Select Committee on European Union Eighth Report


PART 3: EVIDENCE

The content of the Charter

A HIGH LEVEL OF PROTECTION

83. The Cologne Council indicated that the Charter would include: rights guaranteed by the European Convention on Human Rights; rights derived from the constitutional traditions of Member States, recognised in the case law of the Community Courts as general principles of Community law; and rights exclusive to Union citizens under the Treaties. Account should also be taken of economic and social rights contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers. The British Institute noted that this formulation was narrower than that adopted by the ECJ in its human rights jurisprudence as part of the general principles of Community law. Adoption of a catalogue of rights narrower than the ECJ's would represent a watering down, not strengthening, of human rights protection within the EU (p 134).

84. Fair Trials Abroad was critical of different standards of administration of justice in the Union (p 144). Both ILPA and Justice stressed that the Charter should provide the highest level of human rights protection. Ms Rogers, for ILPA, said: "there should not be any form of "dumbing down" of rights, as it were, going to the lowest common denominator amongst Member States" (QQ 145, 147). The International Commission of Jurists argued that a weak Charter would constitute a backward step in relation to the existing acquis in the sphere of international and European human rights law. The Charter should take the ECHR (and its additional protocols) and the European Social Charter (Articles 1-19 and the additional rights provided in the 1996 Revision) "as a minimum standard to which the Union could add more rights in order to take into account its own law" (pp 152, 158).

85. Statewatch also emphasised the importance of the content fully reflecting the ECHR and, to the fullest extent possible, the protocols to the ECHR. Just because not all Member States had ratified an element should not mean that it should be left out of the Charter. In addition, the Charter should include rights under the EU Treaties and in national constitutions and incorporate rights recognised by the ECJ as general principles of Community law (Q 150). Advocate General Francis Jacobs said that there were areas where Community law granted greater protection than the ECHR, for example in relation to such matters as discrimination and in the safeguarding of procedural rights in the conduct of investigations. That should be reflected in the Charter (QQ 219, 244). Mr Krüger, Deputy Secretary General of the Council of Europe, did not think that the latter would object to the Charter providing greater protection than that afforded under the ECHR. He said: "our worry is that it might be conflicting or that it goes below it" (Q 192).

86. While much emphasis was placed on the ECHR, the Meijers Committee argued that the Charter should not be limited to the substantive provisions of the ECHR. Other international instruments contained important additions. An obvious source of inspiration might be found in the treaties on which the Member States have collaborated[44] (p 195). Justice and ILPA thought that attention should be given to the European Social Charter (QQ 119, 145, 147), while the British Institute said that the Charter should also take account of "standard setting initiatives which do not have treaty status and other soft law in the relevant areas" (p 134). The Minster was, however, clear. The remit of the Cologne Council had to be followed. It was not the opportunity to bring in new rights and competencies (Q 264).

ECONOMIC AND SOCIAL RIGHTS

87. Most witnesses took the view that the Charter should extend beyond civil and political rights. The International Commission of Jurists said: "The greatest number of attacks on the dignity of the individual is witnessed in the social sphere. The message and the reality of the European Union of today and tomorrow should be that the Europe of human rights will always be incomplete if the social dimension is absent. The inclusion of economic and social rights in the EU Charter can and must contribute to prevent such inadequacy". The International Commission drew attention to Member States' commitment to the indivisibility and interdependence of civil, political, social, economic and cultural rights. It also pointed out that all the candidate States had ratified the European Social Charter and that "the protection of fundamental social rights is a matter of serious concern in these new democracies as well as in the current Member States" (p 157). The Meijers Committee believed that limiting the Charter to civil and political rights would be hard to defend (p 195). Justice said that the Charter, in guaranteeing social and economic rights, should draw on a number of international and domestic sources (Q 147).

