5. The Charter as a part of the Res-publica of the EU
5.2 Is there a need for the Charter?
As has been pointed out, the constitutional character, and, with it, the constitutional problems of the EU stem largely from the case law of the ECJ.
The latter has, through its constitutional case law, no doubt contributed inlaying the foundations for a European res publica. By virtue of the doctrine of direct effect, 21 the effects of EC law follow directly from the treaties (and secondary law adopted in accordance with the treaties) rather than mediated through the national constitution, meaning that EC law is a common law within the Member States and not only between them (as is the case with ordinary treaties under public international law). In this sense, the EU functions as an important source of genuine rights for European individuals, thereby making them equals under EU law. It is indeed striking that all the constitutionalising cases concerned the effective protection of the rights of individual citizens under EC law.
Transforming the treaties from public international law into constitutional law is in itself arguably both a democratic and revolution in the field of rights protection: as Federico Mancini - former judge at the Court of Luxembourg - observed, it took EC law out of the hands of governments and bureaucrats and placed it in the hands of the European individuals.22
It could indeed be argued that this constitutionalisation process (together with the de facto protection afforded by the ECJ) is sufficient as far as the protection of rights is concerned and you should not fix something that is not broken.
In the same vein one of the American founding fathers, Alexander Hamilton, argued (in 1787) that bills of rights are not only unnecessary but even dangerous since they imply that the people hold their rights by concession from the State rather than as original proprietors thereof. He concluded this argument by stating that:
[. . .] the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.23
For these very reasons the U.S. Constitution originally contained no bill of rights. However, the Americans soon changed their minds and introduced a Bill of rights in 1791. By then, it was commonly accepted that there was a need for express protection against possible abuse of State power, however popularly framed.
This seems to be the generally accepted view today as we witness a proliferation of international instruments for the protection of human rights (like, amongst others, the ECHR and the U.N. conventions) and appreciate the practically universal existence of bills of rights in national constitutions. It is therefore not an unreasonable suggestion that the EU is in need of bill of rights of its own if the ambition to strengthen its constitutional characteristics is to be taken seriously even though the present form of the Charter presents some problems which are presented below.
5.3 Problems presented by the Charter
A problem of the Charter is that it provides rights that are in some sense redundant. The Charter applies only when the situation at stake falls into the field of application of EU Law. It is well known that the EU (and its institutions) operates on the principle of conferral of competences whereby the Union can only act within the limits of the competences conferred on it to achieve the objectives set out in the Treaties.24 It may under these circumstances seem paradoxical to prescribe that the EU shall not engage in torture, slavery or capital punishment, actions which are not even allowed to the Member States themselves.
Another problem is that the Charter includes rights that are (at present) impossible for the EU to fully protect. The Charter contains, as previously mentioned, not only the ‘negative’ rights that courts in general and the ECJ in particular have been traditionally engaged with within the framework of judicial review and which represent the core rights of, for example, the ECHR. Bills of rights are not normally associated with legislative competence but rather, on the contrary, with legislative incompetence. However, ‘positive’ rights are richly represented in the Charter.
Taken seriously this existence means that European individuals could go to court and claim various benefits like education, social security and employment agencies basing their claims directly on the Charter. Moreover, since EU law prevails over national law, the Member States can do little to avoid these effects should the EUCJ take them in earnest. There may be a general understanding that these rights are not to be taken literally but, rather, they should be understood as proclamations of politically desirable objectives. It is, on the other hand, most likely these ‘positive’ rights that raise the concern of competence expansion of the EU through the Charter and which are the main reasons for the UK and Polish reservations to the Charter, even though it seems quite bizarre to ask for an opt-out from a bill of rights.
These exceptions also risk undermining the status of the positive rights as common fundamental values of the EU. Precisely to avoid this type of concerns, the Charter explicitly states that it is applicable only when EU law is called into question and that it does not confer any new competences to the EU. The provision illustrates that the inclusion of positive rights in the CFR is problematic. The enforcement of these rights - for example, the right to employment agencies and social security in general (including pensions) - will require a substantive competence expansion if the EU intends to ensure their full effectiveness. Indeed, in order to attain such an objective, the EU would need to be entrusted with taxation power from a legal perspective it would be highly unsatisfactory if the inclusion of positive rights led to a ‘devaluation’ of the other rights contained in the Charter. In spite of these problems, however, the Charter provides a useful point of departure for the process of public reasoning that lies at the heart of the republican model.
The Charter spells out, in more detail than the programmatic previous treaty provisions, the fundamental values that form the civic bond between the members of the community. The rights laid down in the Charter need to be balanced against each other. Rights are much like principles in the sense that they are not, like rules, applicable in an all-or-nothing fashion. It is possible to in some cases restrict, say, the right of freedom of expression in the interest of the right to privacy and to still say that one respects both rights.
The rights are potentially in conflict with each other but must both be guaranteed to a reasonable degree. In accordance with the republican ideal it primarily corresponds to the political bodies of the EU to reason on the more precise meanings of these rights and their interrelation, thereby striking the proper balance.Should the political bodies shun the issue of deliberation on fundamental values found in the Charter, this does not mean that the conflict between these various values goes away. It most likely means that they will instead end up in more or less willing courts for dispute resolution and the political fall-out from such a judgment can be quite severe. Judicial pro-activeness has played a decisive role in the making of the EC/EU, as the process of constitutionalisation shows, but the issues dealt with today are no longer only the shape of cucumbers, tariffs on chemicals or milk quotas.
Today the competences of the EU stretch into the domain of criminal law and the core notions of public power. There is therefore a need for a politicization of the EU that matches the previous process of legalization. Once such a process has taken place the EUCJ can take one step back in its judicial law-making but will still have the paramount function of assessing whether these rights have been respected in the sense that any restriction must be able to pass the test of reference to the common good, the res publica, of the EU.
5.4 Final remarks
The corollary of the idea of the EU as a genuine and independent source of rights is that these rights also require protection against the European institutions. It is indispensable to secure rights protection at the EU level if one is not to have recourse to protection through the national constitutions thereby breaking up the unity of the European legal order.
Even though these have de facto been protected to a sufficient degree there can be no doubt that it is more proper for the EU to have a codified bill of rights rather than an unwritten one even though the fact that the Charter contains both rights that are redundant and rights that are impossible to protect is rather problematic European res publica requires the interplay between both political and judicial institutions in order to carry out the process of public reasoning that the republic strives for.
Whereas the ECJ has made crucial contributions in this regard it is time for the other institutions to catch up. In this context, the Charter serves two purposes. Firstly, it prescribes what the European institutions may and may not do in terms similar to those of the Member States and sets the framework for the process of public reasoning.
Secondly, it ensures the position of the EUCJ as the overseer of the coherence of this process. In this sense the Charter will contribute to the constitutional legitimacy of the EU and even if it does not fully provide it with a soul, then at least with a kiss of life.
21 Laid down in the seminal Case 26/62, van Gend en Loos, n. 1 above.
22 F. Mancini and D. Keeling, n. 14 above, at 183.
23 A. Hamilton, ‘The Federalist no. 84’, in A. Hamilton, J. Jay and J. Madison, The Federalist (Everymans Library, 1992) 444.
24 Cf. Arts. 5.1 TEU and 5.1 and 7.1. TEC.