Who's afraid of the charter of rights?
Written by Mónica Roma, 01 June 2004
Many people in Britain dislike the EU's new constitutional treaty. Some business leaders and journalists even claim that the charter of fundamental rights - seemingly the most harmless part of the new treaty - will have serious and sinister consequences. They predict that the charter will lead to huge numbers of people claiming 'new' rights in court cases; that the European Court of Justice will overturn the rulings of British courts; that Brussels institutions will gain vastly increased powers to impose legislation; and that 'social' rights, such as the right to strike, will bring an end to Britain's liberal economy and labour market.
In reality, the charter - if the new treaty is adopted by all 25 governments would have few repercussions. It largely restates rights and principles that EU governments signed up to long ago. Its application is limited to the creation and implementation of EU law. And it contains numerous safeguards and explanations. Although negotiations on the constitutional treaty are not, at the time of writing, complete, the final text of the charter is unlikely to be anything more than a political statement.
Human rights have been an integral part of the EU since its inception. Only democratic countries that respect the rule of law and human rights can join the Union. EU institutions have long been committed to upholding human rights, as codified in the 1950 European Convention for the Protection of Human Rights (ECHR). All the member-states have signed up to the ECHR.
The current draft of the charter goes beyond the ECHR in some respects. It reiterates many of the well-established rights included in the ECHR, for example the presumption of innocence. It expands some others, for instance the right to legal aid. And it incorporates a few new ones such as the right to refer cases of fraud or incompetence in EU institutions to the European Ombudsman. These hardly add up to radical change.
Yet the charter's critics claim that its provisions are ambiguous and that its application could gradually extend further into national law. In particular, they worry about the woolly distinction between rights and principles; the extent to which the charter gives EU citizens new or more wide-ranging rights; and the applicability of the charter in national law.
The charter contains both rights, on which people can base claims, and principles, aspirational statements that cannot become actionable rights without EU and national legislation. British businesses, for example, worry that courts may interpret 'the right to social security entitlement' as a right rather than a principle. The charter itself does not contain a list that neatly divides rights and principles. But the 'explanations' to each article, added by the Convention which drafted the charter, go a long way towards making that distinction. These explanations set out the background of each charter article and try to define its scope.
Eurosceptics also worry about 'new' rights, such as the right to strike. However, the charter contains strict limits on the application of these rights. Only the basic (or 'indisputable') rights, such as the right to life and human dignity, are stated without any special safeguards. Other rights are guaranteed 'in accordance with Union law and national laws and practices'. The right to marry, for example, is guaranteed only in accordance with the relevant national laws, which in some member-states, such as the Netherlands, allow same sex unions. And workers can rely on the charter's right to strike only to the extent that it already exists in the country in question.
Many Britons are also confused about who would be bound by the charter: EU institutions? National governments? Businesses? According to the draft constitutional treaty, the charter binds EU institutions such as the European Commission, the Council and the European Parliament. It is binding on member-states only when they implement EU law. And it applies to businesses only insofar as they have to follow national laws that derive from EU legislation.
The articles that govern the charter's interpretation and application state that nothing in its text can be interpreted as extending, modifying or creating new powers or tasks for the Union. So, even though the charter is addressed to EU institutions, bodies and agencies, they will not be able to extend their competences through its application. Also, the charter does not apply to national governments, parliaments or courts when they enact, implement or interpret national law. Laws in most of the areas that British policymakers and businesses are worried about - social and employment law, for example - tend to be made on the national rather than the EU level.
But, say the sceptics, isn't the constitutional treaty itself EU law? Does that not mean that EU member-states will have to take over all its provisions, including the charter, into national law? And if that was the case, would not Britain end up with the right to strike on its statute books, as well as principles, such as the entitlement to social security? No. The charter is an integral part of the EU's constitutional treaty. Governments sign international treaties (and that is fundamentally what the new treaty is, despite its grand name), but they do not implement them through secondary legislation. No government has transposed the UN charter into national law, for example. There is no reason why this case should be different.
And yet many in Britain and elsewhere are worried. To reassure business lobbies the British government is trying to insert further safeguards into the treaty. With some support from Ireland, the Netherlands, Denmark and Sweden, the UK is demanding that the 'explanations' of each charter article be given legal force and become mandatory instructions to courts. The UK wants to add a treaty provision that states that national courts would have to take these explanations into account when interpreting the rights contained in the charter.
The preamble to the charter already states exactly that. Preambles do not usually have legal force. But the charter's preamble is different. Since it is placed not at the beginning of the treaty, but in the middle of it (right in front of the charter, which forms part two of the treaty's text), it cannot be disregarded as a normal preamble might be. Courts will have to consider it.
However, even a double reference, in the preamble and in a treaty provision, would not eliminate the discretion of judges to interpret both articles of the charter and their explanation. In fact, the more text a court has to consider, the greater the possibility of differing interpretations. The result could be less legal certainty, not more. British businesses are wrong to think that the text as it currently stands is a threat to liberal labour markets.
Mónica Roma was senior research fellow for justice and home affairs at the CER (2004).