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Australian Year Book of International Law |
Rose M D’Sa[∗]
The ‘European model’[1 ]of protection of fundamental rights rests on a division of responsibilities between two supranational legal orders, namely the legal order of the European Union (EU) (which includes the European Community (EC)) and the legal order established by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), concluded under the auspices of the Council of Europe. The EU member states are component entities in both these legal orders, though in the context of the ECHR they are joined by numerous other European states, not themselves members of the EU. However, the principal guardians of human rights remain the member states themselves, within their own territories, in accordance with constitutional and other principles of law. Within the United Kingdom, for example, Parliament has recently adopted the Human Rights Act 1998, which came into full force on 2 October 2000, incorporating the ECHR into domestic law.[2]
The impetus for the drafting of the ECHR in 1950 was undoubtedly the proclamation by the United Nations (UN) General Assembly of the Universal Declaration of Human Rights on 10 December 1948.[3 ]Since then, the standard of protection of human rights in Europe has been the subject of considerable interest.[4] For instance, the three EC political institutions (Council, Commission and Parliament) issued a Joint Declaration in 1977 affirming adherence to the protection of fundamental rights, as derived from the constitutions of the member states and the ECHR.[5] Similar references to respect for fundamental rights has been made in other political declarations by the member states and Community institutions.[6] Declarations by various European Councils (composed of Heads of State and of government of the member states and the President of the Commission of Heads of State and Government)[7] may also be mentioned.[8] In 1998 a Comité des Sages[9] was responsible for adopting ‘Leading by Example: A Human Rights Agenda for the European Union for the Year 2000’. Subsequently, the European Commission carried the debate forward by the publication of the report of an independent expert group[10]
(Simitis report), to review in particular, the status of fundamental social rights in the Treaties. The Simitis report concluded, inter alia, that the rights contained in Articles 2 to 13 of the ECHR, including relevant rights in its Protocols, should be incorporated in their entirety into EU/EC law, whilst at the same time adding further clauses to complement the ECHR. The group also recommended that the text enumerating the relevant rights (which should include both civil and social rights) should be inserted into a special part or title of the Treaties to show the paramount importance of fundamental rights.
This article reviews, in particular, the most recent initiative of the EU to strengthen the human rights dimension, namely a proposal for a new European Charter on Fundamental Rights. This is an initiative of the European Council through a Decision adopted in 1999[11] which noted that the obligation of the Union to respect fundamental rights has been confirmed and defined by the jurisprudence of the European Court of Justice (ECJ). However, in the view of the Council, there appears to be a need at the present stage of the Union’s development to establish a Charter of Fundamental Rights in order to make their overriding importance and relevance more visible to the Union’s citizens. At the same time it has been noted that, whilst acknowledging certain weaknesses, Europe has evolved what is probably the most sophisticated system of judicial protection of human rights,[12] involving both the domestic constitutional orders of the member states as well as the legal orders of the EU and the ECHR.
In the view of the European Council, a draft of such a Fundamental Rights Charter should be elaborated by a body composed of 62 members. These include representatives of the Heads of State and Government and of the President of the Commission as well as of members of the European Parliament and national parliaments. Representatives of the ECJ and the Council of Europe (including one from the European Court of Human Rights) participate as observers. Representatives of the Economic and Social Committee, the Committee of the Regions, the Ombudsman and social groups as well as experts should be invited to give their views. Hearings will also be conducted of representatives of civil society such as interested non-governmental bodies, particularly those operating at European level.[13] A notable aspect of the working methods is the openness of the proceedings which will involve hearings open to the public and access to documents submitted at those hearings also being made public.[14]
The call for a new Charter is, in part, a result of the failed attempt by the European Commission in 1978 to begin a process that would have led to the EC’s accession to the ECHR.[15] The ECJ was asked for its Opinion and took the view that although respect for human rights is a condition of the lawfulness of Community acts, accession to the ECHR would entail a substantial change in the present Community system for the protection of human rights and could only be brought about by way of amendment to the EC Treaty.[16] In particular, it would entail the entry of the Community into a distinct international institutional system. This would have the effect of bringing Community institutions within the review jurisdiction of the European Court on Human Rights (though the Commission on Human Rights has now been abolished).[17] This would have meant that the ECJ would no longer be the final authority on the lawfulness of the actions of EC institutions, which might be perceived as a threat to the coherence of the EC legal system.
Furthermore, accession by the Community to the ECHR would necessitate the integration of all provisions of the Convention into the Community legal order. Such a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for the member states, would, in the view of the ECJ, be of constitutional significance. However, it has also been argued that any impediments to the EU acceding to the ECHR other than by Treaty amendment need not apply to prevent the Community, for example, acceding to the European Social Charter.[18]
It is arguable that accession by the Community to the ECHR is unnecessary in that the ECJ has already displayed a willingness to take account not only of ECHR principles but specifically refers to interpretations (or their absence) by the European Court of Human Rights and the Commission, thereby demonstrating a desire to ensure compatibility and conformity by the two systems of law. On the other hand, it has been observed that there has always been a risk that the Court of Human Rights in Strasbourg might find certain provisions of Community law to be incompatible with the European Convention, though this risk has remained largely theoretical.[19]
In terms of the broader human rights context into which the European model of protection fits, it should be noted that although the European Council has long appealed to all member states to accede and implement the principal international human rights instruments, it appears that not all EU member states have ratified some important UN instruments, such as the Convention against Torture, the Convention on the Elimination of All Forms of Racial Discrimination, the Second Optional Protocol (aimed at abolishing the death penalty) to the International Covenant on Civil and Political Rights. The United Kingdom has not, for instance, accepted the international complaints procedure under the (first) Optional Protocol to the latter Covenant.[20] Similarly not all the states have ratified all the Protocols of the Council of Europe such as Protocol No 4 of 1963, which prohibits imprisonment for breach of contract, guarantees freedom of movement and residence, and bans collective expulsions; Protocol No 6 of 1983, abolishing the death penalty; and Protocol No 7 of 1984, dealing with rights of lawfully resident aliens, and rights arising in criminal proceedings.[21] Support for the European Charter for Regional or Minority Languages has also been minimal and several states have not yet ratified the Framework Convention for the Protection of National Minorities.
The EU consists at present of 15 member states in Europe.[22] It is established by the Treaty on European Union, or EU Treaty, (sometimes known as the Maastricht Treaty)[23] and is made up of three ‘pillars’. The EC constitutes the first ‘pillar’,[24] the latter having also been created by Treaty, namely the EC Treaty (formerly European Economic Community (EEC) Treaty) or Treaty of Rome, signed in 1957). The second ‘pillar’ concerns issues of Common Foreign and Security Policy and the third is on Police and Judicial Co-operation in Criminal Matters.[25] The EC Treaty defines, inter alia, the various Community institutions and their powers and establishes a new legal order. The ultimate judicial authority within the EU is the ECJ in Luxembourg. The ECJ held, as early as 1963, in the Van Gend en Loos Case ‘that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights … and the subjects of which comprise not only Member States but also their nationals’.[26] In particular, EC law is binding and may have a direct effect on citizens, without any intervention on the part of national authorities.[27]
Compared with classic international organisations, the main EU political institutions (the Council, Commission, Parliament) have special characteristics involving both legislative and executive powers in very wide fields of competence. In many of these areas, member states have given up some or all of their sovereign competences. The ECJ, rather than national courts, has the final say on the interpretation and validity of Community acts, thereby helping to ensure a uniform and consistent interpretation of Community law in the various member states. The ECJ has, on a number of occasions, insisted first, that Community law has supremacy over the domestic law of the individual member states and second, that national courts must override conflicting national law, if it is in conflict with directly effective[28] Community law.
It is curious that the original versions of neither the EEC Treaty [29] nor the European Coal and Steel Treaty (ECSC)[30] nor the Euratom Treaty (EAEC)[31] make any specific reference to fundamental rights other than by resolving to ‘preserve and strengthen peace and liberty’ in the second-last recital in the preamble of the EC Treaty. It has been suggested by Craig and de Búrca[32] that this omission is partly explained by the drafting history of these founding treaties, in which the original broader plans to achieve closer integration in Europe were later scaled down and limited to goals of economic integration in the 1951 ECSC Treaty and the 1957 EEC Treaty. In addition, it may not have been immediately apparent at that time that the policies envisaged, which related primarily to economic matters, could encroach on traditionally protected human rights.
