Publications
Dr. Roel Fernhout
National Ombudsman of the Netherlands
Memorandum on the EU Charter of Fundamental Rights
12 April 2000
It is with interest that I have read the European Council's proposal concerning a Draft Charter of Fundamental Rights for the European Union, and am I am happy to respond to your invitation to comment on it here. In the following pages I shall comment successively on the desirability of a Charter, and on its form and content.
1. Desirability of an EU Charter
Since the conclusion of the Treaty of Amsterdam, human rights have been accorded a more prominent role in the EU. However, they still occupy a subordinate place in the treaties on which the EU is based. For the individual protection of human rights, citizens in general remain dependent on the European Convention on Human Rights (ECHR). Furthermore, the constitutionality of Community legislation is fairly weak, partly because fundamental rights have the vague status of "general principles of law", which means that they do not take precedence over other principles of law. Furthermore, even now that we have the Treaty of Amsterdam, fundamental rights are poorly visible to citizens of the EU, which does not enhance the legitimacy of the EU's own actions, either in relation to its citizens or in relation to third States that have relations with the EU and/or aspire to become Member States. This invisibility was one of the main reasons for the proposal to draw up a Charter, which for this reason is to be applauded. The new document may also help to alleviate the other deficiencies I have mentioned. At the same time, however, the choice of a Charter as a solution also poses certain intrinsic problems.
There are three main problems: the continued lack of external supervision of the observance of human rights, a fragmentation in their interpretation, and the increasing complexity, for citizens, of the system for protecting their rights. An external supervisory mechanism would be preferable to supervision by the Court of Justice of the European Communities (ECJ), if only from the viewpoint of maximum independence and objectivity, though the ECJ has demonstrated that it takes the human rights enshrined in the ECHR seriously and adheres in broad outline to the interpretation of these rights by the European Court of Human Rights. Nonetheless, there is still a danger that new ECJ case law based on the proposed Charter might undermine the authority of the Strasbourg Court as the highest body that can interpret the ECHR and hence guarantee uniform legal protection within the Member States, all of which are party to the ECHR. Nor would this situation be helpful to the European Ombudsman, where the latter's cases impinge on human rights, as in his Decision on complaint 794/5.8.1996/EAW/SW/VK against the European Commission (Officials and freedom of expression; no maladministration) and his Decision on complaint 851/3.9.96/ALC/ES/VK against the European Commission and the Council of Ministers (Discrimination in general comparative studies). One example of a problem of complexity that would not be resolved by a Charter is illustrated by a case currently pending before the European Court of Human Rights, which Guérin Automobiles, a French company, has brought against each of the fifteen Member States of the EU because it is not possible to submit an application directed against the EU itself.
I shall return to the questions of fragmentation of interpretation and complexity in relation to access to the courts in the sections on "Content of the EU Charter", "Active scope of the EU Charter" and "Access to the courts" (paragraphs 3, 4.1 and 5 respectively). Ultimately, if the EU develops its own mechanisms for protecting human rights, an erosion of the protection of human rights in Strasbourg cannot be ruled out. This could end up reducing human rights protection for States that belong to the Council of Europe but not to the EU. We would then face the unpleasant prospect of a two-speed Europe in the realm of human rights, a point to which I will return when discussing the scope of a future Charter (section 4).
These problems can only be avoided effectively, in my view, if the EU itself accedes to the ECHR (and other human rights conventions). But since the Court of Justice's Opinion 2/94 of 28 March 1996 concerning the accession of the EC to the ECHR, it has been clear that the EC cannot accede to the ECHR until certain necessary changes have been made to the EC Treaty itself. The prospects of the EU acceding seem equally poor, as it does not have legal personality either. It seems that the changes that would be required do not yet command enough political support.
In spite of the potential problems I have outlined, the Charter could nevertheless be an improvement on the existing situation and possess some added value in relation to human rights protection and the visibility of human rights within the EU. But certainly as long as there is no possibility of the EU acceding to the ECHR in the foreseeable future, the new Charter should be drawn up not merely with a view to improving the visibility and recognisability of fundamental rights, but also with a view to safeguarding effective legal protection.
