The immediate background to the birth of the Charter was the decision by EU Heads of State or Government at the Cologne European Council on the 3rd and 4th of June 1999 to establish such a Charter.4 The European Council decided at that meeting to establish an ad hoc body to draw up the draft charter. (The composition of this body was established at the European Council in Tampere on the 15th and 16th October 1999.5) The Cologne Council established further that this body should present a draft document in advance of the European Council in December 2000. It anticipated that the European Council would propose to the European Parliament and the European Commission that, together with the Council, "they should solemnly proclaim on the basis of the draft document a European Charter of Fundamental Rights. It would then have to be considered whether and, if so, how the Charter should be integrated into the treaties." Meetings of the body responsible for preparing the draft Charter (renamed the "Convention") took taken place from December 1999 until the autumn of 2000. After agreement by the Convention of a final text of the Charter, the Presidents of the European Parliament, the Council of the European Union and the European Commission proclaimed the Charter on the 7th December 2000 on the fringes of the Nice European Council.6
This process was, however, the culmination of a long debate within Europe over the form which recognition of fundamental rights within the European Union/Community should take. An understanding of this broader history is vital to an appreciation of several of the subsequent issues. In brief, there has been an explosion of activity on human rights since the Second World War at the international, regional and national levels. Internationally, the development of a set of core human rights treaties covering civil and political rights, economic and social rights, racial and gender discrimination, freedom from torture, and the rights of the child, amongst others, are well known. Less well appreciated, perhaps, is the development by the International Labour Organisation of a significant set of Conventions in the field of workers' rights.
To these we should also add the development of human rights norms specifically for Europe by the Council of Europe and, more recently, by the OSCE. The former, of course, gave rise to the notably successful European Convention on Human Rights, but also (and more recently) to the important Social Charter (revised in 1996), the Framework Convention on National Minorities, the Convention on Minority Languages, and the Convention of Human Rights and Biomedicine, as well as the important additional protocols to the European Convention on Human Rights, most recently the twelfth protocol to the ECHR on discrimination (which has not yet come into force).
Developments at the national level have been equally important. All Member States of the Community now have vibrant constitutional traditions for the protection of human rights. Some have specifically incorporated many of the international and regional human rights instruments mentioned previously. Others have, in addition, domestic constitutional texts that incorporate protection of fundamental rights, sometimes with interpretation by specialised constitutional courts.
Indeed, it might be said that it was the European communities that were, in comparison, somewhat lacking in the area of rights protections. As long ago as the late 1960s, the absence of formally proclaimed human rights provisions in the Treaties establishing the European communities gave rise to considerable unease in several Member State constitutional courts, particularly in the Federal Republic of Germany. The doctrine of the supremacy of Community law adopted by the European Court of Justice (ECJ) in the 1960s carried the logical consequence that even constitutionally protected norms (including human rights guarantees) in the Member States were subordinate to Community legal rules of any type. The ECJ developed a jurisprudence that subjected the exercise of Community competence to the requirement that it comply with "general principles" of Community law, which the Court insisted included fundamental rights. Where legislative or executive action by Community institutions breached those fundamental rights recognised as common to the Member States, the ECJ could declare them unlawful. The "fundamental rights" identified by the ECJ drew on the constitutional traditions of the Member States and, in particular, the European Convention on Human Rights. This jurisprudence was subsequently extended to encompass also the acts of Members States acting under Community law, although the precise ambit of this was (and is) subject to considerable debate.
The place of human rights in the Community to human rights was given attention by the European Commission and the European Parliament from the mid 1970s. This resulted in a joint declaration by the EC institutions on human rights in 1977, and in the subsequent unsuccessful proposal by the European Commission in 1979 for the EC to accede to the European Convention on Human Rights. Further proposals on fundamental rights were made by the Parliament in 1989 and 1996. Increasingly during the 1990s, fundamental rights surfaced as an issue to be considered in the Inter-Governmental Conferences in Maastricht and Amsterdam. The Maastricht Treaty of 1993 incorporated a limited reference to human rights in the context of the European Union Treaty, adopting terminology familiar from the Court's rulings, whilst ensuring that the ECJ would have no jurisdiction to enforce these commitments in the context of the Second (common foreign and security policy) and Third (justice and home affairs) Pillars. The Amsterdam Treaty of 1997 went somewhat further, extending the jurisdiction of the ECJ on legislation relating to the creation of an area of freedom, security and justice under the EC Treaty and in the revamped Third Pillar, incorporating provisions relating to human rights in the process of accession of new Member States, permitting suspension of Member States for systematic breaches of human rights (but generally without ECJ involvement in this process7), and enacting new specific "human rights" legislative competences, for example in the area of discrimination, but not going so far as to provide a general human rights competence. In addition, the Community has actively pursued aspects of human rights protection in the context of external relations more generally. We can see, therefore, that there has already been considerable movement on human rights issues, stopping short, however, of an enforceable European Community charter of rights in the form of a single text.
