(C) NOT IN A FIT STATE TO BE INCORPORATED
63. We asked for views on whether, in view of
its form and content, the Charter really was suitable to become
legally enforceable. Mr Timothy Kirkhope MEP doubted whether the
Charter was in a fit state to be incorporated into the Treaties
or any Constitution (Q 80). Fair Trials Abroad believed that the
Charter "would not bring any added benefits to the citizen
in its current state. To leave the application of the Charter,
with its inadequate protection, to be determined over time by
the Court of Justice would be less than desirable" (p 68).
Professor Toth identified the following as giving rise to problems:
"the extremely wide range and varied nature of the rights
and freedoms in question; the nature of the corresponding obligations
that the Charter imposes on the institutions and the Member States;
the wording and lack of enforceability (justiciability) of some
of its Articles; possible incompatibility with existing Treaty
provisions" (p 110).
64. But while some witnesses saw difficulty and
disadvantage in the variety of subject matter, form and character
of provisions of the Charter, others disagreed and considered
these features to be fully justifiable. Mr Duff said that the
Charter "is far broader and wider than any single alternative
formulation of rights. It flows from the sources which are stipulated
quite clearly in the preamble and the general clauses - from a
number of sources, including the corpus of law developed over
now 50 years of the European Union which enjoys extensive scope
It is the breadth of the Charter which brings some of the
richness of the Charter" (Q 121).
65. Witnesses accepted that the Charter was not
perfect and could be improved. But there was considerable doubt
whether its renegotiation would result in anything substantially
better. Others strongly resisted the very idea of change. To open
up the Charter for amendment, Mr Duff said, "would be a mistake.
It would first of all suggest that the first drafting was in some
Or it was incomplete in its work. Secondly,
we feel that we require far more experience of the Charter with
mandatory force in practice before we should consider any supplemental
amendment" (QQ 106-7).
66. The Convention Working Group concluded that
the content of the Charter represented a consensus reached by
the previous Convention that should be respected and, excepting
the so-called horizontal clauses, should not be re-opened. In
Statewatch's view, this conclusion was "unfortunate".
There were several provisions that could be improved. "In
particular, the access to documents clause could be amended to
apply to 'access to information' and to apply to documents held
by all EU institutions or bodies. Provisions based on the Fourth
ECHR Protocol and the International Covenant on Civil and Political
Rights (ICCPR) could be added regarding procedural rights for
migrants in expulsion cases. The rule relating to non-discrimination
on grounds of nationality could be broadened to take greater account
of human rights treaties. As for criminal law, it would be useful
to have provisions based on the ICCPR (and ECHR Fourth Protocol)
rules on compensation for wrongful conviction and the right to
a criminal appeal" (p 103).
(D) LACK OF HOMOGENEITYRIGHTS,
67. The Charter contains a mix of provisions,
not only as regards subject matter but also as regards the nature
of the obligations prescribed. A number of witnesses were particularly
critical of the more "aspirational" obligations. On
the other hand, Mr Duff said: "Certainly the Charter includes
a statement of values and principles as well as classical formulation
of fundamental rights. In that it is exactly the same as all the
other Bills of Rights that you find in any other constitution
that I can find. It is not exceptional" (Q 106).
68. While some provisions of the Charter clearly
set out rights (for example, Article 8, the right to the protection
of personal data) others have a less normative character and cannot
necessarily be given effect by the courts. Professor Toth asked:
"How can, for example, the Community or Member State Courts
enforce the right to work (Article 15(1)) or the right of the
elderly to lead a life of dignity and independence (Article 25)?"
Other provisions were still less justiciable for the simple reason
that they merely declare ideals and principles without conferring
any right or freedom at all
69. Some Articles might be classed as "principles",
to be taken into account by the courts when interpreting the scope
of rights in a particular area.
Others were seen as mere "aspirations". Article 37 of
the Charter provides that a high level of environmental protection
must be "integrated into the policies of the Union".
Article 38 states that "Union policies shall ensure a high
level of consumer protection". In JUSTICE's view these two
Articles appeared to set out "programmatic objectives"
rather than judicially enforceable rights. Article 12(2) states
that "political parties at Union level contribute to expressing
the political will of the citizens of the Union". This appears
to be a statement of fact rather than a right. Nevertheless, JUSTICE
considered that although such provisions were not likely to provide
firm guarantees of protection, they could be used as guiding principles
of interpretation by the ECJ (p 78).
- Baroness Scotland emphasised the fact that the
provisions of the Charter were derived from different roots: the
constitutional bases of Member States, common constitutional traditions,
the ECHR and a number of other treaties (Q 222). The challenge
was to separate out "fundamental principles which are justiciable
in whole from principles which may be justiciable in part and
from principles which are purely aspirational in nature".
In the Government's view it was important that the horizontal
articles should give "clarity as to what the boundaries are
in the way in which they will be implemented" (Q 230).
36 EU Charter of Fundamental Rights, 8th Report
1999-2000, HL Paper 67, at para 119. Back
The Committee on the Affairs of the European Union 1998-2002,
at p 15, Deutscher Bundestag October 2002. Back
Article 6(2) TEU. Back
Particularly those contained in the European Social Charter and
the Community Charter of the Fundamental Social Rights of Workers. Back
Article 137(6) TEC. Back
See para 49 above. Back
Case C-260/89,  ECR I-2925, at para 42. Back
See eg Articles 12(2), 22 and 36. Back
Q 185. Back