Memorandum by Dr Eve Sariyiannidou
1. Eve Sariyiannidou is an expert on EU
law and policy and works as an independent consultant. Her research
on institutional and constitutional developments in the European
Union has attracted particular interest from the Council of Europe
and Western European Union. She is a member of the Expert Group
on Integrated Border Management of the European Commission, an
official observer at the WEU Interparliamentary European Security
and Defence Assembly and has been on the panel of experts of the
European Commission for the Seventh Framework Programme (2007-13).
2. To assess the actual impact of the Reform
Treaty provisions on the protection, amongst other, of labour
and social rights in the EU and how they will affect the policy
evolution in the national political systems, one needs to ask
how far these changes impinge on the standard of protection that
exists under current EU law and its application to the territory
of the Member States.
3. The new Article 1(8) TFEU, the EU Charter
and Protocol No 7 on the application of the Charter to the United
Kingdom, should be read in conjunction with other treaty articles.
Most importantly, any appraisal of constitutional change and its
effect on future policy development is not confined to the amended
treaty provisions per se. The latter need to be considered
in tandem with the development of a body of rights protection
in the EU (statutory and common law) and in the light of a number
of fundamental issues.
4. The first issue is that the European
Court of Justice (ECJ) has over the past four decades recognised
a variety of labour and social rights in its jurisprudence via
a teleological interpretation of internal market rules and fundamental
rights protection.
5. The second issue is to enquire whether
the EU Charter alters the standard of protection that already
exists: a) by adding new rights and b) by acquiring legal base.
6. The third issue is that of the UK opt-out.
Does it affect the formal status and scope of application of the
EU Charter to its territory? There is also some ambiguity as to
how the UK opt-out will work with the European courts.
THE COURT
OF JUSTICE
AND FUNDAMENTAL
RIGHTS PROTECTION
7. Pursuant to its institutional duty to
ensure that the law is observed, under Article 220 EC (Article
1(20) TFEU and its reference to Article 9f), the Court created
an unwritten catalogue of rights in a substantial body of case
law, a kind of negative constraint on EU policy-making. It has
recognised a variety of labour and social rights in its jurisprudence—often
a balancing act between internal market rules and EU citizenship
entitlements—in an incremental expansion of fundamental
rights protection. For instance, the right for respect to one's
private life (Case C-404/92P X v Commission), the right
to property and to engage in economic activity (Case C-280/93
Germany v Council), as well as some social rights (in Case
C-173/99 BECTU, the ECJ classified the right to paid annual leave
set out in Directive 93/104 as a "social right"). The
Court also declared that the prohibition on discrimination on
the grounds of sex is a fundamental human right and recognised
the principle of equality—with specific reference to equal
pay for equal work—as one of the general principles of Community
law, enshrined in the "social objective" of Article
141 TEC (Case C-50/96 Deutsche Telekom AG).
8. The question of a possible infringement
of fundamental rights can only be judged in the light of Community
law itself. On the other hand, the Court has also held that the
duty of sincere cooperation, under Article 10 EC (new Article
1(6) TFEU), to ensure inter alia an effective judicial
protection for individuals, may prevent fundamental principles
of national legal orders from "undermining" emergent
fundamental principles at EU level (Case C-213/89 ex parte
Factortame).
THE LEGAL
& POLITICAL IMPACT
OF THE
EU CHARTER
9. The Reform Treaty, once ratified, will
formally incorporate the EU Charter to the primary law of the
EU. The Charter does not create any new competences for the Union
and its institutions; nor will the Union's potential accession
to the ECHR. Therefore, the EU Charter is not designed to convert
the Union into a general human rights organisation. The EU Charter
will remain a consolidation of existing law and, thus, authoritative
evidence of the law in force. The rights, declared therein, only
have legal meaning, if they already existed in the system of protection;
for example, in the Court's jurisprudence. This is consistent
with the aim of the Convention to make only technical drafting
adjustments to the text agreed by the Convention on the EU Charter
(CONV 354/02). Consequently, the Charter does not modify the substance
of protection, but provides a comprehensive catalogue of rights
and principles in a more consistent and transparent manner that
renders the existing protection more comprehensible to EU citizens.
10. It could be argued that a legally binding
Charter might lead to a change in the direction of protection
to a reorientation of human rights protection from economic to
social. That is, a shift in balance between fundamental rights
and economic freedoms in EU law, as the EU Charter grants fundamental
status to civic, political and social rights but not to the four
economic freedoms (internal market). It is unlikely that it will
lead to the establishment of different economic and social policies,
as both the current treaties and the Reform Treaty are largely
market oriented.
