Select Committee on European Union Sixteenth Report


The Charter

8.  The focal point of the new Communication is the need to ensure the compatibility of EU legislative proposals with fundamental rights, and in particular the EU Charter of Fundamental Rights.

9.  The Charter[9] brings together into a single text the personal, civic, political, economic and social rights enjoyed by the citizens and residents of the European Union. The provisions of the Charter are addressed to the institutions and bodies of the Union and to the Member States when they are implementing Union law.


The Charter's 54 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 does not contain "new" rights but substantially reproduces the rights contained in the ECHR and, in accordance with the political mandate given at the 1999 Cologne European Council,[10] goes further and includes 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.
All these rights are set out in six sections:
               —Citizens' rights;
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". They play a key role in determining the status and effects of the Charter (and were the subject of considerable debate and then amendment during the negotiations leading to the conclusion of the Constitutional Treaty).

The precise status of the Charter may be debated, but two things are clear. The Charter is a document of major political significance. The European Parliament, the Council and the Commission cannot, whether acting in a legislative, administrative or policy-making role, ignore the Charter: it is a document they have unanimously approved and solemnly proclaimed.[11] Second, the Charter is not legally binding, though a number of its provisions may independently have legal force as general principles of EC law. The Community Courts will, in practice, have regard to the Charter when determining those fundamental rights that form an integral part of the general principles of law.[12] The Charter is thus being used as an authoritative source in identifying and defining fundamental rights at the EU level.

Applying the Charter—the 2001 Decision

10.  In a Decision of 13 March 2001,[13] the then Commission President, Romano Prodi, and Justice and Home Affairs Commissioner, António Vitorino, declared that compliance with the Charter's provisions should be "the touchstone" for future Commission action. The 2001 Decision stressed the "fundamental nature" of the Charter, and required all proposals for legislation "as part of the normal decision-making process, first [to] be scrutinised for compatibility with the Charter".

The legislative drafting process

11.  The Commission generally has the right to initiate proposals for EU legislation. A draft for a piece of legislation, such as a regulation, directive or framework decision, is normally prepared by the lead service in the Commission following internal consultation of all other services concerned and external consultation of national authorities, interested parties and stakeholders. We are grateful to the Commission for providing a Memorandum which describes in detail the Commission's current practice in preparing legislation.[14]

We note:

    (i) preparation of legislative proposals is characterised by a substantial measure of co-ordination between departments within the Commission, including the Justice, Freedom and Security Directorate-General;

    (ii) the Commission's Legal Service plays an important role in seeking to ensure the legality of proposed legislation;

    (iii) there is no external check to ensure compliance with fundamental rights, though the Legal Service is "independent" of the lead department.

Chronology of events

7 December 2000—the Charter is "solemnly proclaimed" at Nice.
13 March 2001—Commission adopts Decision on the Application of the Charter of Fundamental Rights.
5 June 2002—Commission issues Communication on Impact Assessment.
29 October 2004—the Constitutional Treaty, incorporating in the Charter, is signed.
21 December 2004—Commission issues Communication about the functioning and internal coordination of the Commission—this establishes five groups of Commissioners.
27 April 2005—Commission issues Communication, Compliance with the Charter of Fundamental Rights in Commission Legislative Proposals: methodology for systematic and rigorous monitoring.
15 June 2005—Commission adopts revised Impact Assessment Guidelines.

Experience to date

12.  The new Communication replaces the 2001 Decision. We enquired as to what effect the 2001 Decision had had in practice.

13.  The Commission believed that the 2001 Decision had produced some tangible results on individual legislative proposals, particularly in respect of certain proposals in the area of justice and home affairs. Dr Ladenburger, for the Commission, gave the example of the European Arrest Warrant which, he said, had been the subject of intense discussion within the Commission's services during its preparation so as to ensure respect for fundamental rights (Q 5). However, one problem with the 2001 Decision was the fact that it was a "purely internal decision of the Commission". Dr Ladenburger acknowledged that its existence had not been widely known, even within the Commission (Q 5).

