The Charter of Fundamental Rights

The Charter of Fundamental Rights sets out the basic rights that must be respected both by the European Union and the Member States when implementing EU law. It is a legally binding instrument that was drawn up in order to expressly recognise, and give visibility to, the role of fundamental rights in the legal order of the Union.

Legal status

The Charter of Fundamental Rights of the European Union was solemnly proclaimed by Parliament, the Council and the Commission in Nice in 2000. After being amended, it was proclaimed again in 2007. However, the solemn proclamation did not make the Charter legally binding. Only with the adoption of the Treaty of Lisbon on 1 December 2009 did the Charter come into direct effect. Article 6(1) of the Treaty on European Union (TEU) provides that ‘[t]he Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union […], which shall have the same legal value as the Treaties’. The Charter, therefore, constitutes primary EU law; as such, it serves as a parameter for examining the validity of secondary EU legislation and national measures.

Background

The European Communities (now European Union) were originally created as an international organisation with an essentially economic scope of action. There was therefore no perceived need for rules concerning respect for fundamental rights. For a long time, the EU Treaties did not mention these rights either, containing only a reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

However, once the Court of Justice of the European Union (CJEU) affirmed the principles of direct effect (1.2.1) and of primacy of European law, certain national courts began to express concerns about the effects which such case-law might have on the protection of constitutional values. If European law was to prevail even over domestic constitutional law, it would become possible for it to breach national fundamental rights. In response to this, in 1974 the German and Italian constitutional courts each adopted a judgment in which they asserted their power to review European law in order to ensure its consistency with constitutional rights [Solange I; Frontini]. Over time, the CJEU also contributed through its case-law to the development of and respect for fundamental rights, by affirming that the Treaties also protected those fundamental rights which result from the constitutional traditions common to the Member States as general principles of Community law [Stauder v City of Ulm, C-29/69; judgment in C-11/70].

From the establishment of the Communities right through to the initial decades of the EU, the protection of fundamental rights was therefore left to the CJEU. However, two proposals were made on repeated occasions with the aim of addressing this legislative gap, which took the form of a lack of an explicit, written catalogue of fundamental rights.

a.The first was that the European Community could accede to the ECHR, a pre-existing regional instrument aimed at protecting human rights, whose correct application by States Parties is supervised by the European Court of Human Rights (ECtHR). This Convention, adopted in the Council of Europe in 1950 and supplemented by a series of protocols, is a key text in the area of fundamental rights. It is divided into two parts: a section on rights and freedoms comprising 17 articles, and a section describing the operating procedures and competences of the ECtHR, which sits in Strasbourg. The EU per se is not a party to the ECHR. All its Member States are, however. Article 6(2) of the TEU requires the EU to accede to the ECHR, which means that the EU, as is already the case for its Member States, will become subject, as regards respect for fundamental rights, to review by a legal body external to the EU: the ECtHR. Following its accession, EU citizens, but also third country nationals present on EU territory, will be able to challenge legal acts adopted by the EU directly before the ECtHR on the basis of the provisions of the ECHR, in the same way that they challenge legal acts adopted by its Member States.

Negotiations on EU accession are currently taking place between the EU and the Council of Europe. In July 2013, the Commission asked the CJEU to rule on the compatibility of the draft Accession Agreement with the Treaties. On 18 December 2014, the CJEU concluded that the draft agreement on the accession of the EU to the ECHR was not compatible with EU law (Opinion 2/13).

b.The other proposal was that the Community should adopt its own Charter of Fundamental Rights, granting the CJEU the power to ensure its correct implementation. This approach was discussed on a number of occasions over the years and was proposed again during the 1999 European Council meeting in Cologne.

Drafting process

The main sources of inspiration for the drafters of the Charter were the ECHR and the constitutional traditions common to the Member States, as general principles of Community law. In addition, the European Social Charter (a Council of Europe treaty) and the Community Charter of the Fundamental Social Rights of Workers would also serve as sources of inspiration, insofar as they did not merely establish objectives for action.

