Fundamental Rights in the EU The Added Value of the EU Charter on Fundamental Rights Specialization Seminar in Human Rights Winter/Spring 2007 Turku Law School / Åbo Akademi Tuomas Ojanen

The Added Value of the Charter Culmination of the development since Stauder (1969) Pulls together rights and freedoms regarded as “fundamental rights” within the EU Visible manifestation, in a single text, of what the EU has achieved in the area of fundamental rights. Major milestone of European constitutionalism Broad catalogue of fundamental rights A catalogue of common values of the EU Member States Something for all human beings universally and in accordance with the principle of equality (but see Article 21.2+Chapter V)

Other Essentials of the Charter Reaffirms fundamental rights "as they result", inter alia, from the constitutional traditions and international obligations common to the Member States, the ECHR, the Social Charter of the Council of Europe and the case-law of the Court of Justice and the European Court of Human Rights. Limits the scope of application of the Charter to the institutions of the Union and to the Member States only in their implementation of Union law (reflects the traditional understanding of the functions of fundamental rights within the EU) The interpretation of the Charter is based on the explanations provided by the Presidium of the Convention entrusted with the elaboration of the Charter the Charter have to be read in accordance with the rights guaranteed in instruments Rights contained therein "which correspond to rights guaranteed by the [ECHR]" shall have the same meaning and scope as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. “ (Art. 52.2) – The ECHR functions as a minimum standard of protection! The Charter has to be read in accordance with other instruments adopted by the United Nations, the International Labour Organisation and the Council of Europe The Charter may be taken into account in the understanding of Article 6(1) EU, to which Article 7 EU refers

The Legal Status and Effects of the Charter The Charter is not a legally binding document; it cannot be directly applicable by the courts The Charter may be relevant to the interpretation and application of legal norms within the EU legal order (as an interpretative aid, “the Charter-oriented interpretation approach”) The Charter can assume relevance as a set of standards for policy- and lawmaking within the EU. The compliance of the laws and policies of the EU with the requirements of fundamental rights still needs to be improved! The Charter has been cited by the CFI (see, e.g., Case T-54/99 max.mobil [2002] ECR II-313); the Advocate-Generals of the Court of Justice (see, e.g. the Opinion of Advocate General Kokott of 14 October 2004 in Joined Cases C-387/02, C-391/02 and C-403/02 Silvio Berlusconi, at para. 109, footnote 83) and the European Court of Human Rights (Case of Goodwin v United Kingdom, judgment of 11 July 2002). The ECJ made its first reference to the Charter on 27 June, 2006 (C-540/03 Parliament v. Council) Other actors making use of the Charter: EU Network of Independent Experts on Fundamental Rights: annual reports, thematic comments and opinions on the basis of the Charter; closest to ”monitoring” in the normative sense; The Fundamental Rights Agency for the European Union; European Ombudsman; The European Court of Human Rights; The Constitutional Law Committee of Finnish Parliament

Horizontal clauses (as inserted in the European Constitution!) Article II-111 Field of application 1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the other Parts of the Constitution. 2. This Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined in the other Parts of the Constitution.

Horizontal clauses (continued) Article II-112 Scope and interpretation of rights and principles 1. Any limitation on the exercise of the rights and freedoms recognised 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 recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter for which provision is made in other Parts of the Constitution shall be exercised under the conditions and within the limits defined by these relevant Parts. 3. Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, 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. 4. Insofar as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. 5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. 6. Full account shall be taken of national laws and practices as specified in this Charter. 7. The explanations drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall be given due regard by the courts of the Union and of the Member States.

Horizontal clauses (continued) Article II-113 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.

Horizontal clauses (continued) Article II-114 Prohibition of abuse of rights Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.

The Charter and the Question of Competence Limits the scope of application of the Charter to the institutions of the Union and to the Member States only in their implementation of Union law (reflects the traditional understanding of the functions of fundamental rights within the EU) the Charter does not establish any new competences for the Union which it does not already hold by virtue of other parts of the Constitution the Charter does not extend the field of application of Union law The Charter only applies insofar as another rule of Union law applies, and in combination with that rule The Charter reflects the traditional understanding of the functions of fundamental rights within the EU legal order

The distinction between ”rights” and ”principles” II-112 § 5 : “The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.” Risk of partial watering-down? Cognizability of “principles”? Principles as “shields”, but not swords? Rights=Civil and political rights/Principles=Fundamental Cultural, Economic and Social Rights?

Membership Condition Article 6 1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights … and as they result from the constitutional traditions common to the Member States, as general principles of Community law. … Article 7 1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four fifths of its members after obtaining the assent of the European Parliament, may determine that there is a clear risk of a ser-ious breach by a Member State of principles mentioned in Article 6(1)… Article 49 Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union.

Non-Discrimination Article 12 Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited… Article 13 1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation... Article 141 1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. For the purpose of this article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, … Article 21 Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. 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.

LINKS The Charter, as inserted in a Treaty Establishing a Constitution for Europe, can be found at: http://www.unizar.es/euroconstitucion/library/constitution_29.10.04/part_II_EN.pdf The Network of Independent Experts on Fundamental Rights (CFR-CDF) was created by the European Commission in response to a recommendation in the European Parliament's report on the state of fundamental rights in the European Union (2000) (2000/2231(INI)) A more complete description of the activities of the Network and of its reports and opinions can be obtained from: http://www.europa.eu.int/comm/justice_home/cfr_cdf/index_en.htm (English) http://www.europa.eu.int/comm/justice_home/cfr_cdf/index_fr.htm (French) National reports on the situation of fundamental rights in the EU Member States can be found at: http://cridho.cpdr.ucl.ac.be/index.php?pageid=15