88. ETUC supported the inclusion of economic, social and trade union rights in the Treaty. A distinction could, however, be made between explicit fundamental rights and binding political objectives ("programmatic rights"). The latter required appropriate policies, programmes and measures to ensure their promotion, access, enforcement and effectiveness. ETUC listed the social and economic rights that should be considered. These included the right to equal pay for equal work without discrimination, and the rights of freedom of association, collective bargaining and trade union action, including the rights to cross-border solidarity action and to strike. In contrast, its examples of "programmatic rights" included the rights to education and to life-long learning, and the right of elderly people to live a decent life (the entitlement to a decent income, care allowance and social protection) (p 138). Mr Duff MEP believed that the Charter would, in response to pressure from the unions and the NGOs, contain fundamental rights in the social field, such as the right to strike. It was, in his view, generally accepted that the Single Market required a social dimension and that was to be reflected in the Charter. But Mr Duff did not think "the Brits should fear that this is going to be the imposition of socialist central planning in Brussels" (Q 95).

89. The CBI's view was that the Charter should not create new rights. Its legitimacy would be undermined if it bypassed the normal EU decision-making process in order to create new rights. The Cologne Council had distinguished between rights and policy objectives. Any attempt to use the Charter to turn existing policy objectives, such as those in Article 136 EC (social policy), into legal rights would make the full pursuit of those objectives and achieving a consensus on the scope and content of the Charter much more difficult. The CBI argued that political aspirations, particularly on economic and social issues, had to be recognised as such and not translated into rights. There was, for example, no recognised legal "right to employment" separate from rights of free movement. Attaining a high level of employment and the provision of adequate social protection were policy objectives the main responsibility for which rested with national Governments (p 136). Mr Timothy Kirkhope MEP said that there were deep concerns about the Charter. Some wanted to go beyond the Cologne conclusions and to create new human rights. He said: "Certainly the amount of pressure there already is straightaway to turn this into a Christmas tree is I think an indicator that it is going to be, if anything, rather chaotic at the end of the day". He did not believe that fundamental rights set out in the Charter should extend into areas of social and employment issues (QQ 44, 46).

90. A number of witnesses drew a distinction between civil and political rights and economic, social and cultural rights. Professor Schermers said that the former were limitations of governmental power (governments must respect the right to life, freedom of information, private life, etc) whilst the latter required governments to act (minimum income, social security, etc). Traditionally the protection of human rights concerned civil and political rights (p 184). In Professor Fredman's view, the distinction between the two classes of rights could become blurred. She referred to the right of equality, which might start off looking like an individual civil right but might soon acquire a collective dimension bringing in social aspects (Q 26). Professor Simitis said that (apart from social goals or policies) a "systematic separation of social and political rights has blurred their links", leading to an "understanding that grants social rights a distinctly inferior status". For example, the "by now classic social rights, the right to bargain collectively and to resort to collective action in the event of a conflict of interests" were "directly related to freedom of association. Hence, the Charter in affirming the latter, must also address the first" (p 189).

91. Professor Schermers doubted whether the EU was yet ready to codify economic, social and cultural rights. The history of the European Social Charter demonstrated the problems that might arise (p 184). Mr Krüger, Deputy Secretary General of the Council of Europe, explained that in the Council's lengthy experience attempting to incorporate social, economic and cultural rights into the ECHR had been unsuccessful. It had been found to be practically impossible to make the rights justiciable, although he did not rule out the possibility that some might be. The European Social Charters, of 1961 and 1996, would be the basic working documents for the Convention's deliberations on the subject. But neither provided justiciable rights and Mr Krüger doubted whether it would be possible to identify major justiciable rights in the social field (QQ 184, 207-8, 213). Mr Win Griffiths queried whether it was appropriate to take things out of the Social Charter into the Charter because the former was not limited to establishing objectives for action by the Union. He foresaw substantial discussion on the subject (Q 69).

