(12 ) The Lisbon Treaty

The Treaty of Lisbon - How much 'Constitution' is left? An Overview of the Main Changes

The Treaty of Lisbon Europe’s Next Step?

TL12

THE EU CHARTER AND ITS APPLICATION AND INTERPRETATION

 The EU’s New Human Rights Dimension

Second Permissible Objective: Need to Protect the Rights and Freedoms of Others

Since there are many elements which could constitute ‘general interests’ it would appear that the second objective (rights and freedoms of others) would not become the biggest issue. But the first judgment in this respect shows that it is in particular in personal relationships that this objective might become relevant.77

Condition 3 for a Permissible Restriction: Principle of Proportionality

While it is a core concept of the limitations of human rights, there is little clarity about the concept and the elements of the comparison when proportionality is weighed. It is common ground that it has to be determined by the judicial bodies (including constitutional courts) assessing compliance with restrictions. The decisions by these bodies, referring to proportionality in a strict sense: appropriateness, necessity (see the link above to ‘Condition 2’ general requirements) and proportionality reveal at least some potential for the reasonable calculation of the proportionality reference.78

Condition 4 for a Permissible Restriction: Respect the Essence

The last condition in Article 52(1) CFREU is a sort of final safeguard. In the words of the Explanations, this concerns the ‘very substance’ of the rights79 concerned. But neither formulation solves the problem of the absence of a definition.80 Thus, it might be difficult to predict the outcome of an examination.

Condition 5 for a Permissible Restriction: Conform with Minimum Requirements

As pointed out previously, Article 52(3) CFREU is to be considered a minimum requirement for interpretation purposes.81 Since this provision is not integrated directly in the definition of permissible limitations in Article 52(1) CFREU the relationship between the two provisions must be examined. In this respect, the Explanations do not provide positive guidance; on the contrary, they create severe problems. Particularly strange is the text of the Explanations appended to Article 52(1) CFREU, regarding the scope of the limitations and the classification of the rights under the Charter.82 According to the Explanations, Article 52(3) CFREU, the principle of consistency83 includes ‘authorised limitations, [which] are the same as those laid down by the ECHR’. However, it is unclear what the ‘inclusion’ of ‘authorised limitations’ means here? Is this an additional authorisation, an encouragement to set limitations to Charter rights or merely a warning that, in respect of rights covered by Article 52(3) CFREU, authorised limitations must be in compliance with the strict criteria applied by the ECtHR?

The next paragraph of the Explanations to Article 52(3) CFREU seems to confirm this second interpretation.84 Unfortunately, however, the Explanations continue: ‘without thereby adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union’ (emphasis added). This could be understood as a limitation on the strict requirements of the limitations, that is, subordinating even ECHR rights to the ‘autonomy’ of Union law and that of the Court. But the principle of ‘autonomy’ has to be put into the right perspective. First, it should be noted that the Treaties themselves do not refer to such a principle.85 Furthermore, a similar concept in relation to the (EU’s accession to the) ECHR is the principle of the ‘specific characteristics’ of Union law which is supposed to be protected by procedural safeguards and therefore not impeding ECHR’s rights (and limitations).86 Finally, the question of limitations cannot be solved in a different way than the questions of the content of the rights itself.

Looking more closely at the different formulations of the permissible restrictions in both instruments it appears obvious that they differ very much with regard to the concept (CFREU: general approach for all rights; ECHR: individual approach for each right separately);87 the formulation (CFREU: at least to a certain extent, wider approach based on ‘general interests’;88 ECHR: more restricted and focused approach); and-as a consequence-in the level of protection. Therefore, it will be necessary to examine both and at the end to give priority to the solution offering more fundamental rights protection.

Thus, as proposed above, it appears useful to start this test with the ECHR as a first step (Article 52(3) first sentence CFREU) and analyse afterwards the extent to which the CFREU provides for better human rights protection (Article 52(1) read in conjunction with Article 52(3) second sentence CFREU). In the affirmative, this (more protective) finding should prevail.

Minimum Level of Protection

a)       Article 53 CFREU as Ultimate Guarantee of Minimum Protection

As presented by the analysis of the interpretation process is complex and may result in setting different standards, depending on the source of the relevant right. This gives principal importance to the definition and clear indication of the minimum level of protection.

As the first element, the ECHR has already been described as a set of human rights standards mandatory for the EU and the Member States. In addition, however, Article 53 CFREU contains more references to international standards as a minimum level of protection under the CFREU. The heading of the Article—‘level of protection’—already indicates that that is the level of protection below which no interpretation of the provisions of the Charter itself (including the limitations) is possible. These minimum standards, going beyond EU law, cover international standards if they are ratified by ‘all’ EU Member States. These clearly crystallised boundaries, as well as the title ('Level of protection'), indicate that, within the interpretation process, the international standards create a floor of minimum standards. The reference to the ECHR (as already expressed in Article 52(3) CFREU, see above) is a further, clear confirmation of the interpretation of all sources mentioned in Article 53 CFREU as a minimum requirement. Finally, the Court seems to have followed this approach by putting the two elements of references to the ECHR in the same context.89

With regard to fundamental social rights, two levels of instruments require more specific consideration. First, the European level is defined by the ‘social counter-part’ of the ECHR: the RESC. Secondly, at the international level, the two main organisations in this respect are the UN and the International Labour Organisation (ILO).

b)      Specific Role of (Revised) European Social Charter

In several respects, the (Revised) European Social Charter plays an important role in EU law.

