Select Committee on European Union Sixth Report



19.  It is becoming the practice for one InterGovernmental Conference (IGC) to leave a mandate for the next. As the Amsterdam IGC (1997) provided a mandate for the Nice IGC (2000), so Nice has provided a mandate for the next IGC, planned for 2004. As a minimum the next IGC has to deal with four things:

  (a) clarification of the field of competence shared between the EU and the Member States;

  (b) the status of the EU Charter of Fundamental Rights;

  (c) simplification of the Treaties;

  (d) the role of national parliaments in the institutional structure of the Union.

The conference at Nice also called for a deeper and wider debate about the future development of the Union, a debate in which the peoples of Europe and the candidate countries would participate. To meet some of the criticisms of the Amsterdam and Nice IGCs it was agreed that the consultative procedure should be wide and involve members of civil society. Successive Presidencies have taken this exercise forward. Drawing inspiration from the methodology employed in drafting the Charter of Fundamental Rights, the Council of Ministers agreed in October 2001 that a Convention should be convened with the main aim of elaborating options open to the IGC.

20.  At the Laeken European Council (December 2001) Heads of State and Government agreed the terms of a Declaration on the future of the Union. Under the Heading Towards a Constitution for European citizens the following paragraph appears:

  "Thought would also have to be given to whether the Charter of Fundamental Rights should be included in the basic treaty and to whether the European Community should accede to the European Convention on Human Rights".[4]

Those questions have been taken up by the Convention.


21.  Comprising 105 members in total, the Convention on the Future of Europe (the Convention) includes representatives from the Member States' and candidate countries' governments, national parliamentarians, 16 European parliamentarians, and representatives of the Commission. The European Ombudsman and representatives of the Economic and Social Committee, the Committee of the Regions and the European Social Partners attend as observers. Each member has an alternate. The Convention is chaired by former French President, Valery Giscard d'Estaing.[5] It is supported by a 12 member Praesidium (steering group)[6] and a Secretariat.[7] The Convention began its work in February 2002 and was due to report in the Spring of 2003. The timetable seems likely to be extended a few months and the Convention is not now expected to finish its work until June 2003.


22.  In June 2002 Working Groups[8] were set up by the Convention to deal with a variety of subjects including subsidiarity, the role of national parliaments, the legal personality of the Union and the Charter of Fundamental Rights. The Charter Working Group was chaired by Commissioner Vitorino. It was mandated to answer the following questions:

  If it is decided to incorporate the Charter of Fundamental Rights in the Treaty; how should this be done and what would be the consequences? What would be the implications of accession by the Community/Union to the European Convention on Human Rights?[9]

The Group held seven meetings, and received both written and oral evidence. Its conclusions are contained in its Final Report of 22 October 2002.[10] We deal with those conclusions later in this Report.


23.  The pattern of our inquiry has been greatly influenced by the debate in the Convention and the timetable and conclusions of the Working Group. Our own call for evidence reflected the two principal strands of the Convention's debate on the Charter. We invited views on two main questions: Should the Charter be incorporated into the Treaties? and What should be the Charter's relationship with the ECHR?


24.  All Member States of the Community are Contracting Parties to the ECHR as well as to other international instruments under which fundamental rights are protected.[11] When questions of fundamental rights have arisen, incidentally, in matters involving the Community, the European Court of Justice (ECJ or the "Luxembourg Court") has since 1969[12] applied such rights as an integral part of the "general principles of Community law". Respect for human rights has thus been generally secured without the actual incorporation of the Charter or accession to the ECHR. Successive Treaty amendments have captured the essence of the ECJ jurisprudence without attempting to codify or catalogue the nature and extent of fundamental rights.

