House of Lords - Constitution

Select Committee on Constitution Written Evidence

Memorandum by Dr Eleanor Spaventa, Durham University

PRELIMINARY REMARKS

For ease of reference, I will use the new numbering as per the Consolidated Version of the Treaties published by the FCO available on: http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf

In line with the new Treaty I will refer only to the European Union and will not distinguish between Union and Community unless necessary. The Treaty on the European Union is referred to as TEU; the Treaty on the Function of the European Union as TFEU. For reasons of space I have limited my analysis to the following issues: Fundamental Rights in the European Union, including the effect of the Charter of Fundamental Rights and Accession to the European Convention on Human Rights; Citizenship; and Police and Judicial co-operation in Criminal Matters.

PEOPLE'S RIGHTS AND RESPONSIBILITIES

How fundamental rights as general principles of Union law are enforced in the European Union

1. Fundamental rights have long been recognised to be part of the general principles of Union law and respect for fundamental rights is a precondition for the legality of acts enacted by the European Union. In order to identify which fundamental rights are recognised by Union law, the European Court of Justice (hereinafter "the Court" or "ECJ") has drawn inspiration from the common constitutional provisions of the Member States as well as from international Treaties, and in particular the European Convention on Human Rights (ECHR).[63] Union Fundamental Rights can be invoked by individuals in front of the European Court of Justice or national courts in the following cases:

(a) To challenge the legality of acts adopted by the Union;

(b) To challenge the legality of national law that implements harmonising Union law;

(c) To challenge the legality of a national rule when the situation falls "within the scope" of Community law, ie when the Member State is imposing a limitation on one of the rights conferred upon individuals by the Treaty (in particular in relation to free movement rights).

(a) and (b) are dealt with in relation to the Charter of Fundamental Rights below.

Fundamental rights and situations which fall within the scope of Community law

2. The Court has ruled that when a Member State limits one of the rights conferred upon individuals by the Treaty, then the rule which limits such a right must comply with fundamental rights as general principles of Union law.[64] In instances where the standard of fundamental rights protection in the EU differs from that of the Member State, the higher standard is always applicable and the Court usually leaves it to the national court to determine the correct balance between competing rights.[65] This doctrine does not confer upon individuals a free standing right; thus fundamental rights can be relied upon only insofar as the claimant has a right in Community law and therefore falls within its scope. This case law is unaffected by the Reform Treaty.

The impact of the Charter of Fundamental Rights on national law

3. The Charter is not included in the Treaties; Article 6 of the new TEU provides that the Charter of Fundamental Rights[66] has the same legal value as the Treaties, whilst reaffirming the fact that the Charter does not extend the competences of the Union.

4. The Charter applies only to the Union Institutions and the Member States when they implement EU law. The Charter does not apply to the Member States when they are acting within the scope of Community law (see above para 2). The Charter is therefore primarily directed at the European institutions to ensure that when they legislate or take any other action they are bound by fundamental rights. Whilst, as said above, the European Court of Justice has long held that the European Union institutions are bound by the general principles of Community law (including fundamental rights),[67] the Charter provides a more transparent and clearer catalogue of rights.

5. Furthermore, it should be stressed that according to the Charter's own Preamble, the Charter is not "innovative". In other words, the Charter does not create "new rights", it merely codifies existing rights. For this reason, and even though the Charter is not yet officially "in force", the institutions consider themselves bound by it,[68] and it is now common to find references to the Charter in the Preamble of EU legislation. As far as Member States are concerned, and as stated above, the Charter applies to them only when they are implementing EU law. For instance, when Member States implement a Directive, and such a Directive leaves some discretion to Member States, that discretion must be exercised consistently with the Charter. It should be stressed that this reflects long standing case law.[69] Here a slight confusion might arise in relation to the Charter's explanations. The explanation to Article 51 of the Charter refers to the Charter applying when the Member States act within the scope of Union law; this would suggest a broader application of the Charter than provided for in the Charter itself. However, even though according to Article 6 TEU the Charter is to be interpreted with due regard to the explanations, those explanations are merely a guide to the interpretation of the Charter. Therefore the explanations should not be used to go against the express wording of the Charter. For this reason, the Charter should apply to Member States only when they implement Union law.