92. The Bar predicted that debate was likely to centre on the extent to which some such rights should be rendered fully justiciable in the Community Courts and in the courts of the Member States in their capacity as courts of Community law (p 117). Professor Fredman said that social rights could often be seen as policy objectives towards which States commit themselves to working. Thus it would not necessarily always be appropriate or effective to have an individual right of enforcement in the courts (Q 20). But, Professor McCrudden emphasised, it would be wrong to consider the distinction between civil and political rights on the one hand and economic and social rights on the other as being, as regards their enforcement, hard and soft in legal terms. Some social and economic rights, such as the right of freedom of association, were capable of hard legal enforcement. It was really a question of identifying the most appropriate method. Indeed, Professor Fredman added, the ability to bring a complaint before a court was not always the most effective way to enforce a right. Reporting mechanisms and proactive obligations were important complements to individual rights of enforcement (QQ 22-3). The Meijers Committee believed that the best way forward was to examine each separate right and determine which elements would lend themselves to judicial review (p 196). Liberty took the view that as far as economic, social and cultural rights were incorporated into the Charter then existing enforcement mechanisms should be used. There was, for example, a committee of experts that heard complaints under the International Covenant on Economic, Social and Cultural Rights (Q 148).

93. Bribosia and Waelbrook took the view that the Charter should only contain rights that could be directly invoked in court. The Charter should not become "a mere well-meaning catalogue of good intentions, recognising as "rights" general objectives such as the protection of the environment, of consumers, or full employment" (p 128). Professor Toth also believed that the Charter should be restricted to rights capable of judicial enforcement which benefited everyone within the jurisdiction of the Union and which were not already recognised and enforceable under existing Union law. It followed that economic, social and cultural rights would, in his view, be generally excluded. He noted that the most important economic rights (free movement, equal treatment, social protection) were already guaranteed under Community law. Those not legally enforceable had already been "solemnly proclaimed" in the Community Charter of the Fundamental Social Rights of Workers of 1989. Citizenship rights were protected by Part Two of the EC Treaty. Consequently the Charter should only contain the fundamental freedoms guaranteed by the ECHR (p 200).

94. Mr Peers, for Statewatch, took a different view. Justiciability should not be the criterion for inclusion in the Charter but the Charter should expressly address the issue of which rights were justiciable and which were not (Q 152). Similarly, having regard to breadth of matters likely to be included in the Charter and consequent concerns over the extension of competence at the expense of Member States, both Liberty and Statewatch proposed that the Charter should expressly provide that it only applied to the extent that it was relevant to Community and Union competence (QQ 153-4). Professor Simitis also drew a distinction between rights, which were justiciable, and social policy goals. Both could have a place in the Charter, though attention would have to be given to the wording to ensure that false expectations were not created and misunderstandings were reduced. He suggested that policy goals might be dealt with in the preamble to the Charter or by amending existing programmatic provisions in the Treaties. There were, however, social rights that needed to be included in the Charter on an equal footing with political rights (p 188). Advocate General Francis Jacobs also took the view that justiciability should not be the test as to whether a right was included in the Charter. But it would be important in the Charter to draw a distinction between those rights that already existed and those rights that might be in the form of aspirations (Q 231).

95. Finally, Dr Quinn drew attention to the possible implications of the Charter for the balance of competence between the Union and the Member States if economic, social and cultural rights were included. Union competencies might be expanded. At the very least the inclusion of such rights could help inform existing competencies and embolden the Community institutions to become more proactive in the general social policy sphere. This might be so even if the Charter described the rights as directive principles. Dr Quinn believed that the expansion of Union competence was likely to happen. That should be frankly acknowledged and debated (p 165). The Bar observed that responsibility for social, educational and welfare provision still rested overwhelmingly with the Member States rather than the Union. The last Inter-Governmental Conference had shown itself unwilling to incorporate into the Treaty a specific list of social and economic rights, as had been proposed in a Report, by the Comité des Sages for the last IGC, on a Europe of Civic and Social Rights. In this field, the Union would clearly have to proceed with caution. The universal nature of most social, economic and cultural rights was still sufficiently controversial for the question of whether there was a gap in their protection at Union level to be essentially a political one (p 116).

