(10) The Lisbon Treaty

The European Union and Human Rights after the Treaty of Lisbon

tL10

The Lisbon Treaty and the Charter of Fundamental Rights of the European Union

The Process of Adoption of the Charter of Fundamental Rights

The First Convention and the Charter of Fundamental Rights

In this context, the European Council in Cologne in 1999 commissioned 23 a Draft Charter of Fundamental Rights of the European Union from a body composed of representatives of the Heads of State and Government and of the President of the Commission, as well as of members of the European Parliament and national parliaments, including representatives of the European Court of Justice as observers. Representatives of the Economic and Social Committee, the Committee of the Regions and social groups, as well as experts were given an opportunity to express their views. This body, constituted in December 1999, titled itself ‘the European Convention’ and was chaired by Roman Herzog. The objective was to present a Draft Charter at the European Council in December 2000, which would then be proposed to the European Parliament and the Commission. Together with the Council, they would then solemnly proclaim a European Charter of Fundamental Rights on the basis of the draft document.

The Convention adopted the draft on 2 October 2000 and it was duly proclaimed by the European Parliament, the Council of Ministers and the European Commission on 7 December 2000. At the same time, however, it was decided to defer making a decision on the Charter’s legal status. This Charter is the end result of a special procedure, which is without precedent in the history of the European Union. Following the adoption in 1989 of the Community Charter, the Charter of Fundamental Rights sets out in a single text, for the first time in the European Union’s history, the whole range of civil, political, economic and social rights of European citizens and all persons resident in the EU, covering dignity, freedoms, equality, solidarity, citizens’ rights and justice, all based on the fundamental rights and freedoms recognised by the ECHR, the constitutional traditions of the EU Member States, the ESC, the Community Charter of Fundamental Social Rights of Workers and other international conventions to which the European Union or its Member States are parties. The question of the Charter’s legal status and its integration into the Treaty was left to the general debate on the future of the European Union, despite the fact that the Charter was drafted ‘as if’ it were to become legally binding.24 (The issue remained unresolved until the Lisbon Treaty entered into force in December 2009.)

The Second Convention and the Constitutional Treaty

In December 2001, the Laeken European Council had recourse for the second time to the convention procedure and launched the Convention on the Future of Europe, chaired by Valéry Giscard d’Estaing, in order to perform the ambitious task of writing the first ever European Constitution. The objective was to improve the efficiency of the European institutions in an enlarged European Union and to create ‘a clear, open, effective, democratically controlled community approach’, rendering the European Union more transparent and comprehensible for all European citizens. The Draft Treaty establishing a Constitution for Europe was presented at the Thessaloniki European Council on 20 June 2003 and should have served as a basis for a European Constitution, replacing the existing European Union Treaties with a single text, giving legal force to the Charter of Fundamental Rights. In fact, the 15 current and 10 future EU Member States adopted the final wording of the Constitution during an Intergovernmental Conference beginning in October 2003 and ending in May 2004, when the 10 new Member States were due to join the EU.

The Convention on the Future of Europe was divided into 11 working groups.25 Working Group II was mandated26 to examine the procedures for and consequences of any incorporation of the Charter into the Treaties, as well as the consequences of any accession by the Community/Union to the ECHR. In its final report,27 Working Group II made recommendations first concerning the form of possible integration of the Charter, preferring by a large majority the insertion of the text of the Charter Articles at the beginning of the Constitutional Treaty. In a second range of recommendations on certain legal and technical aspects of the Charter, Working Group II suggested drafting adjustments in the horizontal Articles (Article 51(1) and (2), new paragraphs (4), (5) and (6) in Article 52 CFREU to be found in the annex of the final report). Although such adjustments ‘do not reflect modifications of substance’,28 it appeared that, while redundant, the adjustments are intended to strengthen the limited scope of application of the Charter, ensuring that the Charter respects the limits of the powers of the EU. These adjustments were introduced in the new version of the CFREU and included in the Draft Treaty establishing a Constitution for Europe. The latter was then the subject of an Intergovernmental Conference. Although the Treaty was adopted by the Heads of State and Government at the Brussels European Council on 17 and 18 June 2004 and signed in Rome on 29 October 2004, it was never ratified by all Member States. The Constitutional Treaty represented the latest stage in a reform process that broke down after French and Dutch voters rejected it in referendums in 2005. The Member States of the European Union thus abandoned the idea of a European Constitution which would have repealed the previous treaties, and returned to the traditional method of modifying a Treaty, amending the EC Treaty and the Treaty on European Union simultaneously.

The Lisbon Treaty

Reflection on the reform process prompted the establishment of an Intergovernmental Conference in 2007. The resulting Reform Treaty was drawn up under the Portuguese presidency, unanimously ratified and signed at Lisbon, while the initial rejection of the Lisbon Treaty by referendum in the Republic of Ireland in June 2008 was reversed in October 2009 by a 67 per cent vote in favour of ratification. Therefore, with the ratification process completed, the way was clear for the entry into force of the Lisbon Treaty on 1 December 2009.

While the approach adopted by the CJEU was to develop the notion of fundamental rights as an integral part of EU law, tensions appear when fundamental social rights are put in the balance with economic freedoms. When some authors see the EU Charter as ‘tangible witness of the superseding of “Europea mercatoria” by a political, social and ultimately human Europe’,29 it seems that the CJEU’s judges still have a paramount responsibility to guarantee the protection of fundamental rights, the more so since an additional jurisdiction will enter the European sphere with the accession of the EU to the ECHR. With the EU Charter being legally binding one would expect that the protection of fundamental rights will be predominantly based on a written, exhaustive and stable text, rather than on the jurisprudence of the CJEU with its intrinsic defects (sometimes unstable, unpredictable, less intelligible and less accessible to the citizens).

24. COM(2000) 644 final, Communication on ‘The legal nature of the Charter of Fundamental Rights of the European Union’, para 7.

25. See: european-convention.eu.int/doc_wg.asp?lang=EN

26. CONV 72/02 Brussels, 31 May 2002 (03.05). Available at: register.consilium.europa.

eu/pdf/en/02/cv00/cv00072.en02.pdf.

27. CONV 354/02 Brussels, 22 October 2002. Available at: register.consilium.europa.eu/pdf/en/02/cv00/cv00354.en02.pdf.

28. Ibid p 4.

29. Lebaut-Ferrarese and Karpenschif (n 3).

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