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The Charter: shared rights and values

"The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values." These are the opening words of the preamble to the Charter of Fundamental Rights, adopted at the Nice European Council in December 2000. This text, which was to be incorporated into the future EU Constitution, shows how the nature of the European Community has changed. Originally it was an essentially economic grouping, but it has now become a political Union and an area of freedom, security and justice.

"I trust that all the citizens of the Union will understand that from now on, the Charter will be the law guiding the actions of the Assembly. It will be the point of reference for all Parliament acts which have a direct or indirect bearing on the lives of citizens throughout the Union." This statement at the Nice summit by Mrs Nicole Fontaine, President of the European Parliament from 1999 to 2001, underlined the solemn import of the event and provisionally signalled the end of Parliament's long battle to give the EU a corpus of common rights and values.

Back in 1989 Parliament had celebrated the bicentenary of the French Revolution by adopting a 'Declaration of Fundamental Rights and Freedoms'. There already existed a reference text for the countries belonging to the Council of Europe and their nationals: the European Convention of Human Rights, signed in 1950. But this text was not specific to the European Union and did not take account of half a century of developments in European society. Technological and social progress required new forms of protection for Europe's citizens, particularly in the areas of information technology, biotechnology, non-discrimination, pluralism of the media and the idea of 'good administration'. Moreover, the Council of Europe Convention had a dozen protocols which, in contrast to the Convention itself, had not been ratified by all its members.

The successive treaties that brought the European Community towards a political union set out various rights and values, but in a piecemeal fashion. There was a need to regroup, clarify and modernise all these references in a single, coherent text, particularly as a number of former Communist countries were soon to join the European Community - and also join a community of values from which they had been excluded for decades. There was also a need to give the Court of Justice of the European Communities - the Luxembourg Court - a reference text equivalent to the Council of Europe Convention which is the basis for the European Court of Human Rights in Strasbourg.

The first Convention

The Cologne European Council in June 1999 concluded that the time had come for the EU to draw up a Charter of Fundamental Rights which would set out in one place the civil, political, economic and social rights of European citizens: 'Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy'. A 'Convention' was set up. It was made up of 15 representatives of Heads of State and Government, 30 representatives of national parliaments, 16 representatives of the European Parliament and one representative of the Commission. The President of the Convention was the former President of Germany, Roman Herzog, and Parliament's delegation was led by Íñigo Méndez de Vigo.

On 17 December 1999, Mr Herzog opened the proceedings: 'We are going to draft a text which will not immediately have the binding force of European and Community legislation. But we must always bear in mind the idea that the Charter that we are drafting must one day, in the relatively near future, become binding. (...) We must draw up a catalogue which, when it becomes binding, will not have to be shortened or revised'.

Less than 10 months later, after 16 public plenary sessions at which civil society representatives (trade unions, NGOs, etc) had the opportunity to put forward their views, the Convention adopted the final text of the Charter on 2 October 2000. The informal Biarritz summit approved it on 13 October. And on 7 December 2000 the Nice European Council formally proclaimed it.

The European Parliament's demands

In the opinion of many observers, the European Parliament delegation played a constructive and decisive role in the Convention, in a manner which reflected Parliament's ambitions. MEPs, who were overwhelmingly in favour of drawing up a Charter, believed there was a need to give the process of European integration a more solid legal and ethical foundation. It was Parliament that originally advocated the open and transparent Convention method. MEPs viewed the speedy and successful conclusion of the Convention's work as an important achievement, and for them the text that emerged already enjoyed a clear legitimacy. The same method was used in 2002 - 2003 to draw up the draft Constitution.

MEPs were less happy, however, at the text's treatment at the hands of the Heads of State and Government. They hoped the Charter would be incorporated into the Treaty of Nice and would be legally binding on the Member States. 'Any other solution, such as a simple declaration, would weaken the Union's image' was the view of Parliament's President, Nicole Fontaine. The Nice European Council, however, was unable to go further than a 'solemn declaration', and the Charter was simply attached to the new Treaty, without binding force. It was a partial failure or a partial success, depending on points of view. But it was not the end of the story.