The EU Treaty does, however, make several references to human rights and fundamental rights. By virtue of a new provision, Article 6(1),[33]
the EU is now, in addition, explicitly ‘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. This amendment has been included as a response to possible future enlargement of the EU to include the states of Central and Eastern Europe. It has been suggested by Craig and de Búrca[34] that this amendment strengthens and expressly legitimates what the ECJ has in practice been doing for many years in relation to reviewing the actions of Community institutions. Its legal significance is heightened by the fact that the provision has been made specifically justiciable by the ECJ,[35] so that this Court has jurisdiction under the EC Treaty to review the conduct of the European institutions for compliance with these principles.[36]
The new Article 6(1) of the EU Treaty is complemented by a new sanctions procedure, introduced by the Treaty of Amsterdam, which entered into force on 1 May 1999, for dealing with cases of ‘serious and persistent violation of human rights’ by a member state.[37] The breach of these fundamental rights and principles by a member state will cause that state to lose certain rights, particularly voting rights.[38] As a result of amendments made by the Treaty of Amsterdam, respect for these fundamental principles has also been made a condition of application for membership of the EU. It is arguable that these amendments, viewed as a whole, evidence an important political move by the member states regarding the role and image of the EC and of the EU in relation to issues of fundamental human rights.
Article 6(2) of the EU Treaty is unamended and preserves the previously adopted support for the fundamental rights guaranteed by the ECHR and as determined by the constitutional traditions of member states and hence by the general principles of Community law. However, although the ECHR is referred to twice in the EU Treaty, it is not mentioned explicitly in the EC Treaty. The latter constitutes the ‘first’ pillar of legal competences of the EU and is concerned with, inter alia, the establishment of a single market.
The ECHR is concerned primarily with those rights traditionally classified as civil and political rights. It is of interest therefore, that the Preamble to the EU Treaty contains, in the fourth recital, explicit confirmation of the Union’s attachment to fundamental social rights (as defined, for example, in the European Social Charter of 1961[39]
and the 1989 Community Charter of the Fundamental Social Rights of Workers).[40] The 1989 Community Charter was subsequently incorporated into the Social Policy Agreement annexed to the Protocol (No 14) on Social Policy of the EU Treaty signed at Maastricht, often referred to thereafter as ‘the Social Charter’.[41] As a result of subsequent amendments made by the Treaty of Amsterdam, the provisions of the Social Charter were repealed and instead incorporated into the main body of the EC Treaty (Articles 136 to 148 EC).
Thus, Article 136 of the EC Treaty [42 ] refers to the fundamental social rights such as those set out in the European Social Charter and the 1989 Community Charter and states that the Community and the member states shall, bearing in mind the above fundamental social rights, have as their objective the promotion of employment, the improvement of living and working conditions, proper social protection, dialogue between management and labour and the development of human resources with a view to lasting high employment and the combating of exclusion. The EC Treaty (as amended) also contains a new Title VIII (ex Title VIa) focusing on employment which includes explicit references to the objective of achieving a high level of employment.[43]
The specific fundamental social rights to be protected are, however, not listed. Article 137 EC (ex Article 118) states that with a view to supporting the objectives of Article 136, the Community shall support and complement the activities of the member states in the following fields: improvement of the working environment to protect workers’ health and safety; working conditions, the information and consultation of workers, the integration of persons excluded from the labour market (without prejudice to Article 150 which concerns vocational training policy) and equality between men and women with regard to labour-market opportunities and treatment at work.
Various procedures are established in respect of broad categories of rights. In particular, under Article 13 EC (ex Article 6a) appropriate action may be taken to combat various forms of discrimination such as discrimination, based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This new provision does not amount in itself to a prohibition on discrimination in the specified areas, and is not ‘directly effective’ but does enable the Community to adopt measures[44] to combat such discrimination within the scope of powers and policies granted by other Treaty provisions.[45] Its existence gives the Community added competence to legislate in such fields.[46] Article 13 is of special significance because the right to non-discrimination and the duties flowing from that right may be regarded as being at the core of a large number of other human rights and thus provide a broad foundation upon which to build a human rights policy.[47] Additional EC Treaty provisions are found in Article 3(2) EC and 141(4) EC also lay down grounds for measures designed to achieve an effective equality of men and women, including positive action.[48]
Two draft Directives that have Article 13 EC as their legal basis are already under consideration. The first aims at the establishment of a general framework for equal treatment in employment and occupation[49] focusing on combating discrimination in the labour market on the various grounds referred to in Article 13 (other than sex discrimination), namely racial or ethnic origin, religion or belief, disability, age, and sexual orientation. The second is a proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.[50] It is aimed at combating discrimination on grounds of racial and ethnic origin which goes beyond the labour market.
Although the EU has clearly acknowledged its role in promoting respect for human rights within its legal order, the Union has been said to lack ‘a fully-fledged human rights policy’.[51] In particular, the institutional arrangements within, for example, the European Commission to give effect to human rights policies have been criticised as inadequate.
There has also been a suggestion that there is an excessive reliance on judicial remedies (both at national level and through the possibility of references to the ECJ) despite the possibility that other factors such as ignorance, lack of resources, ineffective representation and inadequate legal standing all have the capacity to render judicially enforceable human rights illusory.[52] In other words justice without ‘access’ is justice denied.[53] In particular, consideration might be given by the ECJ to its jurisprudence and/or amending its Statute, in relation to the application of Article 230 (ex Article 173) which currently gives only a very restricted right of access to the Court by way of the locus standi of both individuals and public interest groups, alleging the violation of fundamental rights. Such reform might allow, for instance, access to the ECJ where no other guaranteed judicial avenue of redress is available either before national courts, or where national courts have refused to make a reference to the ECJ[54] and the applicant wants to appeal against that refusal. This might include the granting of locus standi to appropriate non-governmental organisations in relevant cases. An adequate legal aid scheme to facilitate the funding of meritorious cases in the field of human rights should also be considered.[55]
The Simitis report [56] highlights the need for both judicial protection and corrective action to remedy, for example, structural discrimination and states that the two forms of action go hand in hand as part of one regulatory system. It also suggests that it is therefore vital to establish genuine justiciable rights that entail more than a passive obligation of non-violation. In other words, the link between justiciability and the obligation to ensure specific rights by supporting their application through a series of regulatory action should be emphasised. The best way of achieving this is arguably to choose wording that places a specific duty on the EU to guarantee a given right.[57]
The importance of continuous dialogue with those whose rights are to be guaranteed is also vital to the development of both credible and efficient human rights policies. Thus traditional interlocutors such as the social partners (employers organisations and employee representatives, including trades unions) together with non-governmental organisations can offer critical advice and help to identify areas of conflict.[58] Internal co-ordination must be complemented by procedures intended to establish a regular exchange of views and experiences with the social partners and non-governmental organisations.
Nevertheless, it is also clearly the case that the current situation within the EU cannot be characterised as requiring the eradication of systematic or gross violations of human rights. However, various reports by the European Parliament, European Commission, and by non-governmental organisations such as Amnesty International and Human Rights Watch suggest that certain violations do nonetheless exist and require greater attention. These include, in particular, a resurgence in racist and xenophobic behaviour, some failures to eliminate various types of discrimination, shortcomings in the enjoyment of economic, social and cultural rights by disadvantaged and vulnerable groups, and unsatisfactory treatment of refugees and asylum-seekers.[59] The launch of the last stage of Economic and Monetary Union through the creation of a single currency may be seen as an opportunity for the EU to realise not only key economic ambitions, but also greater legal and ethical responsibility in relation to human rights concerns.
The establishment of the European Monitoring Centre on Racism and Xenophobia in Vienna in 1997 suggests a model on which either another agency with monitoring responsibility in the field of human rights in the context of Community law might operate, or even the possible extension of the role of the existing Centre to take on this work[60 ](assuming the commitment of adequate staff and other resources). In terms of providing a legal basis for such an initiative, it has been suggested that ‘Opinion 2/94 [referred to above] does not appear to imply that the Treaty [would need to] be amended in order to establish within the European Community a monitoring system concerning the respect of human rights by Community institutions and by Member States within the scope of Community law.’[61] The work of such an Agency might include an annual survey of human rights within the EU.
Criticisms of existing Treaty clauses have been made, notably in the Simitis report to the Commission in 1997. It noted for instance that there is increasing uneasiness and confusion in respect of the differences in perception and application of the EU’s commitment to fundamental human rights across the three ‘pillars’ of the Union. In particular, the second pillar (Common Security and Foreign policy) and the third (Police and Judicial Co-operation in Criminal Matters) continue to be based on traditional inter-governmental relations which also limit the influence of human rights considerations in these pillars.[62]
It has been pointed out by White[63] that there is both confusion of purpose and of language in the current efforts to produce a draft Charter. In particular there is no consensus ‘on what the Charter is really for, what fundamental rights are, or whether the Charter should have legal effect or merely be a statement of political intent.’[64] In addition, many of the rights currently under consideration for inclusion in the draft Charter are already found in various legal texts of the Council of Europe, thereby raising the issue of whether the EU should concentrate on promoting the work of the former, rather than duplicating such efforts. For example, it may be argued that efforts currently expended on drafting a new Charter of Rights could be re-directed instead at encouraging adherence to existing instruments such as the Council of Europe’s Framework Convention for the Protection of National Minorities or the core human rights conventions of the International Labour Organization, especially Convention No 111 (dealing with the elimination of discrimination in respect of employment and occupation).