Relationship with the European Convention on Human Rights

THE POLITICAL DIMENSION

96. As mentioned at the outset, the Council of Europe is generally accepted as the fount and guardian of fundamental rights for (the wider) Europe. Mr Krüger, for the Council of Europe, said that the Council of Europe saw the creation of an EU Charter as "an inevitable process". They would help in its development and would try to see that the ECHR and the Charter were complementary. The Council of Europe was "in favour of the process but we are trying to avoid that Europe is divided into two parts, one in the east, one in the west, one for the Council of Europe, one for the European Union, one for the rich, one for the poor" (Q 178). There was general agreement among our witnesses that the position of the Council of Europe should not be undermined and that any weakening of the Strasbourg system would be detrimental to the protection of human rights across Europe.

97. The British Institute would not support any initiative that resulted in setting up a rival regime to the Council of Europe human rights machinery. "This would severely undermine human rights protection in Europe as a whole, with the possibility of the development of inconsistent jurisprudence, division of state resources earmarked for the support of human rights and inevitable uncertainty on the part of potential victims and others about which regime should be utilised in a particular case" (p 130). Dr Quinn identified the dangers of a steady arrogation of rights by the EU. "It could give rise to a two speed Europe from a human rights perspective. It could rob the Council of Europe of its normative leadership. It could weaken the hand of the Council of Europe machinery with respect to the newly democratised countries of Eastern Europe" (p 164).

98. Professor Schermers expressed concern that, if the Charter bound Member States, a Europe of two speeds might develop. States which needed human rights protection most (such as Turkey, Romania, Russia) would suffer if the Strasbourg system were partly replaced by an EU system (p 185). Professor McCrudden described a concern in the Council of Europe that an EU Charter might lead to an undermining of the effectiveness of the Council of Europe bodies. In particular, an EU Charter, self-standing within the Treaties, was perceived as undermining the European Court of Human Rights. There was currently some concern about how that Court was going to cope with expansion to the East, not just as regards the number of cases coming to it but also whether the Court would be successful in the future in getting States to accept the consequences of its judgments. In Professor McCrudden's view, the Union should not be doing anything that might cause the authority of the Strasbourg Court to decline (QQ 22, 38). Professor Gaja emphasised that the European Convention system could only work effectively in the future if it kept the active support of the EU Member States. The adoption of the EU Charter should not be regarded as a significant step towards phasing out the European Convention system (p 151).

THE RISK OF DIVERGENCE

99. A number of witnesses were critical of the present relationship between Community law and the ECHR, whereby the latter is absorbed in the definition of the "general principles" of EC law. Dr Quinn described the problems attendant on such an approach. First, since the ECHR was merely a 'guide' to general principles the ECJ was free to ignore any particular right or the way it was expressed therein. Second, the ECJ was free to interpret the right in its own way. Thus, human rights concerns were refracted through the potentially distorting prism of the structure, content and objectives of Community law. Third, the ECJ was free to depart, potentially radically, from the interpretation of the ECHR made by the European Court of Human Rights (p 171). Professor Boyle said that adoption of the Charter would help remedy "the obvious defect that although the European Union Treaties make general reference to respect for fundamental human rights, they nowhere set out these rights in detail". It was uncertain how far the ECHR could be regarded as part of EU law. The Charter should address that issue directly, setting out those provisions of the ECHR which were to be considered part of EU law (p 121).

100. But the International Commission of Jurists said that no Charter could end the present state of confusion caused by the existence of two parallel European systems of human rights protection. The risk of diverging standards would remain even if the provisions of the Charter fully corresponded to those enshrined in the ECHR and the European Social Charter. Resulting conflicts would undermine the authority of both the Charter and the ECHR (p 153). Mr Eicke, for Liberty, also considered that divergence of jurisprudence between the EU and the ECHR would be highly undesirable and might create one standard of fundamental rights for the rich Western European States leaving the rest with the Convention (Q 131). ILPA argued, in the absence of EU accession to the ECHR, for the creation of a reference mechanism and a more formal link between the Strasbourg and Luxembourg courts (Q 133). Justice preferred not to see the Convention repeated or paraphrased in the Charter. It would be much better for the Union to accede to the ECHR and to have the Charter refer to the accession and the rights enforceable by virtue of accession (Q 138). Professor Gaja also took the view that the Charter should not reproduce the substantive provisions of the ECHR. In his view the solution would be to include in the Charter some general references to the ECHR as interpreted by the Strasbourg Court (p 151).

