European Constitutional Convention

Covering Bedfordshire, Cambridgeshire, Essex, Hertfordshire, Norfolk, and Suffolk, including Luton, Peterborough, Southend-on-Sea and Thurrock.

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FUNDAMENTAL RIGHTS AND THE CONVENTION

1st August 2002

an article written for the Liberal Democrat European Group

One of the key questions for the constitutional Convention is what to do with the Charter of Fundamental Rights of the European Union, which was solemnly proclaimed by the Council, Commission and Parliament in December 2000. The heads of government have invited the Convention to reviewing the status and force of the Charter.

The Charter embraces the classical human rights of the ECHR as developed by the jurisprudence of the European Court of Human Rights in Strasbourg. It has a much wider scope, however, because it also draws from EU competence as laid down in the Treaties and as developed by the case law of the European Court of Justice in Luxembourg. The Charter also reaffirms the rights and principles resulting from the constitutional traditions and international treaty obligations common to member states.

Like most Bills of Rights, the Charter draws together in a single text a comprehensive catalogue of not only specific rights but also general freedoms, values and principles. In style, form and precision it is a familiar document.

While the Charter was not intended to create new rights, it succeeds in making existing rights more visible. In building a fresh, large consensus around a new formulation of rights, the Charter brings greater clarity and salience to them. It reflects contemporary European norms of good governance with respect to equality and anti-discrimination, social policy, ecology, civic rights, administration and justice. The rights are indivisible: in Europe, liberty, equality and solidarity hang together.

The Charter is a dynamic document, seeking to assist the Union in its task of further developing common values while respecting the diversity of national identities. Its formulation allows for the future development of the acquis communautaire. The Charter, therefore, has a durable quality. It would be best not to seek to amend it substantively so early in its life. If it is to be incorporated into the treaty, however, there will have to be some changes made to the horizontal general clauses that were previously drafted to neutralise its legal effect, and to the Preamble.

The Charter does not attribute competence to the Union. On the contrary, it has the effect of limiting the exercise of power by the EU institutions because of their obligation to respect the Charter. The institutions also have the duty within their competence to promote respect for the provisions of the Charter.

The Charter does not limit the competence of member states. It is not a substitute for the fundamental rights regimes of member states, but a complement to them. It is addressed to the institutions and bodies (and agencies) of the European Union and the member states when and in so far as they implement Union law and policy. In so far as the Charter postulates a direct relationship between the citizen on the one hand and supranational authority on the other, it will help the Union respect the principle of subsidiarity. The Charter should set the tone for the whole constitutional settlement.

Although the Charter is not directly justiciable, its status as a solemn proclamation means that it has already become an important reference document. It is respected by the EU institutions and is invoked by both member states and citizens. The Commission regards the Charter as binding upon itself and tries to ensure compliance with its provisions.

The Council has not yet chosen to regard the Charter as mandatory, but it has referred expressly to the Charter in several acts. The Parliament has used the Charter as a template for its annual reviews of the situation as regards fundamental rights in the EU. References to the Charter have appeared frequently in the Parliament's reports and resolutions, as well as in MEPs' questions to the Commission and Council.

The Ombudsman has received very many approaches from citizens citing the Charter but apparently misunderstanding its scope or level of protection. Nevertheless the Ombudsman has been in the forefront of those who have actively deployed the Charter in the interests of the citizen.

There have been several attempts to call the Charter in aid of litigation in the European Courts. The Court of First Instance has decided that the Charter confirms a right to judicial review as a general principle of Community law. The same Court, citing the Charter, has sought to widen the access to effective judicial remedy of a party directly but not individually concerned.

The Court of Human Rights has also begun to make positive references to the Charter. Fears the Charter would pose a threat to the credibility of the ECHR have not been realised. The jurisdiction of the Strasbourg court provides an external monitoring of and the assertion of minimum standards upon the human rights performance of the 43 states of the Council of Europe. The jurisdiction of the Luxembourg court provides an internal control on and an insistence on a high level of respect for human rights within the European Union’s legal space. The significance of the Charter is that it provides for a more extensive rights-based regime within the European Union than is found in some other states of the Council of Europe.

The best means of ensuring coherence between the ECHR and EU human rights law would be for the Union to accede to the former. It is important to remove the anomaly whereby the EU, which enjoys competences attributed by its member states, is not a high contracting party to the ECHR alongside those same member states. The EU should be subject to the same external control in respect of human rights as that of its member states.

After EU accession to the ECHR, the Court of Justice would enjoy a similar relationship with the Court of Human Rights as that of national courts who recognise Strasbourg’s role in verifying consistency and compatibility with pan-European human rights norms. The Court of Justice would be represented directly before the Court of Human Rights, thereby strengthening the authority and autonomy of both courts.

European Liberal Democrats are working within the Convention to ensure the installation of the fundamental rights regime of the Charter at the heart of the constitutional settlement of the Union.

Andrew Duff is Member of the European Parliament for the East of England and chairs the Liberal caucus in the Convention.