Piris has also enumerated a number of difficulties involved in the proposed adoption of an European Union Charter of Fundamental Rights.[65]
He points out first that the present 15 member states have recognised different lists of fundamental rights in their various constitutions, which makes it difficult for each of them to agree to a list which may exclude that right at the European level (or vice versa). Second, the level of protection of a given right may vary so that in one member state it might entail significant financial consequences, but not in another. Third, it might be difficult to obtain political agreement on all but the rights already enumerated in the ECHR. Fourth, there are difficulties in determining which court (that is, the ECJ in Luxembourg or the Court of Human Rights in Strasbourg) would have ultimate jurisdiction for reviewing implementation of the Charter.
In some respects, the conclusion of a Charter, whether of a binding nature or otherwise seems to miss a key point, namely whether the Community currently gives effective rights of recourse to individual citizens in respect of the protection of those rights already protected. For instance, the ECJ expressed the following doubt:
It may be asked, however, whether the right to bring an action for annulment under Article 173 [now Article 230] of the EC Treaty (and the corresponding provisions of the other Treaties), which individuals enjoy only in regard to acts of direct and individual concern to them, is sufficient to guarantee for them effective judicial protection against possible infringements of their fundamental rights arising from the legislative activity of the institutions.[66]
The drafting Body set up by the European Council[67] to draft the proposed Charter described above is large and unwieldy.[68] The drafting Body held its first meeting in Brussels on 17 December 1999.[69] A Drafting Committee composed of the Chairperson, the three Vice-Chairpersons and the representative of the Commission and assisted by the General Secretariat of the Council are mandated to elaborate a preliminary draft Charter, taking account of drafting proposals submitted by any member of the Body. Each of three Vice-Chairpersons shall regularly consult with the respective component parts of the Body from which he or she emanates. When the Chairperson, in close consultation with the Vice-Chairpersons, deems that the text of the draft Charter elaborated by the Body can eventually be subscribed to by all the parties, it shall be forwarded to the European Council through the normal preparatory procedure.
Early indications are that the draft text of this Charter is to be broadly divided into three sections relating respectively to political and civil rights, economic and social rights, and citizens’ rights. It may eventually be approved by a European Council in December 2000 and proposed for subsequent adoption by the main political institutions (the Council, European Parliament and Commission). However, the plan suffers from a weakness in that consideration as to whether, and if so, how, the Charter should be integrated into the founding Treaties is postponed for later consideration. A British representative on the drafting body, Lord Goldsmith QC has proposed, for instance, that a two-part approach might be followed for the document, whereby the first part would be a simple statement of existing rights and the second a more detailed statement of existing rights with their legal source and existing enforcement mechanism (whether it be the ECJ, the Court of Human Rights or national courts). This two-part approach might presumably result in agreement at least on the first (non-binding) and therefore ‘declarative’ part of the Charter. There appears to be considerable support for the view that the working parties and the plenary group should work on the assumption that the draft Charter under preparation will ultimately be legally binding.
If the final result is that the Charter constitutes only ‘soft law’ in the form of a non-binding Joint Declaration, it may not add very much more to the existing corpus of relevant norms. To the extent that some new rights might be articulated, however, these might be used by the ECJ to develop further the general principles of Community law relating to human rights, which it currently already applies in its case law. Even if all the rights protected by the ECHR were incorporated expressly into the proposed new Charter, the latter may still suffer from a weakness that the standard of protection envisaged in the ECHR may be viewed as a very basic or minimum standard, or lowest common denominator, and might not necessarily provide a satisfactory standard of protection for rights which are particularly important to certain member states.[70]
It is also likely that: even if all the Member States were agreed about what specific rights should be protected, they might well differ on how those rights should be protected. All of the Member States agree in the abstract that there should be protection for freedom of expression, yet they will undoubtedly have rather different views on how, in a particular context, it should be protected.[71]
In other words, there may not necessarily be agreement by all the member states on the scope and practical application of any given right in a specific context. This is clearly a problem which the ECJ already faces in the context of its interpretative function in relation to fundamental human rights.[72]
A further difficulty relates to constitutional competence of the EU to integrate any proposed Charter within the framework of its founding Treaties. It is sometimes argued that the reasoning of the ECJ in its Opinion 2/94 on Community accession to the ECHR [73]
not only prevents such accession in the absence of a specific Treaty amendment, but may also preclude the development of a general human rights policy unless also specifically authorised by Treaty amendment. The ECJ stated in paragraph 27 of its judgment, that ‘No Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field.’ However, it is submitted, as argued by Craig and de Búrca,[74] that the Court’s judgment can be read as permitting ex Article 235 (now Article 308) to form the basis for the adoption of specific Community measures for the protection of human rights, so long as they do not amount to an amendment of the Treaty by going beyond the scope of the Community’s defined aims and objectives.[75]
However, if the practical effect of seeking to incorporate the proposed Charter into EU law would in effect involve the incorporation, by other means, of essentially many, if not all, of the existing provisions of the ECHR, then it is difficult to avoid the conclusion that the ECJ would be likely to reiterate the requirement of its earlier Opinion, for a specific Treaty amendment in order to do so. This is especially so as it might well involve the development of a human rights policy that might arguably extend beyond the scope of just Community law.
However, it would appear that a third way forward is possible. It is argued by Weiler and Fries that:
a Community human rights policy which respected the current institutional balance, which avoided formal accession to the ECHR, which left intact the definition of the material contents of rights and their Community autonomy and which, critically, scrupulously remained within the field of Community law, would not, and could not be considered of ‘constitutional significance’ in the sense used by the Court in Opinion 2/94, and, thus, could be based, where necessary (i.e. where other provisions do not exist[76]) on Article 308 (ex Article 235 EC).[77]
Article 308 EC provides that:
If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council, shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.
Prior to the amendment made by the Treaty of Amsterdam to include a new ‘non-discrimination’ provision in the form of the new Article 13 (ex Article 6a) EC, referred to earlier, the Economic and Social Committee of the EC[78] had cautioned against an over-extensive use of ex Article 235 (now 308) EC as a legal basis. It was nevertheless used, in combination with ex Article 213 (now 284) EC, to establish the European Monitoring Centre for Racism and Xenophobia.[79]
The Community political institutions have also used Article 130w EC (now Article 179) to adopt a proposal, in July 1997 for a Council Regulation[80] establishing a legal basis for Community support for operations to ‘develop and consolidate democracy and the rule of law and respect for human rights and fundamental freedoms’ in order to support, promote and finance human rights institutions and projects. This (secondary) legislation is of interest because it evidences support for a measure whose central objective is the furtherance of human rights and freedoms, rather than as a background condition for economic policy, which is one of the key objectives of the Community.[81]
The ECJ has also upheld the legal basis that the Council used, namely Article 130u (now 177[82]) EC (which is concerned with development co-operation), instead of Article 235 (now 308) EC, for inserting a clause into a Co-operation Agreement with India [83] stating that respect for human rights and democratic principles was ‘the basis for the co-operation between the contracting parties’ and ‘constitutes an essential element of the ingredient’. However, the Community may not have the power to conclude, under the provisions on development co-operation in the EC Treaty, a co-operation agreement principally on the subject of human rights.[84]
There is some evidence that the ‘third way’ suggested by Weiler and Fries[85] is being utilised by the drafting Body. A number of draft ‘horizontal’ clauses have been proposed to resolve such questions as the scope of the Charter, the limits that can be placed on the rights guaranteed and the relationship with other instruments for the protection of fundamental rights.[86] In particular, the scope of the Charter appears to be addressed ‘to the institutions and bodies of the Union within the framework of the powers conferred on them by the Treaties, and also to the Member States exclusively within the framework of implementing Community law.’[87] In addition, ‘They shall not establish any competence or any new task for the Community or the Union.’[88] In other words the draft Charter is to apply only to matters already covered by Community competence and the tasks of the Union. However, the difficulty with this approach is that it is not immediately evident what positive improvements to the existing protection of fundamental rights would thereby be achieved.
The draft horizontal clauses also address the issue of the relationship with the ECHR. In particular, the rights and freedoms recognised in the Charter are made subject, inter alia, to ‘The limitations provided for by the European Convention on Human Rights …’[89] In addition, draft Article H.4 currently provides that ‘No provision of this Charter may be interpreted as restricting the scope of the rights guaranteed by Union law, the law of the Member States, international law and international conventions ratified by the Member States, including the European Convention on Human Rights as interpreted by the case law of the European Court of Human Rights.’[90] The object is partly to maintain the ECHR as a minimum standard of protection, but the weakness of this approach has been referred to above.[91]
There is a potentially significant draft Article H.3 (which has been slightly modified in the form of draft Article 50(2) of a later text of 28 July 2000) stating that ‘The rights guaranteed by Article … shall be exercised under the conditions and within the limits laid down by the Treaty establishing the European Community.’ This is intended to have the effect of requiring reference back to the Treaty, where the rights in question are defined by the latter itself. These rights currently relate broadly to ‘citizens’ rights’ and include freedom of movement, the right to participate in European and municipal elections, the right to refer to the Ombudsman, and the right to petition the European Parliament. However, this would arguably have the practical effect that the Charter would in fact add, in legal terms, no further protection to that already afforded to these existing rights.
