Ninth Report - European Scrutiny Committee Contents

22 EU Charter of Fundamental Rights

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested

Document details2013 Report on the application of the EU Charter of Fundamental Rights (the Charter) (35971), 9042/14 + ADDs 1-3, COM(14) 224
Legal base
DepartmentMinistry of Justice

Summary and Committee's conclusions

22.1 This report comprises the Commission's review of the application of the Charter within the EU (including by the national courts of Member States) for the year 2013 was published on 14 April. We first considered this document in our Report of 4 June 2014. In that Report, we noted the principal conclusions of the Commission were that in 2013:

·  The CJEU dealt with a large number of cases concerning the Charter's applicability at national level and that the Fransson judgment helped to further define the Charter's application in Member States although this case law is "still evolving and likely to be continuously refined";

·  National judges are important because they ensure individuals obtain full redress where their fundamental rights "within the scope of EU law" are breached;

·  The impact of proposed EU legislation on fundamental rights needs to be carefully considered throughout the legislative procedure, but particularly at the state of "elaborating final compromise solutions";

·  The review by the CJEU of EU legal acts for breaches of fundamental rights, also extends to Member States where they implement EU law, but "Outside that area, Member States apply their own national fundamental rights systems. This is a clear and deliberate choice made by the Member States when designing the Charter and the Treaty"; and

·  EU institutions must not only respect the Charter but actively promote a fundamental rights culture (support for which is indicated by the volume of correspondence received by the Commission in 2013 from the public on fundamental rights).

22.2 The Government told us that it welcomed the monitoring of the application of the Charter in the EU on the grounds of holding EU institutions to account for respect for fundamental rights. It considered that the report provided a "measured and factual analysis of EU action" in the area of fundamental rights. The Government then commented on some of the report's accounts of EU actions (measures in particular policy areas) which engage the Charter. In turn, we asked the Secretary of State for Justice (Chris Grayling) to respond to a number of questions (set out in paragraphs 7, 10, 12 and 14 below) and kept the report under scrutiny pending his response. The Minister now responds to those questions and our enquiry in our letter of 24 June on the question of the Supreme Court's refusal to grant permission to the Government for leave to appeal the ZZ v Home Secretary judgment in the Court of Appeal.

22.3 We thank the Secretary of State for his response to our Report of 4 June, but consider that one question in particular was not fully addressed. We would welcome his view on what the impact is on businesses (as employers), taxpayers, national security and public safety of Charter-related litigation, regardless of whether he considers it to be on the increase or not.

22.4 Twice the Minister says that he is unable to comment on the ZZ case because domestic proceedings are still currently active but we ask him to note that we did not ask him to comment on the details of that case in any respect. We note that, as a matter of public record, the appeal proceedings in Benkharbouche & anr v Embassy of the Republic of Sudan & Ors are floating to be heard on 24 or 25 November 2014.

22.5 We are currently considering the Government's response to our Report, "The application of the EU Charter of Fundamental Rights in the UK: a state of confusion". We will therefore keep the current document under scrutiny as issues might arise in the course of our further deliberations which are relevant to this Commission report.

Full details of the documents: 2013 Commission Report on the application of the EU Charter of Fundamental Rights: (35971), 9042/14 + ADDs 1-3, COM(14) 224.

Background and previous scrutiny

22.6 The background to the Charter, this annual Charter Report and our scrutiny of previous annual Reports was set out in our First Report of this session and our Sixth Report of the 2013-14 Session.[103]

The Minister's letter of 14 July 2014

22.7 The Secretary of State for Justice (Chris Grayling) addresses in turn the questions we raised on the current document in the conclusions to our First Report of 2014-15.[104]

22.8 The first question was:

    "The report provides evidence of the increasing EU practice of placing Charter rights on a legislative footing (for example, the procedural rights package). We note that the Commission calls this giving "concrete effect" to the Charter. Does the Minister consider that the increased transparency and deployability of particular Charter Rights through legislative action augments the impact of those rights in the UK and other Member States?"

22.9 The Minister responds:

    "The EU can only take action where it has competence to do so and it is the EU Treaties that provide competence for legislative action. The Charter itself does not give the EU competence to act — it draws together rights and principles that already exist in EU law in one document. This is underlined in Article 6(1) of the Treaty on European Union which states that the provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

    "The Government supports the principle that where EU institutions are developing legislation in a field of existing competence, they should do so in a way which respects fundamental rights. In some cases, EU legislation will give greater particularity to a right recognised in the Charter which the UK will then implement domestically. However the EU's ability to bring forward such legislation and the UK's obligation to act as a result of it derives from the EU already having competence in the area in question, rather than as a result of the Charter per se. The Government will continue to analyse each proposal for EU action to ensure that it is within the competence of the EU and accords with the principles of subsidiarity and proportionality."

22.10 Our second conclusion was comprised of two related questions:

    "Annex 1 to the report indicates increased public awareness of Charter rights by EU citizens, increased references to the Charter by EU courts and (compared with 2011) by national courts in preliminary ruling requests. Can the Minister confirm whether these upwards trends, together with the fact that primary legislation which conflicts with Charter rights (when engaged) must be disapplied, have translated into an increase in Charter-related litigation in the UK since 2011? If so, can he comment on the consequences of this expansion in litigation, particularly in terms of the impact on businesses (as employers), taxpayers, national security and public safety?"

