Introduction

 

What is the Charter?

 

The Charter of Fundamental Rights of the European Union (the Charter) was signed and proclaimed in 2000 by the European Parliament, the European Commission and by the EU member states, comprising the European Council. It is the first formal EU document to combine in a single text the whole range of civil, political, economic and social rights and certain “third generation” rights such as the right to good administration or the right to a clean environment.

 

The Charter’s prime objective is to make rights more visible. The text is not intended to establish new rights, but to assemble existing rights that were previously scattered over a range of sources including the European Convention on Human Rights and Fundamental Freedoms (ECHR) and other Council of Europe (COE), United Nations (UN) and International Labour Organisation (ILO) agreements.

 

 

How does the Charter work?

 

The Charter applies to the EU institutions (European Commission, European Parliament, European Council, the Council, the Court of Justice of the European Union, European Court of Auditors and European Central Bank) and bodies set up under secondary legislation (such as Europol, Eurojust, the European Economic and Social Committee, and the Committee of the Regions). All such EU institutions and bodies must conform to the rights and observe the principles proclaimed by the Charter.

 

The Charter also applies to all EU member states, but only when they are acting within the scope of EU law. For example, the Charter would apply to the UK if it was passing a law about trade regulation but not if it was passing a law about a purely UK matter, such as fox hunting. Thus, it does not provide, as is sometimes argued, any new freestanding rights, such as a general right to strike. The Charter is accompanied by explanations which provide a guide to interpretation and are to be given due regard by the courts (article 52(7) Charter).

 

 

Is the Charter part of EU law?

 

With the coming into force of the Treaty of Lisbon (Lisbon Treaty) in December 2009, the Charter has become directly enforceable by the EU and national courts. Art. 6(1) of the Treaty on the European Union (TEU) provides that “the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights”. There is no direct incorporation of the Charter in the Lisbon Treaty but the Charter is given the same legal status.

 

With regard to individual member states, article 51 of the Charter makes it absolutely clear that the Charter only applies to member states when they act within the scope of EU law – this usually means when they implement EU legislation domestically.  

 

Even before the coming into force of the Lisbon Treaty, the Charter was already used as an important reference document. Advocates General of the European Court of Justice (ECJ) have referred on several occasions to the Charter in proceedings in the ECJ (see, for example, the Opinion of AG Jacobs delivered on 11^th July 2002 in Case 112/00 Schmidberger), as have judges in national courts, including those of the UK (see, for example, R (A, B, X and Y) v East Sussex County Council [2003] EWHC 167). As a result, it is fair to say that for the last decade the Charter has already had an important impact on EU and domestic litigation. The direct enforceability of the Charter after the Lisbon Treaty could be seen as the conclusion of a process of gradual introduction into the EU and domestic legal orders.

 

 

Is the Charter part of national law?

 

The Charter is part of national law and, after the Lisbon Treaty, has become directly enforceable in national courts if cases involve the application of EU law (article 51(1)).

 

Protocol 30 to the Lisbon Treaty on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom (the Protocol), and endorsed by the Czech Republic upon signature of the Lisbon Treaty, has cast some doubt on the enforceability of the Charter in courts of those member states. However, the general consensus is that article 1(1) of the Protocol merely clarifies that the Charter does not extend the ability of the EU courts to find domestic legislation incompatible with it. The Charter can only be used when a case falls within the scope of EU law. Consequently, the Protocol should not be considered as an “opt-out” for the three member states applying it. Nevertheless, the Protocol has caused some confusion, for example in the case of R (Saeedi) v Secretary of State for the Home Department [2010] EWHC 705. The Court of Appeal has now sent this case to the ECJ under the preliminary reference procedure to clarify the precise status of the Charter in the UK.

 

Having said that, it is clear that article 1(2) of the Protocol is intended to be an opt-out. Article 1(2) provides that nothing in Title IV of the Charter creates justiciable rights. Title IV concerns solidarity rights, such as the right of collective action and the right to health care. The Protocol is intended to prevent these rights from being directly enforceable in the three member states. However, most of the rights in Title IV are already recognised as general principles of EU law, which means that they can be enforced in national courts without invoking the Charter. As a result, it is doubtful to what extent article 1(2) will really constitute a substantive opt-out.

 

 

What is the difference between the EU Charter and the European Convention on Human Rights?

 

The European Convention on Human Rights (ECHR) was signed in 1950 by member states of the Council of Europe (CoE). The CoE is separate from the EU, although it is a condition of membership of the EU that all member states must also be members of the CoE and ratify the ECHR. The CoE comprises 47 European countries, including Russia, Bosnia & Herzegovina, Serbia and Montenegro. The ECHR is applied directly by the national courts of each CoE country and by the European Court of Human Rights (ECtHR) in Strasbourg.

