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THE EU CHARTER AND ITS APPLICATION AND INTERPRETATION
The EU’s New Human Rights Dimension
The Lisbon Treaty creates a new dimension of human rights protection within which the CFREU plays the most important role but within which it also has to be placed. The most important introductory provisions set out the framework of the Union as a whole.
In this context, it should be recalled, from the outset, that the Preamble of the TEU confirms the attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms (fourth recital), and specifically the fundamental social rights (fifth recital).30 Even more importantly, the ‘respect for human rights’ is a value on which the Union is based (Article 2 TEU) and one of the Union’s aims is to promote its values (Article 3(1) TEU). Within this framework, Article 6 TEU represents the core of human rights protection and its multilevel system. Paragraph 1 represents the most innovative dimension: the CFREU, which is made legally binding by having ‘the same legal value as the Treaties’. Paragraph 2 contains the obligation to accede to the ECHR31 and, finally as an own source of EU law (at least understood as a source of legal guidance)32-paragraph 3 recalls the principles already contained in ex-Article 6(2) EU according to which fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States shall constitute general principles of Union law.33
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 ACCESSION TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS: A MEANS TO PROTECT VALUES AGAINST (ECONOMIC) OBJECTIVES
Due to the ratification of the Lisbon Treaty, the consolidated Treaty on European Union now provides that ‘the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms’.43
The accession of the ECHR constitutes a more far-reaching step in the constitutional recognition of fundamental rights within the European Union. In my view, it goes beyond a recognition of fundamental rights as mere general principles of EU law. In fact, Article 6(3) TEU as such already recognises such an impact of fundamental rights, as guaranteed by the European Convention on Human Rights. It goes beyond the effect of the reference to the CFREU within the TEU.
THE CFREU AND THE ISSUE OF VALUES
The CFREU as a Source of Fundamental Rights
No reflection on the values of the European Union can be undertaken without a thorough analysis of the CFREU. As indicated by Kenner, 18 there is an obvious overlap between the CFREU and the Constitutional Treaty in identifying the values concerned. The overlap is twofold. First, Article 2 TEU stresses the value of ‘respect for human rights’, whereas the CFREU contains a catalogue of ‘fundamental rights’. The semantic difference between both categories is slightly puzzling. Furthermore, within the CFREU a relationship between fundamental rights and major concepts is established by way of rubricae under which fundamental rights are allocated.