3 EU Charter of Fundamental Rights
| (32118)
15319/10
COM(10) 573
| Commission Communication: Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union
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| Legal base | ¯
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| Document originated | 19 October 2010
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| Deposited in Parliament | 22 October 2010
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| Department | Justice
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| Basis of consideration | EM of 4 November 2010
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | For debate in European Committee B
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Background
3.1 The Charter of Fundamental Rights of the EU was made legally
binding on the EU institutions and on Member States when implementing
EU law by the Lisbon Treaty. Article 6(1) of the Treaty on European
Union (TEU) provides:
"The Union recognises the rights, freedoms and principles
set out in the Charter [...] which will have the same legal
value as the Treaties."
3.2 During the Lisbon Treaty negotiations the UK and Poland negotiated
a protocol (Protocol No. 30), intended to limit the application
of the Charter in their domestic legal systems.[8]
Article 1 provides:
"1. The Charter does not extend the ability of the Court
of Justice of the European Union, or any court or tribunal of
Poland or of the United Kingdom, to find that the laws, regulations
or administrative provisions, practices or action of Poland or
of the United Kingdom are inconsistent with the fundamental rights,
freedoms and principles that it reaffirms.
"2. In particular, and for the avoidance of
doubt, nothing in Title IV of the Charter creates justiciable
rights applicable to Poland or the United Kingdom except in so
far as Poland or the United Kingdom has provided for such rights
in its national law.
Article 2 provides:
"To the extent that a provision of the Charter
refers to national laws and practices, it shall only apply to
Poland or the United Kingdom to the extent that the rights or
principles that it contains are recognised in the law or practices
of Poland or of the United Kingdom."
3.3 The EU Treaties, as amended by the Lisbon Treaty,
attach great importance to fundamental rights in the EU legal
order. Article 2 TEU refers to respect for fundamental human rights
as one of the values on which the EU is founded; Article 3 TEU
commits the EU to contribute to the protection of fundamental
rights in its relations with third countries; Article 6(2) TEU
provides for EU accession to the European Convention on Human
Rights; and Article 7 TEU contains the provision first introduced
by the Amsterdam Treaty under which a Member State's Treaty rights
may be suspended by the Council where the Member State is in serious
and persistent breach of the Union's values, including fundamental
rights.
The document
3.4 The purpose of this Communication is to set out
the Commission's strategy for the implementation of the Charter
in the EU's legal order post entry into force of the Lisbon Treaty.
INTRODUCTION
3.5 The Communication introduces its strategy as
follows:
"Decisive steps have been taken towards a Europe
of fundamental rights. The Charter of Fundamental Rights of the
European Union has become legally binding and the Union is going
to accede to the European Convention on Human Rights. The European
Parliament and the European Council have made promotion of fundamental
rights in the Union one of their priorities for the future of
the area of justice, freedom and security. There is now a member
of the Commission with specific responsibility for the promotion
of justice, fundamental rights and citizenship, and the members
of the European Commission promised, in a solemn undertaking before
the Court of Justice, to uphold the Charter. More generally, the
Lisbon Treaty is a major step forward in that it has extended
the co-decision procedure, removed the pillar structure set up
under the earlier Treaty, given the Court of Justice general responsibility
in the field of freedom, security and justice, and confirmed the
place of human rights at the heart of the Union's external action."
3.6 The overall objective of the strategy is to make
the rights provided for in the Charter as effective as possible.
"The Union must be exemplary in this respect", the Communication
says, adding at page 3 that the "Charter is not a text setting
out abstract values, it is an instrument to enable people to enjoy
the rights enshrined within it when they are in a situation governed
by Union law. That is why the Commission will focus its efforts
on the effective implementation of the Charter."
THE UNION MUST BE EXEMPLARY
3.7 Under this heading the Commission says that:
"The Union's action must be above reproach when
it comes to fundamental rights. The Charter must serve as compass
for the Union's policies and their implementation by the Member
States."[9]
This objective will be achieved through the following
measures.
Strengthening the culture of fundamental rights
in the Commission
3.8 The Commission has already taken some internal
organisational measures to ensure that Commission departments
are systematic and thorough in checking that all the fundamental
rights concerned have been respected in all draft proposals.[10]
The evaluation report[11]
on these measures found that they were well suited to the objective
but needed to be applied better in practice, namely in a more
systematic, detailed and easily understandable manner. The evaluation
report also underlined that impact assessments should not be seen
as a matter of procedure but of substance.
