Preliminary Remarks and Brief Presentation
This contribution aims at assessing the importance of the European Charter of Fundamental Rights (hereinafter, CFR or the Charter) for the constitutional legitimacy of the European Union (hereinafter, EU).
In doing so, we will proceed from the assumption that the EU is in fact a constitutional legal order of the kind alleged by the European Court of Justice (hereinafter, ECJ or EUCJ). The point of departure is the classical idea of the res publica, a republican understanding of the constitution of the EU.
2. The Charter: A Brief Presentation of Its Anatomy and Treaty Location
It is well known that the Charter is the first Bill of Rights developed explicitly for the European Union. It comprises a broad range of civil, political and social rights. The Charter therefore contains both what may be called ‘negative’ rights (i.e. rights that call for state abstention from acting in certain areas like, for example, freedom of expression) and ‘positive’ rights (i.e. rights that call for state action in a given field like, for example, social security). By virtue of Art. 6 (1)1 of the Treaty on the European Union (hereinafter, TEU) as amended by the Lisbon Treaty, the Charter is part of the primary law of the EU. It will thus also be subject to the jurisdiction of what is today the Court of Justice of the European Union (hereinafter, EUCJ). Art. 6 (1) is part of Title I (Common provisions) but the Charter is not in itself reproduced in the TEU, its inclusion being by point of reference. The Charter contains 54 Articles distributed on 6 substantive Chapters structured as follows: Human Dignity (Arts. 1–5), Freedoms (Arts. 6–19), Equality (Arts. 20–26), Solidarity (Arts. 27–38) and Citizenship rights (Arts. 39–50). A final chapter (Arts. 51–54) concerns general rules on its interpretation and scope, the most important ones being that it applies to the European institutions and the Member States only when they are applying EU law and not otherwise (Art. 51), and that the Charter in no way confers new competencies on the EU (Art. 52). However it should be recalled that two Member States, Poland and the UK, have been granted exception from parts of the Charter and that a specific protocol annexed to the Lisbon Treaty provides that Title IV (Solidarity) does not apply to them.
The Charter is also closely related to the older (1950) and well-established European Convention on Human Rights (ECHR), to which all Member States are signatories, covering mainly civil and political rights.
The rights laid down in the Charter are, to the extent that they are the same, supposed to have the same meaning in the Charter as in the ECHR (Art. 52(3)) and the Charter is never supposed to curtail rights conferred by the ECHR (Art. 53) therefore establishing the ECHR as the minimum standard the EU must respect. A further sign of the importance of the ECHR is the fact that the EU shall, according to Art. 6(2) TEU, accede formally to the ECHR as a contracting party and consequently be subject to the jurisdiction of the European Court of Human Rights.