Documents considered by the Committee on 21 July 2015 - European Scrutiny Contents

7 EU Charter of Fundamental Rights

Committee's assessment Legally and politically important
Committee's decision(a) Not cleared from scrutiny (debate recommended on the floor of the house, decision reported on 4 February 2015);

(b) Not cleared from scrutiny; further information requested; for debate on the floor of the House as part of the outstanding debate on document (a); draw to the attention of the Justice Committee and the Joint Committee on Human Rights

Document details(a) 2013 Report on the application of the EU Charter of Fundamental Rights (the Charter); (b) 2014 Report on the application of the Charter.
Legal base

Document number

Ministry of Justice

(a) (35971), 9042/14 + ADDs 1-3, COM(14) 224

(b) (36897), 8707/15 + ADD 1, COM(15) 191

Summary and Committee's conclusions

7.1 Document (a) is the Commission's 2013 annual report on the application of the EU Charter of Fundamental Rights (the Charter) which our predecessors recommended for debate on the floor of the House, a debate which is still outstanding. Document (b) is the new annual report for 2014.

7.2 The Charter has been legally binding since 1 December 2009. It sets out a range of rights and principles derived from national and EU law (including the case law of the Court of Justice) and international human rights instruments, principally the European Convention on Human Rights (ECHR). The Charter only applies to Member States when they are acting "within the scope of EU law".

7.3 The 2014 report notes the increasing legal prominence of the Charter in proceedings before both the Court of Justice (CJEU) and national courts. It also identifies as a priority that the Commission should update fundamental rights policies in the areas of security, the digital agenda and migration.

7.4 The Government provides views on certain aspects of the Report, particularly in relation to asylum claims based on sexual orientation and data protection but does not comment more widely on how the Charter is being applied at EU or national level.

7.5 Our predecessor Committee recommended the 2013 annual report (document (a)) for debate on the floor of the House because it continued "to have concerns about the scope of the Charter's application in the UK" which it raised not only during the scrutiny of that document but also in its 2014 Charter Inquiry Report.

7.6 The Committee noted that although some of its questions had been addressed by the previous Government's Response to the Charter Inquiry Report and its Balance of Competences Review of EU Fundamental Rights, it had yet to learn how the Government intended to apply the assessments made in either of those documents.

7.7 We agree. We confirm our predecessors' recommendation that document (a) be debated on the floor of the House and recommend that the debate also include the 2014 annual report on the Charter, document (b).

7.8 In advance of that debate, we ask the Secretary of State to provide us with:

a)  his view of whether the Charter has been applied by UK courts during 2014-15 only to cases falling "within the scope of EU law", with reference to court judgments where possible;

b)  his view of how the "within the scope of EU law" test has been interpreted and applied in CJEU case law during 2014-15, with reference to the relevant decisions; and

c)  a detailed update on:

i)  how the EU institutions, including the Commission and the FREMP[ 85] Working Party have been working to revive EU accession to the ECHR in the wake of the CJEU's Opinion 2/13;

ii)  what the response of the Council of Europe has been to that Opinion; and

iii)  how the Luxembourgish Presidency is planning to proceed with accession.

7.9 In the meantime, both documents (a) and (b) remain under scrutiny.

Full details of the documents: (a) 2013 Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Application of the EU Charter of Fundamental Rights: (35971), 9042/14 + ADDs 1-3, COM(14) 224; (b) 2014 Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Application of the EU Charter of Fundamental Rights: (36897), 8707/15 + ADD 1, COM(15) 191.


7.10 In 2014 our predecessors published a Report, following an inquiry, on the application of the Charter in the UK.[ 86] Amongst other things, this clarified that the UK does not have an opt-out from the Charter. A key issue addressed by that Report was how widely the test for the application of the Charter to Member States when acting "within the scope of EU law" was being interpreted and applied at EU and Member State level.

The current document (b)

7.11 The report aims to review how the EU and Member States have given effect to the Charter in 2014. Although it focuses more on the former, it does include some examples of national courts applying the Charter and infringement proceedings against Member States in an accompanying Staff Working document. UK examples comprise preliminary references relating to the Tobacco Products Directive[ 87] and on minimum price on alcohol legislation in Scotland[ 88]. However the report does refer to research by the Fundamental Rights Agency (FRA)[ 89] which "confirms that in 2014 Member State high courts continued referring to the Charter for guidance and inspiration, even in cases which fell outside the scope of EU law".

