Charter of fundamental rights

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The Charter of Fundamental Rights of the EU brings together in a single document the

fundamental rights protected in the EU. The Charter contains rights and freedoms under six

titles: Dignity, Freedoms, Equality, Solidarity, Citizens' Rights, and Justice. Proclaimed in 2000,

the Charter has become legally binding on the EU with the entry into force of the Treaty of

Lisbon, in December 2009.

It could be said that the area of fundamental rights was alien to legal order in the EU as the EU

was firmly based on economic foundations; and prior to the creation of the Charter, the Courts

refused to allow the EC Treaties to be overridden by a plea based on fundamental rights.

Fundamental rights are seen to be universal, pertaining to all humans; however, these rights

had little importance and applicability in the ECJ and this was demonstrated by a number of

cases. The case of Geitling v High Authority shows how the ECJ rejected the suggestion that

Community law might give some protection to fundamental rights contained in the German

constitution. It was stated by the ECJ, that Community law, ‘does not contain any general

principle…guaranteeing the maintenance of vested rights.' Likewise, in Stork v High Authority, it

was established that the Court could not examine a complaint ‘which maintains that…it

infringed principles of German constitutional law'. Despite fundamental rights being part of the

general principles of German constitutional law, the European Courts persisted in its refusal to

consider such rights which had been central place in German law. This demonstrated that the

protection of fundamental rights was far from adequate. It also supports the view made by the

President of the European Commission that there was a need ‘to make more visible and explicit

to European citizens the fundamental rights; the explanation that it needs to be more ‘visible'

suggests that the EU wanted to be clearly seen to be protecting the citizens of the Union

Fortunately, the courts attitude began to change from that of Stork, Sgarlata and Geitling to

develop the protection of fundamental rights. This suggests that it was also identified by the

ECJ that this area was inadequate, and shows that the ECJ supported the view that there was a

need to create a charter, ‘it is necessary to strengthen the protection of fundamental rights…by

making those rights more visible in a charter'. It also shows that the ECJ recognized the need to

observe certain fundamental rights when applying Community law. This could have been partly

due to the fact that challenges were made against community law as member states felt EC

legislation was encroaching upon important rights protected under national law. Consequently

the Charter of Fundamental Rights of the European Union was drawn up by a democratic and

efficient ‘Convention' and signed by 15 Member States as a political declaration at the Nice

Summit in December 2000. It contained a plethora of rights from civil and political to social

rights for all of the citizens of the European Union. Unfortunately, although the charter had

been proclaimed it was not considered legally binding until December 2009 when the Lisbon

Treaty came into effect. The Lisbon Treaty being primary EU law made the Charter directly

applicable in courts across the EU. So, prior to 2009 the fundamental rights were never

expressly adopted by the European Courts and have only recently come to play a significant

role in common law.

During the year following the Charter's proclamation the ECJ dealt with 23 cases relating to

fundamental rights, and although they were not bound by the Charter the AG's made reference

to it in 14 of the cases. This suggests that the Advocates General of the Court of Justice were in

support of the Charter. In the case of Netherlands v European Parliament and Council of the

European Union Advocate General Jacobs referred to the Charter directly to determine the

fundamental status of the right to human dignity and the right to ‘free and informed consent'

of the individual concerned in the fields of medicine and biology; showing that having a

document to refer to is an aid for the courts to interpret the rights of individuals. AG Tizzano, in

Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU), gave the Charter a

central role in supporting the judgment contained in his opinion. Although he acknowledged

that the Charter was ‘formally, not in itself binding'; in paragraph 26, he referred to Article 31,

section 2 of the Charter as ‘even more significant' legal evidence of the way by which one

should solve the case at hand. He went on further to state that the Charter served as a

‘substantive point of reference for all those involved' because it appeared in ‘large measures to

reaffirm rights which are enshrined in other instruments'. His statement suggests that it was

necessary to have a Charter as it is easier to refer to when the rights are laid down as clear as

they are in the Charter; previously if a case came before the courts they would have to decide

whether there was a fundamental right involved or not, the Charter makes it clear exactly what

these rights are. AG Mischo, in his part of the opinion invoked the Charter as additional

authority, adding major reflection on the democratic qualities of the process through which the

Charter was drafted; ‘I know that the Charter is not legally binding, but it is worthwhile

referring to it given that it constitutes the expression, at the highest level, of a democratically

established consensus on what must today be considered as the catalogue of fundamental

rights guaranteed by the Community legal order”.

