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.[1] 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.” [2] [3]

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.[4] 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.[5] 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.[6] However, it also stated that “in accordance with the Cologne conclusions, the question of the Charter’s force will be considered later.”[7]

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).[8]

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.[9] 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.[10] 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

Before the Charter was given legal force, the main source of identifying fundamental rights in Europe was the ECHR. Since the mid-1990s, the ECJ has made a remarkable development in its case-law by citing systematically the case-law made in Strasbourg to back up a certain interpretation of the ECHR.[11] Its provisions and the case-law accompanying them notably form a source of inspiration for the determination of fundamental rights as general principles of Community Law.[12] The ECJ even followed the Strasbourg case-law to the extent of reconsidering its own previous case-law in the light of later Strasbourg case-law. This happened, among others, in the case Roquette Fréres (2002) when the ECJ appeared to reconsider its Hoechst AG v Commission (1989)[13] case-law in the light of the Strasbourg Court’s judgments concerning the search of business premises under Article 8 of the ECHR. [14] [15] The ECJ concluded that when it has interpreted the ECHR in a certain manner and the ECtHR comes to a different interpretation in its case-law, ‘regard must be had to the case-law of the ECtHR subsequent to’ the earlier case-law of the ECJ.[16]

Even so the legal status of the Charter was uncertain at the time before the Treaty of Lisbon; it did not mean that it was just a document not to comply with. In 2001 the European Commission decided to conduct a form of compatibility review on the Charter. In 2005, the European Commission followed up with a Communication on compliance with Charter in legislative proposals,[17] and commissioned an external report on human rights impact assessment for EU legislative policy proposals.[18] Also, the ECJ referred approvingly to the Charter as a re-affirmation of the general principles of law common to the Member States. In the case European Parliament v Council the ECJ declared:

‘While the Charter is not a legally binding instrument, the Community legislature did, however, acknowledge its importance by stating, in the second recital in the preamble to the Directive, that the Directive observes the principles recognised not only by article 8 of the ECHR but also in the Charter. Furthermore, the principal aim of the Charter, as is apparent from its preamble, is to reaffirm rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the ECHR, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court... and of the European Court of Human Rights.’ [19]

The influence that is described here is not only a one-way direction; it is a mutual influence. Also the ECtHR seems to have reconsidered its case-law in the light of the ECJ case-law. This occurred in the case Goodwin v United Kingdom, concerning the rights of transgendered persons to marry, where the ECtHR referred to the ECJ case of P v S and Cornwall Country Council. However most remarkable is that the ECtHR drew support from the human rights approach of the European Union by looking not only at the jurisprudence of the ECJ but more at the provisions of the Charter.[20]

It is notable that the ECJ and the ECtHR are attempting to promote harmony and to avoid conflict between the two systems, that of the Charter and that of the ECHR.[21] These attempts are most visible in the Bosphorus case of 30 June 2005 of the ECtHR where it acknowledged the extent of review by the ECJ for compliance with the ECHR and where it accepted that review as limiting the need for intensive scrutiny by the Strasbourg Court itself. In this case the ECtHR needed to answer a question of possible violation of the ECHR which already was considered by the ECJ. The ECtHR analysed both the system of protection of fundamental rights in the European Union and the treatment of the Bosphorus case in the judgment of the ECJ, in what had no other conclusion that it was satisfied with the system of control of the observance of ECHR-rights under European Community law and that on this ground a re-examination of the issue of a violation is not needed.[22]

THE CHARTER

The Charter is not intended to replace other instruments of human rights protection, like the ECHR or the national constitutions. This statement is made clear in its Preamble:

“This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights.”

The Charter is divided into seven chapters. The last chapter, the general provisions, is important as it deals with the scope of the provisions and the guaranteed rights (Articles 51 and 52), the level of protection (Article 53), and finally the prohibition of abuse of rights (Article 54).[23]

Article 51 – The scope of the Charter

Article 51 defines the scope of the Charter. The provisions of the Charter are addressed to Member States only when they are implementing Union law. The Convention made it clear in the explanations on the Draft Charter that this follows the case-law of the ECJ:

“the requirement to respect fundamental rights defined in a Union context is only binding on the Member States when they act in the context of Community law.”[24]

Thus the Charter applies to EC institutional acts (secondary legislation) and those of the Member States when implementing such acts. It therefore forms a basis for judicial review claims under Article 263 paragraph 4 TFEU and Article 267 paragraph 1 subparagraph b TFEU and compensation claims under Article 260 TFEU. Article 263 TFEU states that the ECJ has the jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. It also states that any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. But what does all this mean in the light of fundamental rights protection between individuals?

