Charter of Fundamental Rights

This paper seeks to determine what difference the ‘Charter of Fundamental Rights’ makes to the legal protection of fundamental rights of the European Union (EU) under the Treaty of Nice. The Treaty of Lisbon came into effect in December 2009 and this alters the way in which the Charter protects fundamental rights; subsequently this paper will also discuss the difference the Lisbon Treaty has made to the application of the Charter in the European Courts.

It could be said that the area of fundamental rights was alien to legal order in the EU as the EU was firmly based on economic foundations; and prior to the creation of the Charter, the Courts refused to allow the EC Treaties to be overridden by a plea based on fundamental rights. Fundamental rights are seen to be universal, pertaining to all humans; however, these rights had little importance and applicability in the ECJ and this was demonstrated by a number of cases. The case of Geitling v High Authority shows how the ECJ rejected the suggestion that Community law might give some protection to fundamental rights contained in the German constitution. It was stated by the ECJ, that Community law, ‘does not contain any general principle…guaranteeing the maintenance of vested rights.’ Likewise, in Stork v High Authority, it was established that the Court could not examine a complaint ‘which maintains that…it infringed principles of German constitutional law’. Despite fundamental rights being part of the general principles of German constitutional law, the European Courts persisted in its refusal to consider such rights which had been central place in German law. This demonstrated that the protection of fundamental rights was far from adequate. It also supports the view made by the President of the European Commission that there was a need ‘to make more visible and explicit to European citizens the fundamental rights; the explanation that it needs to be more ‘visible’ suggests that the EU wanted to be clearly seen to be protecting the citizens of the Union Fortunately, the courts attitude began to change from that of Stork, Sgarlata and Geitling to develop the protection of fundamental rights. This suggests that it was also identified by the ECJ that this area was inadequate, and shows that the ECJ supported the view that there was a need to create a charter, ‘it is necessary to strengthen the protection of fundamental rights…by making those rights more visible in a charter’. It also shows that the ECJ recognised the need to observe certain fundamental rights when applying Community law. This could have been partly due to the fact that challenges were made against community law as member states felt EC legislation was encroaching upon important rights protected under national law. Consequently the Charter of Fundamental Rights of the European Union was drawn up by a democratic and efficient ‘Convention’ and signed by 15 Member States as a political declaration at the Nice Summit in December 2000. It contained a plethora of rights from civil and political to social rights for all of the citizens of the European Union. Unfortunately, although the charter had been proclaimed it was not considered legally binding until December 2009 when the Lisbon Treaty came into effect. The Lisbon Treaty being primary EU law made the Charter directly applicable in courts across the EU. So, prior to 2009 the fundamental rights were never expressly adopted by the European Courts and have only recently come to play a significant role in common law.

During the year following the Charter’s proclamation the ECJ dealt with 23 cases relating to fundamental rights, and although they were not bound by the Charter the AG’s made reference to it in 14 of the cases. This suggests that the Advocates General of the Court of Justice were in support of the Charter. In the case of Netherlands v European Parliament and Council of the European Union Advocate General Jacobs referred to the Charter directly to determine the fundamental status of the right to human dignity and the right to ‘free and informed consent’ of the individual concerned in the fields of medicine and biology; showing that having a document to refer to is an aid for the courts to interpret the rights of individuals. AG Tizzano, in Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU), gave the Charter a central role in supporting the judgement contained in his opinion. Although he acknowledged that the Charter was ‘formally, not in itself binding’; in paragraph 26, he referred to Article 31, section 2 of the Charter as ‘even more significant’ legal evidence of the way by which one should solve the case at hand. He went on further to state that the Charter served as a ‘substantive point of reference for all those involved’ because it appeared in ‘large measures to reaffirm rights which are enshrined in other instruments’. His statement suggests that it was necessary to have a Charter as it is easier to refer to when the rights are laid down as clear as they are in the Charter; previously if a case came before the courts they would have to decide whether there was a fundamental right involved or not, the Charter makes it clear exactly what these rights are. AG Mischo, in his part of the opinion invoked the Charter as additional authority, adding major reflection on the democratic qualities of the process through which the Charter was drafted; ‘I know that the Charter is not legally binding, but it is worthwhile referring to it given that it constitutes the expression, at the highest level, of a democratically established consensus on what must today be considered as the catalogue of fundamental rights guaranteed by the Community legal order”.