25.  It is significant that the Amsterdam Treaty entrenched the concept of fundamental rights as one of the basic building blocks of the Union. Article 6(1) of the Treaty on European Union (TEU) declares that the Union "is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States". Article 6(2) requires the Union to respect fundamental rights, as guaranteed by the ECHR and as the result of the constitutional traditions common to the Member States, "as general principles of Community law". Article 7 provides for the suspension of rights derived from the Treaty, including voting rights, if a Member State were in "serious and persistent breach" of the principles in Article 6(1). The Amsterdam Treaty also brought Union activity within the jurisdiction of the ECJ[13] as regards that need to respect human rights. But there remain significant limitations on the Court's jurisdiction with regard to police and judicial co-operation in criminal matters[14] and the Court has no jurisdiction in relation to the Common Foreign and Security Policy.[15]


26.  The European Council meeting in Cologne that decided in June 1999 that a European Union Charter of Fundamental Rights should be established did so in order to make the "overriding importance and relevance [of these fundamental rights] more visible to the Union's citizens". The Charter was the product of a Convention, made up of representatives of Member States, the European Parliament, national Parliaments and the Commission. It started work in December 1999 and adopted a draft text on 2 October 2000. The text was unanimously approved at the Biarritz European Council (13 to 14 October 2000). The Presidents of the European Parliament, the Council and the Commission signed and "solemnly proclaimed" the Charter on behalf of their respective institutions on 7 December 2002 in Nice.

27.  The Charter's first fifty Articles encompass a wide range of civil, political, economic and social rights. Most are applicable to all persons in the EU but some are limited to EU citizens. The Charter substantially reproduces the rights contained in the ECHR and, in accordance with the political mandate given at the 1999 Cologne European Council, goes beyond these by including certain economic and social rights. These are drawn from the Council of Europe's Social Charter, the Community Charter of Fundamental Social Rights of Workers and other international conventions to which the European Union or its Member States are parties. Other Charter rights are derived from the common constitutional traditions of Member States and some are of an aspirational character (QQ 220, 224).

28.  These rights are set out in six sections:





      —Citizens' rights


29.  A final section (General Provisions) deals with the scope of the Charter and its provisions and with their relationship to the Community Treaties and other instruments, including the ECHR. These are the so-called "horizontal clauses". As will be seen, they have an important role to play as regards the future status and role of the Charter.


30.  Baroness Scotland of Asthal,[16] told the Committee: "the Charter is a political document. Unless and until the IGC changes that position in 2004 it will remain a political document"[17] (Q 218). But the Charter, though formally only "declared" and not a legally binding instrument, is not without political, constitutional and legal force. Its contents have had an immediate impact on Community legislation and on the Community Courts. Liberty said: "despite its non-binding character, the Charter … already has had a significant impact on the protection of human rights within the EU and beyond" (p 83).

31.  As regards Community legislation, the Commission decided in March 2001[18] that every proposed legislative or regulatory measure of the European Union should, before its adoption, be checked for compatibility with the Charter provisions. Compliance with the Charter would, said the Commission, be the "touchstone". And it is now common to see explicit reference to the Charter in the recitals to legislative instruments.[19]

32.  The Community Courts have also made reference to the Charter. At least seven Advocates General at the Court of Justice have referred to the Charter in order to identify fundamental rights to be respected within the Community.[20] For example, in his opinion in the Hautala case Advocate General Léger described the Charter as "a source of guidance as to the true nature of the Community rules of positive law".[21] On at least three occasions the Court of First Instance has expressly taken account of rights set out in the Charter.[22] The Court of Justice itself has yet to refer expressly to the Charter, though there is evidence to suggest that it is influenced by the statement of rights in the Charter. Professor Arnull summarised the position: "the Charter constitutes an authoritative source of guidance as to the scope of the general principle of protection for fundamental rights which the Community courts uphold. The consequence of that is that it may affect both the interpretation of Community acts and indeed the Treaty itself and also perhaps even the validity of Community acts" (Q 2).

33.  There have been a number of cases in which English judges have cited or relied on provisions contained in the Charter. In R v City of Wakefield Metropolitan Council and the Home Secretary, Ex parte Robertson[23] a successful challenge was made to the legality of the practice of selling copies of the electoral register to commercial interests without seeking the consent of electors whose names appeared on the register. Mr Justice Maurice Kay decided the case on the basis of Article 8 of the ECHR, but cited Charter Article 8 which confers the right to protection of personal data. The Judge added that he did not treat the Charter provision as "a source of law in the strict sense". In a later case, R v Secretary of State for the Home Department, ex parte Howard League for Penal Reform,[24] Mr Justice Munby repeated this formula but appears to have derived real assistance from a provision contained in the Charter. Mr Justice Munby cited Article 3 of the ECHR, two Articles from the United Nations Convention on the Rights of the Child and Articles 24.1 and 24.2 of the Charter. He said:

"The European Convention is, of course, now part of our domestic law by reason of the Human Rights Act 1998. Neither the UN Convention nor the European Charter is at present legally binding in our domestic law and they are therefore not sources of law in the strict sense. But both can, in my judgment, properly be consulted insofar as they proclaim, reaffirm or elucidate the content of those human rights that are generally recognised throughout the European family of nations, in particular the nature and scope of those fundamental rights that are guaranteed by the European Convention."

