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:
Council guidelines on methodological steps
II. Identify the general link with fundamental rights
- Check whether the proposal affects fundamental rights at all; think from a fundamental rights perspective.
- Check the recitals of the original proposal and the attached impact assessment.
III. Examine whether the proposal is in line with the Charter.
- Check the exact content of relevant fundamental rights with the help of the following methods:
a. Check the Charter, the explanations to the Charter, the case-law of the Court of Justice of the European Union and other relevant sources for understanding the Charter [..]
b. Check also thematic fundamental rights reports, publications, handbooks made by the institutions, bodies, offices and agencies of the European Union and by the Council of Europe and make use of the expertise of the European Union Agency for Fundamental Rights.
c. Consult the Council Legal Service.
2. Check the proposal to assess whether it limits fundamental rights and whether this limitation is in compliance with the Charter (Annex IV).
a. May fundamental rights at issue be subject to limitations?
b.Are the limitations provided by law; are they adequately accessible and foreseeable?
c. Are the limitations necessary and proportionate to achieve an objective of general interest recognised by the Union or to protect the rights and freedoms of others?
- Check the proposal to assess whether it limits fundamental rights and whether this limitation is in compliance with the Charter (Annex IV).
IV. In case of doubt
- Consult the Council Legal Service.
- Use the expertise of national experts in the capitals.
- Ask the [Council Working Party on Fundamental Rights, Citizens’ Rights and Free Movement of Persons (FREMP)] or other preparatory bod[ies] specializing in a specific fundamental right.
Annex IV indicates that in examining limitations of the Charter rights, a specific chronology needs to followed. First it needs to be assessed whether an absolute Charter right is at issue. Limitation of this category of human right is never permitted. According to Annex IV, Article 52 Charter clarifies that limitation of non-absolute rights is possible, but only if the limitations:
a. be provided for by law,
b. respect[ing] the essence of those rights and freedoms,
c. subject to the principle of proportionality,
d. necessary and
e. genuinely meet[ing] objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
It has to be said that this Council Charter checklist is drafted in a much better way than the all too succinct and strangely ordered Commission Charter checklist. Nonetheless, it too may merit some further reflection. A small first point is that these methodological steps appear somewhat centred on a EU-level Charter compliance check, as they mention (under IV) the Council Legal Service before national experts. That is in apparent contrast to the valid point made in the February 2011 Council Conclusions where the Council recalled that “Member States’ administrations are the first level where compliance with obligations deriving from the Charter … should be guaranteed”.
Much more significant, however, is that the steps listed under III.2 of the methodological steps and Annex IV are not put in (chrono)logical order, therefore not allowing for a legally correct step-by-step assessment. It must be acknowledged that this results directly from the text of Article 52(1) Charter, which reads:
“Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”
There are three points to make about the Council checklist (and therefore about the way that Article 52(1) Charter needs to be approached). First, when legally checking Charter compliance, it is necessary to consider first and in advance of any assessment of possible justifiability of limitations whether absolute rights are at play and whether the essence of non-absolute rights and freedoms is affected. Also this latter aspect is a prior question, not one – as erroneously suggested in Annex IV – that only appears in the phase of assessing whether an interference with a human right can be justified. Second, while assessing limitations of non-absolute Charter rights, assessment of the ‘objective of general interest recognised by the Union’ needs to undertaken before the assessment of the proportionality of measures interfering with non-absolute Charter rights. In fact, it is an open question whether the category of ‘objective of general interest recognised by the Union’ is wider than the limited list of ‘legitimate aim’ known from the ECHR, particularly in paragraphs 2 of articles 8-11. After all, according to article 52(2) Charter rights laid down in the Charter that correspond to rights laid down in other treaties (including the ECHR) can only be ‘exercised under the conditions and within the limits defined by those Treaties’? Thirdly, and finally, it is common in ECHR-practice to assess the necessity of a measure (i.e. both its suitability to address the problem identified, and its subsidiarity – whether there are less human rights interfering measures available) before its proportionality (assessment of whether the measure proposed stands in a proportionate relation to the legitimate aim).
In short, III.2 of the Council’s Charter checklist or Annex IV to it should come to read:
Check the proposal to assess whether it limits fundamental rights and whether this limitation is in compliance with the Charter:
a. May the fundamental rights at issue be subject to limitations? In case an absolute right is at issue, an interference is not permitted.
b. In case of non-absolute fundamental rights, is respect for the essence of those rights and freedoms guaranteed?,
c. Are the limitations to these non-absolute rights provided by law; are they adequately accessible and foreseeable?
d. Are these limitations aimed at achieving an objective of general interest recognised by the Union?
e. Are these limitations necessary?
f. Are these limitations proportionate to the aim pursued?
Checklists are a useful tool for instilling a fundamental rights culture in the various EU institutions. Both the Commission and the Council have now defined such lists based on the EU Charter. However, both these checklists require some double-checking.
Fortunately there is opportunity to do this. The Council’s ‘methodological guidelines’ state they may be subject to revision. An adaptation of its section III.2 and/or Annex IV would be useful. For the Commission it would be advisable to split the current one-size-fits-all format in two, and provide one carefully defined and chronological checklist that is tailored to legal analysis and another one more fitting for ex ante impact assessment. It could publish these in its following annual report on compliance with the EU Charter.
JM contributes in a personal capacity; the opinions expressed cannot in any way be attributed to the Dutch government