 

The Charter binds only the EU member states of the CoE, of which there are 27. The main court of the EU is the ECJ in Luxembourg. The Charter includes all the civil and political rights contained in the ECHR, together with existing EU rights, including economic, social and cultural rights. Therefore, it is believed that the EU Charter is a more extensive and up-to-date declaration of rights for EU citizens. Furthermore, the standard of human rights protection might well be higher than the ECHR’s standard of protection. It is clear from article 52(3) of the Charter that the rights conferred by the ECHR only offer minimum protection.

 

 

What impact can the Charter have on my life?

 

The Charter provides for people in the EU to better understand the extent of their rights and, therefore, any violation of them by the European institutions, bodies and the member states when taking decisions concerning EU law. This is important because many people do not appreciate the extent to which EU law is part of their everyday lives.

 

The main purpose of the Charter is to make these fundamental rights more visible and accessible to people in the EU. After the Lisbon Treaty, the Charter will enable people to challenge the way a member state has implemented EU law in the member state’s own courts. This will be simpler, cheaper and easier than taking the case to the ECJ in Luxembourg. The national judge will have to directly enforce the rights guaranteed by the Charter.

 

The Charter also provides the EU institutions and bodies with a set of standards against which they can measure their own performance and the performance of member states when implementing EU law into national law. For instance, if the EU Commission is concerned that a particular member state is failing to protect human rights in an area within the scope of EU law, it may use the Charter to challenge that member state to improve its protection of the right.

 

 

Can I use the EU Charter?

 

You can use the Charter to complain to the European Ombudsman about how an EU institution has treated you. You can now also use the Charter in court because the Lisbon Treaty has given it binding force. The EU courts and national courts must take account of the Charter provisions in cases which fall within the scope of EU law (subject to the Protocol).  For example, the Charter can be used as a ground of review of EU measures, or as a ground to challenge the legality of national measures implementing EU legislation.

 

Overall, the Charter comprises an additional source of protection that can be used by European citizens in litigation which has an EU law element.

 

 

Can I bring a claim before the European Court of Justice?

 

Most cases begin before national courts and cases cannot usually be started in the ECJ, though some are referred to it. However, citizens can bring an action for annulment in the General Court, which is the first instance court of the Court of Justice. You can go to the General Court if you want to challenge the legality of a measure taken by the EU. A breach of one of the rights contained in the Charter could be a potential ground to challenge the legality of a measure.

 

At present people can only access the General Court when they fulfill the requirements of article 263 of the Treaty on the Functioning of the European Union (TFEU). Under this provision, individuals can only complain to the General Court if they are directly and individually concerned by a measure of an EU institution or body. This usually means that a measure must have been addressed to a particular individual, e.g. the EU Commission adopts a decision about someone’s company.  Most legislative measures are not addressed to individuals and, consequently, do not individually and directly concern a particular person. The Lisbon Treaty has broadened the possibility to complain about regulations somewhat (the complainant only needs to be directly concerned), but it will still be very difficult to get direct access to the General Court.

 

The Court of Justice is neither an international human rights court nor a court of appeal. Nevertheless, its rulings are binding on member states. In this regard, the jurisdiction of the ECJ is unique. The ECJ is, thus, likely to be a central player in the enforcement of the Charter. However, it will always be dependent on the European Commission and national courts referring cases to it before it can rule on the reach of the Charter. The potential power of the ECJ is one of the issues which gives opponents of the Charter concern. They argue that the member states will lose control of the effect of the Charter. This is the main reason why the UK government wanted a Protocol annexed to the Lisbon Treaty, and Poland and the Czech Republic has endorsed the Protocol.

 

 

Does the Charter go further than the European Convention on Human Rights in conferring or guaranteeing fundamental rights?

 

Yes.

 

First of all, the ECHR is mostly confined to civil and political rights whereas the Charter contains both civil and political rights, on the one hand, and economic, social and cultural rights on the other. The Charter also contains a small number of ‘third generation’ rights – rights which protect issues of global concern, such as the right to a clean environment.

 

Secondly, the Charter goes further than the ECHR because it contains rights that were not envisaged at the time of the ECHR in 1950, including issues such as cloning and data protection.

 

Thirdly, the Charter extends the meaning of some traditional rights into new areas. For instance, the ECHR speaks of the right of a man and woman to marry. The Charter uses more modern language, in line with national legislation which recognises other ways of creating a family than marriage.