14.  The Government were not aware of any particular problems in the working of the 2001 Decision (Q 110). But ILPA drew attention to the Directive on Family Reunification[15] (Q 70). This measure was adopted well after the critical date of 13 March 2001, the date by which Commission legislative proposals had to be accompanied by a fundamental rights check.[16] However, the Reunification Directive contains three provisions about which the European Parliament has been so concerned in respect of fundamental rights compliance that it has commenced proceedings for annulment before the European Court of Justice.[17]

No radical change

15.  The new Communication does not propose any radical change in the way Commission legislative proposals are to be checked to ensure they respect fundamental rights. The Communication states that the approach taken in the 2001 Decision "will be retained in principle". Ensuring compliance with fundamental rights remains an integral part of ensuring the legality of the proposal. "It seems neither necessary nor appropriate to create new specific administrative structures or procedures for this aspect of verification of legality".[18] We return later to the question of verification and, in particular, whether there should be an independent check.

16.  The Law Society of England and Wales[19] (the Law Society) confirmed that the methodology set out in the Communication would have few procedural implications for preparation of legislation by the Commission. They noted that current practice is for the Legal Service to check compliance with the fundamental rights guaranteed in the Charter as part of the Commission's interdepartmental consultations (p 49).

Raising awareness

17.  The Communication seems primarily concerned with raising awareness amongst all parties, including the departments and services of Commission and civil society, of the need to take proper account of fundamental rights in formulating policy and for legislative proposals to comply with the Charter (Q 20). The Government believed that it was important that the Commission should examine its legislative proposals to ensure compliance with fundamental rights. Secondly, the Communication evidenced a desire to involve more bodies in talking to the Commission. Baroness Ashton of Upholland considered both these elements to be "eminently sensible proposals" (Q 109).

18.  Much of the Communication is not new but builds on existing provisions and practice. It is nonetheless a vast improvement on its predecessor simply by reason of the fact that it is in the public domain. As mentioned above, the 2001 Decision was essentially an internal memorandum distributed to Commission departments in March 2001. It is clear that if awareness and standards are to be raised, the Communication will have practical implications for the education and training of Commission staff and for the relationship of the Commission with civil society. We consider some of the practical aspects, including resources, in the following chapters.

A cautious welcome

19.  NGOs gave the Communication a cautious welcome. JUSTICE believed that "this initiative will demonstrate the Commission's effort to secure compliance with fundamental rights, which will reinforce the credibility of its initiatives and will also publicly promote the image of the Charter as an essential vehicle based on common values" (p 26). ILPA added: "this strategy must be combined with a real commitment to act in accordance with the highest levels of rights protection by the Commission and the Member States in the Council. Too often in the field of Freedom, Security and Justice, Member State governments, and to some lesser extent the Commission, have ignored concerns raised by the European Parliament and civil society during the legislative process. If this attitude persists we doubt whether this strategy alone can achieve much" (p 25).

20.  Both JUSTICE and ILPA believed that it was more important to ensure respect for fundamental rights in the outcome. ILPA said: "One conclusion might be that as statements of the EU's respect for fundamental rights have multiplied at the EU institutional level, scepticism at the reality of that respect has mushroomed at the national and ECHR level" (p 22). Professor Guild, for ILPA, commented: "the more noise there is about human rights and fundamental rights protection does not mean that there is better protection" (Q 62).

21.  Baroness Ashton of Upholland, for the Government, also welcomed the Commission's Communication. She said: "We will all have to see whether there are implications for the way in which we operate, but on the basis of what they propose so far my view is it is to be welcomed and they are to be congratulated on doing it" (Q 150).

22.  We share the hope that the Communication will result in a raising and maintenance of standards of compliance. While undoubtedly actions speak louder than words in this context, it would be somewhat unfair to be overly critical of the Commission and the new Communication, which is trying to lay down and instil a number of procedures aimed at ensuring that fundamental rights are not just a lot of "noise" but actually mean something and are a reality in EU legislation.

