A “Bill Of Rights” For The European Union

Common Market Law Review

Volumn 38, Issue 2, 2001, Pages 273-300

  Lenaerts, Koen ^a   de Smijter, Eddy Eddy ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

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EID: 23044525599     PISSN: 01650750     EISSN: 18758320     Source Type: Journal    
DOI: 10.1023/A:1010670801584     Document Type: Article

References (137)

1. 1. Conclusions of the presidency at the occasion of the European Council of Cologne (3 and 4 June 1999) on the drawing up of a Charter of Fundamental Rights of the European Union [(6-1999) EU Bull., at 35, point I.64.].
2. 2. Case 29/69, Stauder v. Ulm, [1969] ECR 419, para 7. See also Case 11/70, Internationale Handelsgesellschaft v. Einfuhr-und Vorratsstelle Getreide, [1970] ECR 1125, para 4.
3. 3. See also (6-1999) EU Bull., at 13, point I.18. See, in general, Editorial comment “The EU Charter of Fundamental Rights still under discussion”, 38 CML Rev., 1–6.
4. 4. The Convention received more than 1 000 documents (in several of the 11 lan-guages used by the Convention) from more than 200 different agents. Less than half of these documents came from the secretariat or the praesidium of the Convention (http://db.consilium.eu.int/df/default.asp? lang=en).
5. 5. See e.g. the report of the committee on legal affairs and human rights of the Council of Europe of 14 Jan. 2000 (Convention document CHARTE 4106/00 of 18 Jan. 2000).
6. 6. Point V of the Resolution of the European Parliament on the drafting of a European Union Charter of Fundamental Rights (A5-0064/2000) of 16 March 2000: “Whereas the Charter of Fundamental Rights should be regarded as a basic component of the necessary process of equipping the European Union with a constitution”.
7. 7. The ECHR was signed on 4 Nov. 1950 within the framework of the Council of Europe. Within the same framework, the European Social Charter was signed on 18 Oct. 1961. Both catalogues of fundamental rights are ratified by all EU Member States.
8. 8. See the preamble to the Treaty establishing the European Economic Community. This quote was also used by the Court to prove that the European legal order was different from the legal order created by an ordinary international organization (see Case 26/62, Van Gend & Loos, [1962] ECR 1, at 22 and 23).
9. 9. The EC Treaty contains provisions prohibiting discrimination on grounds of nationality of persons – among whom providers of services – (see Arts. 39, 43, 45, 46, 49 to 55 EC) or the origin of goods (see Arts. 28 to 30 EC) and capital (see Art. 58 EC).
10. 10. See e.g. Case C-85/96, Mart´inez Sala, [1998] ECR I-2691, paras. 54 to 65. See the comments by O’Leary, “Putting Flesh on the Bones of European Union Citizenship”, (1999) EL Rev., 68–79.
11. 11. Art. 119(1). Since the coming into force of the Treaty of Amsterdam Art. 141(1) EC also refers to “work of equal value”. This concept finds its origin in Directive 75/117/EEC of the Council of 10 Feb. 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, O.J. 1975, L 45/19.
12. 12. The Court thus extended the prohibition of discrimination on grounds of nationality to e.g. the prohibition of discrimination on grounds of residence (Case C-29/95, Pastoors and Trans-Cap, [1997] ECR I-285, paras. 17–18) or – to some extent – language (Case C-379/87, Groener v. Minister for Education and City of Dublin Vocational Education Committee, [1989] ECR 3967, paras. 19–21). The Treaty-based prohibition of discrimination on grounds of sex is extended by the Court to the prohibition of discrimination on grounds of the fact that somebody wants to change, or has changed, his or her sex (Case C-13/94, P. v. S., [1996] ECR I-2143, paras. 13–24). The Court, however, was not prepared to bring discrimination on grounds of sexual orientation under the prohibition of discrimination on grounds of sex (Case C-249/96, Grant, [1998] ECR I-621, paras. 24–47. See further the analysis infra notes 71 to 76 and accompanying text).
13. 13. See e.g. Case C-185/97, Coote, [1998] ECR I-5199, para 23. See, recently, also the note on Schro¨der, by Besselink in this Review at 437–454.
14. 14. According to the principle of equality, similar situations should not be treated differently and different situations should not be treated equally, except if such a treatment is objectively justified. See e.g. Case C-15/95, EARL de Kerlast, [1997] ECR I-1961, para 35.
15. 15. Case 1/58, Stork v. High Authority, [1958–59] ECR 43, at 64.
