The EPC Project on the European Charter of Fundamental Rights - Some Initial Considerations

7 March 2002

This article is the first in a series opening the debate on the different implications of the Charter of Fundamental Rights. We would like you to participate by sending us your comments, suggestions or contributions to

The Laeken EU Summit of December 2001 set up a Convention to consider, amongst other things, two issues related to the Charter in preparation for the Inter-Governmental Conference of 2004; the incorporation of the Charter into the EU Treaties and/or the accession of the EU to the European Convention of Human Rights.

The European Charter of Fundamental Rights is an extraordinary document by all accounts; the content and substance of the Charter; the nature of the document and the statement it makes about the EU; the method by which it came to be. All these issues raise key questions about the direction of the EU vis-à-vis its Member States, its policies, its citizens and other international actors. Much, therefore, hangs on the final fate of the Charter.

The aim of The European Policy Centre’s The Europe We Need initiative is to assist and advise the Convention by exploring a number of the more fundamental issues raised by the Charter. An EPC Advisory Panel of senior figures from politics, law and academia has begun a discussion of the issue.

Below are a series of questions related to the Convention’s consideration of the Charter, each posing considerable challenges.

Is there the political will to incorporate the draft Charter fully into the Treaties? In mandating the original Convention to draft the Charter, the EU Council demonstrated a belief that the EU had reached a sufficient stage in its evolution to commission a text having deep constitutional implications. The solemn declaration of the Charter at the fringes of the 2000 Inter-Governmental Conference in Nice, showed that the Member States accepted the results of the Convention in principle, but had not yet been able to reach a decision on its status. The key issue of the status of the Second and Third Pillars of the EU remain. However, if the Member States are not willing to give full effect to the Charter or if they find a weak compromise, what sort of message will this send to EU citizens about their rights?

Will the Charter create a constitution for the EU? Incorporating the Charter into the EU Treaty creates the possibility of propelling the EU into a new legal order. Clearly the political impact of the Charter on the existing EU system needs to be considered as the Charter may certainly have a constitutionalising effect. The Charter provides the opportunity to create a new form of Union and a number of commentators are calling for the EU to be granted a formative constitution. An objective clarification of what is meant by a constitution from a legal, practical and political standpoint needs to be undertaken. Only then can a discussion be had as to whether restructuring the system is desirable, or even politically achievable.

How will incorporation affect the EU’s existing legal process and architecture? One key issue to avoid is the creation of confusion for citizens, courts and the legal profession. Member States legal systems already give effect to many of the rights set out in the Charter. However, one could foresee the need to ensure consistency in the application of these rights; in the context of procedures and remedies available in national courts. Whether national legal systems would need adjustments is worth considering, as this could affect the political will for full incorporation. In case of incorporation, specific care will need to be taken as to what mechanism is appropriate for individuals to enforce their Charter rights. Is the existing system appropriate to handle fundamental rights cases expeditiously and coherently?

International Legal Personality One possible effect of incorporation of the Charter into the EU Treaty would be to grant full international legal personality to the EU, which currently does not exist (although it has been debated that there is limited implied personality). Will the granting of such a capacity and competence to act require the existing EU institutions to re-assess their roles? For example, the Commission and the Council would arguably have an implied obligation to monitor the application of the Charter in EU law, possibly take action for non-implementation and even legislate in order for fundamental rights to be protected. This logic naturally goes against Article 51(2) of the Draft Charter. Whatever the current position, incorporation of the Charter into the Treaty will require a re-evaluation of the EU’s international status, purpose and direction. It may also bring the EU fully within the field of international law; granting it the ability to take a full role in other international organizations, such as the United Nations. Are the Member States willing to go this far?

Issues related to the European Convention of Human Rights and Fundamental Freedoms Will an EU Charter of Fundamental Rights create conflict with existing human rights protection systems, notably the ECHR? A fully incorporated Charter would place the EU on an equal footing with the ECHR, in terms of the protection of individual rights and one can foresee either divergence in interpretation of these rights (as sometimes occurs) or simply confusion in national courts. Although the Charter expressly seeks to avoid potential clashes of jurisdiction, this does not prevent such a situation from arising. One can also foresee the ECHR ruling on EU issues, and the Senator Lines case, currently a case before the ECHR Court in Strasbourg, could pit the ECHR directly against the EU. Naturally, the relationship between the EU and the Council of Europe, and between the EU’s Court in Luxembourg and the ECHR Court in Strasbourg depends on the legal status of the Charter vis-à-vis the EU Treaty and how the ECHR issue is dealt with expressly. It is however, one of the most critical questions facing the Convention, as it goes to the heart of the systems of redress available to citizens in Europe.

Accession of the EU to the ECHR As well as the status of the Charter, the Convention has to consider the question of accession of the EU to the ECHR. The incorporation of the Charter does not preclude the EU’s accession to the ECHR, in fact many see this as complementary. In 1994, the ECJ stated that the EC had no capacity or competence to accede to the ECHR. A Treaty amendment incorporating the Charter could well grant the requisite capacity and competence to enable the accession of the EU to the ECHR (although this would probably not supersede the Member States’ individual obligations under the ECHR). If the Convention advises the 2004 IGC that accession to the ECHR is desirable, a change to the ECHR accession mechanism would be required, as it currently only allows nation states to join. Accession to the ECHR will not only fundamentally change the nature of the EU, it will also require a re-configuration of its institutions to fulfil ECHR obligations. The role of EU members in the ECHR, as well as the role of the ECHR and EU judicial institutions, also requires scrutiny.

Related issues There are a number of related issues that need to be considered and discussed. For example: ·Does the Charter affect the accession criteria of the candidate states and can they guarantee the rights set out in the Charter? ·In the majority of the EU’s Association Agreements, a clause exists making the respect for fundamental rights (although not clearly defined) an essential element of the agreement, whereby breach of this provision activates a sanction, suspension or withdrawal mechanism. Will the EU, which will now have a clear text to abide by, be the focus of retaliatory measures from third states if the Charter is not abided by? Or will the EU be forced to act more regularly, as it will have a clear benchmark to abide by? The Cologne European Council’s criteria of making the Charter of ‘overriding importance and relevance’ requires the Convention to focus on the practicalities and applicability of the rights contained in the text. Over the course of 2002 and 2003, The European Policy Centre’s The Europe We Need project will explore a number of the more fundamental issues raised by the Charter, through discussion with stakeholders, workshops and articles.

Mathew Heim is an Associate Director at APCO Europe and Special Adviser to the EPC on the project of the EU Charter of Fundamental Rights.