6. Therefore, the Charter does not change the current situation in relation to fundamental rights protection in the European Union but for the fact that it makes citizens' rights clearer. This is especially important in relation to acts adopted at Union level, where there is no possibility of drawing a comparison with established national fundamental rights.

Relationship between the Charter and other Human Rights instruments

7. The relationship between the Charter and other fundamental rights instruments is dealt with in Articles 52 and 53 Charter.

8. Article 52 provides that when Charter rights correspond to rights recognised by the European Convention of Human Rights, the "meaning and scope" of those rights shall be the same as that provided for in the Convention, although it is open to the Union to provide more extensive protection. Article 53, on the other hand, makes clear that the protection afforded by the Charter cannot fall below the protection guaranteed by the European Convention. Thus, the Convention will continue to serve as a "minimum floor" of rights for the European Union (this was arguably the case before the Charter due to the case law of the European Court of Justice).

9. In relation to domestic fundamental rights instruments, Article 52 provides that when the Charter recognises rights recognised in the Member States' constitutional traditions, the Charter rights shall be interpreted in "harmony" with those rights; and Article 53 provides that the Charter shall not adversely affect fundamental rights as guaranteed by the Member States' constitutions. The relationship between Charter and national instruments is not altogether clear. However, it should be stressed that this is unlikely to be of great significance for two reasons.

10. Firstly, the field of application of domestic fundamental rights is different from the field of application of the Charter which, as mentioned in para 4 above, is primarily aimed at the European Institutions. The only possible conflict would arise in relation to Union acts when the Court's interpretation of a right granted by the Charter differs from the interpretation of the same right given by national courts.[70] However, it is accepted that the Union is governed by its own general principles (including fundamental rights) so that in case of such a conflict the European Court of Justice would be the final arbiter as to the fundamental rights standard that must be complied with by the Union Institutions. In any case, it should be remembered that the protection guaranteed by the Charter cannot fall below that guaranteed by the ECHR.

11. Secondly, in those cases in which discretion is conferred upon Member States in the implementation of Community law the applicable standard of fundamental rights protection would be either that provided by the Charter or that provided by national law whichever is the higher.

Protocol 7 on the application of the Charter to the United Kingdom

12. The Protocol has the same status as the Treaties and the Charter. Article 1(1) of the Protocol clarifies that the Charter does not extend the ability of the Court of Justice to review national legislation. However, it should be noted that this is the case regardless of the Protocol since nothing in the Charter extends the jurisdiction of the Court of Justice beyond what is provided for under the current Treaties as interpreted by the Court. Furthermore, it should be borne in mind that the Charter does not apply to national law, unless the Member State is implementing Union law (see above para 4).

13. On the other hand, when the Member State is acting "within the scope of Union law", ie when for instance the Member State is limiting one of the Treaty free movement rights, the Charter does not apply and if a conflict with fundamental rights should arise this would be dealt with in relation to the general principles of Community law and the fundamental rights recognised therein. This interpretation should be considered the preferred one regardless of the confusion arising out of the different wording used in the Charter's explanations (highlighted above in para 5).

14. Article 1(2) clarifies that "nothing in Title IV of the Charter [which deals with Solidarity—ie social rights] creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law". This article again represents a clarification of the status quo: in particular, and aside from the considerations mentioned above as to the scope of application of the Charter, most of the provisions of Title IV expressly refer to national law and practices. Thus, for instance, even though the Charter recognises the right to strike, the modalities for the exercise of such a right are those provided for in national law.[71] Furthermore, several of the provisions contained in Title IV are "principles" and as such do not in any event constitute justiciable rights, but are intended to guide the interpretation of Union law, and to provide possible grounds for review of such legislation.

