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The EU Charter of Fundamental Rights

Summary

The Charter of Fundamental Rights, a political declaration agreed in 2000 and then in a slightly amended form included in the Constitutional Treaty, was not incorporated in the Treaty of Lisbon but has been by the EU institutions and then referred to in the Lisbon Treaty.

The adoption of the Charter as a legal text represents an important change in the EU’s human rights framework but the effects of its adoption may not be as extensive as some have suggested. The United Kingdom and Poland obtained the agreement of the other Member States to a further protocol to the Lisbon Treaty which seeks to restrict the interpretation of the Charter by the European Court of Justice and their domestic courts (this is sometimes mistakenly described as an "opt-out").

This briefing explains the history of the Charter, identifies its key provisions, considers the effects of its adoption and explains the British and Polish additional protocol.

History

The EU Charter of Fundamental Rights was originally proclaimed as a political declaration at the December 2000 European Council meeting in Nice. The Conclusions of that European Council described the Charter as,

"combining in a single text the civil, political, economic, social and societal rights hitherto laid down in a variety of international, European or national sources".[1]

The Charter had developed out of a desire to make rights applicable at the EU level more visible to people in the EU. It was drawn up by a Convention that met during 2000 at which the United Kingdom was represented by Lord Goldsmith QC (later the Attorney General).

At the Laeken European Council in December 2001, where it was agreed that the separate Convention on the Future of Europe should be established to draw up the Constitutional Treaty, it was also agreed that the status of the Charter of Fundamental Rights should be considered by the Constitutional Convention.

When that Convention agreed the final Treaty text in June 2003, the Charter was made Part II of the Treaty in almost the same form as that in which it was originally published.

With the abandonment of the Constitutional Treaty after the French and Dutch referendums in 2005, it was agreed at the December 2007 European Council that the Charter should be adopted by the institutions of the EU and given legal effect by reference to it in the Lisbon Treaty but the actual text would not be incorporated in the Treaty.

The Charter

Article 6 of the Treaty on European Union (as inserted by the Lisbon Treaty) provides that:

"the Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties".

The Article goes on to say that the Charter does not "extend in any way the competences of the Union" and that it is to be interpreted in accordance with provisions in Chapter VII of the Charter and the explanations referred to in the Charter (explained below). The version of the Charter adopted in December 2007 is different from that of December 2000 following changes made by the Constitutional Convention.

The Charter is composed of a preamble and 54 articles, under the headings of Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights, Justice, and General Provisions.[2] The articles are largely framed in general terms, and many of them cover the same ground as the provisions of the European Convention on Human Rights (ECHR), which was adopted over half a century ago (and to which all EU Member States are signatories and who have incorporated it in their domestic law). The UK played a significant part in drawing up the ECHR in the early 1950s. Those provisions that do not have their origins in the ECHR, come from other international agreements to which Member States are signatories (such as the 1961 European Social Charter).

The Charter makes a distinction between three categories: rights, freedoms and principles. This approach has led to some discussion about the exact interpretation that can be placed on the Charter’s provisions. Are "freedoms", for example, equivalent to "rights"? In its thorough scrutiny of the impact of the Lisbon Treaty, the House of Lords EU Select Committee considered this question. It concluded that the real issue was not the difference between rights and freedoms. Freedoms do divide into different types – for example freedom of the arts and sciences is clearly different from freedom of expression. The real difference the Committee identified was between rights and principles; a distinction that was apparent when the Charter was drawn up by the Convention.[3]

This distinction is between rights which are long established in international law (as in the ECHR) and in domestic constitutional provisions (such as the right to life and the right not to be tortured), and the economic and social "rights" conferred by the Charter (such as the integration of people with disabilities). The Charter itself, in Article 52 (5), makes clear that principles are to be treated differently from rights, as the House of Lords Select Committee explains:

"Two points arise from this. First, Charter principles do not, therefore, of themselves give rise to directly enforceable rights. But they may influence the ECJ (or a national court) when interpreting the nature and extent of rights afforded by Union law or by national legislation implementing Union law".[4]

Legal Effect of the Charter

The Charter itself expressly states in Article 51 (1) that its provisions are addressed to the institutions of the EU with due regard to subsidiarity and only to Member States, "when they are implementing Union law". It goes on to add that:

"This Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union" (Art. 51 (2)).

