Charter of the fundemental rights of the Eu

The question remains though, why employ the charter of fundamental rights when the EU have shown through both, their actions and their governing principles that they are wary of human rights issues and are making an effort towards cutting it out. The answer is indisputably because the Charter cleans up the huge mess that is human rights in EU law. The Charter gathered fundamental principles from various sources ranging from, The ECHR, The Universal Declaration and finally, ECJ (European Court of Justice) case law. The idea of the Charter was to pull in all those elements of basic rights arising from numerous sources and placing them in a clear, concise and comprehensive law. The disorder of these rights was further compounded by the lack of a proper human rights foundation. Calls for reforms by the European Parliament have been plentiful and the European Council is constantly issuing statements about the need for change in order to establish respect in the human rights arena. These calls went unheeded, that is until the charter, and thus the European Courts and the people had no practical groundwork to turn to. There was also a realisation that this could affect trade relations with other countries as it would appear hypocritical of the EU to impose conditions based on fundamental rights, when they are lacking in any proper doctrine.

At this point, the reader must be compelled to ask, ‘but what of the European Convention on Human Rights?’ Surely this constitutes a doctrine of some sort upon which the courts and the people may come to rely on for guidance? While the ECHR may certainly qualify as such a policy, the ECJ categorically disagrees with this. In the infamous Opinion 2/94, the ECJ were called to look at the issue of whether the community should allow the accession of the ECHR into EC law. The courts held that ‘as Community law now stands, the Community has no competence to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.’ Several reasons were given for this conclusion, the most central of which included the fact that under Article 3(b) of the EC Treaty, the community is to act within the scope of its powers as defined by the provisions of the Treaty and nothing else. They could not simply expand their scope so as to include other agreements. Moreover, the judges agreed that having granted the ECHR special community relevant status in previous case law, this would be as far as it would go without being proclaimed legally binding. Craig and De Burca also objected to accession claiming that the ECJ and ECtHR should identify themselves as separate legal entities watching over certain rights that would be relevant to their jurisdiction. In this case, the ECJ would protect market interests and the application of EC Law while the ECtHR could focus on human rights issues. Overrunning one another might lead to a conflict in terms of decision making on related issues. Previous issues have included differing interpretations on Articles 6 (Right to a fair trial) and Article 8 (privacy in the home).

One of the main advantages of the charter is that it incorporates numerous years of case law decisions into its articles so that they become relatively easy to identify by various citizens. Whereas without the charter, the public would have a difficult time in locating cases and the judgments that form the very fundamental nature of people’s rights.  

Viewing case law, as a method of determining your human rights, can prove to be quite useless as most of the case law determined by the ECJ is erratic, and never appears willing to affirm that they are bound by any human rights standards. The aforementioned case of Stauder, is a perfect example of how irrational the courts can be. This case entailed finding basic rights in a law which mentioned none! Despite a lack of Human Rights existing anywhere within the Treaty, the ECJ declared in its final judgement that the courts would protect `human rights enshrined in the general principles of Community law.’ Thus we are faced with the complex issue of determining how the ECJ protects human rights without knowing what exactly these human rights are. The most extensive rights based regulations available are being denounced as incapable of being legally binding, despite some quasi binding importance being placed on them. The ECJ recognised the need to appease critics and thus in the case of Internationale Handelsgesellschaft the courts attempted to derive three sources of Inspiration for the identification of fundamental rights under EC Law. These are, the ECHR, International Treaties and the Constitutional traditions of member states. This attempt at creating a human rights foundation by encompassing these three elements is an ambitious effort to literally create something out of nothing and unfortunately it does not work. The criteria is essentially too broad and too disorderly for an entity that is one of the world’s leaders with its single market strategy and has the potential to develop into an even bigger union at some point In the near future. There arose another case in which the question of accession was dealt with by the ECtHR. This was the case of Bosphoros v Ireland where the court stated the importance of the EU system of control providing an equivalent level of human rights protection under the ECHR. More crucially though, is the fact that the human rights court took a stand against the ECJs approach and claimed that accession by the EC to the ECHR should be presumed as necessary. They also discuss the importance of legally establishing this accession rather than benefiting from a presumption of compatibility. This is so the ECtHR can directly scrutinise and assess Human Rights protection measures. One has to assume from such cases that both courts and citizens are struggling to find coherence when dealing with basic rights and where they come from. The time for change had come and in my opinion, it is embarrassing that the EU has taken so long to establish the Charter, relying instead on dealing with such issues in a ‘piecemeal fashion.’ 

