The True Scope of the Charter
According to Art. 51 of the CFR: “[t]he provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law”.
As the Praesidium states,33 this Article “seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity” and, as far as Member States are concerned, that “it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law”.
This provision removes any possible doubt on the applicability of the Charter to candidate States. As previously suggested, this is not striking: if the applicability of the CFR is limited vis-à-vis the Member States, any interpretation in favour of candidate states should be ruled out. Of course, the fact that an act is not legally binding and is not directly linked to conditionality does not prevent the EU from applying it to the enlargement policy actions it carries out. This has occurred, for instance, with the Copenhagen criteria, which offer the correct interpretative key: as far as the provisions of the CFR can be considered to be part of the acquis communautaire, they compel candidate States. The question is whether and to what extent this assumption is correct and verifiable.
And yet, in order to compare the level of protection granted by each right proclaimed in the CFR with the level of protection guaranteed by the acquis communautaire, an in-depth analysis of each provision of the Charter would be needed. This goes beyond the scope of this Chapter.34 Nonetheless, some general observations appear necessary. The CFR does not follow the traditional classification of other human rights instruments: no distinction is made between civil and political rights on the one hand, and economic and social rights on the other.35 However, these categories will be used for the sake of clarity and simplification. As far as civil and political rights are concerned, a substantial correspondence can be traced between the CFR and the ECHR.36 Some issues are raised in Art. 2 CFR inasmuch as this provision deals with bioethical questions such as human cloning, which were never addressed before within the EU. Art. 8 (on the protection of personal data) represents a new right, the protection of which is guaranteed by the CFR.
As far as economic, social and cultural rights are concerned, a full, comprehensive equivalence of the CFR with the acquis is not as evident. Art. 15, for instance, concerning the right to work, only partially reflects the latter. According to the acquis, the right to work is a basic, fundamental social right enshrined in the European Social Charter - whereas Art. 15 of the CFR only concerns the freedom to seek employment, to work and to move throughout the Union.37
With reference to accession policy and conditionality, it is perhaps striking that the Charter does not mention minority rights. Art. 21, prohibiting any kind of discrimination, explicitly refers to national minorities, but the numerous concerns linked to the respect of minority rights – which, as a cornerstone of membership conditionality, had a significant impact on national legislation during the pre-accession phase – found no place in the CFR.
This does not imply, however, that this acquis has not found any codification in the reshaping of the structure of the EU. According to Art. 2 TEU as reformulated by the Lisbon Treaty, that corresponds to former Art. 6 TEU, stating the values on which the Union is founded, the respect for the rights of persons belonging to minorities is included together with the traditional reference to the values of democracy, respect for human rights and the rule of law. According to Art. 49 TEU, compliance with these conditions represents a necessary step to apply for membership. Thus, the CFR does not seem to impose new and more onerous conditions on potential and candidate countries.38 When the first draft of the Charter was adopted, all acceding countries welcomed it but also expressed their concern about the intention to assign a binding force to the CFR.
This is because they believed it was going to set a higher standard of protection with respect to the ECHR and that this would have entailed more onerous conditions to comply with in the accession process.39 The CFR, instead, mainly reflects the widespread acquis communautaire in the field of the protection of fundamental rights and freedoms, with, of course, the exceptions described above. The present and future candidate countries will, therefore, have to take it into account if they want to acquire membership. This is not a direct consequence of Art. 51 of the CFR since the latter consolidate and reflect the already existing acquis communautaire.
‘The relations between the European Union and Central and Eastern Europe: A legal appraisal’, (1995) 6 Common Market Law Review 1328.
33. Explanations Relating to the Charter of Fundamental Rights  OJ C 303/17.
34. Furthermore, this kind of analysis has been carried out by several scholars: see, for example, S. Koukoulis-Spiliotopoulos, ‘Towards a European Constitution: Does the Charter of Fundamental Rights ‘maintain in full” the acquis communautaire?’, (2002) 1 Revue européenne de droit public 57; C. Tomushat, ‘Common values and the place of the Charter in Europe’, (2002) 1 Revue européenne de droit public, 159; J. Dutheil de la Rochère, ‘Les droits fondamentaux reconnus par la Charte et leurs applications’, (2002) 1 Revue européenne de droit public 227; P. Craig, ‘The Community Rights and the Charter’, (2002) 1 Revue européenne de droit public 196.
35. By contrast, rights are listed under the following titles: Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights and Justice.
36. The participation of acceding countries to the ECHR is, generally speaking, the main criterion EU institutions take into account when assessing the commitment of potential Member States to the protection of human rights.
37. Other problematic examples are to be found in Art. 14 (Right to education), which is only mentioned in an additional Protocol to the ECHR), in Art. 37 (Environmental protection) and in Art. 38 (Consumer protection), that are not an integral part of the acquis communautaire.
38. J. Czuczai, ‘The EU Charter of fundamental rights: Is it a new accession condition for the candidate countries especially in light of the post-Nice IGC?’, in T. Tridimas and P. Nebbia (eds.), European Union law for the twenty-first century: Rethinking the new legal order (Hart Publishing, 2004, vol. 1); S. Koukoulis-Spiliotopoulos, ‘Which Charter of Fundamental Rights was incorporated in the draft European Constitution?’, (2005) 1 Revue Européenne de Droit Public 295–304; J. Wouters, ‘The EU Charter of Fundamental Rights: Some reflections on its external dimension’, (2001) 1 Maastricht Journal of European and Comparative Law 3; A. J. Menéndez, ‘Chartering Europe: Legal status and policy implications of the Charter of Fundamental Rights of the European Union’, (2002) 3 Journal of Common Market Studies 471. 39K. Lenaerts ‘Fundamental rights in the European Union’, (2000) 25 European Law Review at 599.
39.K. Lenaerts ‘Fundamental rights in the European Union’, (2000) 25 European Law Review at 599