Putting People First in Europe

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Article
13 February 2000

Putting People First

When the European Council at Cologne agreed to launch a Charter of Fundamental Rights it can hardly have imagined what it was setting in train. The leaders' decision of June 1999 barely disguised a possibly irreconcilable division of opinion between them. At one extreme we have the Germans, whose constitutional court has long been complaining that the concept of European Union citizenship has lacked democratic legitimacy, and who see the Charter as a way to rectify matters. On the other hand, we have the British, who see the Charter as a public relations exercise which, in the somewhat joyless words of their Minister for Europe, "could point citizens to the relevant legal source document".

My fellow rapporteur Johannes Voggenhuber and I have adopted a distinctive approach. It is the European Parliament, after all, that has most to lose from the continuing failure of the Union to win over public opinion. Existing steps towards developing post-national parliamentary democracy have not by themselves worked. The combination of direct elections, the growth of party political federations, the establishment of the Ombudsman or committees of inquiry, and other measures, has not yet created a discernible European public space. Despite the enormous concentration of power at the level of the European Union, political loyalty is still focused nationally.

The Charter project offers the chance to deepen political integration by installing at the heart of the Union a fundamental rights regime. We recognise the complexity of so doing within a Treaty construct that is informed by the principle of subsidiarity, and where member states' own systems of fundamental rights must not be weakened by the adoption of an EU system. We accept that there are fears about legal certainty and competition between the jurisdictions of the European Court of Justice and the European Court of Human Rights. We know that there will be political arguments about the content of new rights, especially in the social field. We accept the need for self-restraint by the Parliament and by zealous NGOs, for only the Treaty and not the Charter can formally shift the balance of competences between member states and the Union. But a Charter inscribed within the Treaty will have a gradual and steady effect upon the process of Treaty change as jurisprudence grows in the ECJ and as the conventional legislative process begins to respond to the dynamic of a robust and meaningful citizenship. The elevation of fundamental rights and responsibilities on to a new European level will reflect the importance of establishing a more direct relationship between EU institutions and its citizens, not as a substitute for national rights but as a supplement to them. The Charter will articulate this changing paradigm of European integration.

New paradigm, new process

Appropriately enough, the radical innovation of the Charter has spawned a revolutionary way of decision-making within the Union. Although I (with others) criticised at the time the peremptory character of the Cologne decision -not least the attempt to restrict Parliament's representation on the drafting 'Body' to seven or eight MEPs - we can now be reassured by the drafting process. The Convention, as it is now called, is composed of 15 representatives of the European Council, 15 + 1 representatives of the European Parliament, 32 national parliamentarians, plus Mr Prodi's representative, Commissioner Vitorino. All meetings will be in public. Already the first votes have been taken on procedural matters (one member one vote), and our request for a two-thirds qualified majority vote on matters of the Charter's content is under consideration. Public consultations with civil society and academic experts are to take place. The president of the Convention, former head of state of the Federal Republic Roman Herzog, has insisted on steering the drafting process on the presumption that the thing will, in the end, be mandatory.

The final decision about when and how the Charter is to take on binding effect will be reached in the autumn, in time for the Intergovernmental Conference (IGC) to absorb the Charter into the revised Treaty by the European Council at Nice in December. At some stage the Parliament will be asked to give its formal assent to a draft Charter - a significant enhancement, incidentally, of its powers in the IGC.

The Constitutional Affairs Committee is asking the IGC to take appropriate preparatory measures. First, the Union needs to obtain legal personality so that it itself will sign up to the European Convention on Human Rights. Such an initiative, which would be welcomed by the Council of Europe, will lessen the danger of conflict between the Luxembourg and Strasbourg jurisdictions and render the ECHR the solid core of the Charter.

Second, the individual citizen needs to obtain the privileges of a litigant before the ECJ. This involves a reform of Articles 230 and 232. Most member states will need to set up specialist Charter Courts within their own jurisdiction to try fundamental rights cases in the first instance. The ECJ itself will need more resources and rationalisation.

Third, procedures will be needed for the amendment of the Charter, and for involving the European Parliament in all decisions to derogate from or restrict by either executive or legislative action the effect of the Charter.

The European Parliament must stretch every sinew to make a historic success of the Charter of Fundamental Rights.

Andrew Duff is co-rapporteur for the Charter of Fundamental Rights, and is European Liberal spokesman on the drafting Convention. He was Director of the Federal Trust from 1993-99. Among his publications is 'The Treaty of Amsterdam' (1997).

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