Select Committee on European Union Eighth Report


PART 3: EVIDENCE

The status of the Charter

A DECLARATORY INSTRUMENT

55. When he gave evidence before the Select Committee last December, Mr Vaz said he welcomed the Cologne decision to establish a Charter of Fundamental Rights. But there had been no agreement to create a binding document. He said: "what this will be is a showcase of existing rights, rights that have been conferred by either the Treaties or legislation. It is not a seed for a constitution, but it is there to do exactly as I have just described and we will resist any attempts to make it binding"[41]. Both the Minister and Lord Goldsmith strongly resisted the suggestion that the Charter would be a mere index of existing rights. The exercise was, in Mr Vaz's words, "far more fundamental and far more important". Lord Goldsmith described it as a "difficult, important, technical task". He believed the Charter would have "significant value". It was too easy for lawyers to underestimate the importance of visibility of rights in the field of human rights. Further neither the ECJ's case-law nor the Treaties set out clearly what were the "fundamental freedoms" which the Community institutions had to respect (QQ 289, 300, 306).

56. But the view that the Charter should not be a legally binding instrument received only limited support from our witnesses. The CBI believed that a purely declaratory Charter would be more flexible and highlight rights within a wider context than would a legally binding text incorporated in the Treaties. The latter would be very difficult to agree given Member States' differing approaches and might prejudice legal certainty (p 135). Both Mr Win Griffiths and Lord Bowness saw the Charter essentially as a declaratory document. Lord Bowness said: "one ought not to forget the second objective or lead which seems to have been given out of the Cologne and Tampere Councils and that is that these rights will become more obvious to citizens of the European Union" (Q 65). According to Mr Griffiths "to draw up a clear and concise list of fundamental rights, easily accessible, evident from all that background material, is in fact quite an ambitious task in itself. If we can do that I think we will have achieved something very worthwhile". But, for the European Parliament, a declaration was not enough. The Charter must be binding and incorporated into the Treaty (QQ 66, 75).

57. Mr Duff, MEP said that some in the European Council had seen the Charter as primarily a public relations exercise. The consensus was that the Charter should be "proclamatory".[42] In his view, that approach might be received by the public with some cynicism: "We have plenty of grand pieces of paper being churned out of Brussels which are complete nonsense and we do not want to add to that pile" (Q 93). Others agreed. The British Institute said that there had been many declarations and proclamations made by various EU institutions concerning human rights and questioned the value of adopting another. "We are not as yet convinced that the present initiative to draft an EU Charter is the best way to improve respect for human rights, in the absence of a coherent EU human rights policy" (p 133). Bribosia and Waelbrook saw great value, not least in terms of legal certainty, in defining the list of rights to be protected in the Community legal system. However, "The adoption of a mere symbolic declaration would in our view be a futile exercise and would not truly add to the numerous similar resolutions already existing even within the EU" (pp 125-126). Mr Krüger, Deputy Secretary General of the Council of Europe, believed it would be difficult for the Union, the Parliament and Member States to present the public with a political declaration. He said: "it would be a pity if one would leave it at that … rather than giving an additional right to our citizens to complain about acts which are at the moment escaping from any complaint" (QQ 201, 206).

58. The International Commission of Jurists took the view that a political, non-binding, declaration would not strengthen individual human rights protection. Rights had no value without remedies. The Commission said: "Decades of experience, whether it be with the European Convention on Human Rights or other international human rights instruments, show, however, that the true impact of a human rights instrument stems from the interpretation and implementation of its provisions by an independent judicial body" (p 153). The Meijers Committee doubted whether a non-binding declaration of existing fundamental rights without a specific means of redress would help in bringing the Union closer to the citizen (p 190).

59. Mr Krüger said that the assumption within the Convention was that the Charter would be legally binding, though the ultimate decision on that matter was not for the Convention. He believed that the purpose was to make it a legally binding instrument containing justiciable rights. Although not wishing to diminish the importance of political declarations, he thought that it would be regrettable if the outcome of all the work was to give birth to a mouse (Q 180, 184, 200). The Bar said that it was difficult to see why there would need to be discussion of the integration of the Charter into the Treaties, or to convene such an august drafting body, if the purpose of the Charter was limited to a publicity exercise of the kind envisaged by the UK Government (p 114).

