House of Commons - European Scrutiny

Select Committee on European Scrutiny Fourteenth Report

The Charter of Fundamental Rights

76. The EU's Charter of Fundamental Rights ('the Charter') was proclaimed at the Nice European Council in December 2000, to make the 'overriding importance and relevance [of fundamental rights] more visible to the citizens of the European Union'.[116] The document had been drafted by a Convention composed in a similar way to the later Convention on the Future of Europe. The Nice European Council did not, however, incorporate the Charter into the Treaties. The Convention on the Future of Europe recommended that it should be so incorporated and become enforceable as a Bill of Rights for the EU. The subsequent IGC accepted both recommendations.[117]

77. The first 50 Articles of the Charter include a wide range of civil, political and social rights. Most are applicable to all persons in the EU but some are limited to EU citizens. The Charter substantially reproduces the rights contained in the European Convention on Human Rights (ECHR) and, in accordance with the political mandate given by the 1999 Cologne European Council, goes beyond these by including certain economic and social rights. These are drawn from the Council of Europe's Social Charter, the Community's Charter of Fundamental Social Rights of Workers and other international conventions to which the EU or its Member States are parties. Other Charter rights are derived from the traditions of Member States.

78. The Convention which drew up the Charter prepared a set of Explanations of the Charter.[118] They describe the source of the particular rights and, sometimes, the intended effect. The Preamble to the Charter states that 'the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention'.[119]

The horizontal clauses

79. The final part of the Charter deals with the scope of the Charter and its provisions and with their relationship to the rest of the Constitutional Treaty and other instruments, including the ECHR. These are the so-called 'horizontal clauses'. There are four (see box):

Article II-111, defining the scope of application of the Charter;

Article II-112, setting out the scope of the rights guaranteed by the Charter;

Article II-113, maintaining the level of protection currently afforded by international, national and Union laws; and

Article II-114, dealing with the abuse of Charter rights.

The most important role of the 'horizontal clauses' is to ensure that the Charter does not result in EU competence being extended to all the matters it covers.

The horizontal clauses

Article II-111: Field of application

1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the other Parts of the Constitution.

2. This Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined in the other Parts of the Constitution.

Article II-112: Scope and interpretation of rights and principles

1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

2. Rights recognised by this Charter for which provision is made in other Parts of the Constitution shall be exercised under the conditions and within the limits defined by these relevant Parts.

3. Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

4. Insofar as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.

5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

6. Full account shall be taken of national laws and practices as specified in this Charter.

7. The explanations drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall be given due regard by the courts of the Union and of the Member States.

Article II-113: Level of protection

Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.

Article II-114: Prohibition of abuse of rights

Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.

80. The Government's view is that the Charter has no effect on the scope of the Union's powers as defined in the other parts of the Constitutional Treaty: 'The Charter creates no new powers for the EU, nor does it alter any of the EU's existing powers. It will apply to Member States only when they are implementing EU law.'[120] The Government had agreed to the inclusion of the Charter in the Treaty only on the basis of amendments made during the IGC. In particular:

'First a special provision was added to the Treaty requiring the Courts to have due regard to the official Explanations to the Charter. … Their primary purpose is to relate the rights and principles set out in the Charter to existing agreed law. For example, they show which Charter provisions are intended to correspond with those set out in the ECHR. Secondly, a special Declaration has been added to the Treaty setting out the texts of the official Explanations in full. This should ensure transparency and accessibility regarding the true meaning of the Charter. Finally, the Constitution texts now contain, in addition to a mandate for the EU to accede to the ECHR, a special protocol and a declaration to ensure that accession does not affect the position of the individual Member States in relation to the ECHR—and that it takes proper account of the legal limitations of the EU.'[121]

81. The Foreign Secretary indicated that other countries understood better that the Charter did not create new powers for the EU because they were more familiar with 'declaratory statements of rights'. He regarded the Charter as 'of less significance in many ways than the European Convention of Human Rights because in respect of fundamental human rights it is simply a repetition of what is in the European Convention'.[122]

82. Our witnesses generally agreed that, although the Charter contained provisions relating to Member States' powers,[123] the horizontal clauses would prevent the Charter creating new EU competences or being applied to Member States in the exercise of their own powers.[124] However, exactly where the lines would be drawn could be subject to some ambiguity, which we discuss in the following sections.

