House of Commons - European Scrutiny

Select Committee on European Scrutiny Seventeenth Report

PART IV

ITEMS LIKELY TO BE ADDED TO THE AGENDA OF THE IGC

113. The absence of any catalogue of fundamental or human rights in the EC Treaty, on the model of Chapter II of Title I of the Spanish constitution or the basic rights which are the subject of the first 19 Articles of the constitution of the Federal Republic of Germany, has long preoccupied the EP. In a 1979 Resolution it urged EC accession to the European Convention on Human Rights (the "ECHR") and envisaged the drafting of a European Charter of Civil Rights. The Council and Commission have shared these concerns; in 1977 they joined the EP in a declaration in which they recognised the prime importance of protecting fundamental rights and undertook to respect those rights in the exercise of their powers.

114. That concern also found strong echoes in the ECJ. In a seminal judgment delivered in 1970[154], the ECJ, on a reference from a German court which considered the system of export subsidies of agricultural products to contravene basic rights of the German constitution, held that respect for fundamental rights, inspired by the constitutional traditions common to the Member States, formed an integral part of the general principles of Community law which it protected. Subsequently the ECJ recognised[155] that Treaties for the protection of human rights common to the Member States (in context an implicit reference to the ECHR) could supply guidelines for the protection of human rights in EC law. Later cases[156] made explicit reference to the ECHR as a fundamental source of inspiration.

115. The ECJ's case law has now, in effect, been enshrined in the Treaties in Article 6 TEU which states that the Union shall respect fundamental rights as guaranteed by the ECHR and as they result from the common constitutional traditions of the Member States, as general principles of Community law.

116. Why such persistent and widespread concern? The response[157] of the German constitutional court to the ECJ's judgment in Case 11/70 mentioned in paragraph 114 above gives the answer. It foresaw crucial spheres of legislation being withdrawn from the protection of national constitutional provisions and transferred to a supranational "purely executive régime" which lacked a codified catalogue of permanent fundamental rights. Thus, in step with the progress of EC integration, citizens are stripped of fundamental rights protection.

117. Those who take this view have not been satisfied by the ECJ's case law, nor by its recognition in the Treaty; they continue to assert that only adoption of a binding catalogue of rights will give to EU citizens equivalent protection to that which they enjoy under national constitutions.

118. The drafting body now working on a Charter of Fundamental Rights for the EU has its origins in the conclusions of the Cologne European Council. Those conclusions were the fulfilment of a priority of the German Presidency of the EU in the first half of 1999; as the German Foreign Affairs Minister, Joschka Fischer, put it to the EP on 12 January 1999:-

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The Heads of State and Government assembled in Cologne agreed on the need:

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119. It was intended that the Charter would take account of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers, and would include universal rights guaranteed by the ECHR and derived from the constitutional traditions common to the Member States, as well as rights exclusive to Union citizens.

120. The Tampere European Council agreed on the composition and method of work of the drafting body. It comprises —

1 representative of the President of the European Commission;

16 representatives of the EP;

30 representatives of national parliaments;

2 observers representing the ECJ; and

2 observers representing the Council of Europe.

121. At its meeting on 17 December 1999 the drafting body elected as its Chairman Roman Herzog, former President of the Federal Republic of Germany. On 17 January the Committee of Office Holders from the constituent groups agreed that the body would be called the 'Convention'. At the same time it was also decided to meet in plenary session (thus rejecting formation of sub-committees and working groups). A number of these plenary sessions will be informal sessions during some of which evidence will be taken. At present, the Convention proposes that its Chairman should report the outcome of its deliberation so far to the Feira European Council in late June. At the request of the French, the Convention intends to agree the final draft in time for the Biarritz European Council on 13-14 October.

122. The Charter has inspired a voluminous literature. Despite that, the main issues which it raises can be stated briefly.

(a) How far should the Charter extend — is it a Charter for the Community institutions or for them and the Member States as well?

(b) Is the Charter to be a political declaration or a binding text to be incorporated in the EC and EU Treaties?

(c) What is the scope of the rights to be included in the Charter — will it include social and economic rights such as the right to full employment?

(d) Who are to be the beneficiaries of the rights — to what extent should third country nationals be included?

(e) What is the relationship between the Charter of Rights and the ECHR?