16. 16. Case 29/69, Stauder v. Ulm, [1969] ECR 419, para 7.
17. 17. See e.g. the Frontini judgment of the Italian Corte Costituzionale of 27 Dec. 1973, No. 183/73 (for an English translation, see [1974] CMLR, 372) and the so-called first “Solange” judgment of the German Bundesverfassungsgericht of 29 May 1974, BverfGE, 37, at 271 (for an English translation, see [1974] CMLR, 540).
18. 18. Case 4/73, Nold v. Commission, [1974] ECR 491, para 13.
19. 19. See the Common Declaration of the European Parliament, the Council and the Commission of 5 April 1977 (O.J. 1977, C 103/1) and the preamble to the Single European Act (O.J. 1987, L 169/1).
20. 20. Already in the Common Declaration of 5 April 1977 the ECHR was referred to as an important source of fundamental rights that should be respected. The Court clarified its position vis-a`-vis the ECHR in Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, [1986] ECR 1651, para 18. This practice was constitutionally confirmed in Art. 6(2) EU.
21. 21. This means that Art. 220 EC remains the legal basis of the Court’s fundamental rights control of the acts of Member States in the framework of Community law. See e.g. Case C-260/89, ERT, [1991] ECR I-2925, para 42.
22. 22. See supra note 18.
23. 23. United Nations Treaty Series, vol. 999, at 171. See e.g. Case 374/87, Orkem v. Com-mission, [1989] ECR 3283, para 31.
24. 24. According to Art. 136(1) EC the social rights listed in the European Social Charter (1961 – supra note 7) and in the Community Charter for the Fundamental Social Rights of Workers ((12-1989) EC Bull., at 11, point 1.1.10.) serve as a reference for the social policy of the EC and the EU Member States.
25. 25. Case 149/77, Defrenne v. Sabena, [1978] ECR 1365, para 28.
26. 26. See the first “Solange” judgment, supra note 17.
27. 27. O.J. 1989, C 120/51. For a commentary see Bieber, De Gucht, Lenaerts and Weiler (Eds.), Au nom des peuples europe´ens – in the name of the peoples of Europe (Baden-Baden, Nomos, 1996), at pp. 171–364.
28. 28. The UK did not sign the Community Charter on 9 Dec. 1989, but by ratifying the Treaty of Amsterdam at least agreed to the fact that the Community Charter serves as a reference for the social policy of the EC and the EU Member States (see Ar. 136(1) EC and supra note 24).
29. 29. Opinion 2/94, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, [1996] ECR I-1759, para 35. See further infra section 4.
30. 30. See the proposals of the Commission of 4 April 1979 ((1979) EC Bull. Suppl. 2) and 19 Nov. 1990 (SEC(90)2087 def.), backed by the European Parliament in its resolution of 18 Jan. 1994 (O.J. 1994, C 44/32).
31. 31. See supra note 1.
32. 32. The title is inspired by the table of contents of the Charter (O.J. 2000, C 364).
33. 33. According to Art. 17(1) EC “[e]very person holding the nationality of a Member State shall be a citizen of the Union.”
34. 34. For a recognition of fundamental rights in favour of non-EU citizens, see e.g. Case C-100/88, Oyowe and Traore v. Commission, [1989] ECR 4284, para 16.
35. 35. See e.g. on the horizontal direct effect of Art. 39 EC Case C-281/98, Angonese, Judgment of 6 June 2000, nyr, para 36. For comments see Lane and Nic Shuibhne, 37 CML Rev., 1237– 1247.
36. 36. As a result of Art. 46(d) EU, the existing protection of fundamental rights ratione materiae is covered (see supra notes 19 to 25 and accompanying text on the meaning and scope of Art. 6(2) EU), but not ratione personae, since the provision only refers to the “actions of the institutions”. Any more far-reaching protection of fundamental rights therefore remains purely praetorian (supra note 21).
37. 37. Conclusions of the presidency at the occasion of the European Council of Cologne (3 and 4 June 1999) on the drawing up of a Charter of Fundamental Rights of the European Union ((6-1999) EU Bull., at 35, point I.64.).
38. 38. Ibid.: “The European Council believes that this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitu-tional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union’s citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.”
