universal rights, such as the right to life, freedom of association, 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. On the other, Member States in which such rights are not only recognized but guaranteed would find it difficult to subscribe to a Charter from which they have been omitted or in which they feature only in a heavily qualified form.

Apart from disagreements, major or minor, within the Convention on the substance or formulation of particular rights, certain differences of approach have become evident in the Convention's proceedings:

• First, there are those who interpret the Convention's mandate as exclusively one of consolidation, i.e. the Charter should not break new ground but assemble and codify existing rights. Others regard 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.
• Second, there is 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 would still not cover areas in which decision-making is largely intergovernmental, such as the Common Foreign and Security Policy and cooperation in the field of Justice and Home Affairs.
• Finally, given that all the Union's Member States and all the applicant states are signatories to the ECHR, there is thought by some to be a risk of confusion, duplication of effort, and conflicting jurisdictions arising from the existence of the Charter.

[Text written by Timothy Bainbridge, July 2000]

Further information within European Sources Online:

European Sources Online: Topic Guide:

European Sources Online: European Voice

Further information can be seen in these external links:
(long-term access cannot be guaranteed)

The Council of the European Union and the European Parliament have launched major websites relating to the draft Charter of Fundamental Rights

The Council site aims 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

• Introduction

• The Treaties
• Draft Charter
• The objective
• The Convention

• Conclusions of the European Councils in Cologne and Tampere
• Use of the site
• Timetable of work
• List of documents in chronological order
• Plan of access to documents
• Public hearings [PDF]
• Search database (search in 'author' field to find a large number of outside submissions to the Convention)

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

• News
• The Convention (Objectives, working methods and membership)
• Activities
• Reference texts
• NGO Contributions (includes links to submissions from many NGOs)
• Press Releases and dossiers
• Discussion forum
• Links (includes links to submissions and viewpoints from many outside organisations)

• Institutional and governmental sites
• NGO sites
• Press
• University sites

European Parliament

European Parliament: DG Research

European Commission

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

Platform of European Social NGOs / European Trade Union Confederation

Federal Trust

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
Executive Editor, European Sources Online
Compiled: 30 July 2000

Background and reporting on the week's main stories in the European Union and the wider Europe.

ESO: In Focus: Charter of Fundamental Rights of the European Union, April 2001 http://www.europeansources.info/record/charter-of-fundamental-rights-of-the-european-union-april-2001-2/

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