Documents considered by the Committee on 12 January 2011 - European Scrutiny Committee Contents

3 EU Charter of Fundamental Rights



COM(10) 573

Commission Communication: Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union

Legal base¯
Document originated19 October 2010
Deposited in Parliament22 October 2010
Basis of considerationEM of 4 November 2010
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionFor debate in European Committee B


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.


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."


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 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]


"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."


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.


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.


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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