Select Committee on European Union Sixth Report


INCORPORATING THE ECHR INTO THE TREATIES IN PREFERENCE TO THE CHARTER

71.  It is clear from the evidence received that whether the Charter, in its present form, is suited to be the EU's Bill of Rights is open to question. The Charter was a political compromise. It contains some rights and duties (for example, those modelled on the ECHR) which are capable of being enforced by courts but it also contains others whose enforceability by courts is problematic. We have therefore considered whether, in any EU constitutional instrument, there should be a more precise focus on those aspects of the Charter that would find their place in a national Bill of Rights. For example, Chapter IV of the Charter deals with such matters as unfair dismissal, placement services and collective bargaining, which though important would normally not find their way into a Bill of Rights and would not normally be justiciable. The ECHR itself could be used as a source of the essential core.

72.  We deal below with the issue of whether the EC/EU should accede to the ECHR. A separate question is whether the provisions of the ECHR should be incorporated into the Treaties, or a new Constitutional Treaty, as the Union's Bill of Rights. We have no doubt that it would be possible to do this but, as in the case of the Charter, there are arguments for and against.

INCORPORATING THE ECHR—THE ARGUMENTS FOR

(I) ALREADY WELL-ESTABLISHED COMMON GROUND

73.  The Union already has, in a sense, a Bill of Rights. Every Member State is party to the ECHR and any candidate State must be a party to the ECHR before any negotiations to join the Union can begin. The Treaty on European Union (TEU) already requires the Union to respect ECHR rights "as general principles of Community law".[45] The restatement of ECHR rights as a Bill of Rights for the Union would give clear definition as to the scope of that obligation. Legal certainty would be increased if an interpretative provision such as Article 52(3) of the Charter were also incorporated. The status of ECHR rights incorporated into the Treaties as part of a new constitution would be enhanced even further by EC/EU accession to the ECHR.

(II) KNOWN ENFORCEABLE RIGHTS

74.  The provisions of the ECHR are all justiciable and have been directly applied in most Member States for many years. There is no question but that the rights set out in the ECHR are enforceable. National courts have experience in applying these rights and they are familiar territory for both EU and national administrations.

INCORPORATING THE ECHR—ARGUMENTS AGAINST

(I) LIMITED SCOPE OF ECHR

75.  Other fundamental rights, not to be found in the ECHR, are already recognised at the European Union level. Some of these derive from the fundamental freedoms (of movement of persons, goods, services and capital) set out in the EC Treaty. Others are the economic and social rights that are recognised, and accepted by Member States, in Council of Europe instruments. And there are rights derived from other international human rights instruments, such as the International Covenant on Civil and Political Rights, to which Member States are party. Should the EU and its institutions be obliged to respect the standards set by these instruments as well as those set by the ECHR?

(II) THE UNION SHOULD HAVE ITS OWN BILL OF RIGHTS

76.  Many Member States have, in addition to their obligations under the ECHR, their own Bills of Rights which in most cases differ to some extent from the ECHR. As Advocate General Jacobs said, "it so happens that the United Kingdom has adopted the text of the Convention in the Human Rights Act, but most of the Member States of the European Union have their own Bills of Rights which are different from the Convention, and in some respects they go further than the Convention. The existence of such a Bill of Rights in the Constitution, which is used for internal purposes of domestic law, is different from the European Convention's functions as an external check, with the respect for Convention rights being subject to review by the European Court of Human Rights in Strasbourg" (Q 163).

(III) DYNAMIC BUT NOT TAILOR MADE

77.  Although the language of the ECHR has not been amended, and Protocols have from time to time been added to the Convention, the ECHR has been interpreted in a dynamic manner and has thus been able to adapt to political and social events and developments. It was, nonetheless, to most of our witnesses less attractive than the Charter. Professor Arnull said: "the Charter has the advantage over the ECHR of being an up to date Bill of Rights which is specially tailored to the circumstances of the Union" (Q 20).

(IV) WOULD NOT NECESSARILY AVOID CONFUSION AND DIVERGENCE OF APPROACH

78.  If the ECHR were to be reproduced as a constitutional Bill of Rights in the Treaties this would raise questions about the relationship between the provisions of that Bill of Rights, the ECHR itself and the rights in the Charter. In the absence of EC/EU accession to the ECHR even the addition of an interpretative provision, such as that in Article 52(3) of the Charter, would not prevent divergence.