39. 39. In the conclusions of the presidency at the occasion of the European Council of Tampere the group of members of the European and the national parliaments, of the representatives of the Heads of State or Government of the EU Member States and of the president of the European Commission is still called “the Body” (conclusions of the Presidency at the occasion of the European Council of Tampere (15 and 16 Oct. 1999) on the composition, method of work and practical arrangements for the “Body” to elaborate a draft EU Charter of Fundamental Rights as set out in the Cologne conclusions ((10-1999) EU Bull., at 7, point I.2 and the annex)). Very soon the Body decided to call itself “Convention” (Convention document CHARTE 4134/00 of 21 Feb. 2000, point 3), thereby echoing in the English language the name of the “Constitutional Convention”, which on 17 Sept. 1787 adopted at Philadelphia the Constitution of the United States of America.
40. 40. The Praesidium of the Convention was formed by the president (Roman Herzog) and the three vice-presidents of the Convention (see point 3 of the report of the first meeting of the Body to elaborate a draft Charter (Brussels, 17 Dec. 1999) – Convention document CHARTE 4105/00 of 13 Jan. 2000).
41. 41. Under this title the following rights are listed: human dignity, right to life, right to integrity of the person, prohibition of torture and inhuman or degrading treatment or punishment and prohibition of slavery and forced labour.
42. 42. Under this title the following rights are listed: right to liberty and security, respect for private and family life, protection of personal data, right to marry and right to found a family, freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and of association, freedom of the arts and sciences, right to education, freedom to choose an occupation and right to engage in work, freedom to conduct a business, right to property, right to asylum and protection in the event of removal, expulsion or extradition.
43. 43. Under this title the following rights are listed: equality before the law, non-discrimination, cultural, religious and linguistic diversity, equality between men and women, the rights of the child, the rights of the elderly and integration of persons with disabilities.
44. 44. Under this title the following rights are listed: workers’ right to information and con-sultation within the undertaking, right of collective bargaining and action, right of access to placement services, protection in the event of unjustified dismissal, fair and just working conditions, prohibition of child labour and protection of young people at work, family and professional life, social security and social assistance, health care, access to services of general economic interest, environmental protection and consumer protection.
45. 45. Under this title the following rights are listed: right to vote and to stand as a candidate at elections to the European Parliament, right to vote and to stand as a candidate at municipal elections, right to good administration, right of access to documents, ombudsman, right to petition, freedom of movement and of residence and diplomatic and consular protection.
46. 46. Under this title the following rights are listed: right to an effective remedy and to a fair trial, presumption of innocence and right of defence, principles of legality and proportionality of criminal offences and penalties and the right not to be tried or punished twice in criminal proceedings for the same criminal offence.
47. 47. These rights are the following: the principle of equal treatment (more specifically between men and women), the right to a fair hearing and to effective judicial control, the principle that provisions of criminal law may not have retroactive effect, the right to respect for private life, family life, the home and correspondence (in particular respect for a person’s physical integrity, the right to keep one’s state of health private, medical confidentiality and the right to inviolability of one’s home), the freedom to manifest one’s religion, freedom of expression, freedom of association, the right to property, freedom to carry on an economic activity and the right of everyone lawfully within the territory of a State to liberty of movement therein. For a reference to relevant case law of the ECJ and the CFI, see Lenaerts and Van Nuffel, Bray (Ed.), Constitutional Law of the European Union (London, Sweet & Maxwell, 1999), at 548, para 14-065. It follows from this list that the case-law of the Court of Justice has so far concentrated on the fundamental rights captured under the titles “dignity”, “freedoms”, “equality” and “justice”. The enumeration of social rights – under the title “solidarity” – may therefore be regarded as the main “novelty” of the Charter. It remains to be seen, however, to what extent the Court will be ready to enforce respect for this politically sensitive set of fundamental rights.
48. 48. According to Convention document CHARTE 4473/00 of 11 Oct. 2000, which was made by the Secretariat of the Convention at the instigation of its praesidium but which has no legal value, all rights contained in the Charter are based on a fundamental right recognized in the EU Treaty or in the EC Treaty, national constitutions of the EU Member States or in international catalogues of fundamental rights concluded by the EU Member States.
49. 49. It has been argued that the free movement of goods, persons, services and capital are fundamental freedoms which should have been taken up in the Charter, see Besselink, “Het EU Handvest voor de grondrechten: consolidatie, vooruitgang of stap achteruit?”, (2000) NJB, 887.
50. 50. E.g. the right of everyone lawfully within the territory of a State to freedom of movement therein (recognized by the ECJ in Case 36/75, Rutili v. Ministre de l’Inte´rieur, [1975] ECR 1219, para 32) is not taken up in the Charter (cf. Art. 2 of the Fourth Protocol to the ECHR to Art. 45(2) of the Charter).
