A reflection on the edges of the Charter of Fundamental Rights
(European Parliament, PETI Committee, public hearing, 23 February 2016)
Elise Muir
Madam Chairman, Members of the Committee, thank you very much for this invitation,
which I accepted with great pleasure. We are here today to reflect on the (limited) scope of
the Charter of Fundamental Rights of the EU (CFEU), as defined in its article 51, and on the
extent to which such a scope shall be broadened in order to meet the expectations of citizens.
This is a question of major importance and, as a preliminary point, I shall stress that the
matter if not only important for EU citizens but for all those being affected by EU law (I note
in that sense the broad wording of article 227 TFEU on those entitled to make petitions to the
European Parliament).
I have been asked to examine four specific points.i As our contributions are meant to feed in a
normative/political investigation of the limited scope of the Charter, I will first come back on
the purpose of the system for the protection of fundamental rights in the EU before and after
the entry into force of the Lisbon Treaty. I will then answer the technical questions on the
rationale of article 51 and the relationship between this article and article 6 TEU and, finally,
share some broader thoughts on the edges of the Charter.
I- The system for the protection of fundamental rights in the EU: a reminder on the
important – yet nuanced – role of the Charter
Three general comments explain my answers to the more specific questions on article 51
CFEU and the limited scope for the protection of fundamental rights (FR) in the EU that will
follow in the other part of this presentation:
- The protection of fundamental rights before and after the entry into force of the Lisbon
Treaty
It is important to recall that, although there was no mention of (and certainly no list of)
fundament rights in the treaty of Rome, there was a system for the protection of fundamental
rights in the EU well before the entry into force of the Lisbon Treaty. This dates back to the
1960s (CJEU C-29/69 Stauder) and 1970s (CJEU C-11/70 Internationale
Handelsgesellschaft) when - what is today - the CJEU asserted that it would protect
fundamental rights enshrined in the general principles of ‘Community law’. So that the
origins of the current system of fundamental right protection are to be found in the case law of
the CJEU. This case law resulted from checks and balances established within domestic
highest courts to ensure that the supremacy of EU law would not fundamentally compromise
human rights protection. This system of protection was progressively formalized (eg. article F
TEU – Maastricht) to become today’s article 6 TEU (we will come back to it, below). In other
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words fundamental rights became a matter of EU law because their protection in the context
of the adoption and implementation of EU law was a precondition for the acceptance by
domestic legal orders of EU. One could say that ‘they came in through the back door’.
Before the entry into force of the Treaty of Lisbon, this system of fundamental right
protection relied on a complex set of different sources that were incorporated in the legal
order of the EU under the denomination of ‘general principles of EU law’. General principles
of EU law were – and still are – inspired from the constitutional traditions of the Member
States as well as international treaties for the protection of human rights on which the MS
have collaborated or of which they are signatories; among such international treaties the
ECHR plays a unique role (as is now clear from the wording of article 6(3) TEU). One could
add that certain specific provisions of the Treaty also seek to protect selected fundamental
rights (eg. equal pay for equal work between men and women in Article 157 TFEU). The
Charter went on to play an ‘informal’ role as an additional source of inspiration after its
proclamation in 2000 and a fully formal one after the entry into force of the Lisbon Treaty. So
that the system as we know is today is remarkably complex in terms of the number of sources
of fundamental right protection (general principles, ECHR, Charter). This complex set of
instruments of fundamental rights protection is only relevant within the EU legal order when
EU law is in operation (so that the limitation discussed today also applies to other sources of
protection).
Why has the system of FR protection been created through the back door and remained so
complex? It is important to recall that the EU was not conceived as a human right
organisation.
The mechanism by which the EU started to protect individual’s fundamental right is an
indirect one – it operates as a safety net (triggered by the application of the principle of
supremacy of EU law) to ensure that the EU legal order operates on a sound basis and in
accordance with the rule of law.
The Charter does not actually fundamentally change the system for the protection of
fundamental rights in the EU. It - more modestly - seeks to modernize the rights covered,
provide more visibility to the pool of fundamental right protected within the EU legal order
and stress the importance of the protection of such rights.