In 1998 the ECJ had the case Grant v South West Trains[25]. Ms Grant started a procedure against her employer for not allowing the woman with whom she had a stable relationship to benefit from the travel facilities which partners of the opposite sex of employees did receive. According to Ms Grant this was discrimination on the grounds of sexual orientation. The case was based on Article 13 EC Treaty (old) on non-discrimination measures and 141 EC Treaty (old), which prohibits discrimination on grounds of sex. The ECJ examined the constitutional traditions common to the Member States and international standards of human rights protection, but found no basis to prohibit this type of discrimination.

If this case was judged today, Article 21 paragraph 1 of the Charter on non-discrimination would not cause any problems in first instance. However, keeping in mind that the provisions are addressed to Member States only when they implement EU law, the main concern would be Article 51 paragraph 1 concerning the scope of the Charter. In the case of Ms Grant the discrimination takes place in an employment relationship governed by national law. In order to apply Article 21 of the Charter in this particular relation the ECJ would have a hard task to create a connection between the prohibition of discrimination on the ground of sexual orientation and substantive EU law. Besides this, Article 51 paragraph 2 of the Charter would stand in the way as it states that the Charter does not create new powers for the Community. Article 141 EC (old) protects the non-discrimination on grounds of sex which is something different from non-discrimination on grounds of sexual orientation. By extending the scope of this Article it would mean the establishment of new powers of the Community.[26]

Article 52 – The scope of the guaranteed rights

This Article sets the scope of the guaranteed rights. Article 52 paragraph 1 deals with the arrangements for the limitation of rights:

“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.”

This is based on the case-law of the ECJ.[27] In the second paragraph the Convention sets out that where a right results from the Treaties it is subject to the conditions and limits laid down by them. The Charter does not alter the system of rights conferred by the Treaties. Finally, in the third paragraph the Convention intended to ensure the necessary consistency between the Charter and the ECHR. The Convention explains that they established “the principle that, insofar as the rights in the Charter correspond to rights guaranteed by the ECHR, the meaning and scope of those rights, including authorized limitations, are the same as those laid down by the ECHR.”[28] The legislator, who limits the Charter’s rights, must comply with the same standards as are fixed by the limitations arrangements laid down in the ECHR without thereby adversely affecting the autonomy of Community law and of that of the ECJ. It means that the legislator also have to comply with the case-law of the ECtHR. Article 52 and Article 53 of the Charter clearly sets the minimum level on human rights protection at the ECHR.[29]

 Article 53 – The level of protection

Article 53 on the level of protection raised a lot of questions about the legal implications of the Charter as it refers to national constitutions. For example, questions were raised whether this would form a threat to the supremacy of Community law defined in case-law like Costa v. ENEL.[30] Article 53 is in fact protecting the supremacy of Community law because the individual cannot challenge a Community regulation as being contrary to a constitutional human rights norm. If such action was possible, the case would be referred to the ECJ and the Community regulation would have to be annulled if it concludes that it violated the Charter. If the ECJ would come to the conclusion that there was no violation of the Charter, the proceedings would have to be continued before the national court of the Member State. Could the individual argue that the legal order in the Community acknowledges that nothing should restrict or adversely affect the level of protection afforded by national constitutions? If ‘yes’ would be the answer, it would mean that national courts could declare Community regulation inapplicable when they contravene national human rights norms.[31] Looking pure at the text of Article 53 it is clear that the ECJ does not have the power to apply national constitutional norms over and above Community law. It also does not authorise national courts to declare inapplicability to a Community measure that contravenes the relevant Member State constitution: ‘nothing in this Charter’ may lead to restrictions of rights in national constitutions.[32]

The Convention explained that this provision is intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law. It states that

“the level of protection afforded by the Charter may not, in any instance, be lower than that guaranteed by the ECHR, with the result that the arrangements for limitations may not fall below the level provided for in the ECHR.”[33]

