The application of the EU Charter of Fundamental Rights in the UK: a state of confusion - European Scrutiny Committee Contents


3  Contents of the Charter, Explanations, and Protocol 30

Article 6 TEU

53. The Charter should be read in the light of Article 6 TEU (as amended by the Lisbon Treaty), several of whose provisions are replicated within it:

·  Article 6(1), first subparagraph, gives the Charter "the same legal value as the Treaties";

·  Article 6(1), second subparagraph, prohibits the Charter from being used to extend "in any way" the competences of the EU; and

·  Article 6(1), third subparagraph, requires the Charter to be interpreted "in accordance with" Title VII of the Charter, the "Horizontal Articles", and "with due regard to" the Explanations; and

·  Article 6(3) states that fundamental rights as guaranteed by the ECHR and "as they result from the constitutional traditions common to the Member States", constitute general principles of EU law.

The Charter

PREAMBLE

Source of the Charter rights and principles

54. The preamble (the recitals) of the Charter explains that the Charter "reaffirms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from":

·  the constitutional traditions and international obligations common to the Member States;

·  the ECHR;

·  the Social Charters adopted by the EU and by the Council of Europe;

·  the case-law of the ECJ and of the ECtHR.

From "in particular" it could be inferred that this list is not intended to be exhaustive.

Explanations

55. The preamble further requires the ECJ and national courts to interpret the Charter "with due regard to the explanations" prepared in the course of the Convention which drafted the Charter and "updated" in the course of the European Convention, which had agreed to the Charter becoming legally binding.

ARTICLES

Substantive Articles

56. The Charter contains 54 Articles, grouped under seven Titles. Articles 1-5 under Title I, "Dignity", concern respect for human dignity, the right to life, the right to the integrity of the person, prohibition of torture and inhuman or degrading treatment or punishment, and prohibition of slavery and forced labour.

57. Articles 6-19 under Title II, "Freedoms", concern the right to liberty and security, respect for private and family life, protection of personal data, the right to marry and found a family, freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association, freedom of the arts and sciences, the right to education, freedom to choose an occupation and the right to engage in work, freedom to conduct a business, the right to property, the right to asylum, and protection in the event of removal, expulsion or extradition.

58. Articles 20-26 in Title III, "Equality", concern equality before the law, non-discrimination, cultural, religious and linguistic diversity, equality between men and women, the rights of the child, the rights of the elderly, and integration of persons with disabilities.

59. Articles 27-38, under Title IV, "Solidarity", concern workers' right to information and consultation within the undertaking, the right of collective bargaining and action, the right of access to placement services, protection in the event of unjustified dismissal, fair and just working conditions, prohibition of child labour and protection of young people at work, family and professional life, social security and social assistance, health care, access to services of general economic interest, environmental protection, and consumer protection.

60. Article 39-46, under Title V, "Citizens' Rights", concern the right to vote and stand as a candidate at elections to the European Parliament and at municipal elections, the right to good administration, the right of access to documents, the right to refer cases of maladministration to the European Ombudsman, the right to petition, freedom of movement and residence, and diplomatic and consular protection.

61. Articles 47-50, under Tile VI, "Justice", concern the right to an effective remedy and a fair trial, presumption of innocence and the right of defence, principles of legality and proportionality of criminal offences and penalties, and the right not to be tried or punished twice in criminal proceedings for the same criminal offence.

Horizontal Articles

62. Title VI concerns what have become known as the horizontal Articles ("General Provisions Governing the Interpretation and Application of the Charter"). Article 51(1) is critical to understanding the scope and application of the Charter. It states that the Charter applies to all acts of the EU institutions and subsidiary EU bodies, but only to Member States when they implement EU law, and that the rights within it have to be respected whereas the principles within it have to be observed (emphasis added):

    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 Treaties.

63. Article 51(2) underscores the last sentence of paragraph 1 by restating that the Charter does not confer power on the EU to do anything it is not already authorised to do under the EU Treaties. It also confirms that the Charter does not extend the field of application of EU law:

    2. The 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 as defined in the Treaties.

64. Article 52(1) sets out the limitations on derogations from Charter rights, and is based on the case law of the ECJ on derogations from EU law. Principles are not included in this paragraph: given that they only have to be observed, the Charter itself sets no limits on derogations from them. (EU or national legislation which implements these principles may be subject to limitations on derogations, however.)

65. Article 52(2) concerns rights in the Charter which are also found in the EU Treaties, principally the "Citizens' rights", and provides that they should be exercised under the conditions laid down in the EU Treaties.

66. Article 52(3) provides that if any of the Charter rights correspond to rights guaranteed by the ECHR, the meaning and scope of those rights is to be the same as defined by the ECHR, although EU law may provide for more extensive protection.

67. Article 52(4) provides that where the 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." This is in accordance with ECJ case law, and requires a high standard of protection rather than the lowest common denominator.

68. Article 52(5) concerns principles and is set out, with Lord Goldsmith's explanation, in the previous chapter.[58] The Explanation of this paragraph confirms that some Articles of the Charter may contain rights as well as principles.

69. Article 52(6) requires national laws and practices to be taken into account where referred to in a Charter Article.

70. Article 52(7) requires the Explanations "drawn up as a way of providing guidance to the interpretation of the Charter" to be given "due regard" by the ECJ and national courts.

71. Article 53, "Level of Protection", is intended to maintain the level of protection afforded by similar rights contained in legal provisions other than the Charter.

72. Article 54 prohibits the abuse of the rights in the Charter, in the same manner as Article 17 of the ECHR: the rights cannot be used 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".

THE EXPLANATIONS

The preamble to the Explanations states that they are "a valuable tool of interpretation intended to clarify the provisions of the Charter." Each Explanation sets out the source of right or principle in question and, particularly of the horizontal Articles, the meaning to be given to a particular Article.

Protocol 30

73. We set out Protocol 30 in full, given its relevance to this Report:

PREAMBLE

    Whereas in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union,

    Whereas the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself,

    Whereas the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article,

    Whereas the Charter contains both rights and principles,

    Whereas the Charter contains both provisions which are civil and political in character and those which are economic and social in character,

    Whereas the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles,

    Recalling the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,

    Noting the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter,

    Desirous therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom,

    Reaffirming that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter,

    Reaffirming that this Protocol is without prejudice to the application of the Charter to other Member States,

    Reaffirming that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,

    Have agreed upon the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

ARTICLES

    Article 1

    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

    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.


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