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The Impact of the EU Charter on Fundamental Rights: From Theory to Practice

The Impact of the EU Charter on Fundamental Rights: From Theory to Practice An Introduction for the Public Interest Law Alliance (PILA), Dublin, 7 February 2013. Jonathan Cooper Doughty Street Chambers. The Lisbon Treaty: do we have a Constitutional Framework for Europe?. Ireland in Europe

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The Impact of the EU Charter on Fundamental Rights: From Theory to Practice

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  1. The Impact of the EU Charter on Fundamental Rights: From Theory to Practice An Introduction for the Public Interest Law Alliance (PILA), Dublin, 7 February 2013 Jonathan Cooper Doughty Street Chambers

  2. The Lisbon Treaty: do we have a Constitutional Framework for Europe?

  3. Ireland in Europe Treaty of Nice: In 2001 Irish voters rejected the Treaty of Nice by 53.9% (Accepted in 2002 by 62.9% ) Treaty of Lisbon: On 12 June 2008 the Treaty of Lisbon was rejected by a margin of 53.4% to 46.6% (Accepted by a margin of 67.1% to 32.9% on 2 October 2009)

  4. The Lisbon Treaty in a Nutshell • No more byzantine architecture • The three pillars have become one. • The EU has a legal personality • The EU becomes more supra- national and less inter- governmental. • Enhanced democratic accountability and judicial oversight • Human rights move centre stage

  5. The Lisbon Treaty is a complicated amending treaty. It incorporates a European Union that is made up of: • 3 Treaties; • almost 40 Protocols; • 2 Annexes; and • myriad Declarations. • The consolidated texts stretch to over 500 A4 pages. • Read together is this a Constitution?

  6. Treaties making up the EU post Lisbon • Treaty of the European Union (TEU) = democratic principles, institutions, enhanced cooperation, external action and common foreign and security policy of the EU; • Treaty on the Functioning of the European Union (TFEU) = “organises the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences” (draws heavily on now defunct TEC); and • EU Charter of Fundamental Rights and Freedoms is given effect by becoming a separate Treaty

  7. Transforming the Values and Objectives of the EU • Lisbon makes human rights protection as important as the consolidation of the Union. • Is the guarantee of the internal market no longer the overriding objective of the EU? • The EU’s values: human dignity, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. • The EU’s objectives include promoting social justice and protection, equality between women and men, solidarity between generations and the protection of the rights of the child, as well as combating social exclusion and discrimination.

  8. Those objectives also include: • “contributing to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, • free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, • as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.”

  9. Human Rights within the EU: pre and post Lisbon

  10. Human Rights within the EU pre Lisbon: • Early case law of the ECJ: human rights ought to be read into the way the EEC is implemented (Stauder v City of Ulm) • The Maastricht Treaty 1992: reference to the role of human rights principles (process continued at Amsterdam and then Nice IGCs) • Cologne Council 1999: agreement to codify rights within the EU • Nice 2000: EU Charter of Fundamental Rights and Freedoms was solemnly proclaimed

  11. Amended Article 6, TEU • Article 6 TEU guarantees, and protects, enforceable human rights in three ways: • the EU Charter of Fundamental Rights (the Charter) is given binding effect by becoming a Treaty of the EU; • the EU will become a party to the ECHR; and • pre-existing human rights protection within the EU and its Member States will continue to be part of EU law.

  12. THE TFEU FURTHER EXTENDS HUMAN RIGHTS PROTECTION - PROVISIONS HAVING GENERAL APPLICATION INCLUDE: Article 8 In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women. Article 9 ... the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health. Article 10 ... the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

  13. TFEU (HUMAN RIGHTS) PROVISIONS HAVING GENERAL APPLICATION INCLUDE: Article 11 Environmental protection requirements must be integrated into ... the Union... Article 13 ... since animals are sentient beings, pay full regard to the welfare requirements of animals .... Article 16 Everyone has the right to the protection of personal data concerning them... Article 17 The Union respects ... churches and religious associations or communities in the Member States ... equally respects ... philosophical and non-confessional organisations ... the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

  14. The EU Charter of Fundamental Rights: prospects, possibilities & pitfalls

  15. The European Union Charter of Fundamental Rights: what is it & where did it come from? • The Charter was drafted by a Convention comprised of: • 15 representatives of heads of state or government • 16 Members of the European Parliament • 30 members of national parliaments • An EU Commissioner • “The Charter which we are drafting must one day in the not-too-distant future become legally binding …. We should therefore proceed as if we had to submit a legally binding list” (Roman Herzog, President of the Convention with responsibility for drafting the Charter, December 1999) • Charter proclaimed on behalf of the EU institutions in December 2000. It was decided it should be non-binding.

