S a a r b r ü c k e r   B i b l i o t h e k


Vortrag, gehalten am
24. Juni 2000 in Istanbul

Torsten Stein

Charter of Fundamental Rights of the European Union

- Does the Union need an own catalogue of fundamental rights and for whom? -

I will focus mainly on two questions; the first is: do we need a Charter? My answer is yes, and I will explain why and try to convince you. The second question is: should and can the Charter be a binding legal text, or just something nice but non-committal? The answer to that will be a classical legal answer: "it depends". And it will mainly depend upon the content of the Charter. In this respect it would perhaps have been better to decide at the very beginning about the future legal rank of the Charter. The Convention will be much more tempted to introduce all kinds of new rights when knowing that they will not - at least not immediately - become binding law. On the other hand it will be very difficult to cut the Charter back to "aceptable size" in order to convert it into binding law, once the citizens have seen all these pleasant and desirable new guarantees.

Let me address two more general points before dealing with the first question. One is that I do not encourage any attempt to link the Charter to the idea of "constitution-making". It would only damage, if not ruin, the Charter project. There is an ongoing and, in my opinion, rather moot discussion on whether the Union already has a constitution or is in need of one. It does have a constitution in the sense that the founding instrument of any international organization later on becomes its constitution. One might also claim a special constitutional character for the European Treaties with regard to the fact that the integration is meant to be unlimited in time and that the "acquis communautaire" is irrevocable. But "Constitution" has an undeniable connotation of "statehood", and the term is used by many exactly with that meaning, trying to verbally achieve a progress in integration that has not yet been achieved in fact. One cannot slip into the "United States of Europe" through a back door, it has to be a deliberate, unambiguous and open step through the front door, known to and accepted by the peoples of the Union's Member States. Any attempt to link the drafting of the Charter to a future constitution smells like "back door" and will only stir resistance in some Member States.

Second point, regarding the procedure chosen to draft the Charter: some say that the special procedure chosen for the drafting of the Charter, the "Convention", does not only aim at greater parliamentary and public participation, but is also the expression of a certain dissatisfaction with the method used (and provided for by the Treaties) by the Intergovernmental Conferences, and that this new method should replace the Intergovernmental Conferences in the future also for the amendment of the Treaties. I personally doubt whether a "Convention" with a composition as we see it now, with may additional and unfiltered interests, will achieve better results than the usual Intergovernmental Conferences.

But now to the first question: Why do we need a Charter of Fundamental Rights? Is the protection of fundamental rights as it is looked after by the European Court of Justice not good enough? We need, in my opinion, the Charter for two reasons: One is that the actual system shows too many anomalies, and the second is that the protection actually provided by the European court is anything but satisfactory.

The first anomaly - perhaps less evident for common lawyers, but most evident for continental lawyers - is that the Court has in every single instance to construe or "invent" the fundamental right that it will later on apply to a given case. Judge made law is not totally unknown to national legal systems in the sense that judges might have to fill lacunae which the legislator unintentionally has left open in statutes. But the European Court, when protecting fundamental rights, is not bound by a statute or any other normative text. This is why, by the way, the German Constitutional Court in its famous judgement of 1974 reserved for itself the power to double-check community measures against the fundamental rights guaranteed in the German constitution.

It is true that the European Court began in the seventies to "verbalize" the protection of fundamental rights against violations by the Community Institutions; I use the term "verbalize" with intent. But since the Treaties did not contain fundamental rights, the Court had to look for them outside the Treaties and thereafter promote what it had found to "unwritten general legal principles of community law." It did find the building blocks for those general legal principles on the one hand in the constitutional traditions common to the Member States (that is to say in the common essential content of the fundamental rights as guaranteed in the Member States´ constitutions, leaving aside any protection that was more than "essential content"), and on the other hand in the European Convention on Human Rights.

All this is, since the Maastricht Treaty, codified in Community law, but neither the wording of national and European Convention fundamental rights nor their interpretation by national Constitutional courts or the Strasbourg Court is binding on the European Court. The court picks a piece here, a piece there, checks them against community interest and comes out with a "community fundamental right". The court's discretion is almost unfettered.