34.  "So although, as Advocate General Jacobs said, there may be some uncertainty about the Charter's precise status (Q 150) it is clear that the Charter is being used as an authoritative source in identifying fundamental rights at the EU level and in domestic law. Very much as we predicted in our earlier Report[25] an instrument prepared by such a body as the Charter Convention and endorsed at the highest political level in the Union cannot be overlooked. Weight will inevitably be attached to it. The Charter has also been referred to by the European Court of Human Rights (the Strasbourg Court).[26] Judge Fischbach referred to it as "a source of inspiration in the interpretation of the Convention" (Q 195). The Charter is therefore not without present legal significance. Experience to date before the Community Courts shows that the Charter may help to identify those fundamental rights which form part of the general principles of law governing Union activity. But although the Charter may help to clarify the obligations of the institutions of the EU, it does not directly confer enforceable benefits on individuals. Whether "integrating" the Charter into the Treaties and thus giving it greater legal force would bring such benefits, or whether accession to the ECHR might in practice be more effective in doing so is a question that has been at the forefront in our inquiry. Whichever or whatever, rights which are not accompanied by practical and effective remedies for breach are emptied of substance. In Part 5 of this Report we return to this important issue.


35.  Discussion of the future of the Charter is now firmly linked to the proposals for a constitution for the EU and the simplification of the Treaties. The Government has changed its position on the idea of a Constitution for the European Union, and appears to have dropped its original opposition.[27] It remains to be seen what form of constitution will be put before the IGC in 2004.

36.  There is some time to go before the IGC but already various draft Treaties have been put forward, including a personal contribution from Mr Andrew Duff MEP.[28] Giscard D'Estaing, in his role as Chairman of the Convention, has himself tabled a Preliminary draft Constitutional Treaty.[29] It is very much a skeleton text and contains an Article (6) entitled Charter of Fundamental Rights but does no more than set out a number of approaches that might be considered.[30] The Commission has recently published its own version.[31]

37.  The UK Government has presented a Draft Constitutional Treaty prepared by Professor Alan Dashwood, University of Cambridge.[32] But this document does not necessarily set out the UK's position and the Government has formally distanced itself from it. Mr Peter Hain MP told the European Scrutiny Committee in the House of Commons that the Dashwood Treaty had been proffered to counter the more super-state model produced by the European University Institute at Florence.[33] What, however, is noteworthy in the present context is the minimalist approach the Dashwood text takes in relation to the Charter. Article 2(2) of the Dashwood Treaty provides: "The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, as identified in the Charter of Fundamental Rights of the European Union, and as they result from the constitutional traditions common to the Member States, as general principles of Union law".


38.  In addition to the substantive questions about the future status of the Charter and the Union's accession to the ECHR, the Convention Working Group was invited to consider how the Charter might be integrated into the Treaties. They were presented with six options:[34]

  "(a) The Charter could be 'attached' to the Treaties in the form of a 'Solemn Declaration'.

  (b) The EU Treaty or a new basic Treaty could refer to the Charter according to the model of Article 6(2) of the existing EU Treaty. It would therefore be merely an indirect reference to the Charter as a source of inspiration for the case-law definition of fundamental rights.

  (c) The EU Treaty or a new basic Treaty could make direct reference to the Charter.

  (d) A direct or indirect reference to the Charter could be made in the preamble to a new basic Treaty.

  (e) The Charter could become a new Protocol annexed to the Treaties or a new basic Treaty.

  (f) The full body of the 54 articles of the Charter could be inserted into the title or chapter of the EU Treaty, or into a new basic Treaty, of which it would, for example, form the first title or chapter."