101. The Meijers Committee argued that the Charter should not fall short of the ECHR as interpreted by the Strasbourg Court. The Committee was critical of the fact that draft articles put out for discussion by the drafting body appeared to differ from the ECHR provisions. The Meijers Committee recommended that the substantive rights and freedoms of the ECHR and its protocols should be "integrally transferred to the Charter". That was especially necessary if accession by the EU to the ECHR was not guaranteed (p 194). Fair Trials Abroad was concerned, however, that as regards certain matters, including legal representation and interpretation, the ECHR was insufficient and not "best practice" and should not become the benchmark for the Union (p 145). Liberty argued that the ECJ's jurisprudence on fundamental rights, where actually more extensive than the ECHR, should not be lost in the Charter process (Q 122). Advocate General Francis Jacobs explained how in some respects Community law went beyond the ECHR and conferred greater rights on the individual. That was certainly the case, for example, in relation to discrimination (Q 219). The Meijers Committee said that the discussion on the Charter should provide the opportunity to develop rights and freedoms geared to the powers and functions of the EU, such as the citizen's right to obtain information about the decision-making process of EC institutions (pp 195-196). But Justice expressed concern that the drafting committee should not start negotiating a new set of rights. Ms Colvin said: "it might not produce anything better than the ECHR and yet have the real risk that it may produce something less" (Q 119).

102. Mr Duff MEP was clear that the ECHR would form the "solid core" of the Charter, notwithstanding that it was not "sufficient, comprehensive or modern enough for our purposes". Attempts were being made to paraphrase or précis it. At the same time there was concern for legal certainty and a need to make sure that the Charter was consonant with the ECHR (QQ 92, 95). The Bar expressed concern at the idea of changing the wording of the ECHR in the Charter. There were three reasons for this view. First, to have two similar but distinct catalogues of fundamental rights and freedoms, which would sometimes be applicable in the same case, would cause confusion within the EU, even to professionals in the field. Secondly, it would tend to diminish the attraction of the Council of Europe and its Conventions to the States of Eastern Europe and the former Soviet Union. Thirdly, it would make it more difficult for the EU in the future to accede to the ECHR, a step which the Bar believed could well prove to be a positive one. In the Bar's view, the Charter should (as in section 2 of the Human Rights Act 1998) include an express provision requiring the ECJ and other courts applying EU law to take account of any relevant judgment, decision, declaration or advisory opinion of the European Court of Human Rights (p 120).

103. Both the Minister and Lord Goldsmith emphasised the need to avoid legal uncertainty. For that reason there had to be consistency between the Charter and the ECHR and between the two courts. Lord Goldsmith believed that it was very important for the Charter to track very carefully existing obligations. It would be "a great mistake to produce something which produces a parallel system, for example, to the European Convention on Human Rights in slightly different terms, producing a competition between two texts. That would not increase legal certainty. It would not enhance human rights. It would do quite the opposite". There was a growing recognition in the drafting body of the difficulties created by trying to include rights which were slightly different or developments going further than existing obligations (QQ 260, 294, 302, 316). Advocate General Jacobs recognised that repetition of the ECHR in the Charter raised substantial difficulty. There should not be too much departure in the new text from the text of the European Convention because ideally the two would march together. But he thought it was inevitable, if only because in certain respects the Charter might be able to go rather further than the Convention, that there would be some discrepancies. That could not be helped. But the same was true in relation to most national systems of protection and in practice it had not given rise to many problems (Q 236). Mr Krüger, Deputy Secretary General of the Council of Europe, considered it necessary to try to keep the Charter's provisions dealing with civil and political rights as close as possible to those in the ECHR. The problem was not, however, one of defining the rights but in ensuring harmony in their interpretation. The Convention was working on the inclusion in the Charter of a "catch-all" provision to say that whatever rights had been defined in the Charter should not fall below those protected under the ECHR as interpreted by the Strasbourg court (QQ 182, 185, 193). Lord Goldsmith had "insisted on adding, 'Interpreted in accordance with the jurisprudence of Strasbourg organs', by which I do not mean frozen at this moment in time, I mean marching step-by-step as the jurisprudence moves on. That would meet the twin objectives of not producing legal uncertainty and confusion in competing systems but would still enable a clear and visible statement to be made" (Q 296).