- The impact of the Charter on the implementation of fundamental rights in the EU
Member States
Now, admittedly, although the system is not fundamentally changed, the greater visibility of,
and emphasis on, fundamental rights has important consequences on how the EU legal order
operates (and from the perspective of the Member States):
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1. It allows interested people to frame legal and political arguments in fundamental right
terms.
2. It allows institutions to frame their reasoning in fundamental right terms.
So that the genuine impact of the Charter spreads throughout the European public sphere. For
instance, in so far as national law making is concerned: domestic parliaments are expected to
ensure that acts implementing EU law comply with the Charter. More generally, domestic
situations covered by EU law must comply with fundamental rights (eg. CJEU Kücükdevici).
Article 51 CFEU is to be understood, in light of the explanation on the Charter (Art.52(7)) as
well as CJEU case law on the matter (CJEU Fransson) as imposing a requirement on the
Member States to respect fundamental rights defined in the context of the Union is when they
act in the scope of Union law.
There has been much debate as to whether the scope of fundamental right protection offered
by the Charter should have been understood more narrowly due to the specific wording of
Article 51 CFEU. It seems to me that it makes sense to define the scope of EU law in the
same way as before for the purpose of ensuring FR protection - as the CJEU suggested to do
so. While certain cases on the Charter have adopted a fairly broad understanding of the scope
of the protection (eg. CJEU Fransson), others illustrate a more narrow approach by the CJEU
(eg. CJEU Hernandez, Siragusa). It is not my intention here to discuss the merits of specific
cases but – more modestly – to point out that the case law is - it seems to me - overall, rather
nuanced and fairly truthful to earlier case law on the scope of EU law for the purpose of
triggering fundamental right protection.
I have also read through the selected petitions that we received from the organizers of this
hearing and, again, it seems to me that the position of the Commission in response to these
petitions is largely in line with the traditional position of EU law on the matter (see the report
by Professor Spaventa for more a detailed discussion of specific cases). In other words,
Member States are to respect fundamental rights defined in the context of the Union only
when they act in the scope of Union law.
- Before concluding this overview of the function that the Charter performs in the EU legal
order, and although this is not the main focus of this hearing, I would recall that one of the
objectives – for some it may be perceived as the main objective – of the Charter was to
actually enhance respect for fundamental rights by EU institutions, bodies, offices and
agencies (Art.51(1) CFEU – see also explanations on Art.51 the Charter paragraph 1).
In that sense the Charter has had a visible impact on law making at EU level with greater
attention being paid to fundamental right in law making. EU legislation has also carefully
been checked against EU fundamental right standards with important rulings having attracted
much attention (eg. CJEU Digital Rights, Schecke, Test-achats) and interpreted in a
particularly innovative way in light of CFEU provisions (eg. CJEU Alemo-Herron).
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In this respect, the Charter has had a fairly spectacular impact. This is not to assert that some
of these decisions would not have been made in the absence of a binding EU Charter (eg.
Digital Rights). More simply, the Charter does indeed require EU institutions to put greater
emphasis on fundamental right protection.
As is clear from this historical overview, although the Charter gives greater visibility to the
fundamental rights protected in the EU legal order it does not, as such, modify the function
that fundamental right protection plays in the EU legal order. (Apart from specific
fundamental rights that constitute EU competences - eg. non-discrimination, data protection),
fundamental rights as a whole are only protected incidentally in the EU legal order and the
EU is not understood as a fundamental right organization as such.
II- The limits placed on the scope of fundamental right protection in the EU by article 51
CFEU
The following observations follow logically from the overview of the evolution of the system
of fundamental protection over time, so to come back to the specific questions raised by the
organizers of this hearing:
- What was the rationale and purpose of article 51 CFEU?
Article 51 CFEU was simply designed to ensure a status quo as regards the function that
fundamental rights perform in the EU legal order: that is to confirm and reiterate that the
protection of fundamental right in the EU is simply a pre-condition to its sound and peaceful
existence in domestic legal orders - ‘a healthy parasite’ to EU law and policy.