51. 51. See e.g. Convention document CHARTE 4140/00 (28 Feb. 2000) and the lists added in the explanation to Art. 52(3) of the Draft Charter (scope of guaranteed rights) in Convention document CHARTE 4473/00. Both documents compare the texts of the Charter with the corresponding rights of the ECHR.
52. 52. Compare Art. 18(1) EC with Art. 45(1) of the Charter, Art. 19(1) EC with Art. 40 of the Charter, Art. 19(2) EC with Art. 39(1) of the Charter, Art. 20 EC with Art. 46 of the Charter and Art. 21(2), juncto Art. 195(1) EC with Art. 43 of the Charter. For a slight extension in the Charter, compare Art. 21(1), juncto Art. 194 EC with Art. 44 of the Charter.
53. 53. Compare e.g. the right to life in Art. 2 of the ECHR and of the Charter.
54. 54. Compare e.g. Art. 8(1) ECHR (“Everyone has the right to respect for his (…) corres-pondence”) and Art. 7 of the Charter (“Everyone has the right to respect for his or her (…) communications”).
55. 55. The text of Art. 32 of the Charter (prohibition of child labour and protection of young people at work) finds its origins in Art. 7 of the European Social Charter, points 20 to 23 of the Community Charter of the Fundamental Social Rights of Workers and Article 1(3) of Directive 94/33/EC of the Council of 22 June 1994 on the protection of young people at work (O.J. 1994, L 216/12).
56. 56. Insofar as this question touches on the relation between the Charter and the ECHR, see infra section 4.
57. 57. Art. 52(2) of the Charter reads as follows: “Rights recognized by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.”
58. 58. Compare with Art. 52(3) of the Charter which reads as follows: “Insofar as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” (emphasis added). See infra notes 100 to 103 and accompanying text.
59. 59. Compare with Art. 18(1) in fine, EC.
60. 60. The scope of Art. 52(2) is, of course, limited to rights expressly mentioned in the EC or EU Treaty. The fundamental rights to which Art. 6(1) and (2) EU refers, in general, cannot be meant. Otherwise, Art. 52(3) of the Charter would become meaningless.
61. 61. Torture, inhuman or degrading treatment or punishment and slavery or servitude, how-ever, can never be allowed (Arts. 3 and 4(1) ECHR).
62. 62. This Convention was established in Oviedo within the framework of the Council of Europe on 4 April 1997. At this moment (January 2001) only 10 EU Member States have signed the Convention. Austria, Belgium, Germany, Ireland and the UK have not yet done so, while only Denmark, Greece and Spain have actually ratified it.
63. 63. Colour, social origin, genetic features, language, political or any other opinion, mem-bership of a national minority, property and birth are not listed as grounds of discrimination prohibited in Art. 13 EC. Except for “genetic features” (Art. 11 of the Convention on human rights and biomedicine) these grounds are listed in Art. 14 ECHR. The latter provision does not contain a prohibition on discrimination on grounds of ethnic origin, disability, age and sexual orientation.
64. 64. See e.g. the prohibition of discrimination on grounds of nationality stated in Art. 21(2) of the Charter (see infra note 70). That approach could be circumvented by qualifying the prohibition of discrimination on grounds of nationality as a right guaranteed by Art. 14 of the ECHR (see infra notes 108 to 111 and accompanying text). In practice, however, it will not make a difference as a result of the paraphrasing of Art. 12(1) EC in Art. 21(2) of the Charter itself: “Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.”
65. 65. Art. 52(1) of the Charter reads as follows: “Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.” Compare to Case 5/88, Wachauf, [1989] ECR 2609, para 18; Case C-292/97, Karlsson and Others, [2000] ECR I-2737, para 45.
66. 66. Flynn, “The implications of Article 13 EC – After Amsterdam, will some forms of discrimination be more equal than others?”, 36 CML Rev., 1127–1152, at 1132.
67. 67. If those grounds are also listed in Art. 14 ECHR, see the analysis infra notes 108 to 111 and accompanying text.
68. 68. One can assume that Art. 52(2) of the Charter refers not only to the EC or EU Treaty, but also to the measures adopted to give effect to those Treaties. It may be doubted that in adopting such measures – e.g. under Art. 13 EC – the EU institutions are bound by Art. 52(1) of the Charter. A different conclusion would indeed seem to contradict Art. 52(2) of the Charter stating that it is up to the EC or EU Treaty to determine the conditions and limits set to the exercise of the rights recognized by the Charter but based on those Treaties. The autonomy of Art. 52(2) of the Charter does not however imply that the EU institutions can take whatever measures they wish to implement the EC or EU Treaty. The ECHR (see e.g. the second paragraph of Arts. 8, 9, 10 and 11 ECHR and Art. 18 ECHR) and the case law of the ECJ (supra note 65) impose limits to the acts of the institutions which are similar to the strict conditions mentioned in Art. 52(1) of the Charter.