 

Similarly, the section on equality in the Charter is more extensive than that in the ECHR. There is a very broad non-discrimination provision which, unlike article 14 of the ECHR, is free-standing (i.e. it is not necessary to show a violation of another right in addition to the right of non-discrimination). There are also specific provisions promoting equality of men and women, the rights of the child, the rights of the elderly and the rights of the less able bodied. The protection of equality between men and women does not, however, prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex (i.e. positive discrimination).

 

Finally, it should be noted that the rights in the ECHR are considered to be a minimum standard of protection. It is recognised in article 52(3) of the Charter that the EU might provide a higher standard since it provides that “this provision shall not prevent Union law providing more extensive protection”. The result of this provision could be that the EU and national courts will build on and develop the ECHR rights through the Charter.

 

 

Does the Charter mean more power to Brussels and less sovereignty for Member States?

 

No.

 

The Charter does not entail any transfer of powers. On the contrary, it is an instrument with which to control the way that the institutions of the EU and member states implement their existing powers, with regard to fundamental rights, whenever they act within the scope of EU law. In this way, it should strengthen the rights of EU citizens and people in the EU. The Charter is not about the division of power between the EU and its member states, but about the relationship between people in the EU and the EU institutions and member states.

 

 

What is the relationship between the European Court of Justice and the European Court of Human Rights?

 

Article 6(2) TEU provides that the EU will accede to the ECHR. It involves the EU collectively signing up to the ECHR, in the same way that an individual country would, such as France or Germany. When it does, the EU as a whole (meaning the institutions and bodies described earlier) will be subject to the authority of the ECtHR on human rights issues. As a result, EU measures could be directly challenged in the ECtHR in Strasbourg.

 

The existing relationship between the ECJ and the ECtHR - a relationship which could be described as one of mutual recognition and co-operation – could potentially become a more hierarchal relationship. It is not clear whether judgments of the ECJ will be open to challenge in Strasbourg. However, it is likely that as a result of article 6(2) TEU there should be a right of appeal from the ECJ to the ECtHR when an act of the EU is challenged for violation of a right enshrined in the ECHR.

 

It is important to note that the ECJ will never become some sort of general constitutional court – it only has jurisdiction to deal with cases which fall within the scope of EU law. Unlike the ECtHR, it is not necessary for local remedies to have been exhausted. This means that for a case to be referred to the ECJ, it is not necessary for the highest court in the member state to have given judgment. A lower court can itself decide to refer a case to the ECJ. This is significantly different from the ECtHR. In order to be able to access the ECtHR, the case must have gone all the way up to the highest court of the country. If this has not been done, the ECtHR will not accept the case. Moreover, the length of time before a case is considered is much shorter in the ECJ than in the ECtHR – there are over 120,000 cases pending in Strasbourg.

 

After the Lisbon Treaty, the differences between the ECJ and the ECtHR might result in more human rights cases going to the ECJ. The binding status of the EU Charter and the possibility of a higher standard of protection might make it more attractive for people in the EU to go to Luxembourg rather than Strasbourg. This would be in line with the increasing role of the ECJ as a court in which individuals can enforce individual rights granted by EU law.

 

 

What is the difference between rights and principles?

 

Article 52(5) of the Charter draws a distinction between ‘rights’ and ‘principles’, but does not clearly distinguish which are which in the text. The explanations should be referred to in order to clarify this.  

 

In general, ‘rights’ refer to matters which are capable of immediate enforcement and should be respected at all times, e.g. the right to due process or right to freedom of expression. These must be guaranteed without exception, and no allowance is made for scarce resources. This idea is most closely associated with civil and political rights - sometimes referred to as ‘first generation’ rights, because they were the first to be historically expressed as in the American Bill of Rights 1789 and the French Declaration of the Rights of Man and the Citizen 1789.

 

By contrast, the term ‘principles’ is used in the Charter to refer to economic, social and cultural rights - such as the right to work, the right to housing, the right to health care. These principles have been described in the explanations to the Charter. Principles or ‘second generation’ rights as they are sometimes called do not create any directly enforceable rights. However, the principles might impact on the law-making process in the EU and member states. They could be seen as providing a “foundation” on which more precise rights can be based. As a consequence, it is intended that principles will evolve into rights which will then become directly enforceable.

 

Finally, it should be noted that because of article 1(2) of the Protocol it is logical to presume that, although the rights in Title IV might not be justiciable, the principles on which they are based will still apply to the three member states concerned. Therefore, the solidarity rights in Title IV should be read as if they were principles.