This paper was presented by Jodie Blackstock, Director of Criminal and EU Justice Policy at JUSTICE, at the conference The EU Charter of Fundamental Rights: An essential tool for UK practitioners, held on the 29th March. We will be posting it in two parts over the next couple of days.
Recognition of human rights is not new for the EU. It has increasingly prioritised human rights in its Treaty provisions. This is now enshrined in the first substantive article of EU primary law, article 2 of the Treaty on the European Union:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
The EU Charter of Fundamental Rights was concluded in 2000 following a decision that the EU law concerning fundamental rights was set out in a fragmented fashion across numerous primary and secondary law provisions. The intention was to consolidate. The Charter would however not only cover the social and economic rights recognised as general principles of EU law, but the fundamental rights adopted by the EU from the European Convention on Human Rights (ECHR) and the constitutional traditions common to the member states. Contrary to the debate as to the legitimacy of the European Convention on Human Rights (despite this in fact being the brain child of Winston Churchill and drafted largely by David Maxwell Fyfe), and the expansion of EU law generally, the Charter was specifically devised by the members states acting in the European Council at Tampere in 1999. Therefore the heads of state gave express approval to the idea and instigated its creation. The content was discerned by a Convention appointed to the task from the member states, Commission and European Parliament and national parliaments. This was approved by the European Council at Nice in 2000. Its legal status remained unclear until the Lisbon Treaty was finally adopted in December 2009.
The Charter is therefore a binding set of principles bringing together in one place all of the personal, civic, political, economic and social rights enjoyed by people within the EU (according the Commission website) aimed at protection of the individual as against actions of the state. It is a free standing instrument that derives its authority from the Treaty on the European Union (TEU) article 6(1):
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
Its scope is however circumscribed by the subsequent part of article 6(1):
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
The Charter does not therefore operate in the same way as the ECHR. Firstly it has direct effect in the UK, in that there is no need for enacting UK legislation for it to have force. However, it only applies (a) to EU law and (b) with vertical effect. This is because of the general provisions under Title VII of the Charter. A reason for this can also explain the origins of the Charter; until this point, the European Court of Justice had been developing the fundamental principles of EU law and its approach to human rights. By setting out which rights would be adopted by the Union, the member states were making clear not only to citizens of the Union what their rights were, but to the Court how far they were prepared to accept advancement of these principles. The Charter therefore can only apply where the Union has already agreed it will legislate, and where it has agreed it has competence. It also records the rights and principles that the EU member states deem to be recognised by Union law.
This paper will focus on Title VII of the Charter in order to ascertain how the Charter is intended to function. It will also consider briefly the rights and principles that the Charter contains, the relationship between these concepts and what impact this has on the individual seeking to invoke the Charter. It will finally consider Protocol 30 to the Treaty on the Functioning of the European Union which the UK and Poland secured in relation to the operation of the Charter as to whether this will make any difference to how the Charter operates in the UK.
Titile VII – General Provisions Governing the Interpretation and Application of the Charter
Application of the Charter
Article 51(1) sets out the application of the Charter:
1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
The Charter is to have direct effect since it is addressed to the institutions etc of the Union and to the member states. The Explanations clarify that the application extends to all bodies, offices and agencies set up by primary or secondary legislation in accordance with articles 15 and 16 TFEU. This means that not only will the law making institutions such as the Commission and Parliament be bound, but agencies such as Frontex, Europol and OLAF. This is good news. The member states were all already bound by the ECHR which at least provides for fundamental rights protection. However until the Charter became binding, the EU had no requirement to act within a human rights framework. Rather, the piecemeal and fragmented principles developed under EU law applied to activity undertaken. The Fundamental Rights Agency was created in 2007 when the Lisbon Treaty was signed but it does not have any powers to require conformity with human rights principles. It conducts research and reports on its findings which should then form the basis of legislative action. Following the adoption of the Lisbon Treaty, the Commission produced a strategy for the effective implementation of the Charter in 2010 and is publishing annual reports on its progress. This includes a fundamental rights checklist which it is bound to follow whenever it proposes legislation. The checklist will also include dissemination to the public to ensure that the enshrined rights are effective in practise.