The Simitis report recognises the continuing need to take account of the ECJ’s relationship with the European Court of Human Rights. It states that the clearly independent jurisdictions of the ECJ and the Court of Human Rights should be maintained and that the ECJ should continue to consider and integrate the decisions of the latter into the law of the EU. However, it also moots the possibility of a system of references by which the ECJ could, in a mechanism similar to that under Article 234 of the EC Treaty, refer question of interpretation to the European Court of Human Rights. A final appeal to the latter could also be considered but recognises that this would involve overcoming considerable procedural and substantive obstacles within both the EU and the Council of Europe.[92]
However there appears to be no attempt, at the time of writing, to tackle such issues in the present draft of the Charter.
The European Council proposed that the Charter should include ‘fundamental rights that pertain only to the Union’s citizens’. However, no further indication is given as to what these rights are. It has been pointed out by White, that the current scope of the ECHR secures to ‘everyone’ within the jurisdiction of the Contracting Parties, the rights and freedoms set forth in that Convention, which includes both citizen and non-citizen alike.[93] Therefore there is something inconsistent about rights attaching only to citizens being described as ‘fundamental’.
The idea of Community citizenship has been in circulation for some time.[94 ] It was first formally included in the EC Treaty by virtue of amendments made by the Treaty on European Union, in Articles 17–22 (ex Article 8–8e) EC and have been further amended in minor ways by the Treaty of Amsterdam. It is clear from the (new) Article 17 that citizenship is directly linked to the nationality of a member state and it is now explicitly stated that ‘Citizenship of the Union shall complement and not replace national citizenship.’[95 ]It has been described as ‘a new type of citizenship, a sui generis creation’.[96 ]
The creation of ‘citizenship of the Union’ appears to have two principal objectives namely to protect the individual and strengthen his/her rights and also to give the Union a more ‘state-like’ appearance.[97] No uniform rules on citizenship exist in EU countries, particularly in relation to how it is acquired and the legal consequences. Each member state within the EU effectively defines which persons are its citizens, and such persons are also citizens of the Union. There is no present prospect of harmonisation of the laws on citizenship in the member states, though partial harmonisation has been achieved through the new European Convention on Nationality of 6 November 1997 (not yet in force).[98] The latter provides in Article 4 that everyone has the right to a nationality, though such a right is not found in the ECHR.
It has been suggested that in order to be in a position to grant rights to the inhabitants of the Union on an objective and fair basis, it would be important to release citizenship of the Union from national rules on citizenship and therefore of nationality, and base them instead on permanent abode/residence in the Union over a certain period of time.[99 ]This would correspond well with the EU rules on non-discrimination and also strengthen the rights of nationals from third countries in the Community.[100] One of the specific criticisms of the Simitis report is that the restriction of application of certain rights such as free movement of workers, to EC citizens is inconsistent with the universality of application of a substantial number of fundamental rights.[101]
Removing the link with nationality would also have the advantage of deciding who could have Community rights via EU citizenship, without affecting the different national legislation on the concept of national citizenship.[102]
The most significant political rights conferred by the EC Treaty on citizens is the right to move and reside freely within the territory of the member states (ex Article 8a, now Article 18 EC) but this is subject to the limitations and conditions laid down in the Treaty (for example on grounds of public policy, public security or public health) and by the measures adopted to give it effect. In particular it has been argued that as a result of Community secondary legislation in the form of various Directives,[103 ]
no rights of residence are conferred upon migrant EC citizens who lack sufficient financial resources.[104] Some of the issues which relate to free movement are resolved within the framework of the Schengen Agreement and Convention,[105] aimed at the abolition of border controls for persons crossing borders and also co-operation on legal and police matters, according to which EU citizens (that is, nationals of the Schengen countries), as well as third country nationals (who may be required to have a visa) may move freely within the Schengen area (though time limits are imposed on this right for third country nationals). As a result of association agreements between the EC and third countries, certain categories of foreign nationals also have the right to enter and reside in the member states.[106] The right to freedom of movement (consisting essentially of the right to enter, the right to stay, and the right to leave the territory) also indirectly protects the individual’s possibility of exercising other rights,[107] such as freedom of speech, of association, and so on). Since in general there is no right in international law to enter or reside in a foreign country and it is therefore lawful to treat nationals of a state differently from foreigners in that respect, the free movement of citizens of the EU appears to be an exception to the general rule.[108]
It will be of interest to see whether the Charter seeks to remove existing limitations on the rights of residence of citizens, since no such changes were proposed or made by the Treaty of Amsterdam. Existing proposals for Community legislation focus on other related areas, such as the right to family reunification in respect of third country nationals, which is currently the subject of a draft Directive.[109 ] However, at present the text on freedom of movement merely states that ‘Every citizen of the Union has the right to move and reside freely in the territory of the Member States, subject to the limitations and conditions laid down in the Treaty establishing the European Community.’[110]
This does little more than reflect the content of Article 18 EC and is of no benefit to non-citizens.
In order for the rules on free movement to apply, Community law must first be brought into play and therefore a person must move from one member state to another. Moves to rely on the status of EU citizenship in Article 8a (now 18) EC to circumvent the rule established by the ECJ that the right to free movement of workers is confined to their right to move between member states and that therefore movement and residence wholly within a member state is excluded, failed in the Uecker Case.[111] In addition, there are arguably still numerous practical obstacles to the mobility of nationals between the member states (which is fundamental to the success of an Internal Market) such as recognition of qualifications and professional experience (especially for non-regulated professions), limitations of access to jobs in the public sector, fiscal disincentives (especially for frontier workers) and the absence of a co-ordinated framework for ‘portable’ occupational pensions.[112]
Other political rights conferred to Articles 17–22 EC include a provision in Article 19 (ex Article 8b) EC whereby citizens of the Union shall have the right in a member state (other than that of their own nationality), to vote and to stand as a candidate both in municipal and in European Parliament elections. It was intended to give modest political rights to other EU nationals to take part in the political process of the country in which they are living. If this right were extended in the future to include third country nationals, it would represent an important step forward from the viewpoint of non-discrimination. However, this does not seem to be included in the draft Charter at the time of writing. For instance, draft Article B (which was omitted in the later text of 28 July 2000) states that ‘Every citizen of the Union has the right to form and to join political parties. Political parties at Union level contribute to forming a European awareness and to expressing the political will of the citizens of the Union.’ There does not appear to be a good reason for limiting the right in the first sentence just to ‘citizens’. The second sentence does little more than reflect part of Article 191 of the EC Treaty.
Under Article 20 (ex Article 8c) every citizen of the Union shall be entitled, in third country states, to certain protection by the diplomatic or consular authorities of any member state, on the same condition as the nationals of that state. The latter is a completely new right in Community law.[113]
It seems likely that the general status and legal protection available to non-EU nationals resident in a member state is not improved by the creation of a right of citizenship for EU nationals, with very minor exceptions. The right to petition the European Parliament [114] and the right to complain to the Ombudsman[115] are extended to non-EU nationals. However it does not include the right to write to any of the Community institutions or bodies in one of the official Community languages and to receive a written answer in the same language.[116]
Despite the broad approach which the ECJ has sometimes taken to the rights of Community nationals,[117] with the exception of its judgment in Case C–85/96 María Martínez Sala v Freistaat Bayern,[118] it is generally true to say that it has shown no particular inclination to construe the provisions relating to citizenship broadly and it remains to be seen whether the adoption of any new Charter provisions on the subject will influence it further. In general, the concept of EU citizenship appears to lack real substance and requires redefinition to make it a more meaningful and effective concept.[119]
Nonetheless there is some evidence of new civil or political rights being included in the draft Charter (which are not necessarily limited to citizens of the EU) such as a proposed ‘right to good administration’. This constitutes, inter alia, that ‘every person residing in a Member State has the right to have his affairs handled properly, impartially, fairly and within a reasonable time by the institutions and bodies of the Union’.[120] The latter is apparently in response to a request made several times, particularly by the Ombudsman.
There is also at present a draft Article relating to the ‘Principle of democracy,’[121] paragraph 1 of which states that ‘All public authority stems from the people.’ This is considered to be a principle already enshrined by the ECJ in particular in its judgment in Case 138/79 Roquette Frères v Council .[122]
Although all public authority stems from the people, it does not follow that every public authority must be elected, but it must be appointed or established by an institution whose origin is democratic.[123] The draft Article also incorporates (in paragraph 3) the concept that ‘The representatives in the European Parliament of the peoples of the States brought together in the Community [the Union] shall be by directly and freely elected universal suffrage and secret ballot.’ Here the chosen wording follows Article 190(1) of the EC Treaty rather than Article 3 of the Additional Protocol to the ECHR.[124 ]It has been observed by White that several draft provisions of the Charter borrow from the ECHR sometimes in whole and sometimes in part[125] and this may lead to problematic interpretation.