7.12 The report notes the increasing legal prominence of the Charter. Before the EU Courts, it was referenced in 43 decisions in 2011, rising to 210 in 2014. It was mentioned in 11 infringement proceedings in 2014 (five relating to asylum and migration), compared with five in 2013. However, preliminary references by national judges have only marginally increased in 2014 to 43 from 41 in 2013. These concerned human dignity in asylum decisions, the principle of equality of arms in consumer protection cases and the "ne bis in idem" principle (being punished for the same crime twice). Also, the report indicates that general awareness of the Charter has not increased significantly since 2007, though steps are being taken to increase awareness[ 90], including through dialogues between national judiciaries.

7.13 The 2014 report focuses in particular on the Charter's application to:

·  EU institutions and bodies when distributing EU funds;

·  EU external action, noting the review of the Action Plan on Human Rights and Democracy (2012-2014) and that the new Plan (2015-2019) is intended to ensure coherence between the EU's internal and external work on fundamental rights, notably in the areas of counterterrorism, migration, mobility and trade;

·  EU restrictive measures (sanctions), resulting in several annulments by the Court of Justice for failure to comply with Articles 41 and 47 of the Charter— the right to good administration and the right to an effective remedy; and

·  the protection of fundamental rights in the digital era, exemplified by the Digital Rights Ireland[ 91] and Google Spain[ 92] decisions and to be addressed by the proposed Data Protection package (which is important for the Digital Single Market).

7.14 The report also highlights the EU's continuing commitment to accede to the ECHR despite the Court of Justice's ruling in Opinion 2/13[ 93] that the draft accession agreement was incompatible with the Treaties.

The Government's view on document (b)

7.15 The Lord Chancellor and Secretary of State for Justice (Michael Gove), sets out the basis of his Explanatory Memorandum of 9 June 2015. He says that it provides the Government's view on a number of areas covered by the report but not on all of the individual measures, proposals, communications or examples referred to. This should not signify Government agreement on those matters not addressed. He explains that the Government view will have been given on certain measures during their scrutiny process and that in any case further responses can be sought from the Government if needed.

7.16 He then addresses particular areas of the report. He says that:

·  The Government has carried out staff training on guidance it has updated to comply with the application of human dignity (Article 1 of the Charter) to the handling of asylum claims based on sexual orientation in the judgment in A, B, C v Staatssecretaris van Veiligheid en Justitie[ 94]; and

·  Referring to ongoing negotiations on the data protection package and the related Google Spain judgment, the Government does not agree with that the effect of that judgment has been to create "a right to be forgotten". Such a title is "inaccurate and misleading".

Previous Committee Reports

(a) (35971) 9042/14: Thirty-second Report HC 219-xxxi (2014-15), chapter 2 (4 February 2015); Ninth Report HC 219-ix (2014-15) chapter 22 (3 September 2014); First Report HC 219-i (2014-15) chapter 19 (4 June 2014); (b) None.

85   Council Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons. Back

86   The application of the Charter of Fundamental Rights in the UK: a state of confusion: Forty-third Report of Session 2013-14, HC 979. Back

87   Directive 2014/40. See C-547/14, Philip Morris Brands and Others, refers also to Articles 11 and 35 of the Charter. Also C-477/14, Pillbox 38, for both cases see also Articles 17 and 35. Back

88   C-333/14 - The Scotch Whisky Association and others against The Lord Advocate, The Advocate General for Scotland, although the reference concerns free movement of goods law and does not itself does not directly address Article 35 of the Charter. That Article requires a "high level of human health protection" to be ensured in "the definition and implementation" of all the Union's policies and activities. Back

89   The Commission refers to the FRA 2014 annual report "to be published on 22 May 2015". By the date of the publication of our Report, the FRA report was still not available. Back

90   For example, the Fundamental Rights Clarity project and the 'CharterClick' project accessible at Back

91   C293/12 and C594/12. Judgment of 08.04.14. The Data Retention Directive was declared invalid because it disproportionately restricted the rights to privacy and to the protection of personal data (Articles 7 and 8 respectively of the Charter). Back

92   C131-12. Judgment of 13.04.14. Google, as a data controller established in the EU was obliged to respect Articles 7 and 8 of the Charter and comply with requests to remove links to certain personal data in certain circumstances. This has been coined "the right to be forgotten". Back

93   Opinion delivered on 18.12.14. The CJEU found the provisional accession agreements to be incompatible with the Treaties for reasons relating to the co-respondent mechanism, the prior involvement mechanism, the JHA mutual trust principle, and the CJEU's own role in relation to the interpretation of the Treaties and judicial review of CFSP measures. Back

94   Joined cases C-148 to C-150/13. Back

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