3.9 Preparatory consultations: The Communication
states that when the Commission opens consultations (green papers,
communications, working papers, etc.) with interested parties
on issues which may lead to new sensitive proposals, it will highlight
any potential fundamental rights aspects in order to encourage
contributions that will feed into the impact assessment.
3.10 Impact assessments: The impact assessments
that accompany Commission proposals already examine the impact
of the proposal on fundamental rights when such an assessment
is relevant.[12] The
Communication states that the Commission, whilst maintaining this
general approach, will emphasise in impact assessments the fundamental
rights liable to be affected by a proposal, the degree of interference
with the right in question and the necessity and proportionality
of the interference in terms of policy options and objectives.
3.11 Mainstreaming fundamental rights into the
work of the Impact Assessment Steering Groups: The drawing-up
of each impact assessment is currently headed by an Impact Assessment
Steering Group, that brings together the concerned Commission
departments and has a key role to play in all phases of the impact
assessment. The Communication states that the relevant Commission
departments will actively make available their fundamental rights
expertise to these groups in order to ensure that any effects
on such rights are systematically identified and analysed at an
early stage of the policy formulation process. Any effects on
fundamental rights will be given prominence in the impact assessment
report; giving them prominence will help to strengthen the culture
of respect for fundamental rights during the preparation of the
draft act.
3.12 Operational guidance on fundamental rights:
The Commission will issue guidance to Commission departments on
how the impact of a legislative proposal on fundamental rights
should be assessed in practice. This will include a "check-list".
Draft legislation
3.13 Targeted recitals: The Communication
states that proposals that have a particular link with fundamental
rights must include specific recitals that explain how the proposal
complies with the Charter. The role of recitals is described in
section 1.1.3.1 of the Communication as being "to explain
the reasoning behind the adoption of the act in question and so
enable and facilitate judicial review of its conformity with the
Charter". This means that use of a standardised recital merely
noting conformity with the Charter should be avoided: the insertion
of recitals is not a mere formality; it should reflect detailed
consideration of the proposal's compliance with the Charter. More
specific tailor-made recitals concerning certain fundamental rights
will be inserted where necessary to explain the scope of a provision
or the solutions incorporated in the proposal to ensure that the
limitation on a fundamental right is justified under Article 52
of the Charter.
3.14 Explanatory Memoranda: When the legislative
proposal has an impact on fundamental rights, as borne out by
its recitals, the Explanatory Memorandum must contain a summary
explaining how fundamental rights obligations have been met. The
Explanatory Memoranda will be reinforced by a summary of all the
fundamental rights aspects contained in the impact assessment
and the legislative proposal. In particular, this section will
explain why the Commission believes that limitations on fundamental
rights are justified in terms of necessity and proportionality.
Taking the Charter into account in the legislative
process
3.15 The measures described above apply only to Commission
departments in the preparatory stage of legislative proposals.
During the legislative process, the Commission's proposals may
be amended by one of the co-legislators ¯the
Council or the European Parliament¯
raising questions about fundamental rights, without any systematic
review of the compatibility of those amendments with fundamental
rights.
3.16 This situation was identified by the European
Council in the Stockholm Programme, which calls on the EU institutions
and Member States to ensure that legal initiatives remain consistent
with fundamental rights "throughout the legislative process
by way of strengthening the application of the methodology for
a systematic and rigorous monitoring of compliance with the Convention
and the rights set out in the Charter of Fundamental Rights".[13]
3.17 Amendments: The Commission says that
it will strongly defend its position when it comes to the standards
of fundamental rights protection contained in its proposal, and
will notify co-legislators of its opposition if they seek to lower
those standards. In such cases it will not hesitate to use all
the means at its disposal, which may include requesting that the
act be adopted unanimously or, where applicable, withdrawing its
proposal or bringing an action for annulment of the provisions
in question.
3.18 Inter-institutional dialogue: The manner
in which draft amendments, which raise issues of compatibility
with the Charter, are dealt with should be subject to a transparent
inter-institutional dialogue, in particular to make sure that:
" — the amendments in question are the
subject of an appropriate assessment of their impact on fundamental
rights and of their conformity with the Charter. The inter-institutional
agreement Common Approach to Impact Assessment[14]
has a general provision that Parliament and the Council are responsible
for assessing the impact of their own 'significant' amendments.
No mention is made of taking into account fundamental rights aspects,
nor of the fact that any amendment raising a fundamental rights
issue should be considered 'significant';
" — decisions on amendments are taken
at the appropriate level and that, for example, in the case of
the Council they are brought to the attention of ministers;
" — the Legal Services of the three institutions
are fully involved."[15]
3.19 With a view to the forthcoming revision of the
Common Approach to Impact Assessment, the Commission will
propose a provision that the impact assessments that accompany
Member States' proposals under Title V TFEU also include an assessment
of their impact on fundamental rights.