In other words, the EU is not a fundamental right organisation; it is more modestly an
organisation that respects fundamental rights. One shall keep in mind that there exists another
international organisations in Europe entrusted with the task of monitoring fundamental right
compliance and promoting such rights: the Council of Europe.
- What is the relation between article 51 of CFEU and article 6 TEU?
Apart from introducing two novelties concerning the sources for the protection of
fundamental right in the EU (i. The Charter has the same legal value as the Treaties, ii. The
Union shall accede to the ECHR), article 6 TEU only reiterates the pre-existing function that
fundamental rights perform in the EU legal order. Thus, the overall picture drawn by article 6
TEU remains complex - because of the multiplicity of sources for the protection of
fundamental right in the EU. Yet, there is no fundamental departure: the EU does not become
a human rights organisation. In Kamberaj, the CJEU has confirmed that Article 6 TEU, in the
post-Lisbon era, does not seek to amend the relationship between domestic legal orders, the
EU legal order and the ECHR. In that sense, article 51 CFEU largely repeats article 6 TEU.
III- Concluding thoughts: reflecting on the edges of the Charter of Fundamental Rights
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Would it make a difference to delete article 51 CFEU? From a technical/legal perspective,
I am not sure that it would change much unless there is a clear and strong political decision to
broaden the scope of EU law. This is confirmed by the explanations on article 51 CFEU.
Furthermore, not only is article 51 CFEU a repetition of article 6(1) TEU but also – and more
importantly - the principle of attributed competences is enshrined in Article 4(1) TEU and
Article 1(1) TFEU. These provisions form the ‘hard core’ of EU law. I am not saying that
such a hard core cannot be changed but changing this involves much more than the deletion of
a provision of the Charter, it involves a fundamental rethinking of the function that
fundamental rights play in the EU and thus of the role of the EU as such. Expanding the
fundamental right jurisdiction of the EU is a choice of major political importance.
Would it be desirable to fully open up the fundamental right jurisdiction and mandate
of the EU? First, I am not sure that the Member States would agree to this (see the existing
reservations on the Charter: UK, PL, Cz). Second and perhaps more importantly, I am not
sure that – as things currently stand – such a sharp shift in the nature of the European
integration process is desirable. There already exists a fundamental right organization in
Europe. Furthermore, politicizing the fundamental right debate in the EU could be immensely
divisive. We may not all agree on what is a fundamental right and what is an ‘ordinary’ right
– bearing in mind that ordinary rights have to bend to fundamental rights. Also, the vast
majority of fundamental rights are relative – they are not absolute –, they need to be weighed
against other individual and public interests. These exercises of defining and weighing core
values are difficult, highly controversial. In any case, a decision on the broadening of the
scope of the fundamental right jurisdiction and mandate of the EU is one that is to be made at
political level.
Can fundamental right protection in the EU be further improved? Yes, certainly. Yet,
this objective may be best achieved though diversifying approaches to fundamental right
protection within the existing constitutional context in order to make space for spillover
developments in the domestic spheres as well as at EU level. For instance, by performing
fundamental right checks for the adoption of legislation (at national as well as European
level), by mainstreaming fundamental right concerns, by further spreading information on
fundamental rights/the Charter, enhancing exchanges, peer review, political debates – such as
this one to date – etc…. The representatives of the European Ombudsman and Fundamental
Rights Agency here present will have many suggestions. I shall add that, after reading the
compilation of petitions I received in preparation for this hearing, I actually thought that some
of the answers from the Commission were actually quite helpful in providing guidance on
where to look for remedies outside of the EU legal order.
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- The impact of the adoption of the Charter of Fundamental Rights on the implementation of fundamental rights in the EU Member States:
the experience before and after the entry into force of the Lisbon Treaty.
- Case law of the Court of Justice of the European Union related to the Charter of Fundamental Rights
- What was the rationale and purpose of art. 51 CFR?
- What is the relation between art. 51 of the Charter of Fundamental Rights and article 6 of the TUE?
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