15. Article 2 of the Protocol states that "to the extent to which a provision of the Charter refers to national law and practices" it applies to the UK "to the extent that the rights or principles are recognised in the law or practices" of the UK. Thus, Article 2 intends to guarantee that if a Member State does not recognise a right, and the Charter expressly refers to national law and practices, the Member State should not be under a Union law obligation to recognise such a right. Broadly speaking this is very likely to be the case in relation to "principles", ie those provisions of the Charter that are not to be considered as free standing rights. For instance, the right to social and housing assistance contained in Article 34 is not a free standing right, and it is regulated according to Union law rules (when there is competence) and national law and practices. In this respect, the Protocol makes even clearer what is already recognised in the explanations and seeks to preserve the UK system of fundamental rights from the "infiltration" of Charter rights in those areas which are recognised as falling within the Member State competence (eg family law, but also rules regulating the modalities for the exercise of a right such as the right to strike).

Significance for the UK of accession to ECHR

16. There should not be any particular effect on national law deriving from the Union's accession to the ECHR. Rather accession would remedy a peculiar situation. Thus, whilst ratification of the Convention is a precondition for accession to the European Union; and whilst Article 7 TEU provides for a sanction mechanism for Member States which fail to fulfil their fundamental rights obligations, the European Union itself is not part of the Council of Europe, and has not ratified the ECHR. As a result, and even though the ECJ ensures that fundamental rights are guaranteed, in relation to Union acts the European Court of Human Rights has very limited jurisdiction.[72] The arrangements for the jurisdiction of the European Court of Human Rights, as well as the other institutional arrangements, are a matter for negotiation with the other members of the Council of Europe.

17. However, the Protocol on accession to the Convention makes clear that the agreement on accession must ensure that the Union's Accession does not affect the situation of the Member States in relation to the Convention, including the possibility of derogating from it and the reservations made by the Member States. Furthermore, according to Article 218(8) TFEU, the agreement on accession has to be adopted by unanimity and the agreement enters into force only after it has been approved by the Member States according to their constitutional requirements.

CITIZENSHIP

18. The new Treaty does not substantially affect the existing citizenship provisions. Thus it restates that Union citizenship does not replace national citizenship, but it is additional to it.[73] The "additional" nature of Union citizenship is confirmed by the fact that Union citizenship can only be acquired through nationality of one of the Member States, and cannot be autonomously gained. Thus, for instance, the Court has held that it is solely for the Member States to determine the conditions for acquiring citizenship; in the case of the United Kingdom the Court has held that Union citizenship does not affect the immigration status of Citizens of the United Kingdom and colonies who do not have the right of abode in the United Kingdom.[74] Similarly, the Court has held that the United Kingdom's decision to extend electoral rights for the election to the European Parliament to Commonwealth citizens residing in Gibraltar was compatible with Community law.[75] Thus, there is no reason why Union citizenship should have any effect on British Citizenship or on notions of Britishness.

POWERS AND NATIONAL SOVEREIGNTY

Protection of the UK common law processes and police and judicial process.

19. This is one of the areas in which the Reform Treaty will bring about very significant changes. Legislation in this field will, by and large, be adopted through the ordinary legislative procedure (co-decision and qualified majority voting) and will be subject to the full jurisdiction of the European Court of Justice.

Pre-existing Acts

20. In relation to existing acts (ie those acts which have been adopted under the current Title VI TEU also commonly referred to as Third Pillar) there is a five year stand-still provision. Thus, the Court does not have jurisdiction in relation to Acts that have been adopted before the entry into force of the Treaty of Lisbon until either (i) the relevant piece of legislation is amended; or (ii) five years have elapsed. Six months before the expiry of the transitional period the United Kingdom can notify the Council that it does not wish to accept those acts, in which case they will no longer be applicable to the UK. Thus, in 5 years time the UK will need to decide whether to opt out of the existing legislation. If it opts out it must opt out from the entire body of legislation but it can then opt back in on a case by case basis (see below para 21).

