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A Colloquium held under the auspices of the Hauser Global Law School Program and the Jean Monnet Center for International and Regional Economic Law and Justice, New York University School of Law |
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EUROPEAN CHARTER OF FUNDAMENTAL RIGHTS
BackgroundThe Charter of Fundamental Rights of the European Union, as signed and proclaimed by the Presidents of the European Parliament, the Council and the Commission at the European Council meeting in Nice on 7 December 2000, is the end-result of a special procedure, which is without precedent in the history of the European Union and has served as a model to - at least at first sight – an even more far-reaching project: the Convention on the Future of Europe. The issue of the Charter's legal status has already been raised by the Cologne European Council, which launched the Charter initiative. Although it was drafted as if it were to have full legal effect (see Commission communication on the Legal Nature of the Charter: COM(2000)644) the Nice European Council (see Annex I to the Presidency conclusions) decided to consider the question of the Charter's legal status during the general debate on the future of the European Union and to take the final decision only during the 2004 Intergovernmental Conference. Regardless of the fact that the Charter’s status could be described as pending, it would be wrong and almost unfair to say that it is has no effect at all. In its short life, the Charter has already been referred to by most European institutions and even by the Strasbourg based European Court of Human Rights. Increasing numbers of EU citizens are referring to its provisions in the letters, petitions and complaints which are sent to the European Parliament and Commission. The European Ombudsman was very explicit in his speech of April 8, 2002, to the European Parliament in saying:
An increasing number of similar statements can be easily found in speeches by Commission officials and even Member state governments’ representatives. The Convention Working Group on “Incorporation of the Charter/Accession to the ECHR” answered both questions posted to it in affirmative (see Final Report of 22 October, 2002, CONV 354/02). Nevertheless all eyes still keep on turning to the Courts of the European Communities. The status of the Charter in AG OpinionsAdvocates General within the Court of Justice have, without ignoring the fact that the Charter does not have any autonomous binding effect, referred to it in their opinions and some even clearly emphasised its purpose of serving as a substantive point of reference for all those involved in the Community context. All AGs have already referred to The Charter in their opinions – some almost systematically in human rights cases assigned to them, where such reference is adequate; others are still more reluctant. We would have expected the ECJ to give up to this “pressure” from its AGs and the public opinion in general and at least cite the Charter, even without interpreting its provisions, before its legal status is clarified, but it seems more and more likely that we will have to wait until 2004, when the European Council is set to define the status of the Charter, for the ECJ to make its next move. By the end of April 2003, the Advocates General had referred to the Charter in 34 cases they handled concerning human rights since the Charter’s proclamation in December 2000.
(* Based on cases and opinions issued by May 13, 2003. For up-to-date information check the Courts case-law database) For a detailed report on the AG Opinions
In this case the trade union BECTU objected to the way the British government transposed part of the EU Working Time Directive. The British legislation which implements the European working time directive of 1993, provides that entitlement to leave is conditional upon the person concerned having been continuously employed for 13 weeks by the same employer. The workers represented by BECTU are only employed on short term contracts which are often less than 13 weeks. As a result, they do not become entitled to the right to annual leave under British law. BECTU brought an action against the Secretary of State for Trade and Industry for the annulment of this legislation. The High Court asked the ECJ if the directive allows a Member state to prescribe that a worker's entitlement to paid annual leave does not begin to accrue until the worker has completed a qualifying period with the same employer. According to the AG, the right to paid annual leave is a fundamental social right based on a series of international documents. The AG continues by claiming: (Footnotes omitted) 26. Even more significant, it seems to me, is the fact that that right is now solemnly upheld in the Charter of Fundamental Rights of the European Union, published on 7 December 2000 by the European Parliament, the Council and the Commission after approval by the Heads of State and Government of the Member States, often on the basis of an express and specific mandate from the national parliaments. Article 31(2) of the Charter declares that: 'Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. And that statement, as expressly declared by the Presidium of the Convention which drew up the Charter, is inspired precisely by Article 2 of the European Social Charter and by paragraph 8 of the Community Charter of Workers' Rights, and also took due account 'of Directive 93/104/EC concerning certain aspects of the organisation of working time. 27. Admittedly, like some of the instruments cited above, the Charter of Fundamental Rights of the European Union has not been recognised as having genuine legislative scope in the strict sense. In other words, formally, it is not in itself binding. However, without wishing to participate here in the wide-ranging debate now going on as to the effects which, in other forms and by other means, the Charter may nevertheless produce, the fact remains that it includes statements which appear in large measure to reaffirm rights which are enshrined in other instruments. In its preamble, it is moreover stated that '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. 28. I think therefore that, in proceedings concerned with the nature and scope of a fundamental right, the relevant statements of the Charter cannot be ignored; in particular, we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved - Member States, institutions, natural and legal persons - in the Community context. Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right.
