The final clauses of the Charter of Fundamental Rights: Stumbling blocks for the first and second Convention

Abstract:

Particular problems in EU human rights protection stem from the final clauses of the EU Charter of Fundamental Rights (Articles 51 ff). This paper examines these key provisions as well as the proposals for amendments which have been put forward by Working Group II of the Convention and which have been accepted by the Convention's Praesidium in February 2003.

The author argues that a closer look at the adjustments to the final clauses reveals that cardinal problems with far-reaching systemic implications remain unsettled. This holds true, particularly, for the question of whether Member States will continue to be bound by EU fundamental rights when they derogate from Community law, or 'Union law' in future. The same is true, second, as regards the question of whether and under what conditions the supremacy of Community law (or, according to the Praesidium's draft Article 9, 'the law of the Union') cannot supersede national fundamental rights. A third fundamental problem has been added, unnecessarily, to the former two through Article 52 para 5 on 'rights and principles' which is apt to negatively affect the significance and scope of fundamental rights set out in the Charter.

As also the other proposed adjustments can hardly be regarded as adequately addressing actual or perceived constitutional concerns, this paper submits that existing doubts are reinforced as to whether the much-discussed 'Convention method' really allows for an appropriate treatment of fundamental, albeit technically intricate problems.