It may be said that the principle of indivisibility of human rights, namely that economic, social and cultural rights should be accorded equal status with civil and political rights (as reflected in the Universal Declaration of Human Rights) is also part of EU policy. However, one of the criticisms of the Simitis report was that the system of references to various human rights in the EC and EU Treaties were confusing and also created the impression that some (mainly civil and political rights) were guaranteed to the highest possible degree of protection in part due to their justiciable character while other (such as social) rights risk being relegated to the status of mere aspirations.[126]
The Simitis report also points out certain inconsistencies. For instance, although Article 136 EC expressly and emphatically refers to the European Social Charter and the Community Charter, in Article 137(6) the EC Treaty explicitly excludes the right of association, as well as the right to strike and the right to impose lock-outs, from the duty to support and complete the efforts of the member states designed to implement the social policy aims defined in Article 136. Thus the inclusion of social rights into the policies and activities of the EU is in fact only partial.[127]
The draft Charter currently includes a number of proposals for social rights, including the right to strike.[128] Draft Article IV (freedom of association, rights of collective bargaining and collective action) states ‘Workers and employers have the right in cases of conflict of interest to take collective action at European Union level should the occasion arise, including the right to strike.’[129] However, this is preceded by a provision which states that ‘Employers or employers’ organisations, on the one hand and workers’ organisations, on the other hand, have the right, under the conditions laid down by national legislation and practice, to negotiate and conclude collective agreements, including at European Union level.’[130 ]The addition of the reference to national legislation is necessary because, pursuant to Article 137(6) of the EC Treaty, the Community does not have competence with regard to the right to strike in member states (though it does have such competence with regard to its own employees). Thus national legislation in force would continue to be respected and the Charter would not therefore appear to alter materially the existing position on the right to strike.
Some Swedish trade unions advocate that the ‘four freedoms’ (free movement of goods, persons, services and capital) should be supplemented with a so-called ‘fifth freedom’, namely the freedom of employees to take trade union actions across national borders. Maduro hypothesises that a prohibition in a member state on striking or becoming a union member could deter workers from other member states where those rights existed from moving to that member state and thereby comprise market integration. It is arguable that such a social right may not require specific legislation but could be established simply by judicial recognition by the ECJ.[131] In any event, there is some evidence of a broader use of the free movement of workers to promote social rights such as the Court’s decision in Bosman[132] concerning the right to work and the freedom of workers to choose their work and employment. However, it has been suggested that social rights have been developed as a function of market integration, rather than as an element of European citizenship.[133] The perceived tendency by the Court not to affirm the fundamental rights status of certain social rights as well as uncertainty as to which social rights are to be considered fundamental[134] is partly behind calls for the adoption of the proposed Charter. However, as has already been explained, the current draft does not appear to alter the current legal position over such issues.
It should be noted that although the European Social Charter of 1961 has been ratified by all EU member states, various attempts to update it both substantively and procedurally have been less than successful.[135] A number of states have yet to ratify the Additional Protocol extending the rights recognised, the Protocol aimed at improving the supervisory machinery, and the Additional Protocol providing for a complaints mechanism.[136] Some draft social rights appear to be based in large measure on the (revised) Social Charter to which various member states are not yet parties. These include, for example, the provision that ‘Workers have the right not to have their employment terminated without valid reason and to adequate compensation or other appropriate relief if their employment is terminated without valid reason’[137] which is based on Article 24 of the (revised) Social Charter.
The Council has certainly made it clear that the Charter will take account of economic and social rights as contained in the European Social Charter of 1961 and the 1989 Community Charter of the Fundamental Social Rights of Workers [138] insofar as they do not merely establish objectives for action by the Union. Thus the Council appears to envisage the inclusion of what have been described as ‘aspirational fundamental rights’, that is, social (in the sense traditionally of employment and workers’ rights) and economic rights, cultural and educational rights, environmental rights, consumer rights, etc.).[139] Such rights have also been referred to as ‘societal’ rights when referring to a very broad range of topics such as the environment, health and consumer protection, privacy, racism, cultural heritage, the family, the disadvantaged and the excluded.[140] Some NGOs also support various special social rights such as a right to housing, which is referred to for instance in Article 31 of the Revised Social Charter of 1996 (not yet in force).[141]
The Simitis report recognised the possibility that some formulation of new rights may be needed, particularly in the case of collective rights, such as the right to resort to collective action which may not readily be encompassed by existing categories of rights, whether civil or social.[142] Other ‘new’ rights may relate to the protection of the environment and the effects on the privacy of individuals of rapidly developing biotechnology.[143]
It is likely that there will be prolonged debate about the specific rights which should be included and their exact scope. It has been suggested that there has been a strong tendency in the great majority of Community documents to focus on ‘social policy’ designed to promote ‘social protection’ or overcome ‘social exclusion,’ rather than to focus specifically on ‘social rights’.[144] Criticisms have sometimes been made that European integration has promoted economic integration to the detriment of social rights and policies.[145] On the other hand, the EC Treaty certainly does include social provisions (for example, Articles 136–141, formerly Articles 117–119), of which Article 141 (formerly Article 119) establishes the principle ‘that men and women should receive equal pay for equal work’. The ECJ has interpreted this right very broadly and, in conjunction with secondary Community legislation has effectively transformed it into a general principle of equality of treatment for men and women with regard to work.[146]
Nevertheless, various bodies have advanced lists of ‘rights’, such as the European Parliament in April 1989 in its Resolution on Fundamental Rights and Freedoms[147] setting out 28 articles laying down the basic principles of a ‘common legal tradition based on respect for human dignity and fundamental rights’. The Economic and Social Committee also produced an Opinion in 1989 on possible components of a ‘Community Charter of Basic Social Rights’[148] which referred to various guaranteed rights or principles, drawn largely from existing international conventions (notably International Labour Organization and other UN Conventions, such as the International Covenant on Economic Social and Cultural Rights as well as the European Social Charter).
The Simitis report also pointed out that current EU law raises questions as to the exact status of other Conventions, in particular those of the International Labour Organization, because even if the importance of the latter may be undisputed, the fact that they are not explicitly mentioned means that both their role and their impact remain uncertain. This is all the more so since the ECJ seems to distinguish between the ECHR (which forms part of Community law), and other Conventions (which merely operate as guidelines for the interpretation and application of Community law).[149] Other attempts to formulate the fundamental rights which should be applicable in the European context include the 1996 Report by the Comité des Sages ‘For a Europe of civic and social rights’ which argued for ‘strengthening the sense of citizenship and democracy in the Union by treating civic and social rights as indivisible.’[150]
There appears to be no reason in principle why many of the above rights should not be granted to everyone within the jurisdiction of a member state, unlike certain of the political rights described earlier, which are limited to citizens that is, the nationals of the member states. However, any list of rights in this category would be practically unenforceable without some consideration as to which public authorities, whether they be Community institutions or the member states, have legal responsibility to ensure their protection. Furthermore, it will be necessary for the Charter to specify whether the fundamental rights in this category require the public authorities and/or the Community institutions to act positively to ensure effective enjoyment of these rights or whether it is sufficient simply to abstain from acting in a way which is contrary to the rights in the Charter.[151] The extent to which these rights are framed to make them effective as opposed to merely aspirational will be a key factor in determining whether the Charter achieves any notable advance from the current position under Community law.
However the Simitis report made the point that both justiciable rights and fundamental policy purposes require the EU as well as national legislators to provide the necessary framework for their implementation. Thus, the inclusion, for instance of specific policy objectives in Articles 136 and 137(1) EC such as the information and consultation of the workers, the improvement of the working environment to protect workers’ health and safety, or the integration of persons excluded from the labour market may lead to the adoption of relevant Directives which can transform abstract policy objectives into concrete duties for legislators.[152]
The proposal for a new EU Charter of Fundamental Rights suffers from a confusion of purpose and rationale. If the Charter eventually takes the form of yet another (non-binding) declaratory statement of human rights principles, it appears likely to add very little to the general corps of both European and international law on this subject. On the other hand, if the Charter is concluded as a binding statement of rights, then the issue of its relationship to the legal jurisdiction of the ECHR and of the respective courts of the latter and those of the EU will have to be confronted. As such it is difficult to avoid the conclusion that there can be no escape from having to confront the issues correctly raised by the ECJ in its Opinion 2/94 in 1996.[153] The difficulties posed are compounded by the complex nature of the EU legal order, in particular the special relationship between the national laws of each of the 15 member states and that of Community law (which includes human rights norms insofar as they may be regarded as part of the general principles of Community law). It remains to be seen in particular, whether the proposed ‘horizontal’ clauses, which aim to define the scope of application of the Charter, resolve these issues satisfactorily. Even if they do so, and the rights protected are thereby exclusively within Community competence and do not establish any new competence or new task for the Community or the Union, it remains unclear what positive substantive improvements to the protection of human rights the Charter will thereby achieve.