123. On the extent to which the Charter should bind Member States, there now seems little disagreement. In informal discussions we held with representatives of the EP in Brussels they were clear that the Charter would apply only to EU institutions and leave Member States' legal systems intact. This approach is reflected in the resolution of the EP adopted on 16 March 2000[160] which called for the Charter to be applicable to all the EU institutions and policies but to be binding on Member States only when applying or transposing provisions of Community law[161].

124. The legal status of the Charter is central to the current debate (although, of course, not one for the Convention to decide). In December, when we took evidence, and held discussions, on this topic in Brussels we were told:

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This has now been confirmed by the resolution of 16 March which supports the decision of the Convention that the Charter should be drafted on the presumption that it will have full legal force, calls for the incorporation of the Charter into the Treaty to be on the agenda of the IGC, and makes clear that the EP's assent to the Charter depends to a large extent upon whether it has fully binding legal status by virtue of such incorporation. On the other hand the UK Government has consistently maintained that the Charter is to be a "showcase" or proclamation of rights that have already been conferred on citizens,[163] as was pointed out to us by the Minister for Europe, Mr Keith Vaz MP. His objective is "to find something that is very easy to read, very understandable, that will set down a showcase of basic rights of European citizens".[164] As he put it in the debate on the Charter in Westminster Hall on 16 February 2000, its final form could be a small pledge card[165].

125. The Prime Minister's representative, Lord Goldsmith, has proposed to the Convention a two part text in which —

Part B would offer an explanation of the nature and scope of these rights, indicating their legal source and explaining how they would be justiciable, whether at the European Court of Human Rights, the ECJ or national courts.

He added:

"The two parts would be clearly linked through mutual cross-references though the first could perhaps be made available separately for promotional purposes, but keeping the signpost to Part B. This approach would allow visibility and accessibility through Part A while retaining legal certainty through Part B. Part B would also contain any applicable national derogation."

126. In discussion at a meeting of the Convention with its President and with the Commission's representative, Mr Vitorino, Lord Goldsmith has conceded that his Part B could be legally binding if desired. His approach may be made clearer by way of an example.

No one shall be punished except under the law.

Part B: Article 10 No punishment without law

The right in Article 10 is the right guaranteed by Article 7 of the ECHR read with Articles 17 and 18. The full text of Article 7 is as follows:

[...]"

127. On this approach Mr Richard Plender commented in his evidence to us:

"If you want to inform the public, there are many ways in which that can be done without it taking the form of a separate public declaration. I go on further to the disadvantages of the public declaration. The public declaration Part one is likely to affect and colour the interpretation of Part two."[166]

128. We understand the difficulties of negotiating in a body such as the Convention and that the aim of this proposal is to retain the "show case" approach favoured by the Government whilst recognising and taking account of the head of steam building up behind the alternative approach of producing a detailed document so as to keep open the question of its having binding effect, if the requisite political will were found. But we doubt the wisdom of this approach: the distinctions between the first and second parts are likely to become blurred, and there is a danger that the text will provide neither a brief, easily understood guide to human rights for the layman nor a precise text for the legal expert.

129. On the question of the scope of the rights to be included in the Charter, there remains open debate. It is broadly agreed that it should contain rights modelled on, if not reproducing verbatim, those of the ECHR. There is also broadly a consensus in favour of a restatement of, or reference to, economic and political rights found in the EC Treaty such as the rights to free movement of persons or the right of an EU citizen to vote in local elections in the Member State of his or her residence.

130. The essential issue is the extent to which the Charter should spell out general economic and social rights. The EP is convinced that it should; its resolution on the Charter states that its final approval depends on the Charter including the right of association in trade unions and the right to strike, and confirming environmental protection as an integral part of fundamental rights. On the other hand, we were informed in our discussions in Brussels that the majority (centre right) view in the EP would exclude such elements as employment or housing rights from the Charter. The UK Government view that the Charter must be limited to a restatement or proclamation of existing rights precludes the addition of any matter not already found either in the ECHR or in the EC Treaty.

131. The fourth issue, the beneficiaries of the rights stated in the Charter, is relatively straightforward. It is in the nature of human rights that they are universal in scope and protect anyone who is within the relevant jurisdiction. To the extent that the Charter confers or restates rights found in the ECHR it would apply to third country nationals, but to the extent that it restates rights derived from the EC or EU Treaties confined to citizens of Member States, it would exclude third country nationals. There is however a certain awkwardness in combining in a single document universal and limited rights[167].

