Memorandum by the European Trade Union
Confederation (ETUC)
1. The European Trade Union Confederation
exists to speak with a single voice, on behalf of the common interests
of workers, at European level. Founded in 1973, it now represents
82 trade union organisations in 36 European countries, plus 12
industry-based federations.
2. For the purpose of this submission, the
ETUC will limit its observations to Treaty changes linked to the
EU Charter of Fundamental Rights and to the Protocol on its application
to Poland and to the United Kingdom.
A legally binding Charter
3. The Charter of Fundamental Rights is
not included in the Reform Treaty. However, Article 6 UE, as modified,
contains a cross reference to the text of the Charter as proclaimed
by the three institutions on 12 December 2007. Article 6 UE states
that the Charter has the same legal value as the Treaties. Article
1 paragraph 3 new UE establishes that the Treaty on the European
Union and the Treaty on the Functioning of the EU (currently the
EC Treaty—which contains inter alia the four fundamental
freedoms) have the same legal value. Finally, Article 46 EU—which
reduces the powers of the European Court of Justice in relation
to the EU Treaty—has been deleted. This means that the jurisdiction
of the ECJ over both Treaties will be unified, without prejudice
to specific provisos in particular in relation to Common Foreign
and Security Policy and Justice and Home Affairs.[4]
4. A combined reading of these new provisions
leads the ETUC to believe that the Charter of Fundamental Rights
will be legally binding. This is reinforced by Declaration 1 annexed
to the Treaties where the Member States confirm that the Charter
has legally binding force. For the sake of clarity, and more user-friendly
Treaties, the ETUC would have preferred a direct inclusion of
the Charter in the text of the Treaties. This would have also
secured better visibility of the Union's Fundamental Rights for
the citizen.
5. Nonetheless, the ETUC is satisfied that
the new institutional arrangements further enhance the legal status
of the Charter. The Charter constitutes a cornerstone for social
Europe. The ETUC challenges the view that internal market and
free competition rules constitute the main thrust of the Treaties.
The Union is also obliged to protect and promote fundamental rights.
A legally binding Charter confirms this. In particular, Title
IV on Solidarity puts on the Union a duty to protect workers where
fundamental economic and social rights enshrined in national legal
orders may restrict free movement.
6. The Preamble of the Charter reaffirms
that it comes from the constitutional traditions and international
obligations common to the Member States. The ETUC considers, however,
that the Union's Charter of Fundamental Rights has no vocation
to replace national human rights instruments. The Charter is to
be used at another level, as a "rule of reason" where
EU law may impinge on fundamental rights. The Charter is a "shield"
(rather than a "sword").
The Protocol on the application of the Charter
of Fundamental Rights of the European Union to Poland and to the
United Kingdom
7. The ETUC understands that the associated
Protocol was negotiated amid concerns that the Charter may allow
the European Court of Justice to extrapolate from the provisions
on social and economic rights to alter UK national legal order.
Declaration 61 by the Republic of Poland reflects that Polish
concerns cover issues of public morality and family law. In Declaration
62 on the other hand, Poland commits to fully respects Chapter
IV of the Charter on Solidarity, which is rather paradoxical considering
Article 1.2 of the Protocol.[5]
8. The ETUC regrets that the Protocol was
annexed to the Treaties and deplores the political message that
it sends to citizens. In particular, the ETUC wishes to stress
the indivisibility of the Charter, which is explicitly stated
in the second paragraph of the Preamble. The Charter is not—and
should not become—an a" la carte instrument
depending on the political considerations of the moment.
9. The Protocol is often referred to as
an "opt out" Protocol. This is inaccurate terminology,
based on a misunderstanding over the effects the Charter would
have upon UK domestic laws. The word "opt out" is currently
used in EU law in relation to the Protocol on the application
of Justice and Home Affairs provisions to the UK. According to
this Protocol, the UK has three months following the notification
to the Council of a Commission's proposal based on Title IV of
the EC treaty, to notify its intention to opt into the proposal
or not. If the UK chooses not to opt in, it will not participate
in the negotiations and will not be bound by the instrument once
adopted until agreed otherwise by the UK.
The Charter of Fundamental Rights is of a different
nature. The provisions contained in the Charter do not confer
on the EU any power to enact rules on human rights. It is clearly
stated in the new Art.6.2 UE that "the Charter shall not
extend in any way the competences of the Union as defined in the
Treaties". In other words, there will be no EU instruments
from which the UK could pretend to opt out.
10. The ETUC therefore recommends that the
term "clarification on the application of the Charter"
is used in relation to this Protocol rather than "opt out".
A distinction must be established between situations with a Community
dimension and purely domestic matters, which the Protocol seeks
to clarify.
11. As reaffirmed in its Preamble, the Protocol
is without prejudice to other obligations devolving upon the UK
under the Treaties and Union law generally. It is well established
in the existing case law[6]
that fundamental rights constitute principles of Union law. Where
the UK is involved in a situation with a cross border dimension—ie
where one or several other Members States' interests are at stake
or where the situation involves interpretation of an EU instrument
applicable to the UK—Union law, including the Charter, obviously
applies.
12. On the other hand, the Protocol makes
it very clear that the Charter cannot add to UK laws. Domestic
situations are governed by UK internal legal order only, in which
case no Court will be able to weigh legislation or action of the
UK against the provisions of the Charter.
January 2008
4 See also horizontal amendment b) to the Treaty establishing
the European Community which replaces the word "Treaty"
by "Treaties", thereby explicitly extending ECJ competence
over the Treaty on the European Union. Back
5
Protocols form part of the Treaties (see the new Article 49 B
UE). On the other hand, it is dubious that unilateral Declarations
benefit from a legal status. Back
6
See for example European Parliament v Council C-540/03;
Laval C-341/05; Viking C-438/05. Back
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