The European Parliament and the EU Charter of Fundamental Rights
The Impact of a Newly Binding Charter of Fundamental Rights on the Activity of the European Parliament
Regardless of the original market oriented nature of the founding treaties and the consequent lack of any formal competence on the subject matter, the European Parliament was able to extend its influence in the field of human and fundamental rights affirming itself (as mentioned above) as a sort of ‘European conscience’ with respect to the external and the internal dimension of EU law.65
As has been illustrated, a number of instruments are available when it comes to promoting and monitoring the respect of a (minimum) common standard of protection. Firstly, the EP can question the activity of the Commission and/or the Council through parliamentary hearings.
Secondly - and most notably when its assent is required - it may influence the decision making process of an international agreement trying to foster higher standards worldwide. In this regard the possibility to make its views known through the adoption of resolutions, reports and other non binding documents should not be underestimated. Thirdly, by virtue of its involvement in the decision making process, it will verify the compatibility with fundamental rights of all legislative proposals falling within the first pillar. Fourthly, it can seek and obtain the annulment of an act arguing that the contested provision is not in compliance with the level of protection required by the EU legal order. As indicated above, petitions are also a viable instrument inasmuch as they allow private parties to single out possible inconsistencies of EU legislation, including non-compliance with fundamental rights.
Against this background it can be argued that the Lisbon Treaty can impact profoundly the position and activity of the European Parliament, enhancing its role as a fundamental rights promoter and guarantor both within and outside the EU legal order. Indeed, as to the former aspect, the Reform Treaty extends the co-decision procedure to several new legal bases, including budgetary provisions, measures adopted in the field of the common agricultural policy and the Area of Freedom, Security and Justice.
This enables the EP, acting as co-legislator; to exercise a more extensive control over the respect of fundamental rights in these areas of law.66 But the Lisbon Treaty also strengthens the role of the EP in the field of external relations. Following its entry into force, the Parliament’s assent has become necessary whenever the relevant agreement concerns areas of law to which the ordinary legislative procedure (or a special legislative procedure requiring the EP’s consent) applies.67 The same holds true for the (future) agreement on the Union’s accession to the European Convention for the Protection of Human Rights (ECHR).68
In addition, it should not go unnoticed that the new Treaty assigns a greater role to national parliaments.69 Suffice it here to recall the right to be informed of all progress in the area of freedom, security and justice, of proposals to amend the treaties and of applications for membership; the involvement in future conventions dealing with Treaty amendments and the possibility to contest (ex ante) the violation of the subsidiarity principle (so-called orange card procedure).70 Nonetheless, other forms of pre- and post-legislative dialogue between the EP and national parliaments could be envisaged with a view to enhance the control over the correct implementation of EU law and, pursuant to Art. 51(1) CFR, on the compatibility of domestic legislation with fundamental rights.
In this context, the presence of a binding EU Charter of fundamental rights - strongly advocated by the EP during the 2007 IGC - and future accession to the ECHR are particularly noteworthy. On the one side, the breach of rights contained in the CFR, whether by secondary legislation or by international treaties concluded by the Union, amounts to a violation of the Treaty and might be brought before the ECJ as an autonomous ground for annulment or in the context of an action in tort against the Union. Onthe other side, should the latter fail to comply with the standard set by the ECHR, it would be possible to turn to the Strasbourg Court.71
In conclusion, the legal enforceability of the Charter, coupled with external judicial control on the part of the European Court of Human Rights tends to put fundamental rights at the core of the EU legal order thereby granting the European Parliament yet another opportunity to acquire further institutional leadership in their promotion. The action of the EP will have as an ineluctable point of reference the (higher) standard of protection set by the Charter and perhaps find in it new ways of affirming the EU’s commitment to human rights protection. In performing this function the EP would undoubtedly benefit from the assistance of the Fundamental Rights Agency, and although concrete signs of a productive cooperation are at this writing yet to be seen, the new Treaty is likely to modify the situation.
65. E. Soler, I. Lecha, ‘Debating Turkey’s accession: National and ideological cleavages in the European Parliament’, in M. E. Barbé Izuel and A. Herranz (eds.), The role of parliaments in European foreign policy: Debating on accountability and legitimacy (IUEE 2005) 55. The Author uses this expression to qualify the activism of the EP in the field of the enlargement of the European Union.
66. Furthermore, it should not go unnoticed that the new Treaty foresees the possibility to extend the ordinary legislative procedure to other legal bases for which the application of a special legislative procedure is established. To be sure, Art. 48 (7) TEU provides that: “Where the Treaty on the Functioning of the European Union provides for legislativeacts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure”.
67. Under the former treaties, Art. 300 (3) TEC provided that the assent is required for Association Agreements, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the codecision procedure.
68. Art. 218 TFEU.
69. R. Passos, ‘Recent developments concerning the role of national parliaments in the European Union’ (2008) ERA 25. P. Kitver, ‘The composite case for national parliaments
in the European Union: Who profits from enhanced involvement?’ (2006) 2 European Constitutional Law Review 331.
70. J. V. Louis, ‘National Parliaments and the principle of subsidiarity’, in Ceci n’est pas une Constitution - Constitutionalisation without a Constitution? ECLN Conference Sofia, 2008, at 132; S. Rothenberger, O. Govt, ‘The “Orange Card”: A fitting response to national parliaments’ marginalisation in EU decision making?’, Paper presented at the conference Fifty Years of Interparliamentary Cooperation, 13 June 2007, Bundesrat, Berlin, organised by the Stiftung Wissenschaft und Politik (SWP), accessible at http://www.swp-berlin.org/fileadmin/contents/products/research_papers/2008_RP09_shh_ed_ks.pdf (acessed on June 10, 2013)
71. On the consequences of the EU accession to the European Convention on Human Rights, G. Di Federico