In addition, the issue of which rights, including those broadly referred to as economic and social rights, should be included in the Charter are made more difficult by the existence of parallel legal texts, in the form of Conventions of both the Council of Europe and bodies such as the International Labour Organization. It is relevant to ask why efforts are not being concentrated instead on achieving greater European consensus about and ratification of existing texts, rather than attempting to create yet another new one. It is also relevant to consider whether efficient enforcement of human rights principles could be more significantly advanced by improving access to judicial remedies (which would require Treaty amendment) in particular to the ECJ. This would remove the currently restrictive conditions relating to locus standi for both individual and/or public interest groups, thereby facilitating the bringing of legal actions broadly concerned with human rights issues.
There is little evidence that the current draft Charter will address the perceived institutional weakness of the EU, in particular, the inadequacy of co-ordination of policy within, for example, the European Commission on human rights issues. Nor does there appear at this stage to be much attention focused on the potential for further institutional development along the lines of the European Monitoring Centre on Racism and Xenophobia to monitor human rights protection in other areas falling within the scope of Community law, such as environmental rights.
Despite the sophisticated range of legal and political instruments that are already available in the European context to promote and enforce human rights, and the absence within the EU of any evidence of gross violations of human rights, there is nevertheless a substantial body of opinion in favour of further fundamental improvement to existing law and policy in this area. This is likely to continue to be fuelled by the possibility of new entrants to the EU from the former communist countries of Central and Eastern Europe. The EU may also be increasingly conscious of criticisms of a ‘double standard’ in relation to its approach to human rights in the context of development issues vis à vis developing countries. Nevertheless the apparent confusion as to the purpose of the proposed Charter on Fundamental Rights and the complexity of drafting a text acceptable to 15 member states whilst at the same time not weakening the protection already afforded in particular by the ECHR makes the task of concluding such an instrument a problematic one. The words of the Political Affairs Committee of the Parliamentary Assembly of the Council of Europe may prove particularly apt:[154]
Although the idea itself [of the Charter] is praiseworthy, its boundaries are vague and there is therefore a danger that it might become a forum for a variety of far-fetched ambitions and interest groups.
It therefore remains to be seen whether the stated goal of making human rights more ‘visible’ within the EU will in fact be achieved.
After this article was submitted, an Informal European Council (composed of Heads of State and Government of the EU) approved the content of the Charter of Fundamental Rights at its meeting in Biarritz on 13–14 October, 2000.[155] Once it has been adopted by the European Commission and the European Parliament, it is expected that this text will be solemnly proclaimed by the European Council in Nice in December 2000. Its future legal status will then be reviewed. The Commission has suggested straightforward incorporation of the articles of the Charter in the Treaty on European Union titled ‘Fundamental Rights’ or incorporation of the Charter in a Protocol annexed to the Treaties.[156] The possibility of the EU also acceding to the European Convention on Human Rights continues to be supported from within the Council of Europe.[157]
[∗] Former Professor of European Law, Head of European Law Unit and Jean Monnet Chair of European Community Law, University of Glamorgan, Wales, UK; Member of the Economic and Social Committee of the European Communities; European Consultant, Morgan Cole Solicitors. The author is grateful for the helpful comments of Dr Frank Wooldridge, Adjunct Professor, University of Notre Dame (London campus) on a draft of this paper. The views expressed are those of the author alone.
[1 ] Terminology used by K Lenaerts, Judge of the Court of First Instance, in his paper ‘Fundamental Rights to be Included in a Community Catalogue’ (1991) 16 European Law Review 367.
[2] The Act was already in force in Wales, see s 107(1) of the Government of Wales Act 1998 (UK). On the previous application of the ECHR in United Kingdom courts see M Hunt, Human Rights Law in English Courts (1997); R Singh, The Future of Human Rights Law in the United Kingdom (1997); and M Beloff and H Mountfield, ‘Unconventional Behaviour? Judicial uses of the European Convention on Human Rights in England and Wales’ [1996] EHRLR 467.
[3 ] GA Res 217A III. The text is reproduced in United Nations, A Compilation of International Instruments (1994) 1.
[4] See further, P Alston and J H H Weiler, ‘An Ever Closer Union in Need of a Human Rights Policy: The European Union and Human Rights’ in P Alston (ed), The EU and Human Rights (1999) 4.
[5] ‘Joint Declaration by the European Parliament, the Council and the Commission on Fundamental Rights’ [5 April 1977] OJ C/103/1. See further, J Forman, ‘The Joint Declaration on Fundamental Rights’ (1977) 2 European Law Review 210 and Case 44/79, Hauer [1979] EUECJ R-44/79; [1979] ECR 3727, [1980] 3 CMLR 42 [15].
[6] See, eg, the ‘Joint Declaration by the European Parliament, the Council, the Representatives of the Member States, meeting within the Council, and the Commission against Racism and Xenophobia’ (11 June 1996) Treaty Series 889; the ‘Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council on the Fight against Racism and Xenophobia’ [29 May 1990] OJ C/157/1; the ‘Resolution of the Council and of the Member States, meeting in the Council on Human Rights, Democracy and Development’ (28 November 1991) 11 Bulletin of the European Communities 130 [2.3.1]; and the ‘Conclusions on the Implementation of that Resolution adopted by the Council and the Member States’ (18 November 1992).
[7] They are assisted by the Ministers for Foreign Affairs and by a Member of the Commission. In practice other officials also attend, though they do not take part in the discussions: see further, S Weatherill and P Beaumont, EC Law: The Essential Guide to the Legal Workings of the European Community (2nd ed, 1995) 87 et seq.
[8] See the ‘Declaration by the Heads of State or Government of the Member States of the EC on the European Identity’ (14 December 1973) 12 Bulletin of the European Communities 2501; the ‘Declaration by the European Council on Democracy’ (8 April 1978), the ‘Declaration by the European Council on the International Role of the Community’ (2 and 3 December 1988) 12 Bulletin of the European Communities 1.1.10; the ‘Declaration by the European Council on Human Rights’ (29 June 1991) 6 Bulletin of the European Communities Annex V; and the ‘Statement by the European Union on Human Rights (11 December 1993) on the occasion of the forty-fifth anniversary of the Universal Declaration of Human Rights’ (1993) 12 Bulletin of the European Communities 1.4.12.
[9] The Committee consisted of Judge Antonio Cassese, Mme Catherine Lalumière, Professor Peter Leuprecht and Mrs. Mary Robinson. The ‘Agenda’ was made public in October 1998 and is reprinted in Annex 1 of Alston (ed) above n 4.
[10] The group was composed of eight academic experts in the field, chaired by Professor S Simitis. See ‘Affirming Fundamental Rights in the European Union: Time to Act’, Report of the Expert Group on Fundamental Rights, European Commission, Directorate-General for Employment, Industrial Relations and Social Affairs, Unit V/D.2, February 1999, accessed from the Commission’s website and referred to hereinafter as ‘the Simitis report.’
[11] European Council Decision on the Drawing Up of a Charter of Fundamental Rights of the European Union, Presidency Conclusions, Cologne European Council, 3 and 4 June 1999, SN 150/99, Annex IV.
[12] Alston and Weiler, above n 4, 24.
[13] See Press Release SN 1872/00 of 29 February 2000 (07.03) (OR.fr) at the Charter web-site below n 14.
[14] See the web-site <http://db.consilium.eu.int/df/default.asp?lang=en> .
[15] See Memorandum adopted by the Commission, 4 April 1979, Bulletin of the European Communities, supp 2/79.
[16] See Opinion 2/94, [1996] ECR I–1759, I–1789. For a commentary see P Beaumont, ‘The European Community Cannot Accede to the European Convention on Human Rights’ (1997) 1 Edinburgh Law Review 235.
[17] As a result of changes brought about by Protocol 11 to the ECHR, the Commission ceased to exist from November 1998.
[18] Alston and Weiler, above n 4, 31.
[19] Cf J-C Piris, ‘Does the European Union have a Constitution?’ (1999) 24 European Law Review 557, 563 and his reference to the important Court of Human Rights’ judgment in Case 24833/94 Matthews v United Kingdom [1999] ECHR 12; (1999) 28 EHRR 361.
[20] See further Alston and Weiler, above n 4, 28.
[21] Ibid 28–29.
[22] The last three member states to join were Austria, Finland and Sweden, with effect from 1 January, 1999. The other member states are: France, Germany, Italy, The Netherlands, Belgium, Luxembourg, United Kingdom, Denmark, Republic of Ireland, Greece, Spain and Portugal.
[23] The EU Treaty entered into force on 1 November, 1993. It created new legal competences which are wider than those of the Community per se. See Treaty on European Union [1992] OJ C/191/1, [1992] I CMLR 719. This Treaty has subsequently been amended by the Treaty of Amsterdam [1997] OJ C/340/01; Cm. 3780 HMSO October 1997.