39.  As Professor Giorgio Gaja, Department of Public Law at the University of Florence, pointed out, the legal and practical effects would vary depending on the way the Charter was integrated into the Treaties (p 68). In the Bar European Group's (BEG) view, incorporation needed to be in a manner that would satisfy three objectives. First, the Charter must apply to all European Union activity, rather than solely to activity under the EC Treaty. Second, the Charter must be capable of enforcement by the Community Courts. Finally, the ECJ must have jurisdiction to interpret the Charter, where relevant, on a reference for a preliminary ruling from a national court (p 57).

40.  It was generally perceived that options (a), (b), (c) and (d) would add nothing to the Charter's existing status. Professor Toth, Professor of European Law at the University of Strathclyde, believed there was "no substitute for proper incorporation. The Charter must not only become, but must also be seen to have become, an integral part of the Union's constitutional structure. This can only be achieved if the basic rights and freedoms of the citizen are enshrined in a constitutional text" (p 109). The view of most witnesses was that the Charter should go into the EU Treaty or a new basic Treaty or into a Protocol to the EU Treaty or new basic Treaty.

41.  The Convention Working Group submitted two options as to the manner in which the Charter could be made binding and given constitutional status: first, insertion of the Articles of the Charter in the Constitutional Treaty; or, second, insertion of an appropriate reference to the Charter in an article of such Treaty, combined with annexure or attachment of the Charter, either as a specific part of the Treaty or as a Protocol. Commissioner Vitorino has said that the large majority of the Working Group favoured the first option.[35]

42.  In this Report we make no recommendation as to the form of any incorporation of the Charter into the Treaties or any new constitutional Treaty. As Advocate General Jacobs said, the form of incorporation will depend very much on the form and the structure of the new Treaty and on the legal effect decided to be given to the Charter (Q 161). The only point that we would add is that the form of incorporation may well have implications for future amendments to the Charter. As Professor Arnull observed, amendments are going to be very difficult if the Charter is incorporated in treaty form, whether in the main text or in a protocol. He noted that there was currently discussion about a treaty amendment procedure that would vary according to the section of the Treaty to which the proposed amendment related; but he observed that it would be difficult to justify a simpler procedure (ie one not requiring unanimity and subsequent ratification in accordance with national constitutional requirements) for amendment of the Bill of Rights section of the Treaty than amendment of other sections (Q 37).

4   Laeken Declaration on the Future of the European Union, SN 300/1/01 REV 1, p 24. Back

5   There are also two vice-Chairmen, Jean-Luc Dehaene, the former Belgian premier, and Guiliano Amato, the former Italian Prime Minister. Back

6   The Praesidium is composed of the Chairman, the two vice-Chairmen, two representatives each from the Commission, the European Parliament and national parliaments and representatives from the EU Presidency troika. A representative of the candidate countries attends as invitee. Back

7   The Secretariat is headed by Sir John Kerr, a former UK ambassador to the EU and head of the Foreign Office. Back

8   Some eleven Working Groups have been established: Working Group I: Subsidiarity; II: Charter/ECHR; III: Legal personality; IV: National parliaments; V: Complementary Competences; VI: Economic Governance; VII: External Action; VIII: Defence; IX: Simplification; X: Freedom, Security and Justice; XI: Social Europe. Back

9   Mandate of the Working Group on the Charter. 31 May 2002. Doc. CONV 72/02. Back

10   Final Report of Working Group II. Doc. CONV 354/02. Back

11   These include the following European (a) and International (b) instruments:

(a) European Social Charter (1961); European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987); European Convention on the Exercise of Children's Rights (1996); Convention for the Protection of Human Rights and dignity of the human being with regard to the application of biology and medicine: Convention on Human Rights and Biomedicine (1997).