CONCLUSIONS ON INCORPORATION OF THE CHARTER

79.  The true measure of the value of an international human rights instrument will be its ability to discourage infringing behaviour and to provide a remedy for the individual in the event of breach. Whether the Charter, as it stands, could do that we doubt. But there might, nevertheless, be some advantages in incorporating the Charter.

80.  First, the Charter contains a comprehensive statement of rights and is tailor-made for the Union. It is, consequently and significantly, more extensive in scope than the ECHR. The Charter includes, for example, economic and social rights. Second, Member States are bound by a number of other international instruments, eg the International Covenant on Civil and Political Rights and the European Social Charter. If in the exercise of their powers the EU institutions are expected to meet the standards set by these instruments as well as those set by the Charter and to accord similar protection and safeguards, then any EU Bill of Rights should include not only those core rights contained in the ECHR but also the others.

81.  Third, incorporation of the Charter (or the ECHR) into the Treaties would be a simpler and more speedy exercise than accession to the ECHR. As we shall explain in more detail below, the legal and political hurdles would be fewer and lower. Fourth, as Professor Arnull said, "a constitution for the Union which did not contain a Bill of Rights—and the Charter is probably the best Bill of Rights we have—could be regarded as undermining the statement in an early provision of the Treaty on the European Union that the principle of respect of fundamental rights is one on which the Union is founded" (Q 6).

82.  There are, however, a number of substantial arguments against incorporating the Charter, at least in its present form, into the Treaties. First and foremost it is doubtful whether the Charter would give citizens any more rights, by which we mean enforceable rights. In a speech to the Convention plenary, Commissioner Vitorino reported that: "all members of the Group either support strongly an incorporation in a form which would make the Charter legally binding and give it constitutional status, or would not rule out giving favourable consideration to such incorporation".[46]

83.  However, if the Government's objective, as explained by Baroness Scotland, prevails it is doubtful whether the incorporated Charter would give citizens any greater rights than they have at present. The Government objective goes no further than to make existing rights of citizens under the EU and national laws more visible (Q 259). There would be no new rights and no new remedies. The effectiveness of the Charter rights in curtailing abuse by, for example, the Commission in the enforcement of the Community's competition rules (an area where the Commission has powers to carry out inspections and impose fines on parties to a cartel) would depend not on anything in the Charter but on "the law" as defined by the ECJ and on existing judicial remedies obtainable either from Community Courts or from national courts.

84.  But it is not clear what effect the incorporation of the Charter into the Treaties, or into a new constitution, would be intended to have. It seems to be assumed by some that incorporation would change the status of the Charter and its articles and that new obligations would be imposed thereby on the Union/Community and its institutions, and also on Member States, when implementing Union law. As Mr Duff said: "the advantage of incorporating the Charter would be that judges would have an explicit catalogue which would not be simply as it is a source of reference for them but a more central source of reference, clearer, more straight forward, more explicit" (Q 111).

85.  We have detected a clear divergence of opinion as to the intended effect of incorporation. The Government's view, no doubt shared by many, does not accord with that of some other commentators. It is, in our view, essential, if the incorporation option is chosen that there should be agreement and clarity as to the intended effect of incorporation. In the absence of that agreement and clarity, pronouncements by the Courts, and in particular by the ECJ, may give to the incorporated Articles an effect not intended by some Member States.

86.  The Charter contains rights, principles and aspirations. But it is not always easy to determine which a particular Article is and therefore what its consequences might be. Baroness Scotland said that the Charter "was not drafted with the precision that one would wish to see if it was going to be justiciable in all its parts and was going to be legally enforceable". The Minister explained how the Working Group had sought to remedy the position. First, a great deal of work has gone into strengthening the horizontal articles in the Charter. Second, the Working Group has recommended that there should be a specific nexus created between the Charter and the commentary, prepared by the praesidium of the earlier Convention (Q 224).

87.  It is important, if incorporation of the Charter is the chosen option, that the Charter be accompanied by an authoritative commentary/interpretation to which reference can be made. The purpose of such a document would be, first, to identify the source of a "right" and, second, its status (an enforceable right, a principle which might be used to guide the interpretation of EU legislation, or merely a statement of political aspiration). Taken with the proposed amendment of the horizontal clauses, the commentary should make the integration of the Charter into the text of the Treaties much more workable in practice, potentially saving much argument and even litigation. The horizontal clauses and the commentary together should also help to curb any "competence creep" by the Union, though the potential dynamic effect of an incorporated Charter should not be underestimated.