69. 69. See Directive 2000/43/EC of the Council of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (O.J. 2000, L 180/22, and a rectification in O.J. 2000, L 199/86), which is the first application of Art. 13 EC.
70. 70. See supra note 9. Such further Community measures could take the form of amendments to the Treaty or legislation based on the EC Treaty, e.g. the extension of the benefit of the prohibition of discrimination on grounds of nationality to non-EU citizens, or a restriction of the permissible scope of the exceptions to the free movement principle flowing from Council Directive 64/221/EEC of 25 Feb. 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (English spec. ed. of the O.J., Series-I (63–64) p. 117) (see in this regard the Communication from the Commission to the Council and the European Parliament on the special measures concerning the movement and residence of citizens of the Union which are justified on grounds of public policy, public security or public health (COM (1999) 372 of 19 July 1999)).
71. 71. Case C-249/96, Grant, [1998] ECR I-621.
72. 72. Ibid., paras. 31–47. The Court analyses the discrimination on grounds of sexual orient-ation in itself and as a potential derivative from discrimination on grounds of sex.
73. 73. Ibid., para 48.
74. 74. As is well-known, the Court found that the treatment of Ms. Grant did not amount to discrimination on grounds of sex basically because a man having a stable relationship with his male partner would be treated in the same way as Ms. Grant having a stable relationship with her female partner. That outlook on things has been criticized in legal writings because the validity of the Court’s reasoning appears to hinge on the identity of the hypothetical person to whom Ms. Grant is being compared. If instead of comparing her to a homosexual man, she were to be compared to a man living with a female partner, just as she lived with a female partner, then it would indeed be her sex being responsible for the different treatment which she suffers in comparison to a male colleague. See further the case notes by Brems, (1998–9) Columbia Journal of European Law, 141–151; McInnes, 36 CML Rev., 1043–1058; and Weyembergh, “Les droits des homosexuels devant le juge communautaire”, (1998) Journal des Tribunaux – Droit europe´en, 110–113.
75. 75. The prohibition of discrimination on grounds of sexual orientation, laid down in Art. 21(1) of the Charter, obviously presents a nexus with Union law when it is invoked against an EU institution, the Charter being addressed “to the institutions and bodies of the Union” (Art. 51(1)) – see e.g. Case T-264/97, D v. Council, [1999] ECR-SC I-A-1-4 and II-1, now pending on appeal before the ECJ, Case C-122/99 P, D v. Council and Case C-125/99 P, Sweden v. Council; see Opinion of A.G. Mischo of 22 Feb. 2001. Likewise, an appropriate nexus between the prohibition of discrimination on grounds of sexual orientation and substantive Union law would appear to exist if a Member State relied on Art. 39(3) EC to limit the free movement of a homosexual migrant worker. In such a case, the Member State is indeed “implementing Union law” (Art. 51(1) of the Charter) within the meaning of the ERT jurisprudence (Case C-260/89, ERT, [1991] ECR I-2925, para 43) and consequently the compatibility of its action with fundamental rights protected at the level of the Union can be scrutinized by the Court of Justice.
76. 76. It must be clear that we accept here for the sake of argument the Court’s holding that Ms. Grant’s treatment does not amount to discrimination on grounds of sex. This aspect of the Court’s judgment is not as such affected by the adoption of the Charter since the prohibition of discrimination on grounds of sex was already fully part of the acquis communautaire. The Court’s rather strict reading of the contours of the said prohibition is therefore still valid, which, of course, does not exclude the possibility that case law might develop in this regard, see supra note 74.
77. 77. See also in relation to the prohibition of discrimination on grounds of nationality supra note 64.
78. 78. Art. 23 of the Charter is also inspired by Art. 20 of the European Social Charter (as amended on 3 May 1996), point 16 of the Community Charter of the Fundamental Social Rights of Workers and Art. 2(4) of Directive 76/207/EEC of the Council of 9 Feb. 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (O.J. 1976, L 39/40).
79. 79. Those conditions could relate to the definition of pay and of equal pay (Art. 141(2) EC) or to the measures the Council takes by virtue of Art. 141(3) EC.