The body which was to draft the Charter, called the ‘Convention’, included, as full members, 15 representatives of the heads of state or government of the then 15 Member States, one representative of the President of the Commission, 16 Members of the European Parliament, and 30 members of national parliaments (two from each parliament). The composition and working methods of the Convention served as a model for the Convention on the Future of Europe (1.1.4).

Content

The Charter of Fundamental Rights is divided into seven titles, six of which are devoted to listing specific types of rights while the last clarifies the scope of application of the Charter and the principles governing its interpretation. One significant characteristic of the Charter is its innovative grouping of rights, whereby it abandons the traditional distinction between, on the one hand, civil and political rights and, on the other, economic and social rights. At the same time, the Charter makes a clear distinction between rights and principles. The latter, according to Article 52(5), are to be implemented through additional legislation and only become significant for the courts in cases involving the interpretation and legality of such laws.

The substantive part of the Charter is subdivided as follows:

  • Title I (‘Dignity’) upholds the rights to human dignity, life and integrity of the person, and reaffirms the prohibition against torture and slavery.
  • Title II (‘Freedoms’) upholds the rights to liberty and respect for private and family life, the right to marry and to found a family, and the rights to freedom of thought, conscience and religion, expression and assembly. It also affirms the rights to education, work, property and asylum.
  • Title III (‘Equality’) reaffirms the principle of equality and non-discrimination as well as respect for cultural, religious and linguistic diversity. It also grants specific protection to the rights of children, the elderly and persons with disabilities.
  • Title IV (‘Solidarity’) ensures protection for the rights of workers, including the rights to collective bargaining and action and to fair and just working conditions. It also recognises additional rights and principles, such as the entitlement to social security, the right of access to health care and the principles of environmental and consumer protection.
  • Title V (‘Citizens’ Rights’) lists the rights of the citizens of the Union: the right to vote and to stand as a candidate in elections to the European Parliament and in municipal elections, the right to good administration, and the rights to petition, to have access to documents, to diplomatic protection and to freedom of movement and of residence (4.1.1).
  • Title VI (‘Justice’) reaffirms the rights to an effective remedy and a fair trial, the right of defence, the principles of legality and proportionality of criminal offences, and the right to protection against double jeopardy.

While the Charter mostly reaffirms rights which already existed in the Member States, and which had been recognised as forming part of the general principles of EU law, it is also innovative in some respects. For instance, disability, age and sexual orientation are now explicitly mentioned as prohibited grounds of discrimination. The main value of the Charter, however, does not lie in its innovative character, but in the explicit recognition of the pivotal role that fundamental rights play in the EU legal order.

Scope of application and interpretation

Title VII of the Charter includes some general provisions governing its interpretation and application. The scope of application of the Charter is potentially very broad: most of the rights it recognises are granted to ‘everyone’, regardless of nationality or status. However, some rights are only granted to citizens (in particular, most of the rights listed in Title V), while others are relevant for non-EU nationals (for instance, the right to asylum) or for specific categories of persons (such as workers).

The application of the Charter is defined expressly in Article 51, which states that its provisions are addressed only to the EU institutions and bodies and, when they act to implement EU law, to the Member States. This provision serves to draw the boundary between the scope of the Charter and that of national constitutions: the Charter does not bind states unless they are acting to implement EU law. Moreover, the Charter does not extend the powers or competences of the Union, thereby ensuring that the adoption of the Charter does not, by itself, increase the powers of the Union to the detriment of those of the Member States.

Additional rules confirming the importance of national constitutional traditions and national laws are to be found in Articles 52 and 53. The first of these articles stipulates that fundamental rights must be interpreted in harmony with the constitutional traditions common to the Member States, as well as with the ECHR, and with full account taken of national laws and practices. Article 53 clearly states that the Charter cannot restrict or adversely affect the level of protection of fundamental rights already provided by Union law, international law (in particular the ECHR) and the Member States’ constitutions.

While the Charter encompasses a number of rights, these are not granted unlimited protection. Article 52 allows for limitations on the exercise of rights, so long as these are provided for by law, respect the essence of the rights in question, and are proportionate and necessary to protect the rights of others or the general interest. Moreover, while some rights are framed in absolute terms, others are only granted ‘in accordance with Union law and national laws and practices’, signifying that the scope of such rights may be subject to additional limitations.

