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.
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).