Examination of Witnesses (Questions 380
- 386)
WEDNESDAY 9 JANUARY 2008
Mrs Claire-Françoise Durand and Dr Clemens
Ladenburger
Q380 Chairman:
Yes, but once they are amended does that mean that they automatically
would acquire direct effect?
Dr Ladenburger: No.
Q381 Chairman:
Why not?
Dr Ladenburger: Because if they are only partially
amended the new provisions have the effect of the act in which
they are adopted, so they have the effect of a regulation or of
the directive, but parts of the act not touched by the amendment
still have the legal effect of the form of instrument under which
they were adopted previously. However, they come integrally under
the jurisdiction of the Court.
Q382 Chairman:
That is a helpful interpretation. I now understand where you are
standing. It may create some interesting positions if you can
have direct effect in relation to amendments but not in relation
to the original document.
Dr Ladenburger: Yes.
Q383 Chairman:
I can see that that could be complex, but thank you. Finally,
can you help us in relation to the impact of Article 6 of the
Treaty of the European Union declaring the binding nature of the
Charter of Fundamental Rights, bearing in mind, amongst other
things, the distinctions which it draws between the rights and
principles and bearing in mind that it includes not merely rights
which Europe has recognised but also references to international
covenants? If you can help us on that can you also help us on
what effect the Protocol relating to the UK might have?
Mrs Durand: I am going to let Clemens answer
the first question because he is a specialist on the Charter.
Dr Ladenburger: I will try. The question is
a bit speculative, I find, because it is on how to measure the
effects that a legally binding Charter may have in the future,
not only on the Court and its case-law but also on our institutions,
on the political institutions as well, on the legislation. I would
suggest distinguishing between two perspectives that one can take
in looking at the question. One would be a more immediate and
legal perspective and the second would be a more long term or
indirect perspective. Under the first purely legal and shorter
term perspective we should recall that fundamental rights are
already today general principles of Community law, well developed
by the case-law of the Court of Justice. In this regard the European
Convention on Human Rights has special significance. There is
very well established case-law of the Strasbourg court. Already
now fundamental rights of the Community legal order derive also
from other sources as developed in the Court's case-law and the
Charter of Fundamental Rights, as its own preamble says, serves
to reaffirm existing rights and make them more visible. The Charter
rights are to be applied in a pretty clear framework set by the
general provisions of the Charter, Articles 51 to 54, and the
sources of these rights deriving from the existing situation are
well documented in the explanations to the Charter, which courts
are to take duly into consideration when applying the Charter.
In particular, in the area of police co-operation and judicial
co-operation in criminal matters, I think it is important to keep
in mind that almost all human rights issues at stake, as Union
law is developed, typically concern the classical civil liberties
that are guaranteed in the European Convention on Human Rights,
and as regards these the Charter is very clear in its Article
52, paragraph 3. It takes them over and the Charter has the same
scope and meaning as these rights have in Strasbourg case law.
On the basis of all these factors I would say, under this first
perspective, that it appears unlikely that making the Charter
legally binding would fundamentally alter the case law of the
Court of Justice in the area of freedom, security and justice.
However, there is a second perspective, which is not in contradiction
to what I have said but is a more indirect and longer term one,
and that is that I hope, and the Commission hopes—President
Barroso made that point when he made his speech on the proclamation
of the Charter on 12 December—that making the Charter legally
binding will be an important step in strengthening the human rights
culture of the European Union because one may assume or hope that
having a written catalogue of the Union's fundamental rights will
incite the three institutions, in the political process, even
more to pay utmost attention to respecting these fundamental rights
and, as we know, in the area of freedom, security and justice
it is a constant challenge to balance the interests of freedom
with those of public interest and security. I think it is in that
respect that a legally binding Charter will contribute to strengthening
a human rights culture. It will also do so presumably because
it might help the Court to build up a richer case law on human
rights, because presumably the existence of a written catalogue
will prompt over time more preliminary references by national
courts on human rights issues arising in the implementation of
Union law. The last issue that you mentioned, accession by the
European Union to the European Convention, will equally, I think,
be an important step in strengthening a human rights culture.
This is about the two perspectives from which one can approach
it.
Q384 Baroness Kingsmill:
A sort of legal underpinning and a legal buttressing of the political
aspects?
Dr Ladenburger: Yes.
Q385 Lord Rosser:
Could I just ask on that one and put bluntly as this, under what
you have been talking about and we have been asking about on the
Charter of Fundamental Rights being legally binding, will the
UK have to agree to any measures, or any measures be enforceable
through the courts that the UK will be bound by as a result, that
the UK does not wish to be bound by or would not wish to be bound
by? Does it change the situation in any way in that regard, that
the UK will be, as it ultimately might put it, forced to implement
something that it would not wish to do as a result of the Charter
becoming the legally binding package that you have referred to?
Dr Ladenburger: I think it should be borne in
mind that Article 51, paragraph 2, of the Charter itself makes
it very clear that the Charter does not extend the Union's competences
in any way and does not create new tasks or powers of the Union
in addition to those that exist presently. The Charter instead
codifies or reaffirms, makes visible, the fundamental rights which
the Union institutions, and Member States when implementing Union
law, have to respect. Therefore, I do not think that the Charter
will prompt the Union legislator to adopt new legislation in areas
where otherwise it would not and where the United Kingdom would
not think it appropriate or possible legally under the system
of competences to enact legislation, if that is the sense of your
question.
Lord Rosser: Yes, it is.
Q386 Lord Lester of Herne Hill:
In asking this question I have to declare an interest because
I am in the unusual position of being the unpaid independent adviser
to the Justice Secretary, Mr Straw, on whether there should be
a bill of rights and responsibilities in the United Kingdom, and
therefore the European Charter is of some relevance to law-makers
in that context. It occurred to me, listening to Dr Ladenburger's
elegant answers, with which I personally agree, that one answer
to Lord Mance's original question might be given in this way,
and it is the answer that Zhou Enlai gave when he was asked, "What
are the consequences of the French Revolution?", to which
he replied, "It is too early to tell". Is that not exactly
the position that we are now in, in the broader sense, that these
are all the consequences of the French Revolution but it is too
early to tell?
Dr Ladenburger: I think I could not disagree
with you.
Chairman: On that happy note, unless
there are any other points, we are really most grateful to you.
Thank you very much for your help, Mrs Durand and Dr Ladenburger.
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