80. 80. The combined reading of Art. 53 of the Charter and Art. 53 ECHR leads to the conclusion that not only the national constitutions, but probably also the national laws serve as a minimum level of protection. Art. 53 ECHR indeed states: “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.”
81. 81. It goes without saying that the reference in Art. 53 of the Charter to Union law as minimum standard of protection is pleonastic to Art. 52(2) of the Charter.
82. 82. Art. 53 of the Charter reads as follows: “Nothing in this Charter [consequently, not Article 52(2) either (KL and EDS)] shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.”
83. 83. The European University Institute in Florence and the European Schools are established by the Member States themselves. The Communities are represented in the management of those bodies and the EU budget covers costs not paid by the Member States. See further in Lenaerts and Van Nuffel, op. cit. supra note 47, at 354, para 7-096.
84. 84. According to its Art. 51(2) the Charter remains neutral as to the division of powers between the Union or Community and the Member States: “This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.”
85. 85. E.g. the prohibition of restricting the freedom of establishment of EU citizens in the territory of another Member State (see on the setting-up of teaching establishments Case 147/86, Commission v. Greece, [1988] ECR 1637).
86. 86. Except maybe when Art. 14(3) of the Charter is invoked against an EU institution to contest the legality of a Community act said to infringe that provision, at first sight a rather unlikely hypothesis. Compare Case T-16/90, Panagiotopoulou v. European Parliament, [1992] ECR II-89.
87. 87. Cf. the first, third and fifth paragraph of the preamble to the Charter.
88. 88. The ECHR of 1950 listed the following rights and freedoms: right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy and prohibition of discrimination. Since 1950 11 protocols have been added to the ECHR. The main substantive additions were made in the First (1952), Fourth (1963), Sixth (1983) and Seventh (1984) Protocols. On 18 Oct. 1961, the Member States of the Council of Europe signed the European Social Charter (supra note 7). Our analysis is restricted to the relation between the Charter of Fundamental Rights of the European Union and the ECHR because of the specific place of this Convention in the EU legal order (see Art. 6(2) EU and Art. 52(3) of the Charter).
89. 89. The permanent Court was established by the Eleventh Protocol to the ECHR, signed on 11 May 1994; it entered into force on 1 Nov. 1998.
90. 90. See supra note 21.
91. 91. According to Art. 46(d) EU, the Court is only competent insofar as it has jurisdiction under the EC Treaty or the EU Treaty. For the EC this competence is laid down in Arts. 226 to 243 EC (but see the special provisions of Art. 68 EC concerning competence with regard to visa, asylum, immigration and other provisions related to the free movement of persons. For an analysis of the latter, see Lenaerts and De Smijter, “Le traite´ d’Amsterdam”, (1998) Journal des tribunaux – Droit europe´en, 25–36, at 33). With regard to the provisions on the police and judicial cooperation in criminal matters the competence of the Court is laid down in Art. 35 EU. The Court is not competent to judge the acts of the institutions or the Member States adopted within the framework of the common foreign and security policy.
92. 92. Decision of the European Commission of Human Rights of 9 Feb. 1990, M. & Co. v. Germany, Case 13258/87, Y.ECHR, 1990, at 46.
93. 93. Judgment of the European Court of Human Rights of 18 Feb. 1999, Matthews v. United Kingdom, Case 24833/94, paras. 33–34. See the case note by Schermers, 36 CML Rev., 673–681.
94. 94. See infra note 115 and further Lenaerts, “Fundamental Rights in the European Union”, (2000) EL Rev., 575–600, at 580–582 (esp. note 21).
95. 95. See infra notes 121 to 126 and accompanying text on the accession of the EU/EC to the ECHR.
96. 96. Opinion 2/94, Accession by the Community to the European Convention for the protection of Human Rights and Fundamental Freedoms, [1996] ECR I-1759, para 35. The adoption of the necessary rules to that effect at the level of the ECHR itself would, of course, also be required, see Lenaerts, “Fundamental Rights to be Included in a Community Catalogue”, (1991) EL Rev., 367–390, at 380–381.
97. 97. Accession would indeed “entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order.” (ibid., para 34)
98. 98. On the enforceability of the Charter, see infra section 5.
99. 99. See supra notes 88 to 97 and accompanying text.
100. 100. Compare the absolute formulation of the right to life in Art. 2 of the Charter to Art. 2(2) of the ECHR, which describes the circumstances in which a deprivation of life is not considered to be in violation of that fundamental right.