Article 53 ECHR beholds a similar rule on safeguarding existing human rights. Different though is that the Charter includes a reference to ‘constitutions’ and not to ‘domestic law’ like in the ECHR. For the rest there is no real distinction between these Articles. The provision is simply a politically valuable safeguard which serves to calm any concerns that the Charter could be used to cut down protection enjoyed on the basis of other rules. Some counter-arguments against this statement in a general sphere are saying that the Community legal order is different from the ECHR legal order.  More specifically, it could be said that the ECtHR gives a minimum level of protection as it operates on the floor of protection on the basis of the ECHR. Although the ECJ performs the same task, it also has to work under a ceiling of dictates dealing with EU legislation (secondary law) which must be uniformly applied throughout the Community to serve their purpose. Although Article 53 of the Charter and Article 53 ECHR are similar, some people think that it might produce different legal effects within the Community context.[34] Still, I think that both Articles are of the same legal significance. Both are meant to assure the Member States that it does not replace the national constitutions and does not threaten other human rights.

Article 54 – Prohibition of abuse of rights

The Charter’s general provision on the prohibition of abuse of rights is formulated in the same way as Article 17 ECHR; the meaning and the scope of this Article are the same.[35] It is a standard rule of protection against abuse of the rights, freedoms and principles which are set out in the Charter; nothing in the Charter can be used to engage in any activity or perform any act that aims at the destruction of any of the Charter’s rights and freedoms or that aims to their limitation to a greater extent than is provided for in the Charter.

CONCLUSION

According to Article 51 of the Charter, the provisions are at the very least legally binding on the EU institutions and the Member States when they implement Union law. According to the jurisprudence of the ECJ, human rights form part of the general principles of Community law. They can be used to interpret and invalidate EU law and Member States must apply them when implementing EU law, but they have no application outside the scope of EU law. The sources of these general principles are the national constitutions of the Member States and international instruments on which the Member States have collaborated, with a special focus on the ECHR. The human rights case-law of the ECtHR has been very influential upon the ECJ for some time now. Article 52 paragraph 3 of the Charter also recognises this and stands for a harmonised interpretation on the (with the ECHR) corresponding rights. But what difference will the Charter make to the application of those rights which are not in the ECHR? In that case the effect of the Charter could be notable because its rights form a part of EU law and must therefore be applied to interpret or invalidate EU law, or national acts implementing EU law. The same is to say for the ECHR Protocols which are not ratified yet by all Member States. One thing is sure and that is that the legal effect of human rights in Europe is altered now that the Charter has a binding legal force. And even there are counter-arguments in this matter, the Charter has provided for visibility of rights which already existed in the EU.

This is not the only important aspect of the Charter. The ECHR forms the minimum level of human rights protection but the Charter goes further. Looking at the text of the ECHR what you will find are mostly civil and political rights. The Charter on the other hand provides civil and political rights but also economic, social and cultural rights. Furthermore the Charter provides some rights which are of global concerns, like the right of environmental protection (Article 37 Charter). Besides all this the Charter also recognises new rights, like the prohibition of the reproductive cloning on human beings (Article 3 Charter) and the protection of personal data (Article 8), which could not had been foreseen in the year 1950. Also good to mention is that non-discrimination or equality under the ECHR is protected by a single Article (Article 14 ECHR), while the Charter devotes a whole chapter on this matter which makes it more understandable for the European citizens.

In my opinion, the Charter will offer a more practical protection of fundamental rights in the European Union. Since the 1970’s the ECJ has developed fundamental rights protection in the European Union by stating that it binds the Community institutions. Also Article 6 Treaty on European Union is a point of reference when it comes to these fundamental rights which have to be applied with. However, the ordinary European citizen shall have difficulties to determine his rights only by reading Article 6 Treaty on European Union. Now that the Charter provides for visibility, people will have an idea on the constitutional traditions of the Member States and, more important, they can determine their fundamental rights.

Matthijs Alberts

Na Kocínce 210/3
160 00 Praha 6
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Fax: (+420) 257 310 841

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[1] Case 29/69 Stauder (1969) ECR 419 / Case 11/70 Internationale Handelsgesellschaft (1970) ECR 1125.