2. Status of the EU Charter
Given the European Council's stated aim to bring the EU closer to its citizens and to make a real improvement in fundamental rights within the EU, the effectiveness of the proposed Charter should be maximised. I do not believe that a "solemn declaration" without legally binding force can achieve this. As a declaration, the Charter could point the way for other activities on the part of the EU, just as the Universal Declaration on Human Rights has helped the international community to promote and improve the observance of human rights. Its value will be in the extent to which it promotes the visibility of existing fundamental rights and citizens' familiarity with them, to which the active role already played by the Council of Europe in this area need not be an impediment.
However, the absence of effective and thus enforceable human rights protection within the EU cannot be solved by a non-binding declaration. Furthermore, fifty years of experience with the ECHR have made it clear that many of the problems that arise relate not so much to the recognition of the existence of certain rights as to differences in the way they are interpreted, so that a court ruling is required.
Yet if the Charter were to be legally binding, the problems sketched in section 1 (fragmentation, complexity and the lack of external supervision) would be more acute still. For it is in general less easy to evade the consequences of a legal than a political instrument. If the Charter were to be legally binding, its content (see section 3 below) and scope (section 4) would be of crucial importance.
3. Content of the EU Charter
To avoid the problems mentioned in section 1, and to increase the added value of the proposed EU Charter, the following points should receive attention.
3.1 Similar wording to existing documents
As already noted, differences of interpretation between the ECJ and the Strasbourg Court should be avoided. This will have consequences for the way provisions are worded and arranged. It seems to me essential to keep as closely as possible to the wording of existing human rights provisions, or even to incorporate them in their entirety. Otherwise there would be too great a risk of divergent interpretations. Article 8 as formulated in the initial drafts of the Charter may serve to illustrate my point. According to the accompanying explanatory remarks, it incorporates Article 8 of the European Convention on Human Rights. The Article in the draft Charter reads as follows:
" Respect for private and family life
- Everyone shall have the right to respect and protection for their identity;
- Respect for privacy and family life, reputation, the home and the confidentiality of correspondence, irrespective of the medium, shall be guaranteed."
In a later draft, the rights to private life and family life were separated into two Articles, 12 and 13. Article 12, paragraph 1 of this draft reads as follows:
"Everyone has the right to respect for his private and family life, his home and his correspondence."
It is striking that both Articles include a person's "good name", something that has not as yet been included under family life in the ECHR, but which, according to the information accompanying the second draft, was adopted from numerous national constitutions. Another striking detail of this first draft of Article 8 is that it does not include any grounds for restriction, because, according to the document, the preference is apparently for a general restrictive clause to be added at the end of the Charter, as in the case of the Universal Declaration on Human Rights. Even leaving aside that certain prohibitions, such as torture and slavery, should not be subject to any restrictive clauses, the use of a general restriction overlooks the fact that the ECHR too has restrictions that differ from one right to another. The next draft, one that has already been mentioned, still contained a general restrictive clause (Article X), which was moreover formulated in an unsatisfactory way. I should add, however, that Article Z of the first draft and Article Y of the subsequent draft both state that none of the Charter's provisions may be interpreted as restricting the protection afforded by the ECHR.
Another example relates to a proposal to safeguard the administration of justice. The proposed provision is almost identical to the wording of Article 6 of the ECHR. In one of the later drafts, paragraphs 2 and 3 of Article 6 of the ECHR were adopted in a more concise form, as Article 6 of the Treaty on European Union has already guaranteed the applicability of Article 6 of the ECHR. For some inexplicable reason, however, neither draft includes the requirement imposed by Article 6, paragraph 1 of the ECHR that court judgments should in principle be pronounced publicly.
In my view, these differences of wording in relation to the ECHR do not promote harmonisation with the case law developed by the Strasbourg Court in relation to private life and the right to a fair trial respectively. For a possible solution to this problem - besides the obvious solution of using the same wording - I would refer to section 3.4.
