Ten days ago Aidan and Raza Husain QC spoke at the last of Matrix’s series of evening seminars on EU law as it applies to domestic practice areas. The session was devoted to immigration law. For those who are interested, here is Aidan’s paper on Free movement of EU citizens within the EU. As we all know, the concept of citizenship has been explored in numerous judgments of the CJEU since the concept was introduced into EU law by the Treaty of Maastricht. Aidan discusses the rights held by EU citizens with particular reference to the Charter of Fundamental Rights, touching on various topical issues including prisoner voting rights (which, as he makes clear, is not just an ECHR issue) and access to legal aid.
Watch out for the second paper, on EU asylum and refugee status law, next week.
Therefore it is noteworthy and of potentially wider practical significance that the European Commission and the Council of Ministers have recently published documents and adopted conclusions about how they intend to make use of the Charter. In particular, each of them has drawn up its own Charter checklist. Although this is a step to be applauded in principle, since it may help give the Charter the permanent prominent place in Brussels and capitals it legally requires, each of these checklists may need some double-checking. Part 1 looked at the checklist of the Commission, Part 2 looks at the checklist of the Council.
In response to the Commission Strategy, the Council adopted several conclusions. It announced that it will aim to ensure that legislative proposals cleared by it will be worthy of a ‘fundamental rights label’. It also developed guidelines on the ‘methodological steps to be taken to check fundamental rights compatibility at the Council’s preparatory bodies’, intended to ensure this for both the legislative proposals proposed at EU level as well as for Member States proposed amendments. The ‘efficacy’ of these methodological guidelines was rather prematurely underlined already just days after they were actually published. As far as relevant they read as follows:
Upon entry into force of the Lisbon Treaty the EU Charter of Fundamental Rights became legally binding. EU institutions, agencies and bodies, as well as EU Member States when they implement Union law are now bound as a matter of Union law to comply with the Charter (art. 51). That this has been the situation since 1 December 2009 is clear to everybody. What consequences it will have in practice, particularly in EU legislative practice, is still largely an open question.
The transformation of the Charter from ‘new kid on the block’ to ‘new kit for the block’ is gradually shaping up, however. The Court of Justice now gives the Charter its place next to the other legal sources of human rights, such as the ECHR. This judicial use of the Charter has been regularly assessed. What has been happening with the Charter in Brussels and the capitals in the stages prior to judicial review is less clear. In fact it is far from unlikely that, particularly in the capitals, so far very little has been happening with the Charter. The ‘new kit’ requires some authoritative instructions regarding its modes d’emploi.
Therefore it is noteworthy and of potentially wider practical significance that the European Commission and the Council of Ministers have recently published documents and adopted conclusions about how they intend to make use of the Charter. In particular, each of them has drawn up its own Charter checklist. Although this is a step to be applauded in principle, since it may help give the Charter the permanent prominent place in Brussels and capitals it legally requires, each of these checklists may need some double-checking.
This post first appeared on the UK Human Rights Blog and is reproduced here with permission and thanks.
NS v Secretary of State for the Home Department (Principles of Community law)  EUECJ C-493/10 (22 September 2011) - read opinion
The Common European Asylum System was designed to establish a fair and effective distribution of the burden on the asylum systems of the EU Member States. Regulation No 343/2003 was passed in order to introduce a clear and workable method for determining which single Member State is responsible for determining any given asylum application lodged within the European Union. The measure was also intended to prevent forum shopping by asylum seekers.