This meant that at the dawn of a new century, the EU found itself in the very delicate position of having to redress these issues by attempting to create some form of legally binding doctrine, as well as making it readily available to the public. As a result, Europe witnessed the birth of the charter of fundamental rights.

With so many problems and criticisms being thrown at the EU regarding their human rights policies, it is no wonder that the European Council in Cologne in 1999 finally approved of the need for a charter outlining basic fundamental rights. They entrusted the duty to a convention headed by former German President Roman Herzog. It should be noted that this EU Charter was subject to the most unique procedure in EU legislative history, mainly due to a large number of representatives at all levels of government and the fact that it was drafted and signed in less than a year. Thus the EU Charter on Fundamental rights was born and was revealed to the world in Nice in the year 2000.

The reason this Charter has the potential to be so revolutionary is because unlike many other human right laws the world over, the EU Charter is extremely innovative in combining a wide scope of rights. These include civil, political, economic and social rights, all of which merge to form the ultimate piece of human right legislation.

It appears the EU worked strenuously in order to integrate all aspects of life with fundamental basic rights. The image of greed and economic values over individual ones disappear with the ratification of this Treaty. Inigo Mendez de Vigo, spokes person for constitutional affairs at the EU claimed that ‘the charter proves the EU are more than a super market…it is a Europe of values, values which unite all citizens.’ While EPP (largest party in the EU) Chairman Jospeh Daul stressed that it is ‘…not only a strong political symbol for the European Union but also a considerable cornerstone for the defence of Human Rights.’   

The Charter could indeed be a great turning point in the jurisprudence of fundamental rights. However, having been signed and ‘solemnly proclaimed’ by the big three institutions of the EU (the , the , and the ), irritably, the Charter has not been ratified and until this occurs, it will not bear the tag of being a legal document. The ‘solemn proclamation’ of the institutions is at best ambiguous and may even appear to be irrelevant if the Charter does not become legally binding. How annoying it must be to finally sort out the human rights spectrum that has for long plagued the establishment, yet fall short of the legal categorization.

Nonetheless, the signs for the future are looking extremely bright and while the initial assessment of its impact appeared to be close to failure, the Charter has become more involved in human rights jurisprudence and is meriting more attention than ever before. It has wasted no time in making its way into various EU courts, such as the Court of First Instance, as well as several Advocates General who refer to them during preliminary hearings of cases going to the ECJ. One of the first CFI cases to mention the Charter was Max.mobil Telekommunikation service, while according to the European Commission website, the European Court of Human Rights made a reference to the Charter in a case concerning the marriage of transsexuals. The Charter was quickly gaining momentum and was fast encompassing relevant legislation. It seems to have become a hot topic and it has been found that the European Ombudsman is constantly making references to the Charter, going as far as criticising several EU institutions for a letdown on their part in observing and upholding the rights of the Charter. Perhaps so far the high point of the new Charter is its mention in the ECJ. Finally, after years of avoiding the issue, the ECJ in 2005 mentioned the Charter and a few of its articles in EP v Council (Family Reunification Directive). 

These are of course very promising signs, with high authority officials and institutions refusing to step down or even ignore the principles of the Charter. The Charter of Fundamental Rights has the potential to set a revolutionary standard in the jurisprudence of human rights. This is especially the case after the recent signing of the Treaty of Lisbon, in which the Charter was once again included and given the Union’s backing as well as the impending possibility of having full legal effect. Although once again this is subject to ratification by EU members. Surely they recognise that the acceptance of the Charter as a legal entity would signal a massive step forward both politically and socially.  

The Charter of Fundamental Rights would represent a colossal change in the field of human rights and one that would undoubtedly be for the better. The EU has, ever since its inception, stressed the importance of human rights on both internal and external affairs, though not since the Charter have they actually gone about attempting to make a real difference. The inference of basic rights from traditions, international treaties and the ECHR (which is not even recognised as legally binding) resembled a broad brush approach in which the ECJ created an unnecessary hardship on both themselves and citizens of member states. The Charter has been drafted in order to clean up this mess and the sooner Europe accepts it the sooner they will usher in a new era of human rights.      

Bibliography

• Alston, P. The EU and Human Rights. Oxford University Press. (1999)
• Chalmers et al. European Union Law: Text and Materials (2006)
• Craig, P. De Burca, G. EU Law text, cases and materials. (2008)
• P. Alston and J.H.H. Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights.’
• R. Alonso García, The General Provisions of the Charter of Fundamental Rights of the European Union

 

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