The Explanations

83. When the Convention on the Charter presented the Charter to the European Council in 2000 the Explanations were not formally published with the Charter and were accompanied by a note which stated that 'They have no legal value and are simply intended to clarify the provisions of the Charter'.[125] The status of the Explanations remained uncertain until the Convention on the Future of Europe published them as a Declaration of the Convention annexed to the text of the Treaty. The Declaration is introduced by a note which concludes: 'Although [the Explanations] do not as such have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Charter'.[126] And the Preamble to the Charter now adds that 'the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations'.[127] The UK Government supported the decision to annex the Explanations to the Treaty and also the amended text of the Preamble and Article II-112(7) requiring the ECJ and other courts to interpret the Charter with 'due regard' to the explanations.[128] Professor Edward drew a distinction between 'have due regard to' and 'shall be bound by' or 'shall interpret in terms of the explanations': 'due regard' meant that 'you shall look at the explanations … seriously but you are not bound by them if your interpretation of the principal text in a given situation leads you to a different conclusion'.[129] In such cases a departure from the Explanations would not be open to appeal for that reason alone.

84. The precise legal status of the Explanations to the Charter remains unclear. Uncertainty over their status will matter most when the Charter text and the Explanations are capable of divergent interpretation or where the Explanation for a particular Charter right has been complemented by case-law of the ECJ.

Application of the Charter to Member States

85. Article II-111 supports the Government's case that the Charter does not extend the Union's powers as defined elsewhere in the Treaty. Paragraph (1) indicates that, except when 'implementing Union law', Member States will not be bound by the Charter. However, neither the Charter nor the Explanation to paragraph (2) define 'implementing Union law'. The Explanation to paragraph (1) notes only that 'As regards the Member States, it follows unambiguously from the case law of the Court of Justice that the requirement to respect fundamental rights defined in a Union context is only binding on the Member States when they act in the scope of Union law',[130] which appears to be a wider criterion. 'Implementing Union law' seems to suggest that the Charter will apply only when a Member State is transposing a Union measure into domestic law, but, according to Mr Chalmers, 'This is a narrower test than the one currently deployed by the Court of Justice, whereby the EC law on fundamental rights binds Member States insofar as they act within the field of EC law'.[131] Professors de Búrca and Eeckhout indicated that in its existing case-law on fundamental rights the ECJ has consistently gone beyond implementing legislation and, where applicable, has generally included domestic legislation adopted under a derogation from Union law, i.e. cases where Member States have the right not to implement Union law.[132] If the wording in the Explanations is followed, the ECJ's fundamental rights jurisdiction would follow its existing case-law and apply to a wider range of national legislation. It would be for the ECJ to determine which wording should be followed.

86. Our witnesses generally agreed that the Court would opt for the less restrictive interpretation. Professor de Búrca noted the Article in the Treaty 'which says that the acquis of the Court of Justice, the way in which the Court of Justice has ruled on and interpreted EU law in the past, is to apply mutatis mutandis to comparable provisions (not identical but comparable provisions), [which] means that it would incorporate that case-law very clearly and make it applicable to the Charter',[133] so that the broader meaning would be used. Professor Arnull likewise expected the Court of Justice to align the scope of the Charter with its current case-law, 'even though that would undoubtedly involve some stretching of the language of that provision'.[134] Professor Eeckhout observed that the ECJ has not yet determined the meaning of 'within the scope of Union law', and that therefore many questions remained unanswered.[135]

87. It could be argued that the Explanation for Article II-111 appears to reduce rather than increase legal certainty. But Article II-111 should be sufficient to ensure that the Court will not advance its human rights jurisdiction beyond the scope of Union law as defined in its present case-law.

Relationship with the ECHR

88. The Charter substantially reproduces the rights contained in the ECHR. This raises the question of whether it is the ECHR or the Charter which is to prevail in the event of a conflict. The Government regards the horizontal clauses as sufficient to align the interpretation of the Charter with the ECHR as interpreted by the European Court of Human Rights and to ensure that the Charter will not affect Member States' obligations under the ECHR.[136] This would be much easier to ensure if the EU were to accede to the ECHR, with the European Court of Human Rights having the final say. The Treaty contains a mandate for the EU to accede to the ECHR, but does not specify a date by which accession has to be completed.[137]

89. Article II-112(3) of the Treaty provides that 'Insofar as this Charter contains rights which correspond to rights guaranteed' by the ECHR, 'the meaning and scope of those rights shall be the same as laid down' by the ECHR, but adds that this 'shall not prevent Union law providing more extensive protection'. However, it is a truism in human rights law that one right often has to be balanced against another. The right to respect for private life (Article 8 ECHR) and the right to freedom of expression (Article 10 ECHR) are obvious examples, which are reproduced in the Charter as Articles II-67 and II-71. Providing more extensive protection in such areas would inevitably balance the two rights in a way different from the balance struck under the ECHR.