3.2 Social and economic rights
The Cologne European Council declared that the Charter should contain in particular the fundamental rights and freedoms and the basic procedural rights guaranteed by the ECHR. The Dutch government too stated that "the emphasis would be placed on a description of the rights from this [...] category." The classic distinction between fundamental civil and social rights has become far more diffuse that it used to be, partly because of the emergence of positive obligations. The EU itself has emphasised the indivisibility of human rights, for instance in its first annual report on human rights, covering 1998-1999. We should also remember that the economic dimension has always been central to the origins and core activities of the EU. This dimension, though obviously not an end in itself, ultimately serves to safeguard prosperity, peace and security in Europe. However, these objectives cannot be fully realised unless the rights of citizens are also safeguarded precisely in relation to core social and economic activities. This is particularly important in relation to States in which democracy and the free market are still in their infancy, and which will be acceding to the EU in due course.
Against this background, and given the desire to ensure that the Charter has added value, I believe that we should consider including social rights in the Charter. Concerning the question of the holders of guaranteed rights, I would refer to section 4.1.
3.3 New rights
The right to information that is now partly enshrined in Article 255 of the EC Treaty, which provision has since been incorporated into the Draft Charter, is in need of further elaboration. According to Article 255 EC, "general principles and limits on grounds of public or private interest governing this right of access to documents shall be determined" before 1 May 2001. In this connection I share the concerns expressed by the European Ombudsman in his intervention of 2 February 2000 at the public hearing on the Draft Charter concerning a proposal for a Regulation of the Commission that amounts to a long list of possible restrictions on the right of access to documents. Should this Regulation enter into force, a reference to these restrictions in the Charter would in any case not be desirable.
For the rest, the existing right of complaint, as enshrined in Article 195 of the EC Treaty and since also proposed in Article G of the Draft Charter, should be recognised as a fundamental right. More generally, there is scope for supplementary provisions on human rights, such as a comprehensive ban on discrimination, where the ECHR or other instruments display shortcomings in this respect.
3.4. Clause on protection
There is a need for a provision stating that the Charter does not restrict in any way the protection afforded by the ECHR and its Protocols or by other instruments, such as the European Social Charter, the UN Convention on the Elimination of All Forms of Racial Discrimination, the UN Convention on the Elimination of All Forms of Discrimination Against Women, the UN Convention on the Rights of the Child and the 1966 International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights.
The proposed Article Z of the Draft Charter should hence be expanded. However, this raises the problem that not all EU Member States have ratified all the Conventions and/or Protocols to which reference should be made. The Netherlands, for instance, has not ratified the Seventh Protocol to the ECHR or the revised European Social Charter. To avoid discrepancies of interpretation, an explanatory note could be included to the clause on protection, worded as suggested above, underscoring the significance in this regard of the positions adopted by the supervisory bodies for the various Conventions. This would not, however, ensure that provisions were always interpreted in line with the ECHR. Nor would it solve the problem identified in connection with the Matthews judgment handed down by the European Court of Human Rights. In a nutshell, this problem is basically that Community organs are not subject to the ECHR, yet Member States are accountable to the European Court of Human Rights for the consequences of the application of Community law in their internal legal order. This problem could be solved by the accession of the EC/EU to the ECHR, and the judgment hence constitutes a powerful argument for such accession.
4. Scope of the EU Charter
4.1 Active (personal) scope: holders of guaranteed rights
There is a wide consensus in favour of the view that civil rights should apply to "everyone". No such consensus exists, however, on basic political and social rights. In the case of political rights, it seems that the right to vote and the right to diplomatic and consular protection might be restricted, in accordance with Article X of the Draft Charter, to EU citizens. However, were such preferential treatment to be agreed, it must be based on objective and reasonable grounds. In fact, no strict distinction is adhered to today according to whether or not people are EU citizens when it comes to upholding political rights: some rights are already accorded to non-EU citizens. These include the right of petition (Article 194 of the EC Treaty) and, as you are no doubt well aware, the right to submit a complaint to the European Ombudsman (Article 195, paragraph 1 EC Treaty).