[2] Presidency Conclusions: Cologne European Council 3/4 June 1999 (http://www.europarl.europa.eu/summits/kol2_en.htm#an4)

[3] This purpose is set out in the Preamble of the Charter of Fundamental Rights of the European Union

[4] Document 8611 (14 January 2000) Parliamentary Assembly of the Council of Europe

[5] Presidency Conclusions: Tampere European Council 15/16 October 1999 (http://www.europarl.europa.eu/summits/tam_en.htm)

[6] http://www.europarl.europa.eu/charter/default_en.htm

[7] Presidency Conclusions: Nice European Council 7/10 December 2000 (http://www.europarl.europa.eu/summits/nice1_en.htm)

[8] Presidency Conclusions: Brussels European Council 21/22 June 2007 (http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/94932.pdf)

[9] Article 6 Treaty on European Union (as amended) – However the binding character does not fully apply to the United Kingdom, Poland and the Czech Republic, as they agreed with the European Council to maintain the possibility of using an opt-out from the Charter of Fundamental Rights of the European Union.

[10] ‘Treaties’ – the Treaty on European Union and the Treaty on the Functioning of the European Union.

[11] A. Rosas, ‘Fundamental Rights in the Luxembourg and Strasbourg Courts’, in C. Baudenbacher, supra n. 6, p. 163 at pp. 168-171.

[12] J. Wouters, ‘The Europeanization of International Law: The Status of International Law in the EU and its Member States’, 2008 Asser Press, p. 83.

[13] ECJ, Joined Cases 46/87 and 227/88 Hoechst AG v Commission 1989 ECR 2589.

[14] For example: the judgments of the ECtHR in the cases Chappell and (later) Casey.

App. No 10461/83, Chappell v United Kingdom (1990) 12 EHRR 1.

[15] The protection under Article 8 ECHR was defined in the Colas Est judgment of the ECtHR: Colas Est and Others v France, Judgment of April 16, 2002 (37971/97)

[16] ECJ, Case C-94/00 Roquette Fréres (2002) ECR I-9011, paragraph 29.

[17] COM (2005) 172; H. Toner, ‘Impact assessment and Fundamental Rights Protection in EU Law’ (2006) 31 ELRev. 316.

[18] ‘The Consideration of Fundamental Rights in Impact Assessment: Final Report’
http://ec.europe.eu/justice_home/doc_centre/rights/doc/study_epec_fund_rights_agency_en.pdf.

[19] ECJ, Case C-540/03 European Parliament v Council (2006) ECR I-5769, paragraph 38.

[20] See App. No. 28957/95, Goodwin v. United Kingdom, n. 149 above, paragraph 100.

[21] Paul Craig, ‘EU Law. Text, Cases, and Materials’, 2008 Oxford University Press, p. 427

[22] See App. No. 45036/98, Bosphorus Airways v Ireland (violation of the protection of property)

[23] See ‘Charter of Fundamental Rights of the European Union’ available at http://www.europarl.europa.eu/charter/pdf/text_en.pdf

[24] Case 5/88 Wachauf (1989) ECR 2609

[25] Case C-249/96 Grant v South West Trains (1998)

[26] Tillotson and Foster, ‘Text, Cases and Materials on European Union Law’, 2003 Cavendish Publishing, p. 234

[27] Set out in judgment of 13 April 2000, Case C-292/97, paragraph 45 of the grounds.

[28] Draft Charter of Fundamental rights of the European Union – Explanations added by the Convention (Brussels, 11 October 2000) – available at: http://www.europarl.europa.eu/charter/pdf/04473_en.pdf

[29] The Convention has provided a list of which Articles of the Charter where both the meaning and the scope are the same as the corresponding Articles of the ECHR and a second list for Articles of the Charter where the meaning is the same as the corresponding Articles of the ECHR but where the scope is wider. Both lists are available at http://www.europarl.europa.eu/charter/pdf/04473_en.pdf.

[30] Supremacy of EC law: Case 6/64, Costa v. ENEL (1964) ECR 585

[31] This example is given in the (Mancini award 2001 winning) scientific paper of J.B. Lüsberg, ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law?’, chapter 4.1.

[32] ‘Nothing in this Charter’ is something different from ‘nothing’ in general or ‘nothing in the Treaties’.

[33] Draft Charter of Fundamental rights of the European Union – Explanations added by the Convention (Brussels, 11 October 2000) – available at: http://www.europarl.europa.eu/charter/pdf/04473_en.pdf

[34] J.B. Lüsberg, ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law?’, chapter 4.1.

[35] Draft Charter of Fundamental rights of the European Union – Explanations added by the Convention (Brussels, 11 October 2000) – available at: http://www.europarl.europa.eu/charter/pdf/04473_en.pdf

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