A fundamental rights culture

23.  Introducing the new Communication, Mr Barroso said: "it reflects our determination to lock-in a culture of fundamental rights in the EU legislation".[20]

24.  The Law Society considered the Communication to be "a welcome expression of the Commission's commitment to embedding a culture of fundamental rights in its working methods". In the Law Society's view, "International human rights standards should underpin all drafting and implementation of EU legislative and non-legislative measures" (p 49). JUSTICE also believed the establishment of a methodology for the systematic and rigorous monitoring of legislative proposals to ensure compliance with the Charter would promote a strong "fundamental rights culture" within the EU (p 25).

25.  Not all agreed. Fair Trials Abroad said: "The severe limitation of this housekeeping arrangement is its lack of emphasis on the 'practical and real' as opposed to the 'theoretical and illusory'. There is nowhere in this document a commitment to conduct any form of fundamental research or investigation when the so called 'systematic and vigorous monitoring' might require it" (pp 48-49). ILPA said: "our primary concern is that fundamental rights are actually secured better in the EU, not that the institutions spend more time reassuring us that they are protected better" (p 22).

26.  We welcome the Communication. It is a useful, though limited, Commission initiative to improve the quality of internal monitoring. The Communication does not, and could not, even if it were intended to do so, address the wider issues raised by our witnesses. It is nonetheless a significant step by the Barroso Commission which, as we explain below, exposes the Commission's legal reasoning in relation to particular proposals and also challenges the other institutions and the Member States to justify their actions.

The other institutions

27.  JUSTICE wanted to see the Communication's scrutiny process extended beyond the Commission to the other legislative processes within the EU institutions, the Council and the Parliament (Q 64). Professor Guild (ILPA) spoke of the need for "a bit more participation from the European Parliament to give it some teeth on the legitimacy front" (Q 72).

28.  The Communication is directed at the Commission and its departments but has implications for the other institutions, particularly for the Council and the Parliament. Some of these are expressly identified in part VI (Monitoring respect for fundamental rights in the work of the legislature). Others would seem to arise as a consequence of the discipline that the Communication imposes on the Commission when, for example, the Council and/or Parliament amend a Commission proposal or where Member States themselves initiate legislation. We return to these issues in the following Chapters.

9   The Charter was drawn up by an ad hoc body, formally designated a Convention. The Convention was made up of representatives of Members States, the European Parliament, national parliaments and the Commission. It started its work in December 1999 and adopted a draft text on 2 October 2000. The text was unanimously approved at the Biarritz European Council (13-14 October 2000) and forwarded to the European Parliament and the Commission for their approval.  Back

10   In June 1999, the European Council meeting in Cologne decided that a European Union Charter of Fundamental Rights should be established to consolidate fundamental rights applicable at Union level and to make "their overriding importance and relevance more visible to the Union's citizens". Back

11   The Presidents of the European Parliament, the Council and the Commission signed and "solemnly proclaimed" the Charter on behalf of their institutions on 7 December 2000 in Nice. Back

12   Reference has also been made to the Charter by the Community Courts. Advocates General at the Court of Justice have referred to the Charter in order to identify the fundamental rights that have to be respected within the Community. In his opinion (para 83) 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": Case C-353/99P Council v Hautala [2001] ECR I-9565, at p. 9586. The Court of First Instance has also referred to the Charter on a number of occasions: eg Case 177/01 Jégo-Quéré et Cie v Commission [2002] ECR II-2365, at para 42. A summary and analysis of references to the Charter can be found in Judicial Reference to the EU Fundamental Rights Charter: First experiences and possible prospects, a paper submitted to the Convention of the Future of Europe by John Morijn. Published on the Convention website: Back

13   Application of the Charter of Fundamental Rights of the European Union. SEC(2001) 380/3. Back

14   See p 1. Back

15   Council Directive 2003/86/EC of 22 September 2003 on the right to family reunificiation. [2003] OJ L251/12. The Directive does not apply in relation to the United Kingdom, which did not exercise its right to "opt in".  Back

16   The last Commission proposal for a directive was published on 2 May 2002 (COM (2002) 225 final). Back

17   C-540/03 Parliament v Council, case pending. Back

18   Communication, at para 8. Back

19   The Brussels Office represents the Law Society of England and Wales, the Law Society of Scotland and the Law Society of Northern Ireland. Back

20   Commission Press Release IP/05/494. Back

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