It should be added that in the case of certain fundamental social rights too, for instance the right to strike, it is hard to see why only EU citizens should enjoy such protection. For the rest, it should be noted in relation to the inclusion and scope of social rights that discrimination on the grounds of nationality in the sphere of social security may constitute a breach of Article 14 of the ECHR. in addition, the coordination of EC social security law has included refugees and stateless persons from the outset.
It would be undesirable for the Charter to impede a development towards according rights to third country nationals; more generally, any trend to restrict the applicability of the fundamental rights enshrined in the Charter to EU citizens would be undesirable. Given the increasing number of non-EU nationals in the EU, excluding these individuals from fundamental social and economic rights could eventually produce an undesirable division within the EU - whereas the EU has stated that it wishes to highlight the Union's human dimension.
In this connection I would propose that the definition of "citizen of the Union" in Articles 17-22 of the EC Treaty be widened to include all non-EU citizens who already enjoy these rights (e.g. relatives of EC workers and EEA nationals resident in the Union) and more generally third country nationals who have been legally resident in one of the EU Member States for five years.
If it proves not to be feasible to widen the definition in this way, and a distinction is introduced between groups of holders of guaranteed rights, I believe that the best procedure would be to distinguish the human or fundamental rights that apply to "everyone" from specific rights that apply only to EU citizens, by placing the latter in a separate chapter.
4.2 Passive scope
People should be protected from the acts and omissions of all EU institutions - not only those that fall under the first pillar, but also those that fall under the second and third pillars, including Europol. The latter protection is particularly important, as these entities possess little democratic legitimacy and their actions may indubitably impinge upon individual rights. Finally, the protection should also be binding on national governments, in relation to their implementation of, or derogation from, Community law.
5. Access to Court
As things now stand, individuals have limited access to the ECJ. Partly for this reason, it would be worth considering introducing a separate legal procedure for individuals, alongside the customary procedures, to complain about alleged violations by the institutions of the EU Charter of Fundamental Rights, without the applicability of the customary restrictive conditions for admissibility set forth in Article 230, paragraph 4 of the EC Treaty.
To prevent the ECJ's workload becoming excessive, a review procedure could be introduced, in which complainants must first apply to the institution or body concerned in the alleged violation. In addition, a separate committee of several judges could be appointed, as is the case at the European Court of Human Rights, to assess the admissibility of complaints at first instance. In any case, problems of capacity at the ECJ should not be cited to justify excluding the possibility of appeal.
6. Conclusion
An EU Charter of Fundamental Rights could help to fill some of the existing gaps in human rights protection within the EU. It could only do so, however, if it fulfils certain requirements concerning the Charter's status, scope and content.
The Charter's added value would be enhanced if it were to be made legally binding. To ensure this, individuals should have the right of access to the ECJ to pronounce rulings on alleged breaches. One possible element of this would be a specific legal procedure for the holders of guaranteed rights.
These holders include all individuals within the EU. A limited number of political rights could be restricted to EU citizens. In this connection, however, the definition of EU citizen should be expanded to include, among others, all those who have been legally resident within the EU for five years. The Charter should be applicable to institutions within all three pillars of the Treaty on European Union.
In addition to a codification of existing classic and social rights, a Charter should also include new rights, such as the right to submit a complaint to the European Ombudsman, the right to information, and a comprehensive ban on discrimination. If such conditions are met, the Charter could even possess added value in relation to the ECHR.
Nevertheless, an EU Charter of Fundamental Rights would not remove the need for the EU to accede to the ECHR and the European Social Charter. Only such accession can prevent all instances of divergent interpretations of fundamental rights arising between the Strasbourg Court and the ECJ. It would therefore be advisable, whatever course of action is adopted, for the safeguarding of fundamental rights within the EU to be subject to external supervision.