60. Dr Quinn argued that the value of a "declaratory" instrument should not be underestimated. "It looks innocuous enough on its face. However, its strategic importance could be considerable". He identified three possible consequences. First, it would meet the political objective of being seen to respond to the demands of the people and would thus address the question of legitimacy. Second, it would mark another milestone in the construction of the European constitutional order and would be a key stepping-stone if an EU Bill of Rights were ever to be drafted. Third, it might be used by the ECJ as a guide to the general principles of Community law and thus help inform, perhaps even more so than the ECHR, the evolving corpus of human rights binding on the Community. Dr Quinn believed that the Charter should have only political status for the time being but that its contribution to the long-term process of constitution building should be frankly acknowledged (p 166).

61. Lord Goldsmith also envisaged a declaratory Charter having incidental legal effects. As mentioned above, the Charter would go some way in identifying "fundamental freedoms" within the meaning of Article 6(2) of the TEU. He believed that a document which defined clearly what the fundamental freedoms were might have an impact on what the European Union institutions ought to be doing within their competence. It might also have an impact on the way the ECJ would see the content of Article 6(2) (QQ 294, 296, 300). Advocate General Francis Jacobs saw the possibility of the Charter, like the Human Rights Act in the UK, introducing a new way of looking at legal problems: "There will be a new orientation, a new culture as it is sometimes put, of human rights". Whatever its form or legal status it was likely to influence the ECJ. Even if only a declaration of political character it would be taken into account by the Court. If adopted by a more formal procedure the Court would "pay serious attention to it". Even if not incorporated in the Treaties and made formally justiciable the Charter would have a "significant effect" (QQ 241, 257).

ENFORCEABLE RIGHTS

62. Mr Duff MEP was clear that the Charter should contain rights carrying legal remedies. A key point made in the European Parliament's Report on the Charter was that it should be justiciable before the ECJ. He emphasised that it was "important that we are not simply drafting a charter of political aspirations" (QQ 88, 93). The International Commission of Jurists also saw the ECJ as being the most obvious body to ensure enforcement of the Charter. They, like a number of witnesses, were particularly critical of the restrictive admissibility requirement of Article 230 (4) EC, and they favoured improving the rights of the individual to challenge measures before the ECJ by means of an "EU amparo"[43]. At the same time the International Commission acknowledged the ECJ's heavy workload. To lessen the burden of the Court, internal complaints procedures should be established to deal with alleged breaches imputable to a specific institution or organ. The admissibility of complaints before the Court should be examined at first instance by a panel of three judges (p 154).

63. In Justice's view the question of enforceability of the Charter ran alongside the question of EU accession to the ECHR. The Charter and the ECHR had to be able to work together in tandem (Q 133). The Meijers Committee also saw a linkage between enforceability of the Charter and the ECHR: the ECJ would be bound to apply the provisions of the ECHR, not as "general principles" of Community law, but as provisions specifically incorporated into the Charter (p 193).

64. But the CBI feared that a legally binding Charter would undermine the existing rights system. The Strasbourg Court had taken a balanced approach to the interpretation and protection of fundamental rights and in their application in the employment context had acted "sensitively". The CBI expressed concern at the idea that the ECJ should have jurisdiction over ECHR rights: "employers have no doubt that this would involve a more expansive interpretation of those rights". A legally binding Charter would also create legal uncertainty. Overlaps of jurisdiction would lead to different interpretation of rights (p 135).

65. Lord Goldsmith explained that the Charter was being drafted on the basis that it could be a legally binding document. That did not pre-judge the issue, but Lord Goldsmith considered it important not to draft a document which might subsequently be given some effect without being very clear as to how it would be interpreted in that event (Q 299). The Minister did not envisage the Charter creating any new rights or itself being enforceable. He said: "Nothing is going to be binding on 31 December 2000 that is not binding now. There are no new sets of rights and tranches of rights that are going to be adopted as a result of this procedure" (Q 265).

66. Professor McCrudden expressed concern that the question of legal enforceability appeared to be too stark. There were alternatives short of giving individuals enforcement powers in national courts (Q 14). Professor Fredman suggested a "mainstreaming" approach similar to that already used for equal opportunities at EU level. Executive or legislative action must have regard to the impact on specific rights. Other possibilities were a reporting mechanism such as that employed by the European Social Charter (where States have to report on the extent to which they have attained stated policy objectives) or a monitoring mechanism to keep track of how rights were actually being put into effect (Q 22).