Ensuring that the Member States respect the Charter
when implementing EU law
3.20 The Charter is addressed to the Member States
only "when they implement Union law" (Article 51(1)).
The Communication states that the upholding of fundamental rights
by Member States when they implement Union law is in the common
interest of all the Member States because it is essential to the
mutual confidence necessary for the operation of the Union. This
principle is particularly important, the Communication says, in
view of the expansion of the EU acquis in areas where fundamental
rights are especially relevant, such as the area of freedom, security
and justice, non-discrimination, Union citizenship, the information
society and the environment.
3.21 The Commission's efforts to enforce fundamental
rights will be guided by the following principles:[16]
"Prevention
"The Commission will step up its preventive
approach by reminding in appropriate cases the authorities responsible
for transposing legislation of the obligation to comply with the
Charter in implementing the legislation concerned and by assisting
them to do so, in particular within the committees of experts
set up to facilitate the transposition of the directives. For
example, the importance of compliance with the Charter, particularly
in the area of children's rights, was highlighted in the expert
group set up to monitor the transposition of Directive 2008/115/EC
("the return Directive") and within the Committee for
Framework Decision 2008/919/JHA, which amends the Framework Decision
on combating terrorism.
"Infringement procedures
"When a Member State does not respect fundamental
rights when implementing Union law, the Commission, as guardian
of the Treaties, has powers of its own to try to put an end to
the infringement and may, if necessary, take the matter to the
Court of Justice (action for failure to fulfil an obligation).
The Commission may only intervene if the situation in question
relates to Union law. The factor connecting it with Union law
will depend on the actual situation in question.[17]
"The Commission is determined to use all the
means at its disposal to ensure that the Charter is adhered to
by the Member States when they implement Union law. Whenever necessary
it will start infringement procedures against Member States for
non-compliance with the Charter in implementing Union law. Those
infringement proceedings which raise issues of principle or which
have particularly far-reaching negative impact for citizens will
be given priority.
"Situations outside the scope of the Charter
"The Charter does not apply where there are
breaches of fundamental rights with no connection to Union law.
Member States have their own systems to protect fundamental rights
through their national courts and the Charter does not replace
them. It is therefore up to the national courts to ensure compliance
with fundamental rights and up to the Member States to take the
necessary measures in accordance with their national laws and
international obligations. In such situations, the Commission
does not have the power to intervene as guardian of the Treaties.
"Article 7 TEU provides for a mechanism enabling
institutions of the Union to act when there is a clear risk of
a serious breach or a serious and persistent breach by a Member
State of the values referred to Article 2 TEU, which include respect
for human rights. This is a political mechanism of last resort,
intended for situations of an exceptional nature with a systemic,
structural dimension.[18]
Where there is a clear risk of a serious breach of these values
this mechanism may be triggered by a reasoned proposal of a third
of the Member States, of the European Parliament, or of the Commission."
BETTER INFORMING THE PUBLIC
Information needs
3.22 The Communication states that the public needs
to be better informed about the rights enshrined in the Charter
and how to enforce them in practice when they are violated. To
this end the Commission will step up its information activities
concerning the Union's powers and obligations in the area of fundamental
rights, and the Communication lists several measures to put this
into effect.
3.23 Individuals who believe themselves to be victims
of a breach of their fundamental rights must also have access
to practical information on the legal remedies existing to deal
with allegations of breaches of fundamental rights. To this end
the Commission will ensure that in 2011 the "e-justice portal"
will be able to
provide the public with information about
legal remedies in cases of alleged violations of fundamental rights.
ANNUAL REPORT ON THE APPLICATION OF THE CHARTER
3.24 The Commission will present an Annual Report
on application of the Charter which will have two objectives:
— to
take stock of progress —
it will identify what has been done and what remains to be done
for the effective application of the Charter;
— to
offer an opportunity for an annual exchange of views with the
European Parliament and the Council.
The Government's view
3.25 In his Explanatory Memorandum, the Minister
of State for Justice (Lord McNally) says that the Communication
has been set against the Coalition's "Programme for Government".
A number of points are relevant, he says. Firstly, the main objective
of the Communication is to ensure that EU policy and legislation
is limited by reference to fundamental human freedoms. This is
consistent with the Government's stated policy on civil liberties,
which states that "[w]e need to restore the rights of individuals
in the face of encroaching state power, in keeping with Britain's
tradition of freedom and fairness."[19]
Secondly the Coalition's Programme states that no further powers
should be transferred to Brussels without a referendum. This Communication
does not involve any transfer of powers to Europe.