The Advocates General were not alone in supporting the case for legal force, In 2002 the Court of First Instance joined in the support of giving the Charter legal force; in the case of Max.Mobil Telekommunikation Service GmbH v the Commission it made reference to Articles 41 and 47 of the Charter, thus demonstrating their willingness to use the Charter as a source for legal reasoning. The Charter has also been used by the European Court of Human Rights, where the Vice-President, judge Costa used the Charter in his separate but concurrent opinion in Hatton and Others v The United Kingdom. Costa referred to the provisions on the protection of the environment (Art 37) in order to show that the case law of ECHR had not ‘been alone’ in becoming increasingly aware of the importance of environmental issues.

Despite the diverse references made to the Charter the judges of the European Court of Justice had not referred to the Charter, not even in cases where the AGs had. The ratification of the Lisbon Treaty means that, in cases concerning fundamental rights the ECJ are bound to call on the Charter. The treaty of the European Union, Article 6 (1), declared that ‘the union shall recognise the rights, freedoms and principles set out in the Charter of fundamental rights.’ It goes on further to state that the principles shall have ‘the same legal value as the Treaties’, one can see that the Union recognises fundamental rights and gives them growing importance. There is also the addition of Article 6 (3) which states that ‘Fundamental rights…shall constitute general principles of the Unions law’. It can be inferred by this addition that the EU would like to ensure that any future legislation which they introduce does not infringe any of the fundamental rights; this demonstrates the importance that the incorporation has as it alters the way in which the Commission of the EU can legislate. It can be said that what fuelled the EU to incorporate the Charter into the Treaty was that the legal representatives of the parties before the Court of Justice were finding it increasingly necessary to refer to the text of the Charter in their own arguments, this could have eventually forced the ECJ to consider the Charter and make reference to it in some form. On one hand it could be said that if the Charter had been incorporated into the primary Treaties initially (under the Treaty of European Union) then it would have been given immediate constitutional force from the start; or it would have taken the form of secondary legislation as directives, again giving it legal force and making it directly applicable by the ECJ. On the other hand, it could be said that even if the Charter had been incorporated into the primary Treaty, then it may not have had much legal bite as the mandate to which the Convention worked was only to consolidate the existing EU law of the ECHR. Therefore, it could be argued that no new law was created. Prior to the Charter being legally binding citizens would have been able to challenge EU law on any of the rights within the Charter under the ECHR as many of the fundamental rights are already contained in the Convention and so they were protected. So, it could be said that no new legal force was required for the Charter and it did not need to be incorporated into the Lisbon Treaty. Nonetheless if we are to believe that the Charter is a proper consolidation of the existing law, then it must be seen as an authoritative evidence of the law in force and thus should be taken into account by legal actors, consequently giving it legal force.

Discussion regarding the legal stance of the Charter was debated in 2002; it was stated that, ‘a very large majority of speakers supported incorporation of the Charter…making the Charter a legally binding text.’ Others had previously downplayed the significance of the Charter therefore questioning the need for incorporation; in 2000, Tony Blair stated his disapproval of the Charter by describing it as ‘simply a statement of policy.’ He went on to say, ‘the UK is not the only member state to oppose something of a binding legal nature.’ This argument can be reasoned by suggesting countries such as the UK, feared that if the Charter became legally binding it would create new legal obligations which would undermine their national sovereignty. However, with hindsight it can now be said that EU citizen’s rights are strengthened and the level of protection of fundamental rights is raised, regardless of where the citizen chooses to live, work or travel. It also makes the EU accountable to its citizens as an EU citizen can now challenge the legality of acts of the EU institutions and Member States when acting under Community law, in regards to the Charter. Prior to the incorporation into the Lisbon Treaty the citizen had no precise way of enforcing their rights under the Charter, so essentially it was an insufficient form of protection just having the Charter and not making it legally binding. One could infer that now that the Charter has gained legal status, the law on fundamental rights will become stronger and more precise.

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