132. The fifth issue, the relationship between the Charter and the ECHR, is also central to the current debate. Various commentators[168] have expressed fears that the Charter and the ECHR could become competing catalogues of rights with different definitions of the rights, leading to confusion amongst the intended beneficiaries, and, quite possibly, to conflicting judgments from the ECJ (on the basis of the Charter) and the European Court of Human Rights (on the basis of the ECHR). Thus, it is felt, far from providing clarification and protection, the Charter might unintentionally create lack of certainty and undermine confidence in human rights protection in Europe. The EP's resolution on the Charter therefore calls upon the IGC:

"to enable the Union to become a party to the ECHR so as to establish close co-operation with the Council of Europe, whilst ensuring that appropriate action is taken to avoid possible conflicts or overlapping between the Court of Justice of the European Communities and the European Court of Human Rights".

133. Currently, it is not possible for either the European Community or the European Union to become a party to the ECHR. In Opinion 2/94[169] the ECJ distinguished between the Community's duty to comply with fundamental rights as general principles of Community law and a competence to act internally in the field of fundamental rights which, according to the Court, the Community lacked. It followed that it also lacked the competence to become a party to the ECHR. In the case of the Union there is a more fundamental objection; its founding Treaty did not confer on it a legal personality, and hence the capacity to enter into international relations. Although it could acquire that capacity by practice, it has not yet been recognised to have done so. In either case, then, Treaty amendment is necessary to enable accession to the ECHR. Advocates for EU accession to the ECHR point out that, without it, protection of fundamental rights within the EU remains deficient by comparison with the protection available in respect of acts of Member States, where decisions of domestic courts are subject to an external check by a Court specialised in human rights. Even if the Union were to adopt a legally binding Charter, decisions of the ECJ would escape that supervision unless the Union at the same time became party to the ECHR. If only the European Community became party to it, Union action under the Third Pillar would not be subject to external supervision: in other words, the sensitive issue of EU actions in the field of police and judicial co-operation in criminal matters would be excluded.

134. The UK Government on the other hand is opposed to the EU's accession to the ECHR. In evidence to us the Minister for Europe, Keith Vaz MP, said that neither he nor the Government would be in favour of conferring legal personality on the Union itself; it followed that the Union could not become party to the ECHR[170].

Conclusions on the Charter of Rights

135. We recognise the legitimacy of the concerns which have led the EP and others to advocate adoption by the European Union of a legally binding Charter. As it was put to us in evidence by Mr Richard Plender, QC, the European Union has accumulated responsibilities in areas vitally affecting individuals, for example police matters and asylum. In so far as the European Union has responsibility for these matters the individual loses the protection of the ECHR[171].

136. However, we have long been concerned that adoption by the EU of a binding Charter of rights which amplified and extended the rights under the ECHR would be a source of confusion. Not only would there be two standards of human rights within the European Union, which would tend to undermine the authority of the ECHR in those States which are recent parties to it and in which there is a paramount need to inculcate a "rights culture", but the risk of conflicts of interpretation between the European Court of Human Rights and the ECJ would be all the greater if they were interpreting and applying texts in different terms. In his evidence to us Mr Richard Plender, QC, expressed similar concerns[172].

137. We have also long doubted the wisdom or utility of a mere declaration. If there is a need to produce a citizen's guide to existing rights in readily understood language, that can easily be done without assembling a drafting body. We agree with the view given to us in evidence by Mr Richard Corbett MEP that a restatement of existing rights is a task that "most of us round this table could do in a day's work" and share his doubt that an "extraordinary machinery involving national and European parliamentarians, government representatives, etc in a sort of adhoc assembly to draft a Charter," will end up producing no more than a restatement of existing rights[173].

138. We are impressed by the evidence of Mr Richard Plender, QC, that —

(a) firstly, a mere declaration will breed disenchantment or cynicism as citizens misled by the declaration into believing that it confers rights will experience disappointment when they endeavour to enforce them in the courts; and

(b) secondly, if the declaration is by one means or another attached to the Treaty, the ECJ will endeavour to find in it enforceable rights

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139. We also see the force of the argument that adoption of a legally binding Charter is, in any event, in itself insufficient without at the same time the EU becoming party to the ECHR.