[24] When matters fall exclusively within the ambit of the EC or first ‘pillar’, the term ‘EC’ is clearly appropriate. However, many writers including myself now prefer to use the broader term of ‘EU,’ which covers all three pillars. This is particularly appropriate in the context of human rights issues since the third pillar, for instance, includes issues concerning crime, race and xenophobia.
[25] Formerly this pillar was known as ‘Justice and Home Affairs’. The change in title was made by the Treaty of Amsterdam, which entered into force on 1 May, 1999 and inter alia, amended the EU and EC Treaties: [1997] OJ C/340/01. Much of what used to be contained in the Third Pillar is now in arts 61–69 (Title IV) of the EC Treaty, but from which the United Kingdom, Denmark and Ireland have ‘opt-outs’.
[26] Case 26/62 [1963] EUECJ R-26/62; [1963] ECR 1, 12.
[27] See further, J-C Piris, above n 19, 560.
[28] The ECJ has established that certain provisions of EU law including some Treaty provisions and provisions of secondary legislation (in the form of regulations, directives or decisions) are capable, subject to certain criteria, of having ‘direct effect’ in the sense of being capable of conferring rights on individuals which may be relied upon before national courts by individual litigants. See further R M D’Sa, European Community Law and Civil Remedies in England and Wales (1994) 23 et seq.
[29] Sometimes referred to as the Treaty of Rome; now known as the EC Treaty, following amendments made by the EU Treaty. See further text accompanying above n 23.
[30] This Treaty, sometimes known as the Treaty of Paris, was signed in 1951 and established the European Coal and Steel Community.
[31] This Treaty, also known as the Treaty of Rome (after the city of signing) was signed in 1957 and established the European Atomic Energy Community.
[32] P P Craig and G de Búrca, EU Law: Text, Cases, and Materials (2nd ed, 1998) 296–298.
[33] Ex art F, as amended by the Treaty of Amsterdam.
[34] Craig and de Búrca, above n 32, 332.
[35] See art 46 EU (formerly art L).
[36] The Court also has jurisdiction under certain other provisions, namely arts 35 and 40 of the EU Treaty (formerly arts K.7 and K.12, as amended) of the ‘third’ pillar of the EU Treaty (referred to earlier). The ‘second’ pillar (on Common Foreign and Security Policy) continues to be excluded from the Court’s jurisdiction.
[37] See art 7 EU (ex art F.1, as amended by the Treaty of Amsterdam).
[38] Ibid.
[39] The ECJ referred to the European Social Charter of 18 November 1961 (which entered into force in 1965) in Case 149/77, Defrenne v Sabena (Defrenne III) [1978] EUECJ R-149/77; [1978] ECR 1365, although the Charter is not an EC instrument. It deemed the principle of the abolition of sex discrimination to be a fundamental Community right and supported this conclusion by referring to the same concepts in the European Social Charter and Convention No 111 of the International Labour Organization of 25 June 1958 concerning discrimination in respect of employment and occupation.
[40] COM (85) 310.
[41] Protocol 14, as originally annexed to the EC Treaty, enabled the member states signatory to the 1989 Community Charter (with the exception of the United Kingdom which was opposed to it) to enter into a social policy agreement by which these rights could be transposed into secondary EC legislation (in the form of directives) on the basis of European social dialogue agreements or by qualified majority voting in an 11 member Council. The latter was extended to 14 after enlargement of the EC to include Austria, Finland and Sweden, and then to 15 with the United Kingdom accession to the Agreement.
[42] Ex art 117 EC, as amended by the Treaty of Amsterdam.
[43] See, eg, art 127(2) EC (ex art 109p).
[44] By means of an unanimous vote in the Council, acting on a proposal from the Commission and after consulting the European Parliament.
[45] Craig and de Búrca, above n 32, 334.
[46] See further, L Flynn, ‘The Implications of Article 13 EC — After Amsterdam, will some Forms of Discrimination be More Equal than Others?’ (1999) 36 Common Market Law Review 1127.
[47] See Alston and Weiler, above n 4, 26.
[48] See in this regard an important recent judgment of the ECJ on positive discrimination: C158/97, Re Badeck's Application, The Times, 31 March 2000 (ECJ) [2000] OJ/C149/17.
[49] Council Directive establishing a general framework for equal treatment in employment and occupation (Modifying Directive 76/207 on the implementation of the principle of equal treatment between women and men as regard access to employment, vocational training and working conditions): COM (1999) 565 final, 25 November 1999.
[50] Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective or racial or ethnic origin, COM (1999) 566 final, 25 November, 1999. Now adopted as Council Directive 2000/43/EC of 29 June 2000: [2000] O.J. L180/22.
[51] See Alston and Weiler, above n 4, 7.
[52] Ibid 13.
[53] J H H Weiler and S C Fries, ‘EC and EU Competences in Human Rights’ in Alston (ed), above n 4, 147, 157.
[54] Alston and Weiler, above n 4, 53.
[55] Ibid 54.
[56] See text accompanying above n 10.
[57] See Simitis report, above n 10, 12.
[58] Ibid 14.
[59] See further Alston and Weiler, above n 4, 13–14.
[60 ] Ibid 55.
[61] See G Gaja, ‘New Instruments and Institutions for Enhancing the Protection of Human Rights in Europe?’ in Alston (ed) above n 4, 781, 799 (emphasis added).
[62] See ‘Affirming Fundamental Rights in the European Union: Time to Act’, Report of the Expert Group on Fundamental Rights, European Commission, Directorate-General for Employment, Industrial Relations and Social Affairs, Unit V/D.2, February 1999, accessed from the Commission’s website.
[63] R C A White, ‘Making Rights Visible’ (2000) 25 European Law Review 97.
[64] Ibid. See further, House of Lords European Union—80th Report, Session 1999–2000, 16 May 2000 at <http:www.publications.parliament.uk>.
[66] See the Report of the ECJ of May 1995 on certain aspects of the application of the Treaty of European Union, drawn up at the request of the Corfu European Council of 24–25 June 1994 and cited by Piris, ibid 561, fn 14.
[67] See Annex IV of the Presidency Conclusions of the Cologne European Council, 3–4 June 1999.
[68] See text above, nn 13 and 14.
[69] It had met about 15 times by September 2000. A complete draft text was proposed by the Praesidium on 28 July 2000: see CHARTE 4422/00 CONVENT 45 (OR.fr) at Charter website above n 14.
[70] Craig and de Búrca, above n 32, 308.
[71] Ibid 309.
[72] See further, R M D’Sa ‘International Human Rights Norms and their Domestic Application: Judicial Methods and Mechanisms with Particular Reference to European Union Law’ Volume I, Part II, Conference papers of the 12th Commonwealth Law Conference on ‘Law and Society in the 21st Century’, Kuala Lumpur, Malaysia 13–16 September 1999, 63–68.
[73] See text accompanying above n 16
[74] Craig and de Búrca, above n 32, 336.
[75] This cautious approach to art 235 EC (now art 308) may well result from the German constitutional court’s reserved approach to this provision in the leading case of Brunner v European Union Treaty [1994] 1 CMLR 57.
[76] See, eg, Case 45/86, Commission v Council (Tariff Preferences) [1987] ECR 1493.
[77] Weiler and Fries, above n 53, 160.
[78] Opinion on a Proposed Council Regulation establishing a European Monitoring Centre for Racism and Xenophobia [1997] OJ C/158/9. A co-operation agreement was concluded between the Centre and the Council of Europe on 21 December 1998.
[79] See Council Regulation 1035/97: [1997] OJ L/151.
[80] Referred to by Craig and de Búrca, above n 32, 336.
[81] Ibid.
[82] In particular, art 177(2) EC provides that ‘Community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms.’
[83] Case C–268/94, Portuguese Republic v Council [1996] ECR I–6177, cited by Craig and de Búrca, above n 32.
[84] Craig and de Búrca, above n 32, 337.
[85] Ibid, fn 77.
[86] See the Charter web-site above n 14 at CHARTE 4235/00, Brussels, 18 April 2000 (19.04) (OR.fr), CONVENT 27, Note from the Praesidium.
[87] Ibid draft art H.1 (1) ‘Scope’ (emphasis added). In the later draft of 28 July 2000, above at n 69, see draft art 49(1).
[88] Ibid draft art H.1(2) and draft art 49(2) of the later draft, above at n 69 (emphasis added).
[89] Ibid draft art H.2(2). This phrase is omitted in the later text, above n 69, at draft art 50(1).
[90] Ibid draft art H.4 and draft art 51 of the later text, above at n 69.
[91] See text accompanying above n 70. However, this point has been taken account of in the later Charter text of 28 July 2000, above at n 69, at draft art 50(3).
[92] See Simitis report, above n 10, 13.
[94] See further C Closa, ‘The Concept of Citizenship in the Treaty on European Union’ (1991) 29 Common Market Law Review 1137; S O’Leary, ‘Nationality Law and Community Citizenship: A Tale of Two Uneasy Bedfellows’ (1992) 12 Yearbook of European Law 353; D O’Keeffe, ‘Union Citizenship’ in D O’Keeffe and P M Twomey (eds), Legal Issues of the Maastricht Treaty (1994) 87; A Wiener ‘Assessing the Constructive Potential of Union Citizenship: A Socio-Historical Perspective’ (1997) 1 (17) European Integration Online Papers. See also the Commission’s first and second Reports on Citizenship of the Union, COM(93) 702 and COM(97) 230.