The second anomaly, under the aspect of separation of powers, is that the community legislator has no correcting influence. If a national Constitutional Court constantly interprets a fundamental right contained in the Constitution in a way that is not or no longer accepted by the society, the national legislator can intervene, with the majority required for constitutional amendments, and change the wording of the respective fundamental right in a way that excludes the previous interpretation. The community legislator does not have that possibility because there is nothing to amend.

All this could be perhaps acceptable if the actual protection of fundamental rights against infringement by the community's institutions could produce satisfactory results. It does, I'm afraid, not. You need less than one hand to count the cases in which the Court has invalidated a Community measure for violation of human rights. This may be due to the fact that community measures are so perfect, which I doubt. The reason seems rather to be that the Court measures the "general principle" taken from the national constitutions and the European Convention against the structure and the objectives of the community. In other words: Individual human rights shall not hinder integration. In that respect the court in the past has acted more as a "motor of integration" than as guardian of fundamental rights.

The fact that integration almost without exception won through against individual rights is the consequence of a very lenient scrutiny by the Court. The Court is satisfied with stating that the attacked community measure is in line with the community's goals, that it is not obviously unsuited to achieve its objective, and that it does not violate the essential content of the fundamental right in question. This remains far behind the standard of scrutiny applied by national courts and the Court in Strasbourg.

"Essential content" describes the absolute lowest level no protection may fall short of; normally protection of fundamental rights starts earlier. And "not obviously unsuited" is only part of the regular understanding of the principle of proportionality or reasonableness.

This is mind, Art. 47 of the "Horizontal Clauses" of the Draft Charter as its stands now, could be read as correcting the Luxembourg Court, were there not the reasons stated by the Convention, which seem to indicate that "the Union's own limitation regime", as established in the case law of the Court, shall remain unchanged.

But a codification of community fundamental rights in a Charter could and should set the standard of scrutiny for the Court and prevent that the respective fundamental right, sofar the result of an evaluating comparison of different legal sources, comes out too small from the very beginning. With the Charter it will be at least a bit more difficult for the Court to continue with its current and unsatisfactory level of scrutiny in fundamental rights cases.

This, of course, presupposes that the Charter will become a binding text and not only a solemn declaration. This brings me to the second question.

Even if the Charter should be only a declaration, at most published in Part C of the Community's Official Journal and generously distributed by the Commission in all official languages, it would not be completely insignificant for the Court, because it would be an emanation of the will of all those (and more) who would otherwise take part in a revision of the treaties. But the Court would at best be influenced, it would receive an additional means of interpretation, but it would not be bound by the text, as it is not bound at present by the European Convention.

I personally would prefer the Charter being incorporated into the Treaty, the sooner the better. This would be also the only way in which the Charter could be taken seriously by the citizens of the Union. They would not understand a catalogue of fundamental rights which are not enforceable by action. It has repeatedly been said that even a mere solemn declaration would make their fundamental rights "visible" for the citizens of the Union, it would enhance the acceptance of the European integration and the identification with Europe; it would be a "symbol of European identity and a "point of orientation" for the citizens. This remembers me to a certain degree of the "European passport", which was also sold as a "symbol of European identity". The truth is that nothing has changed. We still have national passports, issued, prolonged or with drawn according to domestic law, only in a uniform colour. The citizens of the Union will be utterly disappointed with a Charter of fundamental rights which are visible, but not as such enforceable.

Whether the Charter will become part of the Treaty depends not only upon its contents but also upon its scope of application. One might ask whether it was necessary to include (in Art. 46 sec. 1 of the Horizontal Clauses) the Member States as adressees of the provisions of the Charter insofar as they implement Community law (the current wording "within the scope of Union law" is, by the way, not very accurate). There are certainly arguments in favour of having a single, uniform code of fundamental rights for the entire community law, from law-making over implementation to judicial control. On the other hand extending the application of the Charter to the Member States raises problems of direct applicability and primacy. The deficits in the protection of fundamental rights which I mentioned earlier have occurred mainly at Community level, much less at the national level. The relevance of Community fundamental rights for the implementation of Community law through the administrations of the Member States seems to be greatly overestimated. And extending the Charter to the implementation of Community law in the Member States might produce additional problems: should the Charter rights remain behind the standard of protection offered by the fundamental rights catalogues of some national constitutions, the national administrative authorities might have to continue to apply the national standard. Should the Charter rights go beyond the national standard of protection, the citizens will soon ask themselves why they do not enjoy the same high standard in all cases, including the execution of domestic law. All these problems could be avoided if the Charter would be binding only on the community institutions, and this might make the incorporation of the Charter into the Treaty more acceptable to all Member States.