140. If the EU were to accede to the ECHR, then not only would its citizens enjoy the benefit of supervision of the application of the ECHR by an international court specialising in human rights, as they do in respect of national action which is alleged to be in breach of the ECHR, but the adoption by the EU of its own Charter of Rights would become superfluous. The risk of confusion and conflict that might arise from two international Courts interpreting two different overlapping documents in the field of human rights would be avoided as the ECJ would continue to apply and interpret the ECHR, but with the benefit of supervision by the latter. As Mr Richard Plender stated in evidence to us:

"I think it would be far better because it would avoid the problem of duplication if we have two Conventions interpreted by two Courts with broadly similar subjects."[175]

We concur: whether the aim is to fill the possible "rights gap" with respect to the EU institutions, or simply to give public confirmation of the human rights which the EU is committed to protect, then the most straightforward option and the one likely to cause least confusion, conflict and disillusionment is for the EU to become party to the ECHR[176].

141. We accept that accession by the European Union to the ECHR would mean subordinating the Luxembourg Court to the Strasbourg Court; as was pointed out to us in evidence by Mr Richard Plender:

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In our view such a subordination is entirely proper given that the ECHR is a Court specialising in human rights and the ECJ is not.

142. We agree with Mr Richard Plender's views given to us in evidence that to extend the ECHR by including economic and social or even cultural rights is an unwelcome development:

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143. In any event, if the ECHR is in certain respects deficient it requires to be amended for all States party to it and not merely for those who happen to be members of the European Union. To do otherwise is to create a first and second class tier of protection of human rights within Europe as a whole which is unwelcome.

144. Our conclusions on this point encompass also our conclusions on the main issues raised by the Charter for the Government; the choice put to us by the Minister for Europe between a political declaration or a binding text is, in our view, the wrong question. Neither is necessary. If nonetheless — now that the full panoply of the drafting Convention has been assumed, and given the political embarrassment of dismantling it — a Charter there must be, it should go no further than the ECHR. We would have serious reservations over any extension to economic and social rights that are not apt for judicial enforcement.

145. We support the prevailing view that the Charter should not apply to Member States except to the extent that they are implementing Community law or taking advantage of derogations under the Treaty. We also consider that any Charter should be confined to universal rights and thus its beneficiaries should be third country nationals as well as EU citizens.

The European Defence Initiative

146. The second issue which, it is generally acknowledged, may have to be added to the IGC's agenda is that of the Common European Security and Defence Policy (the "CESDP"). This policy arises from the agreement at the time of the Amsterdam Treaty to initiate "the progressive framing of a common defence policy, ... should the European Council so decide" including possibly "the integration of the WEU [Western European Union] into the Union"[179]. At our invitation, the Defence Committee of the House of Commons has considered this initiative and has recently published a Report which deals comprehensively with the development of a European dimension to the North Atlantic Alliance over the last 50 years and discusses in detail the advantages and difficulties of the recent developments[180]. We are happy to endorse our sister Committee's conclusions and, rather than covering the same ground ourselves, we refer all those interested in the subject to that Report. We therefore limit ourselves to commenting on the impact of this policy on the IGC.

147. The IGC is not expected to discuss the policy itself: the political decisions were taken some time ago, with the key Council Decision being adopted on 10 May 1999 and subsidiary arrangements being made subsequently[181]. The IGC is expected simply to address the question of whether any Treaty changes are needed to give effect to the decisions already taken, in particular to bring within the scope of the Treaty the formal structures that have been set up on an interim basis for considering and formulating policy, but also to deal with any issues left outstanding when the WEU in effect disappears.

