As the Jewish holiday of freedom approaches us, it is an appropriate moment to look at how the European Union sees itself in that respect. The Charter of Fundamental Rights of the European Union (EU) summarizes the common values of the EU member states and brings together in a single text the traditional civil and political rights as well as economic and social rights.
Its purpose is set out in the preamble: "it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter."
In June 1999 the Cologne European Council concluded that the fundamental rights applicable at EU level should be consolidated in a charter to give them greater visibility. The heads of state or government believed that the charter should contain the general principles set out in the Council of European Convention of 1950 and those derived from the constitutional traditions common to the member states, as well as the fundamental rights that apply only to the union's citizens and the economic and social rights contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers. It would also reflect the principles derived from the case law of the Court of Justice and the European Court of Human Rights.
The Charter was drawn up by a convention consisting of the representatives of the heads of state or government of the member states, one representative of the President of the European Commission, members of the European Parliament and members of national parliaments. Formally adopted in Nice in December 2000 by the Presidents of the European Parliament, the Council and the Commission, it constitutes a political undertaking that has no binding legal effect. In the Lisbon Treaty, the Charter was given a binding effect by the insertion of a phrase conferring on it the same legal value as the treaties. To this end, the Charter was proclaimed a second time in December 2007.
For the first time in the EU's history, a single document brings together all of the rights previously to be found in a variety of legislative instruments, such as national laws and international conventions from the Council of Europe. By making fundamental rights clearer and more visible, the Charter helps to develop the concept of citizenship of the EU, which is supposed create an area of freedom, security and justice. It enhances legal certainty as regards the protection of fundamental rights, where in the past such protection was guaranteed only by the case law of the Court of Justice and Article 6 of the EU Treaty.
The Charter contains a preamble and 54 articles, grouped in seven chapters. In general, the rights referred to apply to everyone. However, the Charter also refers to categories of persons with special needs (children, the elderly, people with disability). Chapter V also examines the specific situation of European citizens, referring to certain rights already mentioned in the treaties (freedom of movement and residence, the right to vote, the right to petition) and introducing the right to good administration.
Recognizing the changes that have occurred in society, the Charter includes not only the traditional rights (right to life, freedom of expression, right to an effective remedy, etc.), but also rights that were not included in the Council of Europe Convention of 1950 (data protection, bioethics, etc.).
The general provisions serve to establish links between the Charter and the European Convention on Human Rights and to determine the scope of the Charter. The Charter applies to the European institutions, subject to the principle of subsidiarity, and may under no circumstances extend the powers and tasks conferred on them by the Treaties. The principles of the Charter also apply to the member states (to central, regional and local authorities) when they are implementing community law. The Court of Justice had already confirmed the duty of member states to respect fundamental rights (see, for example, the judgment in Case C-292/97).
The Charter has been repeatedly cited in the opinions of the Advocates-General and has on several occasions influenced the conclusions of the Court of Justice of the European Communities. The opinions of the Advocates-General are not binding on the Court, but suggest legal solutions that are likely to influence it. In some cases the reference to the Charter has been marginal, but in other the Advocates-General have used it to interpret fundamental rights, though noting that it is not legally binding. The Charter's lack of legal status does not mean, however, that it has no effect.
In its report, on the state of fundamental rights in the European Union in 2000, the European Parliament recommended the creation of a network of experts in fundamental rights to assess the application of each of the rights set out in the Charter. The network was created in September 2002 and on 31 March 2003 it produced its first report on the situation of fundamental rights in the EU and its member states in 2002.
The author is the head of the International Department at GSCB Law Firm.