101. 101. Compare Art. 49 of the Charter (principles of legality and proportionality of criminal offences and penalties) to Art. 7 ECHR (no punishment without law).
102. 102. In Art. 6 junctis Arts. 47 to 50 of the Charter, there is no mention of the rights of people who are arrested or detained (compare to Art. 5(2)-(5) of the ECHR).
103. 103. For the text of Art. 52(3) of the Charter see supra note 58.
104. 104. Compare with Art. 52(2) concerning the rights recognized by the Charter “which are based on” the EU Treaty or the EC Treaty.
105. 105. Convention document CHARTE 4473/00.
106. 106. See also the special regime relating to the exercise of rights contained in the Charter which are based on the EU or EC Treaty “under the conditions and within the limits defined by those Treaties” (Art. 52(2) of the Charter; for further analysis, see supra note 68).
107. 107. “The legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR”. (Convention document CHARTE 4473/00)
108. 108. See Art. 21 of the Charter (non-discrimination), Article 14 of the ECHR (prohibition of discrimination) and Arts. 3(2), 12 and 141 EC.
109. 109. Art. 52(3), in fine, of the Charter and, more generally, Art. 53 of the Charter.
110. 110. Art. 53 refers to the complete ECHR. All rights listed in the ECHR thus serve as a minimum with regard to the interpretation of the rights contained in the Charter, i.e. including the rights listed in the ECHR that have not been taken over in the Charter, despite the assignment of the European Council of Cologne of 3 and 4 June 1999 that the Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the ECHR ((6-1999) EU Bull., at 35, point I.64.). Examples are Arts. 2(1) (freedom of movement) and 3(1) (prohibition of expulsion of nationals) of the Fourth Protocol to the ECHR and Arts. 1 (procedural safeguards relating to expulsion of aliens), 2 (right of appeal in criminal matters), 3 (compensation for wrongful conviction) and 5 (equality between spouses) of the Seventh Protocol to the ECHR. It is interesting to note in this respect that, although the provisions of the Charter corresponding to the rights guaranteed by the European Social Charter (supra note 7) do not necessarily have the same meaning and scope as they have under the European Social Charter (since the scope of Art. 52(3) of the Charter is limited to the ECHR), the latter still serves as minimum protection in the interpretation of the social rights contained in the Charter, because all EU Member States have adhered to the European Social Charter (Art. 53 of the Charter).
111. 111. Directive 93/109/EC of the Council of 6 Dec. 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (O.J. 1993, L 329/34).
112. 112. Directive 94/80/EC of the Council of 19 Dec. 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals (O.J. 1994, L 368/38).
113. 113. See supra note 96.
114. 114. The Court, when interpreting provisions of the ECHR, tends to give precedence to the general interest of the Community over the protection of individual fundamental rights. This sometimes leads to an interpretation that deviates from the interpretation given by the European Court of Human Rights (Waelbroeck, “La Cour de justice et la Convention europe´enne des droits de l’homme”, (1996) CDE, 549–553, at 550). As a consequence, EU Member States may be stuck between the supremacy of Community law on the one hand and the obligations flowing for them from the ECHR (Art. 46(1) of the ECHR) on the other hand.
115. 115. See supra notes 51 to 55 and accompanying text on the distinct formulation of similar fundamental rights in the ECHR and the Charter.
116. 116. E.g. Case C-249/96, Grant, [1998] ECR I-621, paras 33 and 34.
117. 117. This was the case in the suggestion of the personal representative of the Dutch Govern-ment, Mr Korthals Altes. He suggested adding the following general provision on the scope of the rights guaranteed by the Charter: “The interpretation of the ECHR and its Protocols provided in the case law of the European Court of Human Rights, established by Article 19 of the ECHR, shall be the basis for applying the rights and freedoms laid down in [the ECHR]” (Convention document CHARTE 4145/00 of 8 March 2000).
118. 118. See also the fifth paragraph, in fine, of the preamble to the Charter and the interpretation of Art. 52(3) of the Charter in Convention document CHARTE 4423/00 of 31 July 2000.
119. 119. The Charter also confirms the role of the Social Charters accepted by the EC and by the Council of Europe (see the fifth paragraph of the preamble to the Charter).
120. 120. See supra notes 98 and 99 and accompanying text.
121. 121. See supra section 3.
122. 122. Ibid.
