22 EU Charter of Fundamental Rights
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
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| Document details | 2013 Report on the application of the EU Charter of Fundamental Rights (the Charter) (35971), 9042/14 + ADDs 1-3, COM(14) 224
|
| Legal base | —
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| Department | Ministry of Justice
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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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