  16. The EU Charter of Fundamental Rights: where do the Rights come from? • In the preamble it is expressly stated to reaffirm: • “… the rights as they result, in particular, from the constitutional obligations and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case law of the Court of Justice of the European Communities and the European Court of Human rights”

  17. Content of the Charter The Charter includes civil and political rights and economic and social rights thus affirming the indivisibility of human rights. These rights are divided into six sections: Dignity Freedoms Equality Solidarity Citizens' rights Justice The content of the Charter has been unaffected by the Lisbon Treaty, although some of the wording has been adapted. It is gender neutral. NB: Check your Charter is 14/12/2007 (OJ C/303/1)

  18. Content of the Charter: Key Additions Dignity: Article 1: Human dignity Human dignity is inviolable. It must be respected Article 3: Right to the integrity of the person Everyone has the right to respect for his or her physical and mental integrity. Article 5: Prohibition of slavery and forced labour 3. Trafficking in human beings is prohibited

  19. Content of the Charter Freedoms: Article 8: Protection of personal data 3. Compliance with these rules shall be subject to control by an independent authority Article 9: Right to marry and found a family No requirement to be between women and men Article 10: freedom of thought, conscience and religion 2. The right to conscientious objection is recognised ...

  20. Content of the Charter Freedoms Article 11: Freedom of expression and information 2. The freedom and pluralism of the media shall be respected Article 12: Freedom of assembly and association 2. Political parties at Union level contribute to expressing the political will of the citizens of the Union Article 13: Freedom of the arts and sciences The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

  21. Content of the Charter Freedoms Article 14: Right to education 1. Everyone has the right to education and to have access to vocation and continuing training 2. This right includes the possibility to receive free compulsory education 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom

  22. Content of the Charter Freedoms Article 15: Freedom to choose an occupation and right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation 3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union. Article 16: Freedom to conduct a business The freedom to conduct a business in accordance with Union law and national laws and practices is recognised Article 17: Right to property 2. Intellectual property shall be protected

  23. Content of the Charter Freedoms Article 18: Right to asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28th July 1951 and the Protocol of 31st January 1967 relating to the status of refugees in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’). Article 19: Protection in the event of removal, expulsion or extradition 1. Collective expulsions are prohibited 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subject to the death penalty, torture or other inhuman or degrading treatment or punishment.

  24. Content of the Charter Equality Article 20: Equality before the law Everyone is equal before the law Article 21: Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited Article 23: Equality between men and women … The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex

  25. Content of the Charter Equality Article 24: The rights of the child 1. Children shall have rights to such protection and care as is necessary for their wellbeing. They may express their views freely. Such views shall be taken into consideration on matter which concern them in accordance with their age and maturity 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interest must be a primary concern 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests

  26. Content of the Charter Equality Article 25: The rights of the elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life Article 26: Integration of persons with disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community

  27. Content of the Charter Solidarity Article 28: Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. Article 33: Family and professional life 1. The family shall enjoy legal, economic and social protection

  28. Content of the Charter Solidarity Article 35: Health care Everyone has the right of access to preventative health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities Article 37: Environmental Protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. Article 38: Consumer protection Union policies shall ensure a high level of consumer protection

  29. Content of the Charter Citizens’ Rights Article 41: right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.  2. This right includes: (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions.  3. Every person has the right to have the Union make good any damage caused ...  Article 42: Right of access to documents Article 43: Ombudsman

  30. Content of the Charter Justice Article 47: right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article … Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice Article 48: Presumption of innocence and right of defence 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed

  31. Content of the Charter Justice Article 49: Principles of legality and proportionality of criminal offences and penalties 3. The severity of penalties must not be disproportionate to the criminal offence Article 50: Right not to be tried or punished twice in criminal proceedings for the same criminal offence

  32. The role of the Charter within the EU Post Lisbon: how it works TEU, Article 6(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. 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.