Acts adopted after the enter into force of the Lisbon Treaty

21. In relation to acts which will be adopted after the Treaty has come into force, the United Kingdom is in principle excluded from this area unless it decides to "opt in" on an ad hoc basis. The decision to "opt in" can be made both at the stage of proposed legislation; and at a later stage when the act has already been adopted. Once the UK has exercised its right to opt in, it is bound by the relevant legislation as well as by the institutional provisions, ie qualified majority voting if the UK has exercised its right to opt in at proposal stage; and the jurisdiction of the European Court of Justice applies also to the UK for those acts (but only for those acts) that the UK has opted into.

Emergency Brake

22. It should be noted that the Treaty also provides for an emergency brake mechanism so that a Member State might ask the matter to be referred to the European Council. In such a case, the European Council must decide by consensus whether to refer the proposal back to the Council. The emergency brake mechanism ensures that even though, normally, qualified majority voting applies, the proposal might be dropped should a Member State strongly object to it. Therefore, if the United Kingdom exercised the right to opt in at proposal stage and found that the end result of the drafting process is unacceptable to it, it could trigger the emergency brake mechanism. The other Member States could then (de facto) adopt the proposal without the participation of the United Kingdom.

Effect in national law

23. Legislation in this field does not entail harmonization but rather approximation mainly in the forms of co-ordination and mutual recognition. Furthermore, legislation adopted in this area has very limited effects unless the Member State has transposed such legislation into its domestic system. Thus, long standing case law of the Court has established that Community law cannot be relied upon to impose or aggravate criminal liability. This means that if a Member State has failed to implement (or has not implemented correctly) a directive, such a directive cannot be relied upon to affect in a negative way the position of a defendant.[76] However, should the directive confer directly effective rights which do not entail the aggravation of criminal liability of other individuals, it will almost certainly be possible for individuals to rely on it in national courts (against the State). Furthermore, the national court is under a duty to interpret, insofar as possible, national law in accordance with Union law. This duty of consistent interpretation cannot be relied upon in order to aggravate criminal liability.[77]

15 February 2008

63 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125. Back

64 See eg Case C-260/89 ERT [1991] ECR I-2995; Case C-368/95 Familiapress [1996] ECR I-3689. Back

65 See eg Case C-260/89 ERT [1991] ECR I-2995; Case C-368/95 Familiapress [1996] ECR I-3689; but see Case C-60/00 M Carpenter [2002] ECR I-6279. Back

66 The Treaty refers to the 2007 version of the Charter (2007 OJ C 303/1) which however does not substantially differ from the previous Constitutional Treaty version. It should be noted that the Constitutional Treaty version partially differs from the original Nice 2000 version in that the former provides for the express differentiation between rights and principles. According to Article 52(5) principles may be implemented through legislative action and are judicially cognisable only in relation to the interpretation of such acts and in the ruling of their legality. Back

67 Consistent case law; see eg Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125. Back

68 See eg Communication from the Commission, Compliance with the Charter of Fundamental Rights in Commission legislative proposals, COM(2005) 172 final. Back

69 E.g. Case 5/88 Wachauf [1989] ECR 2609. Back

70 See eg the banana litigation where the ECJ's view of the proportionality of Community law differed from the view of the German Courts, Case C-280/93 Germany v Council [1994] ECR I-4973. Back

72 Although the European Court of Human Rights has accepted that in certain circumstances it has jurisdiction to hold the Member States collectively responsible for a breach of he Convention perpetrated by the Union Case Matthews v UK European Court of Human Rights appl. No. 24833/94, decided 18/2/99; and Bosphorous v Ireland (application no. 45036/98). Back

73 The Lisbon Treaty amends current Article 17 EC in that the latter provided that Union citizenship "complemented" national citizenship. However, the change in the wording merely reflects the evolution of Union citizenship and the fact that Union citizens derive from the Treaty directly enforceable rights, Case C-413/99 Baumbast and R [2002] ECR I-7091. Back

74 Case C-192/99 Kaur [2001] ECR I-1237. Back