These are two of a number of "horizontal" provisions in the Charter that are there to prevent it from applying to national law, save in the implementation of EU law. As the Government put it in its White Paper on the proposals for a Constitutional Treaty:

"The Member States are only affected when they are implementing Union law. So where Member States are dealing with non-EU matters the Charter has no legal application".[5]

The effect of the Charter on national law is therefore narrow – far narrower than that of the ECHR. This is the more so since Article 52 (3) of the Charter provides that, insofar as the Charter contains rights corresponding to those in the ECHR, the meaning and scope of those rights shall be the same as in the ECHR.

The interpretation of the Charter is further limited by the explanations produced by the Convention that drew it up. Article 52 (7) states that:

"The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States".

In addition, in a declaration attached to the Lisbon Treaty, the Member States said that:

"The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined by the Treaties".

As a result of drawing up a political declaration and then turning it in to a legally valid document, the Charter contains a series of rights that are not usually relevant to the workings of the EU. The original Charter having embodied these basic rights, it would have seemed odd, and perhaps suspicious, to remove them later. As a result, for example, the Charter bans the use of torture but the EU does not have its own police or security forces that could abuse their power in that way. As the Economist Intelligence Unit has pointed out,

"most of the rights in the charter will never be exercised. This is because the EU only has competence in certain areas".[6]

But as the EU develops policy in the field of justice and home affairs, these provisions may become relevant.

There has been particular concern in Britain that some of the rights and principles in the Charter could intrude into areas of British law and life in an unhelpful way. For example, it has been suggested that Article 28 which refers to the right of workers to be consulted by their employers, the right of collective bargaining and the right to strike amount to a potential problem for British employment law. This is not so: the crucial fact about the Charter is that it only applies to EU institutions and to the implementation of EU law in Member States and as the EU does not have competence to legislate (for example) on the right to strike, the Charter will not be able to be used to create such a right. The Article furthermore also states that the rights concerned are to be exercised "in accordance with national laws and practices". The CBI told the House of Lords Select Committee that, after taking legal advice, they were now "less concerned that the Charter could confer additional employment regulations on the UK labour market".[7]

As with any legal document, the Charter’s effects will only become clear after cases have been brought before the courts. The concern of some critics is not that it will create new rights but that it could be used by the courts to come up with fresh interpretations of existing rights that have their origin in the EU and which would have the effect of changing British law.

Accession to the ECHR

Article 6 of the Treaty says that the EU "shall accede" to the European Convention on Human Rights but that this will "not affect the Union’s competences as defined in the Treaties". Unanimity will be required before this can happen.

By the Union becoming a party to the ECHR, the decisions of the Court of Justice and the work carried out in the fields of freedom, security and justice (which of course includes police co-operation) will be subject to the external scrutiny of the European Court of Human Rights.

The UK and Polish Protocol

The British Government originally opposed the Charter being given legal status. The then Prime Minister said after the Nice summit in 2000:

"Our case is that it should not have legal status, and we do not intend it to. We will have to fight that case".[8]

Part of the British argument, put in the Convention that drew up the Constitutional Treaty, was that the Charter had been written as a political text and it needed to be adjusted to make it a legal one. In the event the Charter was added to the Constitutional Treaty with little change to its original wording and accepted by the British Government, although this caused some political difficulties.

During the negotiations for the Lisbon Treaty the British Government, and the then Polish Government which also had concerns about the implications of the Charter for its domestic law, sought and obtained the agreement of Member States to a protocol. This is not an opt-out from the Charter, as has sometimes been suggested, but rather a legally binding text which seeks to prevent the Charter being interpreted in a way that creates rights additional to those already provided for in British or Polish law.

The question of the actual effect of this protocol has been debated but without agreement as to its likely legal consequences. The British Government believes that all the protocol does is to put – in the words of the Justice Secretary Jack Straw MP – "beyond doubt what should have been obvious from other provisions".[9] In other words the protocol’s benefit is largely political in making it crystal clear that the Charter will not impact on UK law except where EU law is being implemented in this country.

May 2008

 

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[1] Presidency Conclusions, Nice European Council, 7, 8 & 9 December 2000, p. 1.

[2] eur-lex.europa.eu/LexUriServ/LexUriServ.do

[3] House of Lords EU Select Committee, The Treaty of Lisbon: an impact assessment, 10th Report 2007-08, HL62-I, paras 5.115 et seq.

[4] Ibid, para. 5.20.

[5] A Constitutional Treaty for the EU: The British Approach to the European Union Intergovernmental Conference 2003, Cm 5934, September 2003, para. 102.

[6] Business Europe, Economist Intelligence Unit, 23 June 2003.

[7] House of Lords report, op cit, para. 5.32.

[8] Official Report [Hansard] House of Commons, 11.12.00, col. 354.

[9] Quoted in House of Lords report, op cit, para. 5.96.

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