  33. The EU Charter: how it works Article 51 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. 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. Rights and Principles: What is a right? What is a principle? Why this distinction?

  34. The EU Charter: how it works (continued) Article 52 1. 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. 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.

  35. The EU Charter: how it works (continued) Article 52 cont. 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.

  36. The EU Charter: how it works (continued) Article 52 cont. 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. They 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.

  37. The Charter’s Scope in a Nutshell Article 51: The Charter cannot create new areas of competence for the EU but EU institutions must comply with it Is existing EU competence required for the Charter to apply within a Member State? How much is required? Article 52: Rights are directly enforceable Principles are justiciable in the circumstances identified in Article 52(5) Article 52(5): how is the distinction to be drawn? Failure of the Charter and its Explanations to spell out clearly which of the Charter articles involve rights and which principles. The role of the CJEU

  38. The UK Protocol to the EU Charter

  39. The UK Protocol to the EU Charter Is it an opt out? Or an interpretive protocol? The Protocol is not an opt-out from the Charter. The Charter will apply in the UK, even if its interpretation may be affected by the terms of the Protocol. The Protocol is a belt-and-braces approach of the Government “[the Protocol] puts beyond doubt what should have been obvious from other provisions” (Jack Straw)

  40. The Application of the Charter in 10 Easy Steps

  41. The Application of the Charter in 10 Easy Steps Step 1: The Charter does not apply to pure domestic law and practice Step 2: The Charter will only apply when EU law is implemented Step 3: What level of engagement is required for the Charter to kick in? Simple competence? Step 4: Does the test of subsidiarity apply? Are the issues under review more appropriately addressed at the national level?

  42. The Application of the Charter in 10 Easy Steps Step 5: If Union law is implemented, what is the nature of the right at issue? Is it a right or a principle? Step 6: For clarification refer to the Explanations Step 7: Is the interference with the Charter necessary and proportionate? Step 8: If a right is involved that mirrors the rights contained in the ECHR, then the same interpretation of that right must be given as the one that is provided by the Strasbourg Court.

  43. The Application of the Charter in 10 Easy Steps Step 9: Similarly, if the right is guaranteed by one of the EU Treaties it must be interpreted consistently with that Treaty provision. Step 10: In a UK context, reference should be had to the UK’s Protocol. Does this affect the outcome? Pleading human rights within EU law post Lisbon: (i) EU law relied upon (ii) TEU (iii) TFEU (iv) EU Charter (v) Protocol

  44. THE EU CHARTER CASES POST LISBON TO DATE

  45. The Charter in Force: are judges paying attention to the Charter? The impact of the Charter on the judiciary, both at national and EU level, ‘is already visible’ The CJEU quoted the Charter in its reasoning in 42 cases in 2011 (compared to 27 cases in 2010) November 2012: National courts referred to the Charter in 27 preliminary rulings

  46. Article 51: Scope of the Charter J McB v L.E Aklagaren v Fransson Article 53: Level of protection Preliminary ruling in the case of Stefano Melloni Case Law Regarding the Application of the Charter

  47. Article 1: Human Dignity Brustle v Greenpeace Article 4: Prohibition of Torture and Inhuman or Degrading Treatment or Punishment N.S. v Secretary of State for the Home Department and M.E. v Refugee Applications Commissioner

  48. Article 47: Right to an effective remedy and to a fair trial ZZ v Secretary of State for the Home Department Günter Fußv Stadt Halle Alassini and Others P. KnaufGips v European Commission SofianeFahas v Council of the European Union DEB Deutsche Energiehandels und Beratungsgellschaft v Germany

  49. Article 21: Non-Discrimination Test Achats v Council of Ministers Kücükdeveci v SwedexGmbH & Co.

  50. Article 7: Respect for private and family life Chakroun v Minister van BuitenlandseZaken Article 8: Protection of Personal Data Joined cases C-92/09 and C-93/09 Commission v Germany Article 11: Freedom of Expression and Information SABAM v Scarlett

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