The Charter of Fundamental Rights
Posted at 7:23 pm by Conor SloweyOne of the biggest changes the Lisbon Treaty makes, is to enshrine the Charter of Fundamental Rights as part of Treaty law - you can find it here (PDF). It's based on the European Convention of Human Rights (which is the product of the Council of Europe, which is separate from the EU), which the EU would also sign up to if Lisbon is ratified. Though the European Court of Justice has drawn on the ECHR as being part of the legal culture of Europe, this would be the first time that these rights will be part of the EU's primary law, along with the four freedoms (of goods, services, people and capital) that underpin the single market.
The aim of enshrining these rights is to boost the social side of the EU, and to make its laws more responsive to human rights and workers' rights. Though the EU has long had a positive impact on gender equality and other rights, the Charter is a response to the criticism that the economic rather than human elements of the single market dominate the EU's law making. The Charter will only apply to EU law, and national laws that implement EU laws - so it can't be used to expand the EU's powers or competences (it even says so explicitly in Article 51(2)).
Despite this, the Charter has faced 2 contradictory attacks from the right and the left wings of the No campaign - on the right, there have been claims that the Charter changes things fundamentally, and that it will change key aspects of Irish national law (in the case of abortion), or even give the EU sweeping powers of detention (as in the case of the bizzare Éire go Brách claims). On the left, however, the charge is that the Charter is far too weak legally and won't deliver any positive change for workers.
The claims of Éire go Brách are based on the explanation of Article 6 of the Charter (which guarantees liberty). The explanation just imports the meaning of the right to liberty under the ECHR (i.e. current human rights standards in Europe):
Explanation on Article 6 — Right to liberty and security
The rights in Article 6 are the rights guaranteed by Article 5 of the ECHR, and in accordance with Article 52(3) of the Charter, they have the same meaning and scope. Consequently, the limitations which may legitimately be imposed on them may not exceed those permitted by the ECHR...
The legitimate limitations on the right (things like permitting the imprisonment of convicted criminals, etc.) were just imported wholesale from the ECHR, and are the same rights and qualifications that apply to the nation states signed up to the Charter - it doesn't confer any new powers on the EU (which is confirmed under Article 51(2) of the Charter in any case).
Irish abortion law, and the sole capacity to set abortion law in Ireland won't be affected by the Lisbon Treaty - this as the position of the Catholic Church before the first referendum; both now and under Lisbon, the EU's competence in the area of health policy is so limited that it cannot pass a smoking ban, never mind legalize abortion across the EU (health law may not be harmonised: Article 152 TEC/Article 168 TFEU); under Lisbon, the EU doesn't have the competence in the area of family law to legalize abortion - and on top of all that, we now have a guarantee from the European Council, which will be made into a legally binding protocol, that Irish Abortion law will not be affected by EU law.
The Charter enshrines protections for workers' rights in EU law - rights such as the right of collective bargaining and collective action, fair working conditions, etc. Having these rights enshrined in Treaty law will strengthen their weight in the ECJ. However, No campaigners of the left contend that Article 52 of the Charter robs these rights of any meaning. Here's Article 52 in full (section 2 is the main focus of the No side's argument, however):
Article 52
Scope and interpretation of rights and principles
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must beprovided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.
5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. The shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.
6. Full account shall be taken of national laws and practices as specified in this Charter.
7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.
The argument that the four freedoms of the single market will override the rights in the Charter is based on a misinterpretation of this article. The exact application of workers' rights won't be completely clear until the ECJ builds up a body of case law in this area. However, these rights won't be ignored; the ECJ would not recognise that these rights can override the four freedoms to the extent that they can't be exercised at all (since the single market is the heart of what the EU does, this is natural), but these rights will mean that the four freedoms have to be applied in such a way that workers' rights are respected. The balancing of rights is a complex question that will be decided through legislation and ECJ judgments on a case by case basis.
So while it can't be said percisely how far these rights will extend in every case, they nevertheless mark the most significant move in protecting workers' rights in EU law - if it's ratified, of course.






October 18th, 2009 - 16:09
Why is article 52 so ambiguous?? Why do we have to wait for case laws to be brought before the ECJ. If the Charter actually wanted to protect rights, every right laid out should be done so like in the US constitution, “inalienable” rights, ie why cant they be set forth so that regardless of an interpretation by the ECJ, every right is guaranteed bar nothing?? But of course herein lies the answer….