THE HORIZONTAL CLAUSES

88.  Chapter VII of the Charter is entitled General Provision and contains the so-called horizontal clauses. There are four: Article 51, defining the scope of application of the Charter; Article 52, setting the scope of the rights guaranteed by the Charter; Article 53, maintaining the level of protection currently afforded by international, Union, and national laws; and Article 54, prohibiting any abuse of Charter rights.
The horizontal clauses with the amendments (shown in bold print) proposed by the Convention Working Group

Article 51-Scope

1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it by other parts of [this Treaty/the Constitutional Treaty].

2. This Charter does not extend the scope of application of Union law beyond the powers of the Union or establish any new power or task for [the Community or] the Union or modify powers and tasks defined by the other [Chapters/parts] of [this Treaty/the Constitutional Treaty].

Article 52-Scope of guaranteed rights

1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.

3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

4. Insofar as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.

5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions and bodies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

6. Full account shall be taken of national laws and practices as specified in this Charter.

Article 53-Level of protection

Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.

Article 54-Prohibition of abuse of rights

Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.

89.  The Working Group has proposed certain amendments to the horizontal provisions of the Charter in order to meet concerns of legal certainty and help ensure a smooth incorporation of the Charter as a legally binding document. It has proposed that Article 51(2) should be strengthened in order to make clear that incorporation of the Charter would not lead to an extension of the Union's competences; a new Article 52(4) would be inserted to make clear that Charter rights based on the Member States' common constitutional traditions will be interpreted "in harmony" with those traditions; and that a new Article 52(5) would clarify the distinction between "rights" and "principles" in the Charter.

90.  The Government is looking at the detail of the proposed horizontals (Q 219). It is clear that they provide the key to a resolution of some of the problems surrounding the Charter: most notably the avoidance of any "competence creep" from the Member States to the Union; the relationship between Charter rights and ECHR rights; the lack of homogeneity in the text of the Charter (the "rights"/ "principles" question); and the relationship between the Charter and national constitutions.

91.  In our opinion, however, it is, in principle, unsatisfactory that the rights of the individual should, in effect, be curtailed by the horizontal clauses. Such an approach scarcely serves the interests of transparency or makes those rights more visible to the citizen. On the other hand, the horizontal clauses provide significant advantages for legal certainty as regards the definition of competences.

92.  It is essential to ensure that the horizontal clauses are as clear and unambiguous as possible. The horizontal clauses have an important role to play in identifying both the content and scope of the Charter. What they say as regards, for example, the relationship between Charter rights and ECHR rights will be crucial in determining the overall acceptability of the Charter. The Government is right to be looking at the detail.

THE COMMENTARY

93.  An explanatory note or commentary was prepared, though not formally published with the Charter. That note[47] begins: "These explanations have been prepared at the instigation of the Praesidium. They have no legal value and are simply intended to clarify the provisions of the Charter." There follows the text of the Charter. After each Article there is a brief note describing the source of the particular rights and, sometimes, the intended effect of the provision. As Baroness Scotland explained, when the Charter was put forward at Nice the commentary was not incorporated with it because some Member States (but not the UK) considered that it was merely a commentary of the praesidium which had no legal force or effect. In the Charter Working Group there has been much discussion as to what needed to be done with the commentary and there was an agreement that it needed to be given a more formal and enhanced status with a more direct link to the Charter. The Working Group recommended that the legal explanations of the Charter provisions supplied by the praesidium to the original Convention should be supplemented and be published (Q 237).

94.  We agree that if the Charter is to be incorporated into the Treaty there is a need for an authoritative commentary or "interpretation". This would be helpful not only in identifying the origin of particular articles but also in determining their legal status. The commentary should be published and be readily available to the citizen and the courts.

CHARTER SHOULD NOT EXTEND EU COMPETENCE

95.  What is clear is that the Charter was not, and is not, intended to extend the competence of the Union or the Community. That appears from Article 51(2): "This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties". Further, as Statewatch has pointed out, there is a line of cases in which the ECJ has refused to rule on human rights issues where there was no link with EC Treaty rules or EC legislation.[48] There was nevertheless much discussion of competence issues in the Convention Working Group, leading to the proposal that Article 51(2) should be strengthened.