INCORPORATION IN THE TREATIES

67. Professor Simitis said that the Charter was never intended to be "a simple palliative that mollifies individuals by accurately describing fundamental rights but deliberately avoids any commitment as far as their implementation is concerned". Rather, it had to be incorporated into the Treaties and vested "with precisely the same binding force as each of the basic documents of the European Union". The ECJ should have jurisdiction to interpret and enforce it (p 187). Professor Frowein, University of Heidelberg, said that fundamental rights should be incorporated into the Constitution of the EU when the Treaty was next revised. That was the only credible way of giving legitimacy to the Union (p 149). ETUC favoured incorporating "the full set of rights (civil, political, economic, social, cultural and trade union rights) in the Treaty in a binding manner". There should be an "EU Bill of Rights" based upon a combination of existing core rights of international instruments and EU-specific cross border and transnational rights (pp 138-139). Professor Toth also contended strongly that fundamental rights should be incorporated into the Union's constitutional structure, inserting a new title in the TEU and amending the objectives of the Union and the Communities to include the protection of fundamental rights. "Only by endowing those rights with constitutional status would the European Union finally catch up with the modern democracies of the world, which all have provisions on the protection of fundamental rights written in their Constitutions". The Charter would thus apply to action taken under the existing Three Pillars. No new remedies or procedures would be needed to enforce the Charter, though consideration should be given to widening the category of persons who could challenge legislative and administrative measures under the Treaties (p 198).

68. The Minister, however, did not believe that there was a mandate for proceeding beyond the Cologne conclusions. Ultimately it would be for heads of government to take the final view. It was not necessary to discuss, and would be premature to decide, at the present stage whether or not the Charter should be incorporated into the Treaties (QQ 266, 268, 270).

THE CONSTITUTIONAL DIMENSION

69. Bribosia and Waelbrook believed that a formal Charter, enshrined in the basic Treaties, "would underline the immutability and solemnity of these rights as well as their constitutional character, and would hence to some extent enhance the democratic legitimacy of the European Union"(p 122). In the Bar's view, giving Treaty status to whatever Charter emerged from the political process was a question of greater importance for the future constitution of Europe than it was for the effectiveness of judicial human rights protection within the Union. "A "patriated" catalogue of EU rights, tailored to the specific requirements of the EU, would strengthen the hand of those who wish for the EU to develop on the traditional model of the federal nation State". The Bar also considered that the Charter might have far-reaching implications for the balance of power within the constitution of the Union. In particular, if a catalogue of fundamental rights was accorded the status of a "basic law", whether by the express words of the Treaties or by judicial interpretation, it could provide a benchmark by which the ECJ could examine the constitutionality not only of secondary legislation and Community action but of subsequent Treaty amendments proposed by the Member States - and perhaps even of existing Treaty provisions. In that event, it would no longer be true to say of the Member States that they were, in the phrase of the German Federal Constitutional Court, "the Masters of the Treaties" (p 118). Professor Simitis also predicted that the Charter would have wide-reaching effects. In establishing the Charter the Union would, as elsewhere, have to act within the limits of its competence. But, he added, to assume thereafter that fundamental rights so recognised would merely be applicable to issues falling under the jurisdiction of the Union would be misleading (pp 186-187).

70. The Minister emphasised that the Charter was a political, not a legal or constitutional instrument. He said: "This is not a constitution for the European Union. This is not a bill of rights for the European Union". The Government was aware that others might have greater ambitions for the Charter and that the Cologne remit provided for discussion of the Charter's future status. The Government was willing to look at whether or not the Charter needed to be incorporated in the Treaties and how best the matter could be taken forward (QQ 267, 269, 283, 288).

The scope of the Charter

ON WHOM SHOULD THE CHARTER IMPOSE OBLIGATIONS?

71. Lord Goldsmith said that the Charter was to be directed to the European Union institutions. It was not directed to Member States, except insofar as they were acting to apply Community law (Q 303). Though Mr Kirkhope MEP suggested that it would be sensible for the Charter simply to be an instrument binding on the Community institutions (Q 59), the majority of our witnesses supported the view that it should apply to Member States when implementing EU legislation. A few considered that the Charter might possibly have wider application.

72. In this context "Community institutions" should not, in the opinion of both the International Commission of Jurists and the Meijers Committee, be narrowly construed. The Charter should provide protection against the acts and omissions of the EC/EU institutions and organs, as well as entities that have been established in the framework of the Union, such as Europol (pp 154, 194). Advocate General Francis Jacobs, looking at the Charter in the context of the Union's system of judicial protection in general, said: "The ultimate solution would be to allow the Court to exercise jurisdiction over all Community or Union bodies or agencies which exercise powers in relation to individuals" (Q 230).