[95] For the history of the debate behind this provision see J Weiler, ‘Citizenship and Human Rights’ in J A Winter et al (eds), Reforming the Treaty on European Union: The Legal Debate (1996).
[96] U Bernitz and H L Bernitz, ‘Human Rights and European Identity: The Debate about European Citizenship’ in Alston (ed), above n 4, 505.
[97] Ibid 512.
[98] Ibid 508.
[99] Ibid 508, 515.
[100] For further analysis of the position of third country nationals within the Community, see J Weiler, ‘Thou Shalt Not Oppress a Stranger: On the Judicial Protection of the Human Rights on Non-Community Nationals: A Critique’ (1992) 2 European Journal of International Law 65.
[101] See the Simitis report, above n 10. Thus, for instance, the report states that asylum-seekers cannot be exempted from the EU’s duty to respect fundamental rights.
[102] Bernitz and Bernitz, above n 96, 515.
[103] Directive 90/336 (later replaced by Directive 93/96) governing students exercising the right to vocational training, Directive 90/365, governing employed and self-employed people who had ceased to work but without necessarily having moved to another member state, and Directive 90/364 as a ‘catch-all’ governing all those persons who did not already enjoy a right of residence under Community law, cited by Craig and de Búrca, above n 32, 720–721.
[104] Craig and de Búrca, ibid 721, citing R v Secretary of State for the Home Department; Ex parte Vitale [1996] All ER (EC) 461. For a contrary view see D O’Keeffe and M Horspool, ‘European Citizenship and Free Movement of Persons’ Essays in Honour of Geoffrey J Hand (1996) 145. See also Case 378/97 Wijsenbeck (not yet reported) in which the ECJ avoided determining whether arts 7a and 8a EC were directly effective and could therefore be invoked by all Union citizens.
[106] Bernitz and Bernitz, above n 96, 518 et seq.
[107] Ibid 510.
[108] Ibid 511.
[109 ] Proposal for a Council Directive on the right to family reunification, COM (1999) 638 final. However, the United Kingdom has an ‘opt-out’ from this legislation, which it might choose to exercise.
[110] See Charter website above n 14 at CHARTE 4170/00, Brussels, 20 March 2000 (21.03) CONVENT 17, Note from the Praesidium, Proposed Articles on the rights of citizens (arts A to J), art I ‘Freedom of Movement’.
[111] Cases C–64/96 and 65/96, Land Nordrhein-Westfalen v Uecker and Jacquet v Land Nordrhein-Westfalen [1997] ECR I–3143.
[112] See draft own-Initiative Opinion of the Economic and Social Committee on ‘Towards a Citizens’ Treaty’, SOC/013, Brussels, 31 March 1999 [2.2.1.1].
[113] See further, Bernitz and Bernitz, above n 96, 517.
[114] Ex art 8d, now art 18 EC.
[115] Ex art 8e, now art 22 EC.
[116] Ex art 8d, now art 21 EC.
[117] See for instance, Case 293/83, Gravier v City of Liège [1985] ECR 593.
[118] Case C–85/96 María Martínez Sala v Freistaat Bayern [1998] ECR I–2961 cited by S Weatherill and P Beaumont, EU Law: The Essential Guide to the Legal Workings of the European Union (3rd ed, 1999) 622–623. See further S C Fries and Shaw, ‘Citizenship of the Union: First Steps in the Court of Justice’ (1998) 4 European Public Law 533.
[119] See further Charter website above n 14 at CHARTE 4170/00, Brussels, 20 March 2000 (21.03) CONVENT 17, Note from the Praesidium, Proposed Articles on rights of citizens (arts A–J) and draft arts 37–44 of the later text of 28 July 2000, above n 69.
[120] Ibid art E(1). See draft art 39(1) of the later text, above n 69.
[121] Ibid art A. This is omitted in the later text of 28 July 2000, above n 69.
[122] Case 138/79 Roquette Frères v Council [1980] ECR 3333 of 29 October 1980.
[123] See further Charter website at CHARTE 4170/00, above n 119, Comments on art A. This draft article is omitted in the later text of 28 July 2000, above n 69.
[124 ] The latter states that ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’
[126] See the Simitis report, above n 10, 9.
[127] Ibid. See further, second submission by the Confederation of British Industry (CBI) at Charter website above n 14 at CHARTE 4298/00 CONTRIB 170, 25 May 2000.
[128] This right also features in art 6 of the Social Charter, point 13 of the Community Charter of Social Rights, and art 14 of the European Parliament Declaration of 1989. However, this right was omitted in a later text: see Charter website above n 14 at CHARTE 4422/00 CONVENT 45, 28 July 2000 (OR.fr).
[129] See Charter web-site above n 14 at CHARTE 4192/00, Brussels, 27 March 2000 (30.03) (19.04) (OR. Fr), CONVENT 18, Note from the Praesidium, Proposals for Social Rights.
[130 ] Ibid draft art IV(2).
[131] M P Maduro, ‘Striking the Elusive Balance between Economic Freedom and Social Rights in the EU’ in Alston (ed), above n 4, 449, 458.
[132] Case C–415/93, Union Royale des Société de Football Association ASBL v Jean-Marc Bosman [1995] ECR I–4921. See further, Maduro ibid 458.
[133] Maduro ibid 462.
[134] See further ibid 560.
[135] See further L Samuel, Fundamental Social Rights: Case law of the European Social Charter (1997).
[136] See further Alston and Weiler, above n 4, 29.
[137] See Charter website above n 14 at CHARTE 4192/00, Brussels, 27 March 2000 (30.03) (OR.fr,en), CONVENT 18, Note from the Praesidium, Proposals for social rights. See also draft art 28 of the later text of 28 July 2000, above n 69.
[138] Both referred to above: see text accompanying fn 19. See also statement of the UN Committee on Economic, Social and Cultural Rights: Charter website above n 14 at CHARTE 4315/00 CONTRIB 182, 24 May 2000.
[139] See Lenaerts, above n 1, 377 et seq.
[140] See draft own-Initiative Opinion of the Economic and Social Committee on ‘Towards a Citizens’ Treaty’, SOC/013, Brussels, 31 March 1999 [2.2.1.1].
[141] See further Charter website above n 14 at CHARTE 4227/00, Brussels, 17 April 2000 (19.04) (OR.fr) CONVENT 26 at draft art XVI ‘The Right of Elderly Persons to Social Protection’.
[142] See further the Simitis report, above n 10, 15.
[143] See further the Simitis report ibid 17. Eg, Recital 26 to the EC Directive on Legal Protection of Biotechnological Inventions states that if an invention is based on biological material of human origin, or if it uses such material, where a patent application is filed, the person from whose body the material is taken must have had an opportunity of expressing free and informed consent thereto, in accordance with national law. See further D Beyleveld, ‘Why Recital 26 of the EC Directive on Legal Protection of Biotechnological Inventions should be Implemented in National Law’ (2000) 1 Intellectual Property Quarterly 1.
[144] See further Alston and Weiler, above n 4, 31 citing, eg, ‘Social Action Programme 1998–2000, Commission Communication’ Doc COM(98) 259 of 29 April 1998.
[145] See further Maduro, above n 131, 449. See also D’Sa, above n 72, 63, 83 et seq.
[146] Maduro ibid, 455.
[147] ‘Declaration of Fundamental Rights and Freedoms’ OJ C/120, 16 May 1989.
[148] Economic and Social Committee on ‘Basic Community Social Rights’, February 1989, OJ C/126 of 23 May 1989, corr. OJ C/147 of 14 June 1989.
[149] See Simitis report, above n 10, 9.
[150] ‘For a Europe of civic and social rights’, Report by the Comité des Sages, October 1995 to February 1996, European Commission DG V, ISBN 92–827–7697–2.
[151] See further Lenaerts, above n 1, 389.
[152] See Simitis report, above n 10, 11.
[153] See [1996] ECR I–1759 above n 16.
[154] Doc 8614 of January 17, 2000 CHARTE 4114/00 cited by White, above n 63, 97.
[155] See Doc CHARTE 4487/1/00 Rev 1 (CONVENT 50) 28 September 2000 at the Charter website above n 14
[156] Communication from the Commission on the legal nature of the Charter of Fundamental Rights of the European Union, COM(2000)644 final, Brussels, 11 October 2000, pp 1–7. In this Communication, the Commission has also raised the issue of whether Article 6(2) of the Treaty on European Union will also require amendment: see generally the main text above corresponding with n 37.
[157] See Revised Report of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, CHARTE 4499/00 (CONTRIB 349), 4 October 2000 at the Charter website above at n 14. See further the main text above corresponding with n 15.
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