Heidi Hautala, a Member of the European Parliament, requested that the Council send her a copy of a report on conventional arms exports. The Council refused to do so, on the ground that it contained sensitive information, disclosure of which could be harmful for the EU’s international relations. Under Community law on access to documents, the Council may refuse access to a document in order to protect the public interest with regard to international relations. On 19 July 1999 the Court of First Instance annulled the Council decision and ruled that the Council should consider allowing partial access to documents. The Council lodged an appeal against the judgment of the Court of First Instance. The AG notes first of all that the strength of the principle of access to documents derives from the fact that it is a fundamental right. He then refers expressly to the Charter of Fundamental Rights, which provides for a right of access to such documents. In his view this establishes the principle of transparency and allows for citizen involvement in the management of public affairs. The AG addresses the legal validity and role of the Charter: (Footnotes omitted) 80. Naturally, the clearly-expressed wish of the authors of the Charter not to endow it with binding legal force should not be overlooked. However, aside from any consideration regarding its legislative scope, the nature of the rights set down in the Charter of Fundamental Rights precludes it from being regarded as a mere list of purely moral principles without any consequences. It should be noted that those values have in common the fact of being unanimously shared by the Member States, which have chosen to make them more visible by placing them in a charter in order to increase their protection. The Charter has undeniably placed the rights which form its subject-matter at the highest level of values common to the Member States. 81. It is known that the political and moral values of a society are not all to be found in positive law. However, where rights, freedoms and principles are described, as in the Charter, as needing to occupy the highest level of reference values within all the Member States, it would be inexplicable not to take from it the elements which make it possible to distinguish fundamental rights from other rights. 82. The sources of those rights, listed in the preamble to the Charter, are for the most part endowed with binding force within the Member States and the European Union. It is natural for the rules of positive Community law to benefit, for the purposes of their interpretation, from the position of the values with which they correspond in the hierarchy of common values. 83. As the solemnity of its form and the procedure which led to its adoption would give one to assume, the Charter was intended to constitute a privileged instrument for identifying fundamental rights. It is a source of guidance as to the true nature of the Community rules of positive law.
In a case where a Scottish Court asked the ECJ whether the right of property, as recognised by Community law, requires that compensation be paid to farmers whose fish have had to be destroyed under measures imposed by a Council directive for the control of diseases, AG Mischo after addressing the protection of the right to private property in the light of the Charter acknowledged:
(Footnotes omitted)
Reference was made to Article 47 of the Charter of Fundamental Rights, which, “admittedly, does not yet have any binding legal effect. It can, however, be used as a standard of comparison, at least in so far as it addresses generally recognised principles of law”.
The status of the Charter in the jurisprudence of the Court of First Instance
(* Based on cases and opinions issued by May 13, 2003. For up-to-date information check the Courts case-law database) The Court of First Instance made its first reference to the Charter of Fundamental Rights in a case involving max.mobil, an Austrian mobile phone operator, and the European Commission. The company complained to the Commission about fees set by the Austrian government for the GSM concession, but its plea was rejected. In determining the legal framework for hearing the case, the court referred to Articles 41(1) and 47 of the Charter, laying down a person’s right to have his or her affairs handled impartially, and to secure an effective remedy where rights are violated. The Court in max.mobil illustrates those rights from the Charter as confirming existing “general principles that are observed in a State governed by the rule of law and are common to the constitutional traditions of the Member States”.