EU Agency for Fundamental Rights

The EU Agency for Fundamental Rights was established by a Council regulation of February 2007[1]. It has been operational since March 2007 and is based in Vienna. Its goal is to provide EU institutions and Member States with assistance and expertise in the field of fundamental rights. The Agency is not authorised to handle individual complaints, it does not have decision-making powers in the area of regulation and it does not have the power to monitor fundamental rights in the Member States in accordance with Article 7 of the TEU. A five-year multiannual framework sets out the areas in which it may act. Its tasks include, in particular, the collection, analysis, dissemination and evaluation of relevant information and data, conducting research and scientific surveys, drawing up preparatory and feasibility studies, and the publication of thematic reports and an annual report on fundamental rights.

Role of the European Parliament

a.General approach

In 1977, Parliament, the Council and the Commission adopted a Joint Declaration on Fundamental Rights, in which they committed themselves to respect fundamental rights in the exercise of their powers. Moreover, in 1979 Parliament adopted a resolution suggesting that the European Community should accede to the ECHR.

The 1984 draft Treaty establishing the European Union (1.1.2) specified that the Union must protect the dignity of the individual and grant everyone coming within its jurisdiction the fundamental rights and freedoms derived from the common principles of the national constitutions and the ECHR. It also envisaged accession of the Union to the ECHR.

In April 1989, Parliament proclaimed the Declaration of fundamental rights and freedoms. Subsequent attempts to grant this declaration the status of a legally binding document were, however, unsuccessful.

Every year since 1993, Parliament has held a debate and adopted a resolution on this issue on the basis of a report produced by its Committee on Civil Liberties, Justice and Home Affairs. In addition, it has adopted several resolutions addressing specific issues concerning the protection of fundamental rights in the Member States.

In 1997, after the adoption of the Amsterdam Treaty, Parliament again called for the adoption of a binding Charter of Fundamental Rights. During the drafting process that led to the adoption of the Charter, Parliament adopted several resolutions insisting that this instrument be given legally binding force by incorporating it into the Treaties. After the Charter was solemnly declared, Parliament expressed its disappointment at its non-binding nature and again called for it to be incorporated in the Treaties in a legally binding manner.

b.Specific actions

Parliament has focused in particular on the issue of codifying fundamental rights in a legally binding document. It signed a joint declaration with the Commission and the Council on 5 April 1977 in which it committed to upholding fundamental rights, and adopted its own declaration on the subject in 1989. In 1994, it drew up a list of the fundamental rights guaranteed by the Union. It placed special emphasis on the drafting of the Charter by making it ‘one of its constitutional priorities’[2] and stipulating the requirements to be met. In particular:

  • The Charter needed to be given fully binding legal status by incorporating it into the TEU (‘A Charter […] constituting merely a non-binding declaration and […] doing no more than merely listing existing rights would disappoint citizens’ legitimate expectations’[3]); Parliament thus called for the Charter to be incorporated into the Treaty of Nice and the new Constitutional Treaty;
  • Fundamental rights needed to be recognised as indivisible, by making the Charter applicable to all the institutions, bodies and policies of the EU, including those under the second and third pillars, in the context of the powers and functions conferred upon it by the Treaties.

Finally, Parliament has regularly called for the EU to accede to the ECHR, stressing that this would not duplicate the role of the now binding Charter. It called several times for the establishment of the European Agency for Fundamental Rights.

In two resolutions in 2014, Parliament also called for the creation of a ‘Copenhagen mechanism’, which would constitute a more efficient tool to ensure that Member States fully respect the fundamental values of the Union and the requirements of democracy and the rule of law. On 25 October 2016, Parliament adopted a resolution with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights[4].

[1]Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights; OJ L 53, 22.2.2007, p. 1.

[2] http://www.europarl.europa.eu/charter/docs/pdf/b5_0110_1999_en_en.pdf.

[3] http://www.europarl.europa.eu/charter/docs/pdf/a5_0064_00_en_en.pdf.

[4]Texts adopted, P8_TA(2016)0409.

Sarah Sy

10/2017