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
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| 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.
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| Legal base | —
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| Department
Document number
| Ministry of Justice
(a) (35971), 9042/14 + ADDs 1-3, COM(14) 224
(b) (36897), 8707/15 + ADD 1, COM(15) 191
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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.
Background
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 http://www.charterclick.eu/. 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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