THE ACCESSION QUESTION

104. A principal recommendation of the report of the European Parliament's Constitutional Affairs Committee on the Charter was that the European Union should become a party to the European Convention on Human Rights. Mr Duff MEP said that EU accession to the ECHR would be "a considerable achievement and a great step forward for European integration" (Q 109). That view was shared by a number of other witnesses. Mr Eicke said that Liberty saw accession to the ECHR as "a vital piece in this jigsaw of the protection of fundamental rights in the EU" (Q 122). The International Commission of Jurists thought that the current Inter-Governmental Conference (IGC) offered an outstanding possibility to create a basis in the Treaties for that. The Charter and accession would supplement one another, in the same way as Member States have their own constitutional rights and are bound by the ECHR (p 159).

105. The British Institute also argued that the question of accession should be put back on the political map and considered at the IGC as part of the development of a coherent EU human rights policy. The Institute gave four particular reasons for this: accession would underscore the Union's commitment to human rights; it would provide the necessary external safety net to protect human rights, the ECJ not being a court charged primarily with protecting such rights; accession would reinforce the ECHR; the risk of diverging interpretations of the ECHR provisions would largely be eliminated (p 131). Bribosia and Waelbrook said that it was "particularly paradoxical" that Article 49 of the TEU made accession to the ECHR a pre-condition of accession to the EU while the EU itself was not a party to the ECHR. The priority in terms of protection of fundamental rights in the Union lay in its accession to the ECHR and the reform of the procedures for judicial review of violations of fundamental rights by EU acts (p 122).

106. Justice also argued that in order to improve the enforcement of fundamental civil and political rights the Union should accede to the ECHR. Ms Colvin said: "Particularly when looking at the third pillar where unanimity of decision making risks always that there will be the lowest common denominator. If you have a set of fundamental rights, like accession to the ECHR brought into the process, you are maintaining a standard which those agreements could not go below" (QQ 119,133). The Meijers Committee said: " in the long term interests of visibility as well as in the interest of (truly) external control (accountability of EU institutions to an external supervisory body) the most rational transparent solution remains accession by the EU as such to the ECHR system" (p 196).

107. Witnesses did not see EU accession to the ECHR as an alternative to the Charter. Rather, as Professor McCrudden pointed out, accession might be an additional logical step to take. The ECHR and the Charter had different purposes. The Charter might provide an internal quasi-constitutional limitation on the Community and the Union, whereas accession to the ECHR, and the mechanisms of the Court of Human Rights, would more likely serve as an external restraint and check on Community and Union activities (QQ 6-7). Mr Krüger, Deputy Secretary General of the Council of Europe, did not envisage there being two international regimes. He said: "we always thought that at the very end there should be the European Convention on Human Rights, an international external control of the acts of the Union or the Community, and that is why we advocate the process of accession". The creation of two competing regimes could weaken the position of the individual and should be avoided (QQ 179-80).

108. When the question of the Community's accession to the ECHR had come before the ECJ in 1994, the Court had taken the view that accession was not compatible with the Treaty as it then stood. Professor Fredman similarly thought that accession would require Treaty amendment (Q 12). Advocate General Francis Jacobs said: "I cannot of course say what position the Court would take if the matter were tested today. It seems to me that if the political will were present for the Member States to want to see the Community, or indeed the Union, accede to the Convention it would be relatively easy for them to amend the Treaty accordingly" (Q 222). Both the Advocate General and Lord Goldsmith pointed out that it would also be necessary for the ECHR to be amended to enable the Community to accede. That would require the agreement not only of all the Member States of the Union but of all the contracting parties to the ECHR itself (Q 314). Statewatch supported accession by the Community and the Union to the ECHR but Mr Peers indicated that that process involved many political and legal problems. In the meantime consideration should be given to greater provision for intervention in cases before the Court of Justice by bodies with a particular interest in human rights, such as the Strasbourg Human Rights Commission and the Human Rights Committee of the UN. In Mr Peers' view, measures could be adopted to limit the increase in the workload of the Court of Justice that might result from the large number of additional interventions (QQ 127-28).