73. Mr Cooper, for Justice, said: "the Charter should apply to all EU action that is currently unprotected by the national legal system or by the Convention. At a very basic minimum the Charter should cover Member State action that implements European Union action under all three pillars" (Q 165). Professor McCrudden said that extending the Charter to Member States when implementing EU legislation would not be radical. The Charter could make explicit the jurisprudence of the Court under which such responsibility already existed (Q 33). Professor Toth, however, considered such an extension to be problematic, raising difficult issues concerning the relationship between EU law and the ECHR. Limiting any extension to the actions of Member States in application of Community law would have two major advantages: EU competences would not be extended at the expense of the Member States; the respective roles of national courts, the ECJ and the Court of Human Rights would not be affected. But there would still be difficulties: there was no clear cut distinction between national measures which do, and those which do not, fall within the scope of Community law; the distinction could lead to paradoxical results; and, in certain situations even EC nationals would be deprived of protection under Community law (p 199). The Meijers Committee also pointed to the potential for confusion if the Charter applied to activities of the Member States. It accepted that Member States should be bound when implementing Community law, even though this might involve domestic courts applying two distinct standards, namely the Charter, as interpreted by the ECJ, and the ECHR as interpreted by the Strasbourg Court. This underlined the importance of avoiding diverging interpretations (p 194). Similarly, Professor Gaja identified difficulties in making the Charter applicable to Member States' activities, not least overcoming inadequacies in present national enforcement regimes. He accepted, however, that a Charter applicable only to the EU institutions would have too limited an impact (p 150).

74. Professor Toth said that extending the Charter to all actions of Member States would have far-reaching consequences and radically transform the whole system of human rights protection in Europe (p 200). But Professor McCrudden did not exclude the possibility that the Charter might extend to Member States when not acting under Community law. The Charter might play a role in the context of Article 7 of the Treaty on European Union. That Article provided a mechanism for the suspension of the rights of a Member State where it acted in persistent breach of the principles of Article 6 (1) which included respect for human rights and fundamental freedoms (Q 34). The International Commission of Jurists took the view that while the Charter might only impose obligations on Member States when their action fell within the scope of EC/EU law, that should not prevent the Charter from playing a role in the interpretation and application of Article 7 TEU (p 155).

75. Mr Vaz said that the Charter must not disturb Member States' legal relations with their citizens in areas of national government competence. He was emphatic that "The Charter is not a platform for new European Union competencies, nor a launch pad for new EC legislation" (Q 260). The Minister was not alone in expressing this concern. Bribosia and Waelbrook emphasised that were the Charter to apply to Member States when applying Community law, the ECJ should not become competent as regards observance by national authorities of fundamental rights in respect of their actions outside that field of application (p 127). The CBI said that the Charter should respect the present competences of the Union and the ECHR, with the rights given by each being justiciable in the appropriate court in Luxembourg or Strasbourg as the case might be. The CBI said: "The Council's mandate is about a more effective communication of existing rights, not about changing the scope or application of these rights" (p 136). Professor Frowein said that both the Union and the Member States were subject, according to their respective competences, to a collective or individual obligation to ensure the enjoyment of fundamental rights. The granting of fundamental rights in the Union's constitution was not an automatic extension of Union competence (p 149).

76. ILPA contemplated the Charter reaching even further and impinging on the behaviour of private parties. Ms Rogers said: "in so far as it is possible it should have horizontal effect as well, in other words it should apply to private parties such as carriers" (Q 162). Others, such as Liberty, were more cautious and aware that "horizontality" raised very complex issues (Q 166). Neither the British Institute nor Statewatch wanted to exclude the possibility that the Charter should have horizontal effect, at least to the extent that such effect was already established within international human rights law. The Charter should follow the same approach as the ECHR, where in certain circumstances an individual's rights had been protected against interference by private persons. The Institute said that it would expect any text and subsequent interpretation to be as at least as favourable, in human rights protection terms, as the text of the ECHR and jurisprudence of the Strasbourg Court (p 133). The Bar said that the horizontal enforcement of human rights (Drittwirkung) was notoriously complex. Whilst Drittwirkung was not a requirement of the ECHR, nothing in the ECHR prevented the States from conferring Drittwirkung upon Convention rights and freedoms within their national legal systems. Whether the EU would wish to do so was another matter (p 119). Statewatch said that the question of horizontal effect should not be left to the courts to resolve. It should be set out in the Charter (Q 168). Advocate General Francis Jacobs disagreed. The question as to whose obligations arose under the Charter should not be definitively resolved by the terms of the Charter but by the Court when a right was claimed. It would be very difficult to spell out in advance on whom the obligations would fall (Q 256).

TO WHAT EXTENT IF ANY WOULD THE RIGHTS ENUNCIATED IN THE CHARTER APPLY TO NON-EU CITIZENS?