22.11 The Minister answers the first of the two questions:

    "The Charter reaffirms those rights and principles that have already been recognised under EU law. While the Charter has not created new rights or principles, there is some evidence to suggest that references to the Charter have increased in both domestic and ECJ proceedings since the Charter became legally binding. However, it is important to recognise that evidence of an increased reliance on fundamental rights arguments, whether by reference to general principles of EU law or the Charter, does not mean that these arguments are having a decisive impact on the outcome of the cases given the arguments which can already be made based on existing human rights protections in the UK and, in particular ECHR rights. It is likely that many of these cases would have been brought anyway and that the Charter is being added as an argument in the litigation rather than forming the sole basis of the claim. The arguments themselves could previously have been made based on existing rights and principles recognised in EU law but can now be re-labelled as Charter arguments.

    "Where fundamental rights arguments are pleaded, the domestic courts have generally engaged in a rigorous assessment of whether fundamental rights are applicable in cases before them and the evidence to date indicates that EU fundamental rights have had limited impact in domestic case law. To date the only case where the courts have held that primary legislation should be disapplied is Benkharbouche and this decision is currently the subject of an appeal.

    "However the Government agrees with the Committee's view, outlined in its recent report on the Charter, that there is uncertainty over certain aspects of the Charter. Whilst the existing EU legal framework provides some comfort, we are keeping a close eye on how the case law develops to make sure the safeguards built into the framework are properly applied in practice and to consider the impact of this case law."

22.12 Our third question concerned the interplay between the Charter and Free Movement Directive:

    "Whilst we note the Government's position on Article 35 of the Free Movement Directive 2004/38, we would question the definitive nature of its assertion that "Therefore, free movement rights can also be restricted in the event of abuse". We invite the Minister to comment on the requirement that any measures taken by a Member State in reliance on Article 35 are to be subject to the procedural rights set out in Article 30 and 31 of the Directive and the principle of proportionality. We ask the Minister to consider, in his response, the decisive role played by the procedural obligation in Article 30, coupled with Article 47 of the Charter, in the CJEU decision in ZZ v Home Secretary and how this suggests that Member States do not have the unrestricted licence to act that the Minister asserts."

22.13 The Minister comments as follows:

    "While measures taken to restrict free movement rights in the event of abuse must comply with the procedural obligations found under Article 30 and 31 of the Directive and the principle of proportionality, these obligations do not prevent Member States from taking action to prevent abuse where such action is justified.

    "The case of ZZ is still the subject of ongoing litigation in our domestic courts and therefore it would be inappropriate to comment further on this specific case. The Government accepts that in some cases the applicable Charter right may have a wider scope of application than the corresponding ECHR right and that it is obliged to respect fundamental rights as recognised in the Charter when acting within the scope of EU law. But the Charter is not the source of those rights, it reaffirms the rights and principles that were already part of EU law."

22.14 Finally, our last question, was:

    "The Commission concludes that the Fransson judgment has helped to further define the Charter's application in Member States although this case law is "still evolving and likely to be continuously refined". Some have a more narrow view of that judgment as a case decided on its own facts; a view shared with us by the Minister's legal adviser during the Minister's evidence session as part of our Charter Inquiry and by the German Constitutional Court. Does the Minister consider that there is insufficient legal certainty as to when the Charter applies in Member States, given the different views of the Fransson judgment and the developing nature of the relevant case law?"

22.15 The Minister responds:

    "The Charter only applies to Member States when they are acting within the scope of EU law. The Government acknowledges that the question of when EU fundamental rights, either as general principles of EU law or as reaffirmed through the Charter, apply is the subject of a developing body of case law, and that the decision on whether a Member States is acting within the scope of EU law requires careful consideration on a case by case basis. The case of Akerberg Fransson has generated further debate about when the Charter applies but the Government considers that the case was correctly decided on the facts.

    "Since the Committee received its written and oral evidence, the ECJ has delivered its judgment in the case of Siragusa (Case C-206/13). Referring to its previous case law, the ECJ confirmed that the concept of implementing EU law requires a greater connection than Member State action and EU law being closely related or one having an indirect impact on the other. The ECJ then set out a non-exhaustive list of points that the ECJ in that case considered to be relevant to whether national legislation is within the scope of EU law, such as whether the legislation pursues objectives other than those covered by EU law. In particular, the ECJ reiterated that fundamental rights do not apply to national legislation where EU law does not impose any obligation on Member States with regard to the situation at issue.

    "While the Government is acutely aware of the need to stay vigilant of case law on when the Charter applies to Member States, it takes some comfort from the ECJ's approach in Siragusa, since the ECJ has attempted to provide greater clarity on when the Charter applies to Member States drawing on its previous case law."

22.16 The Minister then deals with our letter of 25 June in which we asked what the Government intended to do following the refusal of the Supreme Court to grant the Home Secretary permission to appeal the Court of Appeal's judgment. He says:

    "As noted above, ZZ's remitted appeal is currently being considered by the Special Immigration Appeal Commission (SIAC) and it would be inappropriate to comment whilst proceedings remain active. In so far as your question goes beyond consideration of the next steps in the legal process in that case, this would be better directed to the Home Secretary who has responsibility for this policy area."

Previous Committee Reports

First Report HC 219-I (2014-15), chapter 19 (4 June 2014).

103   HC 83-vi (2013-14), chapter 6 (19 June 2013) Back

104   HC 219-I (2014-15), chapter 19 (4 June 2014) Back

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