109. Lord Bowness said that the question of the EU becoming a party to the ECHR was an interesting prospect to be explored. But there were people who would resile from that because they would fear that the EU was acquiring more of the aspect of a State than it currently had (Q 79). Mr Win Griffiths thought that the present discussion of the Charter would raise the question of EU accession to the ECHR and might make parties more amenable to the idea (Q 81). And Lord Goldsmith acknowledged that the issue had arisen at the outset of the Convention's work when differing views had been expressed (Q 314). The Minister was, however, insistent that the question of accession was outside the terms of reference of the drafting body, though the Government did not "believe that the Convention [the ECHR] itself should be binding on the Union" (QQ 277-78).

THE TWO COURTS

110. Professors McCrudden and Fredman spoke of the uneasiness of the ECJ as regards the constitutional implications of accession, in particular the possibility that the Court of Justice would become subject to the Court of Human Rights (QQ 10-11). Advocate General Francis Jacobs replied that the Court for its part has made it quite clear that there was no objection in principle to the Community accepting the jurisdiction of an international body where the Community was a party to the international agreement.[45] But there was one difficulty that was perhaps special to the Community system. Decisions of the ECJ have to be followed by the courts of the Member States. Otherwise, the whole notion of Community law would be in danger. The Advocate General said: " I am not sure that there is not a risk that, if the Member States of the Union accept that the Court of Human Rights has jurisdiction to review, in effect, the decisions of our court, the national constitutional courts, for example, will not also feel that they have the right to question decisions of our court; and whether there will not be in any event some greater degree of uncertainty about our case law than there is in the present system. That is one element in the overall equation that has to be taken into account" (Q 238).

111. Liberty, ILPA and Justice all took the view that the Strasbourg Court should be the final arbiter of human rights across Europe. The ECJ would have a role only in exhausting domestic remedies before going to Strasbourg (QQ 135, 137, 139, 140). Mr Krüger, Deputy Secretary General of the Council of Europe, did not see the problem as being a hierarchical one. The ECJ would be like any other constitutional court. The Strasbourg court was not superior to the domestic court. Mr Krüger described the system of protection of human rights under the ECHR as being subordinate to the domestic system. The Strasbourg court could not, for example, set aside a judgment of the House of Lords or of the German Federal Constitutional Court. The State, not the court, was the respondent in proceedings before the Strasbourg court, and the judgment invited it to correct any violation found. The Strasbourg court did not take the place of the domestic court. Mr Krüger could not see why the Luxembourg court should be in any different position from that of the House of Lords or of the German Federal Constitutional Court (QQ 186-89). Mr Duff MEP believed that the danger of conflict between the two courts was exaggerated. It was manageable. A draft protocol existed in Strasbourg that would regulate the relationship between the two courts (Q 104). Mr Krüger described the relationship between the two courts as being very friendly. He accepted that consideration might be given to the establishment of a preliminary rulings procedure whereby, if accession proved not to be possible, divergence of views between them might be reduced (Q 191).

112. Not all witnesses, however, supported accession to the ECHR. Professor Toth advocated the full and formal integration of the Convention into the Union's legal system, making the provisions of the Convention binding on the Union, not through the medium of general principles of Community law, but directly as part of written Union law. The major advantage of the incorporation of the Convention would be, unlike accession to the Convention by the Union, that it would avoid the subordination of the ECJ to the Court of Human Rights. The ECJ would remain the supreme guardian of fundamental rights in respect of Union action as well as Member State action falling within the scope of EU law. As regards other action by Member States, the national court and the Court of Human Rights would retain their full jurisdiction (p 201).