European leaders soon realised that they had missed an opportunity and that there were shortcomings in the Nice Treaty, not only with regard to the Charter, but also with regard to reform of the institutions, which had to be adapted to the needs of a Union which was soon to be enlarged. The question of incorporating the Charter into the Treaties and its legal status was put off to the next Intergovernmental Conference, which was soon to take place and which was being prepared for the first time by means of a new, open Convention rather than just a diplomatic conference behind closed doors. In line with Parliament's wishes, in July 2003 the new Convention brought forth a complete draft Constitution, which rationalises all the existing treaties, finally proposes to incorporate the Charter into the Constitution, with a few changes, and gives it binding legal force.

The soul of Europe

In 50 articles, grouped into six chapters, which are described below, the Charter of December 2000 establishes a body of values and rights that Europe's citizens can invoke. It may be described as the 'civic soul' of European integration.

Dignity. 'Human dignity is inviolable. It must be respected and protected.' This is the first article of the Charter, which then goes on to recognise the right to life and to prohibit the death penalty, torture, slavery and trafficking in human beings. The right to physical and mental integrity includes new provisions which have become necessary as medicine and biology have evolved, particularly the prohibition of eugenics and human reproductive cloning.

Freedoms. In addition to the traditional freedoms (freedom of thought, religion, expression and association) and respect for private life, the Charter includes the protection of personal data, pluralism of the media and the right to work (which however does not mean the right to have a job). Social rights were a major innovation and aroused great controversy, which was often resolved by compromise wordings to achieve a final consensus on the text.

Equality. 'Everyone is equal before the law' is the opening sentence of the chapter on equality, which for the first time includes a number of social rights in a general text on fundamental rights and establishes the general principle of non-discrimination. In particular this chapter proclaims equality between men and women in all areas. It also gives considerable prominence to the rights of children, the elderly and the disabled.

Solidarity. This is the first time that the concept of solidarity has been enshrined in a legal text. This chapter recognises workers' right to be informed and consulted within their undertaking, the right to negotiation and collective action (including the right to strike), the right of access to placement services, protection in the event of dismissal, the right to fair and just working conditions, the right of access to social security benefits and services of general economic interest, and environmental and consumer protection. Many aspects of this innovative chapter were hotly disputed; some Member States did not want rights proclaimed at European level to interfere with their national social systems. This is why some articles are rather ambiguously worded and at the end of the Charter some clauses have been added limiting Member States' obligations to cases where they enact provisions decided at Community level, such provisions often requiring a unanimous vote in the first place.

Citizenship. Many of the provisions in this chapter had already been formulated in the Maastricht Treaty, such as the right to vote and stand in local and European elections, or the right to diplomatic and consular protection. Noteworthy additions are the right to 'good administration' and the right of access to documents.

Justice. This chapter includes in particular the right of access to an impartial tribunal and the presumption of innocence.

Field of application. The Charter concludes with general provisions which set out its scope and field of application. These provisions were revised by the Convention on the Future of Europe to overcome the obstacle that had arisen at Nice and to allow the Charter to be incorporated unchanged into the future Constitutional Treaty. These rights and principles apply to the institutions and bodies of the EU in any legislative measure they adopt and to the Member Status when they implement EU law.

The aim of the Charter is by no means to increase the powers of the EU, nor to change the internal constitutional order of the Member States, but to ensure that, when they implement common policies, they respect these fundamental rights and values. These rights and values are now shared by nearly half a billion European citizens.

The drafting of a European Union Charter of Fundamental Rights: Andrew Nicholas Duff (ELDR, UK)
The drafting of a European Union Charter of Fundamental Rights: Johannes Voggenhuber (Greens/EFA, A)
Approval of the draft European Union Charter of Fundamental Rights: Andrew Nicholas Duff (ELDR, UK)
Approval of the draft European Union Charter of Fundamental Rights: Johannes Voggenhuber (Greens/EFA, A)
The impact of the Charter of Fundamental Rights of the European Union and its future status: Andrew Nicholas Duff (ELDR, UK)
The Charter of Fundamental Rights of the European Union (part II of the Draft Treaty establishing a Constitution for Europe)
Official journal - final acts:
The drafting of a European Union Charter of Fundamental Rights - text adopted by the European Parliament
Approval of the draft European Union Charter of Fundamental Rights- text adopted by the European Parliament
The impact of the Charter of Fundamental Rights of the European Union and its future status - text adopted by the European Parliament



  Publishing deadline: 2 April 2004