Whilst the Charter is binding upon the member states, as drafted commentators have presumed that it could not be engaged in an action against a private individual in the way that some Treaty provisions may apply (e.g. with respect to free movement, employment discrimination etc). There may be an argument to say that because the courts form part of the state that the Charter can be invoked in horizontal proceedings. It is more likely that the courts will use the Charter as an interpretative aid which will create more of an indirect horizontal effect, as they are institutions which must ‘respect the rights, observe the principles and promote the application of the Charter.’ Interestingly, the Grand Chamber of the Court of Justice of the European Union has already invoked the Charter in private proceedings: see Case C-555/07 Kucukdeveci v Swedex GmbH, 19 January 2010 (unreported) concerning employment discrimination where the Court noted that the Charter is to have the same legal value as the Treaties and that article 21(1) CFR prohibits age discrimination, and Case C-400/10 PPU Deticek v Sgueglia 5 October 2010 (unreported) where the Court specifically referred to the requirement to ensure consideration of the best interests of the child in accordance with article 24 CFR in a contact dispute between parents. These cases suggest that the Court is unlikely to interpret the Charter differently to its existing approach to Treaty provisions which have horizontal effect. At the very least, it will find the Charter very persuasive in horizontal proceedings so that the distinction is virtually non-existent. In any event, even the most conservative interpretation could not deter an individual bringing an action against the state for failing to prevent the violating act of a private individual (in the exercise of a positive obligation).
Scope of the Charter
Article 51(2) reiterates the article 6(1) provision:
2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.
This means that the Charter cannot enter new territory and only attaches to EU law which is the expression of agreement between member states that the EU has competence in conformity with the subsidiarity principle. There is nothing new about this (C-249/96 Grant  ECR I-621, paragraph 45: rules against discrimination on grounds of sex in employment does not extend to discrimination on grounds of sexuality. Whilst the ICCPR contains this prohibition, the EU provision cannot be interpreted to extend this far because that would be outside its competence). ‘Law’ for these purposes is everything passed by the EU institutions and the EU acquis covers a lot of ground.
Taken with article 51(1), once there is EU competence in a given field, for the Charter to apply to actions of the member states, they must be implementing EU law. There is broad consensus that the Charter binds member states whenever they act within the scope of EU law (the phrase in fact adopted in the Explanations). This means that the Charter applies in two wider scenarios. Firstly the ECJ has treated the phrase ‘implementing Community rules’ as synonymous with member state rules falling within the scope of EU law (Case C-442/00 Caballero v Fondo de Garantia Salarial (Fogasa)  ECR i-11915  – ). This means that where EU law is not directly applicable, as with directives (as opposed to Treaty law, regulations and decisions), and requires implementing national legislation, where a member state has relevant pre-existing legislation or introduces new legislation to give effect to the EU law, the Charter will apply to that legislation.
Secondly, where a member state derogates from EU legislation, or part of legislation, the Charter will still apply in relation to the whole of the operative national law (Case C-260/89 ERT v DEB  ECR I-2925 where a monopoly on broadcasting that breached the freedom to provide services could not be justified by way of a treaty provision allowing for discrimination as that only applied on objective grounds of public morals, safety or health which were not present). This is because the power to derogate is given by EU law and derogation can only be effective in accordance with EU law, which intrinsically must conform with rights as per articles 2 and 6 TEU. Otherwise, member states could derogate so as to avoid protection of fundamental rights:
- Mr. Chamberlain, on behalf of the Defendant submits, nevertheless, that in the present case the Defendant has decided not to legislate and that it is difficult to see how a Member State, in deciding not to legislate, can be described as “implementing EU law” even if, had it done so, it would have been acting under a power of derogation conferred by the EU Regulation. ERT is distinguishable, he submits, because the decision to derogate in that case was required to be justified.