From 1979, as we have seen, one approach taken to fill this perceived vacuum was to urge accession by the European Community to the European Convention on Human Rights. It was argued that, as the Community's competences grew, replacing the previously exclusive competence of Member States in certain areas, the need for the Community to accede to the Convention increased, to ensure the protection accorded by the Convention would not be decreased over time. However, in Opinion 2/94, the ECJ considered the issue of Community accession to the ECHR and decided that a Treaty amendment would be necessary before the Community could accede. The ECJ accepted the important role of fundamental rights within the EC legal order whilst refusing to allow the use of existing Treaty provisions to circumvent the need for a Treaty revision, thereby putting the emphasis on the need for a major political initiative -- a partial reason explaining the current debate.
A particular feature of the way the debate over an EU Charter of Fundamental Rights has developed has also been the importance of reports by independent committees, appointed by the Commission or encouraged by it, in preparing the way for new human rights initiatives (not least the current Charter). We can identify, for example, the important role played by a Comité des Sages8 in 1996 before the Amsterdam Treaty. In considering the issues raised by the Charter, therefore, it is important to bear in mind that two further influential projects reported on the issues during the latter part of the 1990s, prior to the process of drafting a Charter. The first, arising from a project funded by the Commission at the European University Institute in Florence, resulted in the adoption of a "human rights agenda" by another Comité des Sages,9 and the publication of a detailed report by a group led by Professor Alston at the European University Institute in Florence, on which the "agenda" was based. More recently, a further Commission-appointed group, led by Professor Simitis of Frankfurt, reported in 1999, recommending a way forward on the issue.10 According to de Búrca, however, "[t]he German presidency was decidedly unenthusiastic about many of the substantive suggestions which were made in the first and more detailed of the two reports (for example the setting up of a specific Commission directorate with responsibility for human rights, or the establishment of a human rights monitoring centre ...) but was attracted to the theme of the second report, which focused on the perceived need for an E.U. Bill of Rights."11 In part, it appears that this was part of a continuing German concern about the relationship between the fundamental rights in the German constitution and EC/EU law.
Alongside these developments, sometimes in tandem, sometimes separately, came an increasing emphasis in the Community on social and equality rights, particularly in the workplace. This began, of course, with the inclusion of Article 119 on equal pay between men and women in the original Treaty of Rome. It continued with the development by the ECJ of an emphasis on equality between men and women at work in the 1970s, and proceeded with the development of various legislative initiatives by the European Commission. The Single European Act of 1986 extended the legislative competence of the Community in the area of worker rights and permitted qualified majority voting in the Council of Ministers, albeit only for health and safety measures. In 1989, all Member States, except the United Kingdom, promulgated a Community Charter of the Fundamental Social Rights of Workers, although this was not legally enforceable. The Maastricht Treaty adopted further provisions in Title III of the European Community Treaty, and established a Social Protocol that enhanced further legislative competence in this area (except with regard to the United Kingdom). The Amsterdam Treaty brought the so-called "opt-out" by the United Kingdom to an end and established a revised and expanded competence to develop social-policy making which would bind all 15 Member States in common. Arising from this, the Community has adopted the framework directive on employment discrimination and the directive on racial discrimination, for example.
Given these extensive human rights developments, we can see that the relationship between Community law and human rights has been a long-standing one. Why is this history relevant to the future of the Charter? The reason lies not simply in the tendency we all have to use history as scene setting, but also because how we explain the past to ourselves profoundly seems to influence how we feel we should act in the future. But how, more precisely should we view this history? What lessons, if any, can be identified? The problem is that the history of the development of human rights in Europe is the subject of considerable debate. One of the most important debates involves the roles that are to be attributed to the European Court of Human Rights and the European Court of Justice in this history.