In Mannesmannröhren-Werke the plaintiff invoked the Charter, but the CFI dismissed its argument:
Jégo-Quéré is a French fishing company operating in the waters south of Ireland. It owns four fishing boats over 30 metres in length and uses nets having a mesh of 80 mm, which have been banned by a new Community regulation. Jégo-Quéré applied to the CFI for annulment of two provisions of the regulation in question. The Commission argued that, on the basis of the criteria previously developed by the case-law of the Community courts, the CFI was bound to find that the applicant could not be regarded as individually concerned within the meaning of the EC Treaty and that the action should therefore be dismissed as inadmissible. The CFI found that the inevitable effect of the existing case-law is to prevent many individuals from challenging measures of general application which directly affect their legal position and also considered that none of the other possible procedural routes constitute a suitable vehicle for challenging the legality of a Community measure. The CFI continued by pointing out that, according to the case-law of the ECJ, access to the courts is one of the fundamental elements of a community based on the rule of law, as guaranteed by the legal order based on the EC Treaty, which has established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions. The ECJ has held that the right to an effective remedy before a court of competent jurisdiction is based on the constitutional traditions common to the Member States and on the European Convention for the Protection of Human Rights and Fundamental Freedoms. “In addition, the right to an effective remedy for everyone whose rights and freedoms guaranteed by the law of the Union are violated has been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union […].”
In November 2000 the Commission brought a civil action against several companies belonging to the Philip Morris and Reynolds groups, and against the company Japan Tobacco before a US federal court. Following dismissal of those claims, the Commission and 10 Member States brought a fresh action in August 2001, founded on other bases of claim, which was once again dismissed, on the grounds that US courts refrain from enforcing the tax legislation of other States, following which the Commission filed an appeal before the US Court of Appeals for the Second Circuit. The cigarette manufacturers asked the CFI to annul the Commission's decisions to bring the actions before the District Court. In its judgment, the CFI stated, first, that only measures the effects of which are binding on, and capable of affecting the interests of, a party by bringing about a distinct change in his legal position may be the subject of an action for annulment. The CFI found that the decision to bring legal proceedings does not by itself alter the legal position in question. The obligations of the parties can be definitively established only by the judgment in the civil actions brought by the Commission. Accordingly, the decisions to bring proceedings before those courts cannot be held to be decisions which are open to challenge. It concluded, however, that the importance of the right to an effective remedy for everyone whose rights and freedoms guaranteed by the law of the Union are violated has not only been clearly established in the case-law of the ECJ, but has “moreover, been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1). Although this document does not have legally binding force, it does show the importance of the rights it sets out in the Community legal order.” Such right has not been undermined by the dismissal of the actions for annulment because the cigarette manufacturers are not thereby denied access to Community courts. References to the Charter of fundamental rights can also be found in two orders issued by the President of the Court of First Instance:
The status of the Charter in the jurisprudence of the European Court of Human Rights(* as on May 13, 2003 – for most up-to-date information check the ECHR case-law database) The first reference to the Charter of fundamental rights in the jurisprudence of the European Court of Human Rights can be found in a Separate Opinion of Judge Costa in the case of Hatton and Others v. the United Kingdom of 2 October 2001 . In this case dealing with noise pollution in the proximity of Heathrow airport judge Costa, while addressing the right to a healthy environment in the light of the case-law of the ECHR, asks himself, if the court (ECHR) went too far in protecting the human right to a sound environment. “Since the beginning of the 1970s, the world has become increasingly aware of the importance of environmental issues and of their influence on people’s lives. Our Court’s case-law has, moreover, not been alone in developing along those lines. For example, Article 37 of the Charter of Fundamental Rights of the European Union of 18 December 2000 is devoted to the protection of the environment. I would find it regrettable if the constructive efforts made by our Court were to suffer a setback.” On 11 July 2002, the European Court of Human Rights made two references to Article 9 of the Charter in its rulings against the UK’s ban on marriage for transsexual people: CASE
OF I. v. THE UNITED KINGDOM CASE
OF CHRISTINE GOODWIN v. THE UNITED KINGDOM In its judgment, the court called on Article 12 of the European Human Rights Convention, which establishes the right of men and women of marriageable age to marry and found a family. However, the court was not convinced that in 2002 this should constitute “a determination of gender by purely biological criteria”. “There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The Court has found above, under Article 8 of the Convention, that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender. The Court would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the Convention in removing the reference to men and women (see paragraph 58 above).” Official documents
Positions by the EU Institutions
Positions of National ParliamentsContributions fromEuropean Jurisprudence denoting the status of the CharterUseful Web Links |
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