Introduction to the Charter of Fundamantal Rights of the European Union
Heyninck & Partners
Na Kocínce 210/3
Since the Treaty of Lisbon came into force on 1 December 2009, the Charter of Fundamental Rights of the European Union (Charter) is legally binding for the EU and all her Member States. To have an idea about the reasons behind the Charter, it is necessary to know something about its journey.
Starting in Cologne (1999), it took approximately ten years for the Charter to get the status of primary law of the EU. As a result from this new order and because of the fact that all the EU Member States have signed the European Convention on Human Rights (ECHR), some people were concerned about having two different courts dealing with human rights protection: the Court of Justice of the European Union (ECJ) and the European Court on Human Rights (EctHR). On the basis of their own instruments, they both provide case-law on human rights protection. It is the consistency of twofold case-law on human rights that is of main concern. Therefore it is important to not only look at the general provisions of the Charter in order to have an idea about the scope and consequences in society, but it is also necessary to have a view on the mutual influence between ECJ case-law and that of the ECtHR.
FROM COLOGNE TO LISBON
It was in June 1999 that the members of the European Council came together in Cologne to set out the plans for a Charter of fundamental rights. By then it was already the third attempt to create or incorporate visible fundamental rights in the European Union. The first attempt was made in 1979 when the European Commission proposed the accession of the European Communities to the ECHR. Later in 1989 the European Parliament came up with a catalogue of fundamental rights. Both attempts failed. The reasons behind all these attempts on elaborating a fundamental rights Charter were clear. The Cologne European Council realised that the European Union has an obligation to respect fundamental rights; it has been confirmed and defined by the jurisprudence of the ECJ. Already in 1969 and 1970 in the cases of Stauder and Handelsgesellschaft the ECJ had created a doctrine of unwritten rights which bound the Community institutions. The European Council defines the purpose of the Charter as: “to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter.”  
From Cologne in June 1999 to Tampere in October 1999, success was finally there by taking more concrete measures to prepare the European Union fundamental rights Charter. It was decided to create a Drafting Committee with the task to elaborate a preliminary Draft Charter. This committee named itself ‘Convention’. The Convention consisted of representatives of governments of EU Member States, the European Parliament, national Parliaments and the European Commission.
The Council of Europe agreed that it was a justified claim of the European Union to prepare a legal text which gave the European citizens an enhanced human rights protection, one that would cover the legal acts promulgated by the organs of the European Communities. However, the Council of Europe strongly reminded the bodies of the European Union about the achievements of the ECHR and on its case-law established over almost fifty years by its court in Strasbourg. According to the Council of Europe these achievements have had far-reaching effects on the law of the Member States of the Council of Europe, and stated that this cannot be disregarded. The Council of Europe was also aware of the risks of having two sets of fundamental rights which would weaken the ECtHR. Eventually the European Council ensured collaboration between the ECJ and the ECtHR; the work of the Convention would be done under the observation of the ECJ and the Council of Europe. The Draft Charter was adopted on 2 October 2000 by the Convention and had its joint proclamation by the European Council, the European Parliament and the European Commission in December 2000 in Nice. However, it also stated that “in accordance with the Cologne conclusions, the question of the Charter’s force will be considered later.”
In 2004 a modified version of the Charter was included in the Treaty establishing a Constitution for Europe (TCE) giving it a legal force. However, the negative referendum results in France and the Netherlands in 2005 brought the ratification process to an end. This result might have been disappointing but was also a clear statement to the European leaders that not everybody was ready for the European Constitution. A time of reflection was needed and results of that came in 2007 during the European summit meeting in Brussels. The European Council came to the decision that, after two years of uncertainty, the time has come to resolve the issues in the reform process of the European Union. It agreed to convene an Intergovernmental Conference (IGC), including a detailed mandate for the IGC, to come up with a draft for the Reform Treaty covering all the amendments on the Treaty of Rome (Treaty establishing the European Community) and the Treaty of Maastricht (Treaty on the European Union).
The Reform Treaty was accomplished in December 2007 and since then known as the Treaty of Lisbon. On 1 December 2009 it came into force. The Treaty establishing the European Community was renamed to Treaty on the Functioning of the European Union (TFEU). The Treaty of Lisbon also made the Charter legally binding for all Member States and institutions of the European Union. The United Kingdom, Poland and the Czech Republic agreed with the European Council to maintain the possibility of using an opt-out from the Charter. The Czech President Vaclav Klaus was mainly concerned that the Charter would allow families of Germans who were expelled from the Czech territory after World War II (under the Beneš decrees) to challenge the expulsion before the ECJ.
The Charter had found its place not by being absorbed in the text of the Treaties but as a single document standing next to the Treaties with the same legal value. The Charter is mentioned in Article 6 Treaty on European Union and is as follows:
Article 6 Treaty on European Union
(1)The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union on 7 December 2000, as adapted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
(2)The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
(3)Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
THE ECJ AND THE ECtHR
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