(21) The EU Charter of Fundamental Rights


Daniel Hannan on the Charter of Fundamental Rights


The European Parliament and the EU

Charter of Fundamental Rights

Preliminary Remarks


Our intention is to offer an overview of the role played by the European Parliament (hereafter, EP) in promoting the respect of fundamental rights within and outside the European Union.

In doing so we shall investigate whether and how its activity, as it emerges from the numerous reports and resolutions it adopts on the matter, has influenced the lawmaking process in the internal and external fields of competence of the EU. As will be seen, the EP, apart from playing a proactive role in affirming and fostering fundamental rights protection worldwide, is called upon to ensure their observance within the EU legal order through the powers of control entrusted to it by the Treaties. It is argued that the entry into force of the Lisbon Treaty and the legal value it attributes to the Charter of Fundamental Rights enhance the position of the EP as a central actor for the protection of fundamental rights within and outside the European Union.


The European Parliament and Fundamental Rights


The original function of the European Parliament was to counterbalance the power assigned by the Treaties to other institutions, in particular the European Commission. And yet, the EP has always demonstrated the will to absolve other pivotal functions within the EC/EU legal order. A notable example is the desire to play an active role in the protection of fundamental rights.1In the early 1950s, the Common Assembly of the European Coal and Steel Community was asked to draft a treaty creating a political European Union.

The Assembly proposed a document incorporating the provisions of the European Convention on Human Rights, and justified its proposal on the basis that the political Union could not be separated from human rights.

Unfortunately, the project never reached the stage of ratification, and the 1957 Rome Treaties contained no provision on fundamental rights. It was only 20 years later that, with a strong involvement of the European Parliament, the three main institutions adopted a Solemn Declaration on fundamental rights.2 Subsequently, in 1984, the EP approved the Treaty Establishing the European Union.3 Although it never entered into force, the latter envisaged a new framework for the European Community, with formal competencies in the field of fundamental rights. In particular, Art. 4 of the Project provided that the Union would respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they resulted from the constitutional traditions common to the Member States, as general principles of Community law. The norm also provided for the adoption of a Declaration on Fundamental Rights and Freedoms, which was eventually proclaimed by the European Parliament on 12 April 1989. Moreover, during the Intergovernmental Conference held in Rome in 1990, the EP insisted that the Declaration of Fundamental Rights and Freedoms be granted legal force. Its efforts were however vain.

Then came the Treaty of Amsterdam and progress was made in the field of fundamentals rights by enabling the Community to take the appropriate actions to combat any kind of discrimination, to regulate delicate issues such as asylum, refugees and immigration, and to sanction Member States responsible for serious and persistent violations of human rights.

The Conclusions of the Berlin 1999 European Council marked a decisive passage as the German Presidency decided to follow the European Parliament’s suggestions and entrusted to a Convention the delicate task of drafting a Charter of Fundamental Rights of the European Union (hereafter, CFR or the Charter). The EP was fully involved with the process and its members played a decisive role.

The Charter was solemnly proclaimed on 7 December 2000 by the Presidents of the three main institutions but lacked legal enforceability; an unfortunate circumstance the European Parliament had tried to avoid by strongly advocating its inclusion in the Nice Treaty. As is well known the Constitutional Treaty incorporated the Charter but never became operative because of the French and Dutch negative referenda in 2005. The Lisbon Treaty instead gives binding effects to the Charter by declaring, in Art. 6 TEU, that it shall have the same legal value as the Treaties.

The EP’s insistence on the need to include fundamental rights in primary law is evident from the above. In addition, it has managed to expand its influence to sectors in which it enjoyed no formal competence, as is precisely the case with fundamental rights. In all its resolutions on the matter, the EP underlines that, as the representative of EU citizens, it has a particularly important responsibility in guaranteeing the principles of freedom, democracy, respect for human rights and fundamental freedoms as well as the principle of the rule of law.4

This is mainly because of the shortcomings of the EU system in the protection of private applicants’ rights, ranging from the difficulties in contesting measures with a general scope of application to the absence of a class action, from the limited jurisdiction of the Court of Justice (hereafter, ECJ or EUCJ) under the former Title IV of the EC Treaty and under former Art. 35 of the Treaty on the European Union, to the lack of competence in the field of Common Foreign and Security Policy.5


1. As Harald Romer (former EP Secretary General) noted in a recent contribution on the matter: “From the outset, the European Parliament has worked to defend the values that underpin the European Union: freedom, democracy, respect for human rights and fundamental freedoms, and the rule of law. Starting from the principle that these values are universal, Members of the European Parliament endeavour to promote fundamental rights inside and human rights outside the European Union”. See F. Benoit-Rhomer, The European Parliament as a champion of European values (European Parliament, Office for Official Publications of European Communities, 2008) 19.

2. Joint Declaration of 5 April 1977 by the European Parliament, Council and Commission on the protection of fundamental rights, [1977] OJ C 103/1.

3. This initiative is more commonly referred to as the Spinelli Project, after the well known Italian MEP.

4. Cf. Art. 6 TEU.

5. On the protection of individual rights in the former second pillar, see L. Paladini.






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