(b) Slavery Convention (1926); International Labour Organisation Convention No 29 on Forced or Compulsory Labour (1930; International Labour Organisation Convention No 87 Concerning Freedom of Association and Protection of the Right to Organise (1948); Universal Declaration of Human Rights (1948); Geneva Convention Relative to the Protection of Civilian Persons in time of War (1949); Geneva Convention Relative to the Treatment of Prisoners of War (1949); United Nations Convention Relating to the Status of Refugees (1951); Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery (1956); International Labour Organisation Convention on Discrimination (Employment and Occupation) (1958); Covenant Against Discrimination in Education (Unesco 1960); International Covenant on Economic, Social and Cultural Rights (CESCR) (1966); International Covenant on Civil and Political Rights (CCPR) (1966); International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1966); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979); United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1984); United Nations Declaration Against Torture (1984); United Nations Convention on the Rights of the Child (CRC) (1989). Back

12   Case 29/69, Stauder v City of Ulm. [1969] ECR 419. Back

13   Article 46(d) TEU. Back

14   Title VI TEU. Back

15   Title V TEU. Back

16   Parliamentary Secretary, Lord Chancellor's Department. Back

17   The Minister used similar words to describe the Charter during the debate of the Convention on the Future of Europe. HL Deb. 7 January 2003, col. 900. Back

18   Communication SEC (2001) 380/3. Back

19   eg the Council's Decision of 28 February, 2002 setting up Eurojust. Back

20   Case C-491/01 R v Secretary of State for Health ex parte: British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd (10 September 2002); Case C-112/00 Eugen Schmidberger Internationale Transporte Planzüge v Austria (11 July 2002); Case C-466/00 Kaba v Secretary of State for the Home Department (11 July 2002); Case C-126/01 Ministre de l'économie, des finances et de l'industrie v GEMO SA (30 April 2002); Case C-340/99 TNT v Poste Italiane [2001] ECR I-4109; Case C-313/99 Mulligan v Attorney General (12 July 2001); Case C-413/99 Baumbast v Secretary of State for the Home Department (5 July 2001); Case C-377/98 Netherlands v Parliament and Council (14 June 2001); Case C-270/99P Z v Parliament (22 March 2001); Case C-50/00P Unión de Pequeños Agricoltores v Council (21 March 2001); Case C-353/99P Council v Hautala (10 July 2001), Case C-309/99 Wouters v Nederlandse Orde van Advocaten (10 July 2001); Joint Cases C-122 and 125/99 D v Council [2001] ECR I-4319; Joint Cases C-20/00 and 64/00 Booker Aquaculture v The Scottish Ministers (20 September 2001); C-459/99 MRAX v Belgium (13 September 2001); Case C-173/99 R v Secretary of State for Trade and Industry ex parte BECTU [2001] ECR I-4881. Back

21   Case C-353/99P Council v Hautala (10 July 2001). Back

22   Case T-54/99 Max-Mobil, judgment of 30 January 2002; Case T-198/01R Technische Glaswerke, order of 4 April 2002, and Case T-177/01 Jégo-Quéré, judgment of 3 May 2002. Statewatch, however, noted that the Court treats the Charter as an ancillary source of the general principles of Community law, not a primary source. The Charter is used only to confirm or reaffirm the existence of, and not as a source of, a general principle (para 4). Back

23   [2001] EWHC (Admin) 915. Back

24   [2002] EWHC (Admin) 2497. Back

25   EU Charter of Fundamental Rights, 8th Report, 1999-2000, HL Paper 67, at para 125. Back

26   Goodwin v United Kingdom (2002) 35 EHRR No 18, at p. 447. Back

27   Jack Straw, A constitution for Europe. The Economist, 12 October 2002. Back

28   Doc. CONV 234/02. Back

29   Doc. CONV 369/02. Back

30   Article 6 states: "The wording of this article will depend on the proceedings of the Working Group on the Charter. It could be modelled on Article 6 of the Treaty on European Union. It could - either refer to the Charter; - or state the principle that the Charter is an integral part of the Constitution, with the articles of the Charter being set out in another part of the Treaty or an annexed protocol; - or incorporate all the articles of the Charter". Back

31   Contribution to a preliminary draft Constitution of the European Union ("Penelope") Brussels 5 December 2002. Back

32   Doc. CONV 345/02. Back

33   House of Commons European Scrutiny Committee. Minutes of Evidence. Wednesday, 20 November 2002, at Q 39. Back

34   Doc. CONV 116/02: Modalities and consequences of incorporation into the Treaties of the Charter of Fundamental Rights and accession of the Community/Union to the ECHR, at p. 7. Back

35   The European Convention. Summary report of the plenary session. Brussels, 28 and 29 October 2002. Doc. CONV 378/02. Back

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