(4) The EU Charter of Fundamental Rights

4. The Charter – a Piece in the Larger Constitutional Picture

The Charter certainly was meant to answer the long standing problem of the uncertain status of fundamental rights protection in the EU but it was also intended to lay the foundations for a more proper constitutional legal order with respect to the one provided for by the original treaties. The 1950-ies treaties contained no Bill of rights precisely because they were not intended to enjoy a constitutional status vis à vis the Member states law.

The funding treaties and the institutional design set therein are more consistent with the traditional international law instruments being devoid of any constitutional ambition. The development of both statutory and case law since then has however left it beyond doubt that it is no longer correct to characterize neither the treaties nor the European institutions as exclusively international in nature.13

In the Laeken declaration, the European Council recognized that this situation was no longer satisfactory and that there was a need for a “Constitution for European citizens” in the shape of a basic constitutional treaty that included the Charter. The idea was that a constitution is hardly complete without a Bill of rights. All Member States that have a written constitution (i.e. all with the exception of the UK) have a catalogue of rights in their constitution and the EU could hardly settle for less than its Member States in this regard.

The Constitutional Treaty did not only comprise a Bill of rights but also sought to resemble as much as possible to a constitution in structure, with a first part of general principles for the EU as a political entity followed by the Charter and then the more substantive provisions that are more functional than constitutional in character. Moreover, the Constitutional Treaty differed from the previous (and posterior) strategy of amending the existing treaties uniting all the treaties in one single text.

The very process (the convention) by which the Constitutional Treaty was elaborated also sought to replicate the making of a constitution rather than the adoption of a classic international law treaty. Whereas previous treaties were the result of scarcely transparent intergovernmental conferences, the Constitutional Treaty was elaborated by representatives of national parliaments and governments through a process that aimed at promoting public awareness.

The Constitutional Treaty strengthened the position of the European Parliament and also involved, for the first time, the national parliaments in the decision making process. These measures were taken in order to strengthen the democratic element of the EU and thus to alleviate the so called “democratic deficit”. The measures were largely confirmed by the IGC that led to the adoption of the Lisbon Treaty.

13 Cf. Case C-50/00 P Unión de Pequeños Agricultores v. Council [2002] ECR I-6677, AG Jacobs, para 78





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