123. 123. Except for the “citizens’ rights” (which – with the exception of the right to good administration (Art. 41) – are all reserved for special categories of people), only Art. 15 (freedom to choose an occupation and right to engage in work) distinguishes between EU citizens and citizens from third States. According to the special categories ratione personae to which they apply, the rights listed in the Charter can be subdivided as follows: Art. 15(2) (the freedom to seek employment, to work, to exercise the right of establishment and to provide services in a Member State), Art. 39 (right to vote and to stand as a candidate at elections to the European Parliament), Art. 40 (right to vote and to stand as a candidate at municipal elections), Art. 45(1) (freedom of movement and of residence) and Art. 46 (diplomatic and consular protection) apply only to citizens of the Union. Art. 42 (right of access to documents), Art. 43 (ombudsman) and Art. 44 (right to petition) apply only to citizens of the Union and natural and legal persons from third States residing or having a registered office in a Member State. The field of application of Art. 15(3) (working conditions equivalent to those of citizens of the Union) is limited to citizens of third States who are authorized to work in the territories of the Member States and Art. 45(2) (freedom of movement and of residence) is applicable to citizens of third States who legally reside in the territory of a Member State. These reservations ratione personae in the Charter are the same as those found in the EC Treaty or may go somewhat further (compare Art. 15(3) of the Charter to Art. 137(3), fourth indent, EC). As to the other rights stated in the Charter, no limitation ratione personae applies.
124. 124. See supra note 94.
125. 125. At present such scrutiny may take place only indirectly in a case brought against an EU Member State, see supra notes 93 to 97 and accompanying text.
126. 126. See the speech of Roman Herzog, annex I to Convention document CHARTE 4105/00 of 13 Jan. 2000.
127. 127. See supra note 96.
128. 128. “After having listened to a report by G. Braibant, in the name of President Herzog, absent for health reasons, the European Council approved the content of the charter of fundamental rights and congratulated itself on the contribution this text brings to the model for values and society that the European Union constitutes. Once formally adopted by the European Com-mission and the European Parliament, this text will be solemnly announced by the European Council of Nice” (Report of the Informal European Council in Biarritz on 13 and 14 Oct. 2000)
129. 129. The IGC (Art. 48 EU) was convened on 14 Feb. 2000 ((1/2-2000) EU Bull., at 7, points 1.1.1. to 1.1.5.).
130. 130. See point 33.1 of the Resolution of the European Parliament with its proposals for the Intergovernmental Conference (A5-0086/2000) of 13 April 2000.
131. 131. It appears from the conclusions of the presidency at the occasion of the European Council of Santa Maria da Feira (19 and 20 June 2000) that there was only an agreement on a limited extension of the agenda of the intergovernmental conference with the provisions on closer cooperation ((6-2000) EU Bull., at 9, point I.4).
132. 132. In its search for fundamental rights as they result from the constitutional traditions common to the Member States, the Court seems to be concerned in the first place about the acceptability in the Member States’ legal orders of the fundamental rights that it guarantees as general principles of Community law. To that effect it analyses a representative sample of constitutional rules and practices of the Member States rather than undertaking an exhaustive comparative study of the constitutional provisions of all the Member States. See e.g. Case 44/79, Hauer, [1979] ECR 3727, paras 20 to 22 and further the Opinion of A.G. Tizzano of 8 Feb. 2001 in Case C-173/99, BECTU, paras. 26–28, concluding that “the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right.”
133. 133. See supra note 39.
134. 134. Bulletin quotidien Europe No. 7846 (22 Nov. 2000), at 7.
135. 135. According to Annex IV to the Treaty of Nice, “the European Council, at its meeting at Laeken/Brussels in December 2001, will agree on a declaration containing appropriate initiatives for the continuation of [the debate about the future development of the EU]. The process should address, inter alia… the status of the Charter of Fundamental Rights of the European Union proclaimed in Nice”.
136. 136. See supra note 6.
137. 137. In his speech “A vision for Europe” (Brussels, European Policy Center, 21 Sept. 2000) the Belgian Prime Minister Guy Verhofstadt also pleaded in favour of taking up the Charter in the EU Treaty. In this way, he said, we make a start in drawing up a real constitution for the Union (http://premier.fgov.be/n html index image swap.html). In a contribution in Le Monde (20 June 2000) Robert Badinter declared that as long as there is no constitution of the EU, it is not necessary to give the Charter legally binding force. He hoped, however, that the process of constitutionalization in the EU would proceed quickly and the Charter could serve as a preamble to such a European constitution. See also Dutheil de la Roche`re, “La Charte des droits fondamentaux de l’Union europe´enne: quelle valeur ajoute´e, quel avenir?”, (2000) RMC, 674–680, at 679.