Based on the ESC adopted 50 years ago, the RESC update of 1996 can probably be considered to be the most far-reaching protection of fundamental social rights at the international level. As already pointed out, the references to the ESC appear already in the fifth recital of the TEU as well as in Article 151(1) TFEU. Concerning the further development of the RESC, it is to be noted that, in its fifth recital, the Preamble of the CFREU refers to ‘the Social Charters adopted by the Union and by the Council of Europe’ (emphasis added). Furthermore, in many Explanations, the RESC is mentioned as a source of the fundamental (social) rights.90

In general, it should be recalled that all EU Member States have ratified either the ESC or the RESC. Since the RESC extends the rights enshrined in the ESC, Article 53 CFREU leads to the conclusion that the ESC forms the absolute minimum level. That is most important in respect of Articles 5 and 6 ESC which guarantee trade union rights. Concerning the RESC, it means that wherever the Explanations refer to any provision of the RESC as a ‘source’ for a (social) right,91 Article 6(1)(3) TEU would have to be understood at least as a sort of minimum level.

c)      Specific Role of Further International Instruments

It is of the utmost importance that even the international level represents a sound basis for minimum social requirements. On the basis of Article 53 CFREU, it is clear that the following instruments have been ratified by all EU Member States and therefore form a minimum level of protection. At UN level the International Covenant on Civil and Political Rights (ICCPR) with the protection of freedom of association and, even more importantly, the International Covenant on Economic, Social and Cultural Rights (ICESR) should be highlighted. The same applies to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Interestingly, the Union recently ratified the Convention on the Rights of Persons with Disabilities (CRPD) and is therefore bound to it in the same way as the legal minimum in interpreting the CFREU’s fundamental rights.

Within the framework of the ILO, at least nine conventions have been ratified by all EU Member States. The most important are the eight so-called ‘core Conventions’ concerning:

- Freedom of association (Conventions 87 and 98).

- Prohibition of forced labour (Conventions 29 and 105).

- Prohibition of child labour (Conventions 138 and 182).

- Non-discrimination (Conventions 100 and 111).

Furthermore, all EU Member States are also parties to Convention 81 concerning labour inspection. This will give the procedural safeguards of fundamental social rights an important ‘backbone’.

In any event, it should be recalled that the ECtHR is already interpreting the ECHR’s rights in light of the international instruments and the interpretation developed by the competent supervisory bodies.92

Human rights are universal, ‘congenital’: they belonging to human beings as such-regardless of the legal force of their acknowledgement-and are indivisible.

To assess the extent to which the CFREU is satisfying the optimism connected to it as a quasi-constitutional declaration of fundamental rights, with special regard to social rights and the rights of the weak or whether, as a result of vacillation and uncertainties, the anticipations of more pessimist human rights protectors are being realised, it is necessary to pay attention to the inherent features of the human rights adopted by the Charter and to the consistency of inserting them in the specific and unique legal regime of the EU. What, in the end, is subordinated to what? The answer to this question will lie in the likelihood of progression or regression when comparing the possible and the real interpretation of the Charter with the previous 50 years of human rights protection under the EU legal system.

Taking the new human rights dimension introduced by the Lisbon Treaty and, in particular, the CFREU seriously, there should be no doubt that it will impose a constraint on an overall economic orientation for the EU.

77. Case C-400/10 PPU McB (n 36) para 59 (‘incompatible … with the need to protect the rights and freedoms of others, within the meaning of Article 52(1) of the Charter’).

78. See, for example, Cases C-92/09 and C-93/09 Volker und Markus Schecke (n 67) paras 65 and 72ff (in respect of Articles 7 and 8 CFREU and the principle of proportionality referred to in Article 52(1) CFREU).

79. Referring to the CJEU’S case law, see above (n 72).

80. See as an example of application CJEU above (n 50) para 51, referring to the case law

of the ECtHR.

81. See Condition 2 above, and concerning Article 53 CFREU, see below, section II.B.vi.

82. This contribution does not deal in particular with the derogation possibilities under Article 15 ECHR because in respect of social rights there so far have been no instances in which this possibility would be used.

83. See Condition 2 above.

84. ‘This means in particular that the legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR, which are thus made applicable to the rights covered by this paragraph’.

85. Article 335 TFEU refers only to the Union’s ‘administrative autonomy’.

86. Article 1 Protocol (No 8) (n 31) refers to the ‘specific characteristics of the Union and Union law’, giving two examples (‘in particular’): ‘(a) the specific arrangements for the Union’s possible participation in the control bodies of the European Convention; (b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to the Member States and/or the Union, as appropriate’. It does not appear possible to base an argument for priority in respect of Union law vis-à-vis the ECHR’s rights on these procedural examples.

87. This is all the more remarkable as Article 18 ECHR explicitly limits the use of restrictions on rights guaranteed under the Convention.

88. See Condition 2 above.

89. Cases C-92/09 and C-93/09 Volker und Markus Schecke (n 67) para 51.

90. See the references to the RESC in the Explanations concerning Articles 23, 25, 27, 30, 31, 33 and 34 CFREU.

91. See ibid.

92. See above (n 56).

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