- We are concerned here with the question whether, in taking a decision, the Defendant is acting within the material scope of EU law. The field in question – the imposition of export restrictions – is one occupied by EU law which nevertheless includes a power of derogation to Member States. It would be surprising if the answer to the question whether the Defendant was acting within the material scope of EU law depended on which way his decision went. Nor do I consider that to be the case. Rather, in deciding whether or not to exercise the power of derogation the Defendant is implementing EU law in the sense of applying it or giving effect to it and he is bound to do so in accordance with the fundamental principles and rights which form part of EU law.
(per Lloyd Jones J, R (on the application of Zagorski and Base) v Secretary of State for Business, Innovation and Skills  EWHC 3110 (Admin))
We will consider opt outs under the protocols in the final section of the paper, but given the interpretation available here, and the competence of the Charter, it can be argued that the derogation is of limited impact upon a claim under the Charter. What falls for consideration is whether there are any limitations upon the protection of the right and balancing of competing rights.
As regards whether the Charter could be seen as extending competence, whilst the Court could not legislate in new areas, it can enhance rights protection in areas where EU law directly or indirectly impacts upon the rights of an individual, e.g. extradition and the rights of children of the requested person. Whilst the framework decision on the European arrest warrant does not mention the rights of the child as a bar to extradition, nevertheless it has to be read in accordance with the Charter, one provision of which concerns the best interests of the child. Any consideration of fundamental rights in the decision to surrender under article 8 ECHR must not only as a result of international law obligations under the UN Convention on the rights of the Child consider the impact upon children, but directly article 24 CFR requires this consideration to be carried out (judgment pending on this point in HH et al v Italy et al., UKSC). It may also mean that in developing the jurisprudence under the Charter, the Court recognises circumstances, as has the ECtHR, where a positive duty to act to protect the Charter right will be required in order for the national law to remain in compliance (a step already taken, Case C-68/95 T. Port GmbH & Co KG v BLE  ECR I-6065,  –[ 41]).
Rights and Principles
The Charter contains both rights and principles which are to be treated differently, and were drafted as a mechanism to achieve consensus on the broad range of rights included in the Charter. What is a right and what is a principle then? In many cases this is not clear cut. The explanations do in some places identify the distinction, e.g. the ‘rights’ of the elderly (art 25 CFR, and environmental protection (art 27 CFR). However, it is not clear cut: socio-economic rights can have as much importance as interference with civil liberties: e.g. the right to vote discourse. Furthermore, rights and principles may be expressed in the same article, e.g. right to family and professional life (art 33 CFR). Nor is there a mechanism of divide between prohibition and positive action, as both remedies can be sought against a civil liberties breach. Before any claim is commenced, it will be necessary to ascertain whether the violation pertains to a right or a privilege, and in some instances litigation may ensue to clarify the matter where there is disagreement.
Practical difference between rights and privileges?
If the action relates to a right, a judicial claim can be pursued. If it relates to a privilege, Article 51(1) states that this can only be observed and further Article 52(5) asserts:
The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.
The Explanations further provide that privileges become significant for the Courts only when such acts are interpreted or reviewed. They do not however give rise to direct claims for positive action by the Union’s institutions or member state authorities. Privileges must therefore have been legislatively enacted in order for a court to determine whether they are sufficiently protected. However, it is not stated that the law has to be solely directed towards the implementation of the privilege alone. The words ‘implemented by legislative and executive acts’ can therefore refer to a Union law or act which indirectly impacts upon a privilege. The Court has previously interpreted the impact of laws upon privileges by way of the precautionary principle in the context of agriculture (Case C-236/01 Monsanato Agricultura Italia SpA v Presidenza del Consiglio dei Ministri  ECR I-8105 and others). The Explanations recognise this principle and therefore this approach is likely ot be undertaken by the Court when considering principles.
Since rights will also only be considered in the context of existing EU law and not as free standing rights, there does in fact appear to be little difference in practice between the treatment of privileges and rights. Rather, their creation would seem more of a political impetus to ensure passage of the Charter for rights which were not already recognised as such in some member states.
The second part of Jodie’s paper will be posted tomorrow.