And one thing appears to be beyond doubt: If the Charter should remain only a solemn declaration, it would remain almost meaningless for the Member States´ administrations. A mere declaration does not derogate existing and binding national catalogues of fundamental rights. Primacy of Community law does not cover declarations. National administrations would have no other choice than to continue to apply their national fundamental rights. Apart from this, adressing the Charter also to the Member States will produce confusing situations: When they apply a Community regulation, they act "within the scope of Union law"; is that also true when they apply a domestic statute whose mother was in part a Community directive? Do they have to respect the national fundamental rights when applying a section of the statute that remained untouched by the directive, but Union fundamental rights when applying the next paragraph whose wording is the result of the implementation of a directive? What if the mistake made is a purely administrative one? Many of the principles of good administration, like the protection of good faith, have constitutional rank in at least some Member States; they do not even appear so far in the Charter. In my opionion extending the Charter to the Member States is much more complicated and risky than the Convention seems to have realized.

Whether the Charter can be incorporated into the Treaty will - as I said earlier - mainly depend upon its content. It is a bit too early to say something definite about that content; we are still reading drafts which are open to change.

I could live with the Horizontal Clauses as they stand now, except for the doubts already expressed with respect to extending the application of the Charter to the Member States administrations.

I also have no strong objections against Articles 1 to 30 (civil and political rights) as contained in the latest draft of 5 May 2000, although some of these rights, as, e.g., children's right, seem to go a bit far. I am not sure, however, whether it is a good drafting technique to state rights, but leave the necessary possibility of limiting them under certain circumstances to a horizontal clause simply referring to the Strasbourg Convention. The Charter should stand alone, which does not exclude that the Strasbourg Court might have the last word in a given case. I will come back to this in a minute.

But I am afraid that the largest obstacle against the incorporation of the Charter into the Treaty will result from the proposals for social rights. Some of the rights proposed here are self-evident, some are promises that will not be easy to fulfil and some are plain lyrics. It will be the most different task for the Convention to prevent that everything that might appear as nice or desirable will be promoted to a community fundamental right. Some areas covered by the now proposed social and economic rights could and should be left for the Member States to adopt or not adopt, others should at best have statutory, but certainly not quasi-constitutional rank.

Allow me a last remark on the relationship between the new Charter and the European Convention. I do not quite see why the "classical" fundamental rights already contained in the European Convention should reappear exactly in the same form in the Charter. The Convention rights have been developed (and sometimes extended) through the case-law of the Strasbourg Court, and the charter could formulate them in an way that takes note of that development.

Why would everything else "damage" the European Convention? Why should we not tolerate competing catalogues? There is already competition today: we have the phenomenon that certain fundamental rights that are guaranteed in the Convention or in its Additional Protocols are more extensively protected under the national constitutions of the signatory States. And nevertheless in the daily practice of these States "industrial accidents" occur that can be and are corrected by the Court in Strasbourg. What is the difference with respect to the Community and its Court of Justice?

As the Court in Strasbourg said in the Matthews Case, the Convention does not prohibit the signatory States from organizing an integration among themselves or some of them, but that integration does not absolve them from respecting their duties under the European Convention. Quite a number, if not all, of the highest national courts of the Member States have had to accept being corrected by the Strasbourg Court. Why not, in exceptional cases, also the Luxembourg Court? This is why, in my opinion, the Union (or at least the Community) should become a signatory to the European Convention.

I do not think that a reference from the Luxembourg Court to the Strasbourg would be a realistic alternative. Judges want to decide, not to give advice. In its own reference proceedings the Luxembourg Court decides in a binding manner for the referring national tribunal. And the judges in Strasbourg would very much hesitate to give interpretative advice, because they would thereby bind their hands and set a precedent for own future cases.

If I may sum up my argument: The Union needs a Charter of Fundamental Rights; that Charter should be binding upon the Community Institutions; the Charter should be confined to the fundamental rights also guaranteed in national constitutions and in the European Convention, which does not exclude some degree of modernization; the Charter should refrain from codifying desirable welfare standards; the Community (Union) should accede to the European Convention, thus bringing itself on par with its Member States as far as the ultimate control by the Strasbourg Court is concerned.