90. Our witnesses sought to resolve this difficulty in two ways. First, as Professor Dashwood explained, 'this kind of provision is commonly found in international treaties', such as the Conventions of the International Labour Organisation, which set minimum standards while leaving its signatories free to provide a greater degree of protection than the Conventions require.[138] As Professor Eeckhout suggested, the EU would be able to go further than the ECHR 'on the condition that this does not conflict with any other European Convention rights'; each ECHR right establishes a minimum standard of protection which cannot be derogated from on the basis of promoting another right.[139] Secondly, Professors Dashwood and de Búrca and Mr Howe believed that in certain circumstances the balancing act struck by the ECJ between two rights contained both in the ECHR and the Charter could justifiably differ from that struck by the European Court of Human Rights, especially where, as Professor de Búrca put it, 'although the rights are comparable, the justifiable restrictions are different because of the particular EU context'; an example would be the right of EU citizens to move and work within Europe, which might lead the ECJ to give more extensive protection to one right to the detriment of another.[140]

91. She added that the Charter does not say that judgments of the European Court of Human Rights are binding on the ECJ; 'it refers simply to the meaning and scope of the rights and does not refer to the courts at all'.[141] At the same time, almost all our witnesses agreed that they would expect the ECJ generally to follow closely the case-law of the European Court of Human Rights and to seek to avoid conflict as far as possible, as indeed it has done so far.[142] We do not share the Government's optimism that the horizontal clauses effectively resolve any potential for conflict between the Charter and the ECHR, but we note the general expectation that the ECJ will continue its established policy of closely following the case-law of the European Court of Human Rights and of avoiding conflict between the two courts as far as possible.

Rights and principles

92. Article II-112(5) draws a distinction between rights and principles in the Charter. The distinction did not appear in the Charter text as first drafted but was added by the Convention on the Future of Europe, in part to allay concerns that the social and economic rights in the Charter might be justiciable. It states that 'the provisions of this Charter which contain principles … shall be judicially cognisable' only in the interpretation of legislative and executive acts by the EU institutions and agencies and of acts of Member States when implementing Union law.

93. However, the distinction between rights and principles is unclear. Several witnesses observed that the Explanations add to the uncertainty by referring to Charter provisions which contain both a right and a principle.[143] It is questionable whether the distinction between rights and principles is capable of clarification and whether it was intended to give anything other than a broad indication that, while some Charter rights are clearly intended to be fully justiciable, others are not. The result of this could be considerable legal uncertainty, which it would be for the ECJ to resolve. Professor de Búrca told us that the ECJ 'will know that that distinction was intended to demarcate certain rights as insufficiently sharply crystallised in international and domestic law to give rise directly to judicial application without some implementing measure', which was not a very clear guide. She believed the distinction reflected 'the wish not to render many of the so-called economic and social rights (which are considered to require a greater degree of positive action and social expenditure) justiciable'. She thought the distinction would 'give rise to complex litigation and to a lot of debate'.[144] We agree that the distinction between rights and principles is somewhat unclear, and we are concerned that it could be left to the ECJ to determine which rights in the Charter will be directly justiciable and which will not be.

Conclusion on the Charter

94. Some of our witnesses warned against over-emphasising the ambiguities and uncertainties of the Charter, pointing out that these are features of all constitutions, and are not merely unavoidable but necessary, to allow for subsequent development as circumstances change. Moreover, as Professor Dashwood emphasised, 'in the world of fundamental rights there is a balancing that always has to be done', and the process of development through judicial interpretation was 'certainly the way that most constitutions do proceed, including the constitution of the United States'.[145] He regarded the uncertainty in the Charter as no greater than in any similar text on fundamental rights.[146] Other witnesses pointed out that the present judge-made EU regime for the protection of fundamental rights was constrained neither by a catalogue of rights nor by any definition of the scope of the ECJ's human rights jurisdiction over domestic legislation. Professor Eeckhout considered that 'there is much to be gained by having at least an express catalogue of what the fundamental rights are in the context of the European Union rather than what we have at present, simply leaving it to the Court of Justice … to discover … the fundamental rights'.[147]

95. While it could be argued that the Charter's horizontal clauses lack clarity and that the safeguards against unilateral extensions of the Union's powers could be stronger, we do not regard the incorporation of the Charter into the Treaty as likely to increase either the current degree of legal uncertainty or the current risk of the judicial extension of the Union's competences.

116 Proclamation at Nice, 7 December 2000. Back

117 The Charter is now Part II of the Treaty, consisting of a preamble and Articles II-61 to II-114. Back

118 They are set out in Cm 6429, pp. 453-96. Back

119 Cm 6429, p. 49. Back

120 White Paper on the Treaty establishing a Constitution for Europe, Cm 6309 (September 2004), para 85. Back

121 Ibid., para 84. Back

122 Q 250. See also Q 236. Back

123 Ev 55. Back

124 e.g. Q 86; Ev 12, 109, 124, 132. Back

125 ISBN 92-824-1955-X, title and contents pages. Back

126 Cm 6429, p. 454. Back

127 Ibid., p. 49. See also Article II-112(7). Back