The impact of enlargement

113. Article 49 of the Treaty on European Union provides that any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. Article 6(1) refers to "the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law". Professor McCrudden said that the reference in those Articles to human rights and fundamental freedoms was relatively unspecific. The Charter might play a role in making them more explicit in terms of what precisely the criteria would be for the applicant States and whether they differed from the political criteria that had been set out at the Copenhagen European Summit.[46] More generally, as regards the relationship of the Union with third States, the Charter might lead to greater credibility being attached by third States to human rights if the same rights were also to be seen to apply in the internal relations of the Union (QQ 6, 41).

114. A number of other witnesses doubted whether enlargement raised any major problems. Mr Peers, for Statewatch, pointed out that since the Charter was directed at the Community institutions and the Member States when implementing EU measures its relevance to the candidate countries might be limited to the extent that they implement or apply Union law in advance of accession (QQ 169-70). Mr Eicke, for Liberty, said that the EC Commission was placing great emphasis on fundamental rights in its assessment of the readiness of the candidate countries to join the Union. Indeed he believed that what was being expected of those countries constituted a higher level of protection than that required of States in the Union. Adoption of the Charter might give a greater legitimacy to the demands already being placed on the applicant States (QQ 132, 171). In Advocate General Francis Jacobs's view, the Charter should not pose a problem in relation to enlargement. Devaluation of the Strasbourg system was not a necessary part of the exercise. The Charter was not intended in any way to replace the Strasbourg system or to provide an additional layer of protection for the Member States of the Union. It was designed solely to provide protection in relation to Union and Community measures and against the Member States' authorities only where they were acting within the field of Union or Community law. The Strasbourg system would remain intact and the Charter could, in any event, make it clear that the ECHR was still there as an ultimate source of human rights law (Q 239).

115. The Minister saw the Charter as potentially a very positive measure in this context. Delivery of a document of value and benefit to the ordinary people of the European Union would "send out a very powerful signal to the applicant countries, as they seek to join, that here are 15 nations working together, setting out a series of fundamental rights, responsibilities and values. I think that will be extremely important for the way in which we deal with enlargement" (Q 287).

116. But several witnesses recognised that consideration had to be given to the effect on the applicant States if a Charter were designed in their absence and they then had to join a Union that had the rights in place. Mr Duff MEP was robust. He accepted that if, as some were proposing, the Charter included the ECHR in a modernised form then applicant States might see that as a raising of the threshold of Union membership. If that was in fact the case (and Mr Duff thought it should be), the Union should be honest and say so. Installation into the Treaty of a fundamental rights regime would be problematic but Mr Duff preferred that enlargement should be "strong, forceful, clear, than facile, superficial, fragile" (Q 110). Mr Timothy Kirkhope MEP expressed concern that, if the Charter embodied new rights, then there could be difficulty in ensuring that it was fair to all, including the applicant States. Care needed to be taken lest an ambitious exercise jeopardised the enlargement process (Q 60).

117. Lord Bowness said that it was necessary to bear in mind that the Council at Cologne had envisaged the possibility of the Charter being incorporated into the Treaties. " If we were to produce something that then makes it that much more difficult for the applicant States to join the Union that would be quite disastrous and it would be something to be avoided at all costs" (Q 86). Mr Win Griffiths said that there was a clear view that the concerns of the applicant States had to be taken into account. There was a strong argument for keeping the present exercise within the Cologne remit and dealing with any improvements as a separate issue (Q 87).


44   The Meijers Committee listed the European Social Charter, the Genocide Convention (1948), the UN Convention on the Elimination of All Forms of Racial Discrimination (1965), the two UN Covenants of 1966, the UN Convention on the Elimination of All Forms of Discrimination against Women (1979), the UN Convention on the Rights of the Child (1989) and "several ILO Conventions". Back

45   The Advocate General referred to the Court's first opinion on the EEA agreement: Opinion 1/91 [1991] ECR I-6079. Back

46   June 1993. The Conclusions referred to membership requiring candidate countries inter alia to achieve "stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for the protection of minorities". Back


 
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