96.  The position must be as certain and free from argument, legal or political, as possible. We support the stance being taken by the Government in this context as regards both the horizontal clauses and the commentary. The latter currently states: "Paragraph 2 confirms that the Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Community and the Union". That should be amended to make clear that the Charter is not intended to extend the competences of the Community and the Union and does not in fact do so.

LIMITED APPLICATION TO ACTS OF MEMBER STATES

97.  An incorporated Charter would only apply to EU activity, and would principally be addressed to the institutions and bodies of the Union. In relation to a matter outside Union competence, and where Member States retain control and responsibility, individuals will not necessarily be without rights. But whether rights and remedies flow from the Charter, the ECHR or another international instrument, or from a national bill of rights will depend on the particular circumstances and the domestic laws of the Member State in question. The overlap of the rights derived from the Charter and those derived from the ECHR may in practice make the division of competences somewhat academic but nonetheless significant as regards the remedies available to the individual and the court in which they can be secured.

98.  We do not believe that the Charter is intended to change the scope of application of Community law (including the protection of fundamental rights as general principles of Community law). The explanatory notes prepared by the Praesidium of the Charter Convention make this clear. The wording of Article 51 (1) of the Charter is based on the ECJ's judgment in Karlsson: "the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules".[49] The Charter's impact on Member States' freedom of action is therefore circumscribed. It is not intended to fetter the powers of Member States outside the field of Community/Union law to pursue whatever policies they choose. A statement to that effect could usefully be included in the revised explanatory notes.

99.  The greater concern is the broader one, flowing from the wide scope and content of the Charter, as compared, say, to the ECHR. The risk is that the rights, principles and aspirations set out in the Charter will in practice impinge on national policy and practice and limit the freedom of action of Member States even in areas that remain clearly within their competence. It may prove difficult for a Member State to resist pressure to change and to align itself with the Charter where the latter appears to give the citizen/individual greater rights or privileges than the existing domestic regime. Where competences are mixed and even where the Union only has a complementary/supporting competence (eg public health, education), the "higher" Union standard will inevitably exert pressure on national governments. This is likely to be so particularly in the areas of employment and social policy. Some pressure is already present by virtue of the very existence of the Charter. That pressure would inevitably become greater if the Charter were to be incorporated into a constitutional Treaty for Europe. It is doubtful whether the horizontal clauses or the commentary can provide comfort here, but no doubt the Government will be considering the possibility of further strengthening the horizontal clauses and commentary.

INCORPORATION—WARTS AND ALL

100.  The question of the legal status of the Charter was left open at the time of its preparation. But, as Professor Arnull reminded the Committee, the Charter was drafted in a form that could be made legally binding. To have drafted it otherwise would have been to pre-empt the decision by the European Council at Nice as to whether it should be legally binding (Q 29). The text has subsequently come in for some substantial criticism. The general view, however, is that notwithstanding any faults it may have the Charter should not be opened up for renegotiation. But the present position is that serious consideration is being given to incorporating a document which is generally agreed to be in some respects unsatisfactory and at least capable of improvement. Further, even if the Charter is not entrenched, as bill of rights rules sometimes are in constitutional instruments, it will be very difficult to achieve any amendment in the future. The full rigour of the Treaty amendment process would have to be undergone.

  1. Ideally, the Charter should be in an appropriately revised form before it becomes part of any EU constitution. That said, we have to have an eye for the political realities and we note that the majority of witnesses concluded that the present text of the Charter is workable and sufficiently satisfactory for the time being. To reopen the entire process of negotiating the Charter would probably not lead to any substantial improvement and might be seen as a wrecking tactic. There is, however, general agreement that there may need to be some amendment made to the horizontal clauses. Given the paramount importance of those clauses, that is welcome.



45  
Article 6(2) TEU. Back

46   Summary report of the plenary session-Brussels, 28 and 29 October 2002. Doc. CONV 378/02, at page 7. Back

47   Doc CHARTE 4473/00. CONVENT 49. 11 October 2000. Back

48   Cases 12/86 Demirel [1986] ECR 3719; C-159/90 Grogan [1991] ECR I-4685; C-144/95 Maurin [1996] ECR I-2909; C-299/95 Kremzow [1997] ECR I-2629; C-291/96 Grado and Bashir [1997] ECR I-5531; C-309/96 Annibaldi [1997] ECR I-7493. Back

49   Case C-292/97, [2000] ECR I- 2737, at para 37. Back


 
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