The Advocates General were not alone in supporting the case for legal force, In 2002 the Court

of First Instance joined in the support of giving the Charter legal force; in the case of Max.Mobil

Telekommunikation Service GmbH v the Commission it made reference to Articles 41 and 47 of

the Charter, thus demonstrating their willingness to use the Charter as a source for legal

reasoning. The Charter has also been used by the European Court of Human Rights, where the

Vice-President, judge Costa used the Charter in his separate but concurrent opinion in Hatton

and Others v The United Kingdom. Costa referred to the provisions on the protection of the

environment (Art 37) in order to show that the case law of ECHR had not ‘been alone' in

becoming increasingly aware of the importance of environmental issues.

Despite the diverse references made to the Charter the judges of the European Court of Justice

had not referred to the Charter, not even in cases where the AGs had. The ratification of the

Lisbon Treaty means that, in cases concerning fundamental rights the ECJ are bound to call on

the Charter. The treaty of the European Union, Article 6 (1), declared that ‘the union shall

recognize the rights, freedoms and principles set out in the Charter of fundamental rights.' It

goes on further to state that the principles shall have ‘the same legal value as the Treaties', one

can see that the Union recognizes fundamental rights and gives them growing importance.

There is also the addition of Article 6 (3) which states that ‘Fundamental rights…shall constitute

general principles of the Unions law'. It can be inferred by this addition that the EU would like

to ensure that any future legislation which they introduce does not infringe any of the

fundamental rights; this demonstrates the importance that the incorporation has as it alters the

way in which the Commission of the EU can legislate. It can be said that what fuelled the EU to

incorporate the Charter into the Treaty was that the legal representatives of the parties before

the Court of Justice were finding it increasingly necessary to refer to the text of the Charter in

their own arguments, this could have eventually forced the ECJ to consider the Charter and

make reference to it in some form. On one hand it could be said that if the Charter had been

incorporated into the primary Treaties initially (under the Treaty of European Union) then it

would have been given immediate constitutional force from the start; or it would have taken

the form of secondary legislation as directives, again giving it legal force and making it directly

applicable by the ECJ. On the other hand, it could be said that even if the Charter had been

incorporated into the primary Treaty, then it may not have had much legal bite as the mandate

to which the Convention worked was only to consolidate the existing EU law of the ECHR.

Therefore, it could be argued that no new law was created. Prior to the Charter being legally

binding citizens would have been able to challenge EU law on any of the rights within the

Charter under the ECHR as many of the fundamental rights are already contained in the

Convention and so they were protected. So, it could be said that no new legal force was

required for the Charter and it did not need to be incorporated into the Lisbon Treaty.

Nonetheless if we are to believe that the Charter is a proper consolidation of the existing law,

then it must be seen as an authoritative evidence of the law in force and thus should be taken

into account by legal actors, consequently giving it legal force.

Discussion regarding the legal stance of the Charter was debated in 2002; it was stated that, ‘a

very large majority of speakers supported incorporation of the Charter…making the Charter a

legally binding text.' Others had previously downplayed the significance of the Charter

therefore questioning the need for incorporation; in 2000, Tony Blair stated his disapproval of

the Charter by describing it as ‘simply a statement of policy.' He went on to say, ‘the UK is not

the only member state to oppose something of a binding legal nature.' This argument can be

reasoned by suggesting countries such as the UK, feared that if the Charter became legally

binding it would create new legal obligations which would undermine their national

sovereignty. However, with hindsight it can now be said that EU citizen's rights are

strengthened and the level of protection of fundamental rights is raised, regardless of where

the citizen chooses to live, work or travel. It also makes the EU accountable to its citizens as an

EU citizen can now challenge the legality of acts of the EU institutions and Member States when

acting under Community law, in regards to the Charter. Prior to the incorporation into the

Lisbon Treaty the citizen had no precise way of enforcing their rights under the Charter, so

essentially it was an insufficient form of protection just having the Charter and not making it

legally binding. One could infer that now that the Charter has gained legal status, the law on

fundamental rights will become stronger and more precise.

Bibliography

Arnull, A et al. European Union Law, 5th edition (Sweet and Maxwell: London, 2006), pp. 285-

322

Chalmers, D. et al. European Union Law (Cambridge University Press: Cambridge, 2006), pp.

246-58

Craig, P. ‘The Lisbon Treaty: Process, Architecture, and Substance' (2008) 33 European Law

Review 137, at pp. 162-5

Craig, P. et al. EU Law: Text, Cases and Materials, 4th edition (Oxford University Press:

Oxford, 2007), pp. 412-8

Dougan, M ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts' (2008) 45 Common

Market Law Review 617, at pp. 661-672

McColgan, A ‘The EU Charter of Fundamental Rights' (2004) European Human Rights Law

Review, 2-5

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the

European Community [2007] OJ C306/01

http://www.europarl.europa.eu/charter/pdf/text_en.pdf