77. The majority of witnesses advocated the view that the Charter should not be restricted to EU citizens. The International Commission of Jurists, ILPA, Justice, Liberty and Statewatch all took the view that the basic principle governing the scope of application of the Charter should be that the rights contained therein should be universal. Any restriction on that, such as the right to vote in elections, should be clearly set out and justifiable (p 155, QQ 155-158). The British Institute said that that a uniting feature of all international human rights instruments was the requirement that States secure rights to "everyone within their jurisdiction" (p 133).

78. Professor Simitis considered that structural changes to the Union, such as those effected by the Amsterdam Treaty, underscored the need to separate fundamental rights and citizenship (p 188). The Meijers Committee said: "Traditionally, however, certain political and social rights have been reserved to specific groups of individuals (nationals of the State, European citizens). Mention may be made of the right to vote, the right to diplomatic and consular protection, access to the Community civil service, free movement of workers. Any preferential treatment, however, must always be based on objective and reasonable grounds. And in the case of difference of treatment based exclusively on the ground of nationality, the European Court of Human Rights insists that "very weighty reasons" must be put forward to justify this under the Convention" (p 194). Dr Quinn put it succinctly: "while citizens' rights are for citizens, human rights are for all" (p 167).

79. In Professor Fredman's view, while the momentum behind the Charter seemed to be to enrich the concept of European citizenship, to limit the Charter to EU citizens would be to exclude important groups, particularly third country nationals legally resident in the Union. They were vulnerable to breaches of fundamental rights, particularly in terms of the right to family life. Leaving them outside the Charter might itself give rise to a conflict with the obligation in Article 13 EC not to discriminate on grounds of race. Professor Fredman also drew attention to another vulnerable group, asylum seekers and refugees who were not yet legally resident in the Union and for whom due process rights were very important (QQ 35, 36). Professor Gaja believed that, except for certain political rights, any distinction among beneficiaries of basic human rights was unwarranted (p 151). The International Commission of Jurists said: "the extent to which the rights enunciated in the EU Charter will apply to non-EU citizens is a complex matter for which there is no simple answer. It can be accepted that a limited number of political rights are to be restricted to EU-citizens, in the same way as at the national level some rights are only granted to the state's own nationals. The rights that fall outside this category of rights should not be restricted explicitly and systemically to EU citizens. Concerning rights as fundamental as the right to health, the right to social and medical assistance, or the right to education of children, the status of individuals, whether they be asylum seekers or "undocumented" persons or in any illegal situation, should never be invoked in order to deny these rights" (p 156).

THE THREE PILLARS

80. The majority of witnesses believed that the Charter should in principle apply to all Union activities. The Meijers Committee considered it unacceptable in 2000 to draw up a Charter that only applied within the limited context of the EC Treaties (p 193). Bribosia and Waelbrook said that it would be difficult, in the light of the Cologne and Tampere conclusions, for the citizen to understand how the Charter could be limited to one aspect of the Union's activities (p 126).

81. The International Commission of Jurists took the view that the first purpose of the Charter should be to give more substance to Article 6(2) TEU and that, as with Article 6(2) TEU, the Charter should apply to Union action under all three pillars. The International Commission considered it essential that the Charter should be inserted into the EU Treaty and cover the full spectrum of EU activities (pp 153-154). Professor Gaja said: "Given Articles 6 and 7 of the TEU, which concern the protection for human rights in all three pillars, it would be hard to justify a restriction of the scope of the Charter to the first pillar. It is clear that fundamental rights should be granted throughout" (p 151). Dr Quinn inserted a caveat: some clear formula would need to be devised to make it plain that the Charter did not reach into matters of purely domestic concern (p 167).

82. The British Institute, Justice, Liberty and Statewatch all believed that the Charter should apply to all three Pillars, though Mr Eicke, for Liberty, pointed out that applicability to the Second Pillar, common foreign and security policy, raised problems of justiciability as courts would be reluctant to interfere in an area of broad administrative discretion. But Mr Peers, for Statewatch, said that there might not be such a clear distinction between the Second and Third Pillars as was sometimes suggested. Experience showed that there were crossovers between police and military powers. The focus should not be on justiciability alone. Alternative methods of resolving disputes and of monitoring compliance with human rights could be found (p 134, QQ 139, 140).


41   Evidence by the Minister of State, Foreign and Commonwealth Office, on the Helsinki European Council, 3rd Report, 1999-2000, HL 22. Q 50. Back

42   The European Council Decision, adopted at the Cologne summit, on the drawing up of the Charter provides: "The European Council will propose to the European Parliament and the Commission that, together with the Council, they should solemnly proclaim on the basis of the draft document a European Charter of Fundamental Rights". Emphasis added. Back

43   Under Spanish law citizens have direct access to the constitutional court to clarify their fundamental rights by way of a special procedure called "recurso de amparo". Back


 
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