Amongst some, there is a perception of the European Convention on Human Rights and its institutions as set apart from the movement for economic and political integration, which culminated in the formation of the European Economic Community. The story is told how the European Convention on Human Rights developed as a regional manifestation of an internationalist human rights movement stalled at the United Nations because of the Cold War. There is a view of the European Court of Human Rights as advancing the cause of universal human rights in this regional context. A contrast is drawn between the European Court of Human Rights and the role of the European Court of Justice, with the latter driven by an integrationist political vision, acting pragmatically to stave off a growing revolt among national constitutional courts at the doctrine of the supremacy of Community law by "finding" human rights among its general principles.
But there is a different story that some have told. Some remind us that the movement advocating what became the European Convention on Human Rights saw it as part of, and not separate from, the European integration movement. We are told that the movements had many of the same people central to them.12 We see the European Court of Human Rights, in applying a pragmatic conception of human rights, drawing heavily on what it perceives as a European consensus in arriving at its decisions, and does not view its role simply as the branch office of the United Nations. We are told that the European Court of Human Rights is the forum for continuing a deliberative debate over the nature of human rights, rather than an institution for declaring an already manifest, clear vision of human rights.
Just as a more pragmatic version of the European Court of Human Rights can be identified, so too a less pragmatic view can be offered of the European Court of Justice's interpretation of Community law's general principles as including protection of human rights. Some view this development as the natural culmination of the importance the "Founding Fathers94 of the Community attached to human rights from the very beginnings of the movement for European economic and political integration. According to Menéndéz, fundamental rights "have always been at the heart of the European project and ... the explicit affirmation of rights comes hand in hand with the transformation of the Communities."13 Without challenging the orthodox history, he offers "a less court-centred explanation of the leading cases ... based on a characterisation of the Luxembourg judges as responding to clear signals coming from the political process."14 Seen from this perspective the Court used its interpretative opportunities "to crystallise an emerging political consensus."15 Seen from this perspective, the roles of the European Court of Justice and the European Court of Human Rights seem more similar in some respects than the orthodox history would lead us to believe.
One's reaction to several of the options considered subsequently is likely to be influenced by one's reading of this history. Which reading of history one adopts will significantly affect one's view of how the Charter will and should develop, because it will affect the view one takes of the future role of the ECJ. Two issues, in particular, are sufficiently important to highlight immediately. First, has the development of human rights in Community law been ECJ-initiated and controlled, or was it developed by the ECJ in response to signals from the representative institutions? Second, can the ECJ be trusted to interpret human rights "properly", or does it simply advance human rights when it fits its agenda of European integration, and ditch them when it does not? If the incorporation of human rights into Community law is seen as a pragmatic process led by the Court, then one set of conclusions is likely. If, on the other hand, the incorporation of human rights is seen as a partnership between the Court and the other institutions genuinely drawing out fundamental principles on which the Community is built, then a different set of conclusions on future policy is probable. Equally, if the European Court of Human Rights is seen as doing a very different job from the ECJ, then that is likely to lead to a different reaction to several options than if their roles are perceived to be somewhat similar.
4 Conclusions of the European Council in Cologne, 3 and 4 June 1999, Annex IV.
5 Conclusions of the European Council in Tampere, 15 and 16 October 1999, Annex ("Composition, Method of Work and Practical Arrangements for the Body to Elaborate a Draft EU Charter of Fundamental Rights, As Set Out in the Cologne Conclusions").
6  OJ C 364/8, 18 December 2000.
7 See Nice Treaty.
8 For a Europe of Civic and Social Rights: Report by the Comité des Sages chaired by Maria de Lourdes Pintasilgo (1996)
9 Leading by Example: A Human Rights Agenda for the European Union for the Year 2000: Agenda of the Comité des Sages and Final Project Report (1998) (hereafter, "Leading by Example").
10 Affirming fundamental rights in the European Union: Report of the Expert Group on Fundamental Rights (1999).
11 Gráinne de Búrca, The drafting of the European Union Charter of fundamental rights, 26 European Law Review 126 (2001), at p. 129.
12 Brian Simpson, Human Rights and the End of Empire (2001).
13 Agustin José Menéndéz, Chartering Europe: The Charter of Fundamental Rights of the European Union (Arena Working Papers, WP 01/13) (available at: www.arena.uio.no/publications/wp01_13.htm), p. 1.
14 Ibid., p. 2 (emphasis in original).
15 Ibid., p. 4 (emphasis in original).