The Charter of Fundamental Rights, the heart of a political Union – What future for the Charter?

The Charter of Fundamental Rights, the heart of a political Union – What future for the Charter?

Should the text of the Charter of Fundamental Rights be re-opened for improvement and if so, by what mechanism should it be changed? Should the Charter be left as it is, gradually gathering its own political and legal weight, or does it need to be fully integrated into the Treaty? And how will the growing importance of the Charter impact the functioning of the European Court of Justice, the European Court of Human Rights and the Member States’ own constitutional traditions? These were the key questions put to a conference on the future of the Charter, organised by the European Policy Centre in Brussels on 18 June 2002. This is not an official record of the proceedings and specific remarks are not necessarily attributable.

Hywel Ceri Jones, on behalf of the EPC, introduced the session and urged individuals and organisations to get involved in this open debate by contributing their opinions to the EPC Citizens Rights‘ web page.

ProfessorNeil MacCormickMEP, a member of the working group on the Charter that was set up by the Convention on the Future of Europe, was the first guest speaker. He came out in favour of incorporating the Charter into the Treaty in its present form: “What we need is a concise, readable text for the citizen – the Charter should not stay as a ‘gentleman’s agreement.’ Mr MacCormick confessed he was a recent convert to this idea and that during the first Convention on the Charter, he feared it would impinge on the EU Member States’ own constitutional traditions. He believed that this had not happened and that both national and European Bills of Rights could co-exist. He felt the Charter should not be tampered with because human rights would be trivialised if it kept getting re-written.

The role of the European Court of Justice (ECJ) and the European Court of Human Rights in interpreting the Charter came under close scrutiny. Professor MacCormick was concerned that the ECJ would become paralysed if the Charter became part of the EC Treaty and thus within the Court’s jurisdiction. He argued that the ECJ’s success to date had been based on its non-intrusive nature, by leaving it up to the national courts to implement its rulings. As for criticisms of the Charter levied by environmental groups and trade unions, he felt their special interests would be better served in different types of legal instruments.

Putting across the European Commission’s view wasAristotelis Gavriliadisfrom DG Justice and Home Affairs. “Opening Pandora’s box is the worst thing we can do,” he said, referring to the option of re-working the Charter. Moreover, such a move would undermine the democratic legitimacy of the Charter because there is no mandate to do so. The December 2001 Declaration of Laeken on the Future of Europe only talked about integrating the Charter into the Treaty, he noted. The Charter as he saw it was the fruit of fifty years of successful European integration and was a useful way of defining what was meant by “European.”

Citizens were increasingly citing the Charter when they complained to the Commission. They tended not to understand its limited scope, but their complaints were all well founded, he said. Lawyers were more aware of it too and the Court of First Instance had referred to it in two recent rulings, although the ECJ had yet to endorse these references. Meanwhile, national courts in Spain and Italy had mentioned the Charter, as had the European Ombudsman Jacob Söderman. Mr Gavriliadis described the Charter as a living text that would constantly evolve through case law and political developments.

Support for re-opening the Charter came fromOlivier Gerhard, from the NGO ‘International Movement ATD Fourth World.’ He floated the idea of improving it by adding Protocols, which would be adopted via the Community method i.e. co-decision procedure with qualified majority voting in the Council. He pointed out that about twenty protocols had been annexed to the European Convention on Human Rights over the past fifty years, including ones on the death penalty and on education. However, these protocols had been adopted using the intergovernmental method, whereby each Member State ratified each Protocol according to its own constitution.

Mr Gerhard acknowledged widespread fears that re-opening the Charter would result in human rights going backwards, but argued that history did not bear this fear out, rather that re-examining it would “open new doors. “He supported putting the Charter into the Treaty, preferably as the first chapter – a suggestion echoed in a later intervention from a representative of European Trade Union Confederation (ETUC). The fact that Articles 2 and 3 of the EU Treaty make explicit references to human rights meant that no one could consider the Charter as unimportant, he added.

Speaking more generally about the Charter’s future, Mr Gerhard opined that “legalists will always find a solution if the political will is there, but if there is no political will, a legal hitch will be found.” Human rights are at the heart of European construction and there would be stronger public backing for enlargement if they were talked about more often, he suggested. He said the shock entry into government of the far right in Austria in 2000 had led to a re-discovery of human rights values all over Europe.

European Law Professor from the Université Panthéon Assas-Paris II,Jacqueline Dutheil de la Rochère, discussed how the Charter could fit into the Treaties. On the one hand, she predicted the Charter would increasingly filter into case law and into EU legislation, even if left as an inter-institutional Declaration. But she admitted this option was not politically viable. However, it was difficult to know where to put the Charter in the Treaties, given that the Treaties themselves were likely to be overhauled again. If it was ultimately decided to have a short, constitutional-type Treaty, would a 54-article Charter fit appropriately in it, she wondered? And what if the EU’s Three pillars – European Community, Common Foreign and Security Policy, and Police and Judicial Co-operation in criminal matters – were merged? She pointed out that this would increase the scope of the Charter, enabling it to be applied to all EU policies.

A reference to the Charter in Article 6 of the EU Treaty would boost its political weight, according to Ms de la Rochère. Alternatively, it could be added as a Protocol to the Treaty, although this could cause problems because it would overlap with the chapter on citizenship already contained in the Treaty. She pointed to the significance of Article 53 of the Charter, which allowed other international agreements on human rights precedence. As to whether the Charter should supersede Member State constitutions, she wanted to see “the more protective provision prevail.” She said that many Member States were uneasy with the Charter because it strayed into areas not traditionally associated with the EU, such as slavery and torture. She favoured the EU’s accession to the European Convention on Human Rights – a move also supported in a later intervention from a Council of Europe representative.

The final speaker,Piet Eeckhout, Professor of Law at King’s College, London, said the worst outcome for the Charter would be “anything between the status quo and making it fully legally binding.” He was especially keen that the Charter apply to EU law on asylum, immigration and police co-operation. The EU courts could deal with the added responsibility this would entail, but national courts could find themselves overwhelmed, he said. And to illustrate the point, he suggested that an asylum-seeker, whose claim had been rejected, might be able to cite the Charter in a judicial appeal.

Conclusion

Summing up the proceedings,Hywel Ceri Jonesstressed how this was a moving ball game, dependent on many other factors, and that solutions were likely to evolve. The future of the Charter will be strongly influenced by the conclusions of the Convention on the Future of Europe, because they will help frame the Charter in a specific legal and political context. The first Convention, which drafted the Charter, limited itself to the content, proceeding on an “as if” basis, in other words assuming that the end product would ultimately be legally binding. Where the Charter fits in now hinges on whether the Treaties will be merged, whether there will be an EU constitution or whether the EU will become a legal entity in itself and accede to the European Convention on Human Rights. Mr Jones announced that the EPC was planning another Dialogue later in the year, which would tackle all these complex, inter-related issues. He concluded by again urging as wide a participation as possible in the debate from all interested parties.

For more analyses see The European Policy Centre’s

website.