3.26 The Government agrees that EU legislation should
be reviewed and evaluated to ensure compatibility with fundamental
rights. It further welcomes the Commission's adoption of a strategic
approach on how to meet this objective. The Minister comments
that this approach rightly sees fundamental rights as a limit
on EU legislation rather than a reason for producing new legislation.
3.27 The Government notes that a number of the processes
which the Communication sets out already form part of the regulatory
practice in the UK — e.g., regulatory impact assessments.
These processes will help improve the process for the adoption
of EU legislation, exposing it to greater scrutiny and earlier
evaluation. The Communication also highlights the importance of
better regulation; the Government welcomes this approach.
3.28 The Government welcomes the inclusion of statements
which explicitly confirm that the application of the Charter to
Member States is limited to when they are implementing Union law.
3.29 The Government supports the use of targeted
recitals which refer to any specific fundamental rights which
are potentially engaged by a draft legislative proposal. Any reference
to fundamental rights should have inherent meaning and utility,
the Minister says, and should not be reduced to the level of a
formula repeated automatically without regard to its relevance
to the subject matter of the instrument. The Government notes,
however, the importance of ensuring that references to the Charter
in recitals accurately reflect the Government's position that
the Charter is "a reaffirmation of rights and principles
drawn from other sources and that the appropriate distinction
between rights and principles is clearly presented".[20]
3.30 It is also of considerable importance, the Minister
says, that the Charter is interpreted with due regard to the accompanying
Explanations, which set out the sources of the rights and principles
that it restates. Once again, these are issues that the Government
will keep under consideration on a case-by-case basis.
Conclusion
3.31 The Commission's Communication, Strategy
for the effective implementation of the Charter of Fundamental
Rights by the European Union, sets out in detail the steps
the Commission will take to ensure that the obligations placed
on it by the Charter of Fundamental Rights are fully respected
when EU legislation is being proposed and implemented. We have
reported the Commission's strategy fully given the importance
of the newly legally binding Charter on the future development
of EU law.
3.32 We note that the Commission has set itself
a very high standard when it states that the "Union's action
must be above reproach when it comes to fundamental rights".[21]
Whilst this is a laudable aim, it is not always so easy to achieve
in practice, as the recent dispute between the Commission and
France over the latter's expulsion of Roma must have shown to
the Commission.
3.33 Like the Government we welcome the fact that
the Communication emphasises that the Charter applies only to
Member States when implementing EU law, and as a consequence is
addressed in the main to the EU institutions. However, we note
the tough language used in section 1.3.2 by the Commission when
stating that it will use "all the means at its disposal to
ensure that the Charter is adhered to by the Member States when
they implement Union law".
3.34 Given the legal and political importance
of the implementation of the Charter we recommend that the Communication
be debated in European Committee B. The debate should encompass
discussion of how, in the Government's view, Protocol (No. 30)
On the Application of the Charter of Fundamental Rights of the
European Union to Poland and the United Kingdom will affect
the application and implementation of Charter in the UK.
8 The Czech Republic made it a condition of its ratification
of the Lisbon Treaty in 2009 that it will be allowed to accede
to Protocol 30. Back
9
Page 4. Back
10
Commission Communication Compliance with the Charter of Fundamental
Rights in Commission legislative proposals - Methodology for systematic
and rigorous monitoring, COM(05) 172 final of 27.4.2005. Back
11
Report on the practical operation of the methodology for a systematic
and rigorous monitoring of compliance with the Charter of fundamental
rights, COM(09) 205 final of 29.4.2009. Back
12
See the Impact Assessment Guidelines, SEC(09) 92 of 15.1.2009. Back
13
See section 1.2, page 8. Back
14
Council document 14901/05 of 24.11.2005. Back
15
Page 9. Back
16
Pages 9 to 10. Back
17
For example, a connecting factor exists when national legislation
transposes a Union Directive in a way contrary to fundamental
rights, when a public authority applies Union law in a manner
contrary to fundamental rights or when a final decision of a national
court applies or interprets the Union law in a way contrary to
the fundamental rights. Back
18
The conditions for implementing this mechanism are explained in
the Commission communication on Article 7 TEU on Article 7 of
the Treaty on European Union - Respect for and promotion of the
values on which the Union is based, COM(2003) 06 final of 15.10.2003. Back
19
Paragraph 16. Back
20
Paragraph 20. Back
21
Page 4. Back
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