THE PROTOCOL
ON THE
APPLICATION OF
THE EU CHARTER
TO THE
UK
11. The Protocol reaffirms the requirement
found in Article 1(8) TFEU that the Charter is to be applied and
interpreted by the UK courts strictly in accordance with the explanations
referred to in that Article. It does not say that the Charter
is not binding in the UK and in this respect it does not amount
to an "opt-out" as to the Charter's legal force in the
territory of the UK and its legal system. What it does is clarify
aspects of the application of the Charter in relation to the laws
of the UK and their justiciability, but "without prejudice"
to the obligations the UK has under the Treaties and Union law
in general (statutory and common law).
12. The Charter adds some social principles
under the "solidarity" provisions (Chapter IV), such
as the right to strike, right to job training and health care,
but also stipulates that these will only have meaning insofar
as they are already applied and practised in the individual Member
States. It does not create new worker entitlements beyond existing
national labour laws. This is analogous to the exemption found
in Article 1(2) of the Protocol.
THE UK OPT-OUT
AND THE
FUTURE ROLE
OF THE
EUROPEAN COURTS
13. Article 1(1) of the Protocol provides
that nothing in the Charter would give national or European courts
any new powers to strike down or reinterpret UK law, including
labour and social legislation. This is hardly an exemption, since
the EU Charter generally does not create any new institutional
powers, including any new jurisdiction for the European
courts (or even any new courts with jurisdiction to adjudicate
on human rights).
14. Equally, it does not affect the existing
competences of the Court, not even once the Union accedes to the
European Convention on Human Rights. A legally binding Charter
would mean constitutionalisation of fundamental rights protection
brought about by a political process beyond the institutional
control of the Court, but it is unlikely that it will deter the
Court from its typical systematic interpretation of the Treaties.
As aforementioned, the EU Charter remains, irrespective of its
status, a consolidation of existing law and authoritative evidence
of the law in force; the rights, declared therein, only have legal
meaning if they already exist in the system of protection, including
the Court's jurisprudence.
15. The Charter specifies in Article 51
(Chapter VII) that it is addressed to the institutions and actors
of the Union and to the Member States "only when they are
implementing Union law". The Charter can be potentially used
to strike down non-compliant EU legislation but not non-compliant
national legislation, unless the Member State in question implements
EU law. The Protocol states that the Charter does not "extend"
the ability of the ECJ to find that UK law is inconsistent with
the Charter and, yet, this is expressed to be "without prejudice"
to the UK's other obligations under the Treaties and Union law
generally. In this regard, the effectiveness of the Protocol is
marred by an inconsistency: could the Court strike down a conflicting
UK measure intended to implement EU policy on the basis of an
interpretation of the application of the Charter to the UK? Or
not?
16. The qualification, that any exemption
in the Protocol could be provided to the UK only without
prejudice to its obligation under the body of EU law, leaves only
one sustainable interpretation of the inconsistent and ambiguous
language of the Protocol. That is, the exemption would infer that
indeed the Court's interpretations based on the EU Charter would
apply to national measures intended to implement Union law.
17. Article 51 (of the Charter) also specifies
that the Charter's applicability to the Member States (when they
implement EU law) is to some extent qualified by the subsidiarity
principle.
18. The ECJ insists on the uniformity of
application of EU law throughout the Union's territory. It has
held the requirement, that no EU law can be incompatible to the
rights protection, is also binding on the Member States as they
implement Community law (Case 5/88 Wachauf). As a matter
of precedent, the primacy of EU over national law, a cornerstone
principle of Community law, holds that provisions of EC law can
confer rights on individuals that public authorities must respect
and which must be protected by national courts. The Court declared
as early as in 1964 (C-6/64 Costa v ENEL) that: "It
follows . . . that the law stemming from the treaty, an independent
source of law, could not, because of its special and original
nature, be overridden by domestic legal provisions, however framed,
without being deprived of its character as Community law and without
the legal basis of the Community itself being called into question."
It is, arguably, unlikely that the general obligation to ensure
the uniform application of Union law would give way to the Protocol
exemption, when UK labour and social policies are set to implement
EU rules.
CONCLUSION
19. The Reform Treaty revision does not
constitute a substantial change of direction in institutional
and constitutional terms. The Protocol, on the application of
the EU Charter to the UK, is rather a matter of presentation than
content or substance. The exemption, found therein, will be of
little assistance to the UK Government, when it seeks to influence
the application of the EU Charter to its territory. Arguably,
the UK would be more triumphant, if it relied on the issue of
subsidiarity, where applicable.
December 2007
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