148. The EP is, so far, the only interested party that has made a comprehensive list of Treaty Articles which it thinks will need to be amended in the light of the Common European Security and Defence Policy. Apart from removing references to the WEU in Article 17 of the EU Treaty, it suggests an amendment to Article 25 (concerning the replacement of the Political Committee by the 'Standing Political and Security Committee'), the insertion of a reference to the Military Committee where appropriate, and amendments to Article 28 to provide for Community funding for joint actions (as opposed to operational expenditure) in connection with Petersberg tasks[182]. These are clearly the basic amendments that may prove necessary, and none of them appears problematic[183]. On the other hand, other issues are emerging in relation to the interim structures which are causing difficulties, the most recent of which relates to the Commission's participation in the work of the interim Military Committee. It appears that some military sources have expressed concern over the security implications of Commission officials attending this Committee's meetings, while the Commission believes that it should take part when the Committee discusses issues that involve both civil and military co-operation[184]. Commissioner Patten has expressed the hope that a satisfactory solution will be found shortly, but the issue points up some of the sensitivities involved in the CESDP area which may have to be addressed by the IGC.

149. Two main outstanding issues arise from the effective disappearance of the WEU: one is the position of the WEU Assembly, and the other is the common defence guarantee under Article V of the Treaty establishing the WEU. On the first, we note that the WEU Assembly, emphasising the "need to ensure appropriate democratic scrutiny of all activities and decisions emanating from the EU interim bodies in the areas hitherto covered by WEU", has recently decided to transform itself into an interim European Security and Defence Assembly, with equal rights and responsibilities for the delegates from all 15 EU Member States and with "at least the same participation rights as those they have acquired in the WEU Assembly as associate members and associate partners" for the non-EU European NATO members and countries applying to join the EU[185]. The WEU Assembly is seeking the support of the Governments and National Parliaments of the EU Member States, and the EP, for this initiative. The EP, however, proposes a different solution to the problem of democratic accountability: it says that the distinction between the First and Second Pillars of the Treaty should be "progressively diminished", with measures being taken to ensure that the EP is "associated" with the most important Second Pillar decisions[186]. We also understand that the WEU Assembly's proposal was attacked during the EP Foreign Affairs Committee's hearing on the subject of democratic accountability, with members of that Committee suggesting that accountability could be guaranteed by, for example, establishing links between the EP and the NATO Assembly. We consider it important that there should continue to be a forum in which representatives of Member State Parliaments and those of the current WEU associate members and associate partners can discuss issues related to the CESDP. However, we are open-minded about the form this body should take, whether the option of the European Security and Defence Assembly, with its own secretariat and committee system, or something more informal and perhaps akin to the Conference of European Affairs Committees, whose advisory rôle is recognised in Protocol No.9 to the Treaties. Given the immense sensitivity of defence issues and the fact that operational expenditure in connection with the Petersberg tasks is still to be the responsibility of participating states, we do not think that an EP/ NATO Assembly body would be appropriate as we doubt that it would adequately represent the legitimate interests of National Parliaments.

150. The EP advocates amendment of the TEU to transfer the common defence guarantee under Article V of the Treaty establishing the WEU to a protocol[187]. Apart from the — rather technical — point that this opens a new policy issue (and should therefore be ruled out from consideration by an IGC devoted to the institutional implications of enlargement), this is a hugely controversial proposal for a very significant change in the nature of the EU. Article 17 (1) of the TEU requires the Union's policy under CFSP to respect the obligations of Member States under the NATO Treaty. It also acknowledges that those Member States which belong to NATO see their common defence realised in that framework. Even given the fact that Member States would have a choice whether to opt in to the protocol, this proposal undermines the principle enshrined in Article 17 (1).

Subjects unlikely to be discussed by the IGC

151. Several of the topics raised by the Commission, European Parliament and Member States for inclusion on the IGC agenda are very unlikely to be discussed substantively at the IGC. Indeed, we were informed by the Portuguese that a number had in effect already been ruled out by the negotiators. However, because some of them raise significant issues, we think it right to comment on these briefly.

