MODE OF INCORPORATION
38. In addition to the substantive questions
about the future status of the Charter and the Union's accession
to the ECHR, the Convention Working Group was invited to consider
how the Charter might be integrated into the Treaties. They were
presented with six options:
"(a) The Charter could be 'attached' to
the Treaties in the form of a 'Solemn Declaration'.
(b) The EU Treaty or a new basic Treaty could
refer to the Charter according to the model of Article 6(2) of
the existing EU Treaty. It would therefore be merely an indirect
reference to the Charter as a source of inspiration for the case-law
definition of fundamental rights.
(c) The EU Treaty or a new basic Treaty could
make direct reference to the Charter.
(d) A direct or indirect reference to the Charter
could be made in the preamble to a new basic Treaty.
(e) The Charter could become a new Protocol
annexed to the Treaties or a new basic Treaty.
(f) The full body of the 54 articles of the
Charter could be inserted into the title or chapter of the EU
Treaty, or into a new basic Treaty, of which it would, for example,
form the first title or chapter."
39. As Professor Giorgio Gaja, Department of
Public Law at the University of Florence, pointed out, the legal
and practical effects would vary depending on the way the Charter
was integrated into the Treaties (p 68). In the Bar European Group's
(BEG) view, incorporation needed to be in a manner that would
satisfy three objectives. First, the Charter must apply to all
European Union activity, rather than solely to activity under
the EC Treaty. Second, the Charter must be capable of enforcement
by the Community Courts. Finally, the ECJ must have jurisdiction
to interpret the Charter, where relevant, on a reference for a
preliminary ruling from a national court (p 57).
40. It was generally perceived that options (a),
(b), (c) and (d) would add nothing to the Charter's existing status.
Professor Toth, Professor of European Law at the University of
Strathclyde, believed there was "no substitute for proper
incorporation. The Charter must not only become, but must also
be seen to have become, an integral part of the Union's constitutional
structure. This can only be achieved if the basic rights and freedoms
of the citizen are enshrined in a constitutional text" (p
109). The view of most witnesses was that the Charter should go
into the EU Treaty or a new basic Treaty or into a Protocol to
the EU Treaty or new basic Treaty.
41. The Convention Working Group submitted two
options as to the manner in which the Charter could be made binding
and given constitutional status: first, insertion of the Articles
of the Charter in the Constitutional Treaty; or, second, insertion
of an appropriate reference to the Charter in an article of such
Treaty, combined with annexure or attachment of the Charter, either
as a specific part of the Treaty or as a Protocol. Commissioner
Vitorino has said that the large majority of the Working Group
favoured the first option.
42. In this Report we make no recommendation
as to the form of any incorporation of the Charter into the Treaties
or any new constitutional Treaty. As Advocate General Jacobs
said, the form of incorporation will depend very much on the form
and the structure of the new Treaty and on the legal effect decided
to be given to the Charter (Q 161). The only point that we would
add is that the form of incorporation may well have implications
for future amendments to the Charter. As Professor Arnull observed,
amendments are going to be very difficult if the Charter is incorporated
in treaty form, whether in the main text or in a protocol. He
noted that there was currently discussion about a treaty amendment
procedure that would vary according to the section of the Treaty
to which the proposed amendment related; but he observed that
it would be difficult to justify a simpler procedure (ie
one not requiring unanimity and subsequent ratification in accordance
with national constitutional requirements) for amendment of the
Bill of Rights section of the Treaty than amendment of other sections