152. Both the Commission and the EP support a division of the Treaties into basic texts (of a constitutional character) and implementing texts of less fundamental importance[188]. We recognise that such a re-ordering of the EC Treaty may aid its intelligibility to the citizen. That is a worthwhile objective but it cannot by itself justify taking a step to which there are weighty objections. There may be room for argument about which parts of the Treaty are truly constitutional but that is largely a technical matter which could, given the political will, be settled by experts. One essential difficulty is that this proposed re-ordering would give, and is by its advocates intended to give, the founding Treaties the form and character of a constitution. Another difficulty is the suggestion that, in recognition that the second part of the Treaty, covering policy areas, would be of a different character to the first (constitutional) part, it should be much easier to alter the second part: amendments would no longer have to be submitted to an IGC, or even be the subject of unanimity in Council[189], but would merely be decided by QMV. The Minister for Europe (Keith Vaz MP) stated his complete opposition to this idea[190], and the MEPs from whom we took evidence expressed caution about it[191]. We see a clear distinction between recognition that the Treaties to some extent function as the constitution of the EU and treating them as if they were, or included, a Constitution in the same sense as the written Constitutions of the Member States. Both the EC and the EU remain, essentially, international organisations based on Treaties between sovereign States and their founding documents should reflect that essential characteristic. We conclude that this whole question of division of the Treaties will prove too difficult for the IGC to tackle.

153. The Commission's (and EP's) proposal to amend the Treaty to permit the adoption of rules establishing offences and penalties in the case of cross border fraud and governing the tasks and the rôle of a European public prosecutor[192] is objectionable on several counts. Firstly, it breaches the governing principle limiting the agenda to institutional reform. If the agenda were to be extended to include substantive Treaty amendments there would be little prospect of bringing negotiations to a conclusion by the end of the year 2000 as is necessary in order to enable enlargement to proceed on its current timetable. Secondly, it remains our view that this proposal represents an unacceptable intrusion into the sovereign responsibility of Member States in respect of the criminal law. And, as noted above[193], other suggestions for improving financial management within the EU have also been put forward, at least some of which may be more attractive to Member States than the creation of a European public prosecutor's office.

154. We note that the EP has put forward two proposals designed to increase its autonomy: granting it the right to adopt its own rules of procedure[194] (rather than, as at present, having to obtain the unanimous approval of the Council: Article 190(5) EC), and allowing it to determine the location of its seat and all its meetings[195] (rather than this being determined by "common accord of the Governments of the Member States": Article 289 EC). We have some sympathy with the EP on both counts: Parliaments should, in principle, be free to determine their own rules of procedure without outside interference; and the present system of shuttling between Strasbourg and Brussels is both inefficient and, in the eyes of the public, unnecessary. However, given the cool response which — we are informed — Member State representatives have shown to most of the EP's proposals to increase its influence[196], we conclude that these proposals are unlikely to find their way onto the IGC's agenda.

155. The EP's Resolution of 13 April on the IGC not only is based on the report of the Committee on Constitutional Affairs, but also takes accounts of Opinions on the IGC issued by fourteen other Committees, ranging from that on Foreign Affairs to those on Agriculture, Fisheries and "Culture, Youth, Education, the Media and Sport". The net result is that the EP makes about 100 recommendations of issues which it wishes the IGC to address. Many of these have no hope of appearing on the IGC agenda. However, for the sake of completeness, those which have not been discussed elsewhere in this Report are described briefly in Annex B.

154 Case 11/70, Internationale Handelsgesellschaft, 1970 ECR 1125. Back

155 Case 4/73, Nold v Commission, 1974 ECR 491. Back

156 eg Case 44/79, Hauer, 1979 ECR 3727. Back

157 In this judgment the German constitutional court asserted its ultimate authority in matters of fundamental rights; in 1986 it recognised that adequate protection was assured by the ECJ. Back

158 EP Minutes, 12 January 2000. Back

159 European Council Conclusions, Cologne, 3-4 June 1999. Back

160 European Parliament Resolution on the drafting of a European Union Charter of Fundamental Rights (A5-0064/00), 16 March 2000. Back

161 Which reflects the current position under the case law of the ECJ; see Case C-260/89, ERT, 1991 ECR I-2925, which additionally requires Member States to comply with the ECHR when they take advantage of Treaty derogations. Back

162 Q 98. Back

163 QQ 43 and 49. The Danish Government agrees and the Finnish Government has expressed reservations about the incorporation of the Charter into the Treaties: see their position papers. Back

164 Q 43. This view contrasts with that of the Italian Government, which wishes to see the Charter annexed to the Treaties as a protocol "with a view to its becoming the nucleus of the future European constitution" (see its position paper) - a desire that is shared by the President of Italy and apparently, by the European Affairs Committee of the Italian Senate (as shown by a formal Resolution of 15 March sent to us by that Committee). Back

165 Official Report, 16 February 2000, col.244WH. Back