Candidate Countries Facing a Binding Charter of Fundamental Rights: What’s New?
From the perspective of candidate countries the adoption of a newly binding Charter of Fundamental Rights (hereafter CFR or the Charter) certainly raises many interesting questions.
These papers aims at answering the following:
(a) Does the binding nature of the Charter affect the accession procedure to the EU? and (b) Is the Charter likely to raise the threshold of human rights conditionality with respect to enlargement policy?
Before addressing these core questions, it appears useful to verify the potential of the Charter against the general topic of integration within the EU. The Charter represents one of the main constitutional steps the EU has taken throughout its history, and this entails a major change in the European internal order. It will affect, among other things, the internal scrutiny of the EU Member States with reference to their human rights standards and allow the EU to assess the continuous compliance of the 28 Members (Croatia is 28th Member from July 1st, 2013) with fundamental rights and freedoms. This is not just amatter for “internal” concern; it also affects the integration of new Member States in the EU.1
Fostering Integration Through a Binding Charter
The Charter undoubtedly represents a further step towards the progressive constitutionalisation of the EU.2 The mere fact that the CFR is no longer included in a primary law act – explicitly called “Constitution” or “Constitutional Treaty” – but simply referred to in a Protocol of the Lisbon Treaty, does not affect its binding force3 nor its symbolic value. As to its legal and political significance, it appears undisputable that it will play an essential role in the EU constitutional construction.
From a purely internal perspective, the CFR can be considered as a synthesis of the values and legacies of the historical, political and legal experiences of the various Member States as well as the result of the process of integration itself. The adoption of a common catalogue of fundamental rights and freedoms is in fact the expression of the intention to create “an even closer union”4 between the former. It is well known that far from being the first acknowledgment of fundamental rights within the EU/EC legal system, the Charter purports an extensive codification of the latter.5
In this sense, it represents a starting point towards a further “deepening” of EU integration. The European Council of Cologne, in 1999, also pointed out that making rights visible through a comprehensive codification would enhance the overall legitimacy of the EU within its borders.6 The European Council was mainly concerned about the perception that citizens had of the EU, promoting the perception of the Union as a legitimate political actor founded on shared values.
The issue of “internal legitimacy” must be put into perspective by taking into account two specific aspects. Firstly, the EU had just completed a revision of the founding treaties, failing to solve the problem of the competence of the Union in the field of human rights protection posed by Opinion 2/94.7 According to the European Court of Justice, only an amendmentof the Treaties would have allowed accession to the ECHR, but no legal basis for this was included into primary law until recently, when Art. I-9 of the Constitutional Treaty expressly recognised that “[t]he Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms”.8
The Lisbon Treaty has maintained this provision unaltered.9 Secondly, the Cologne European Council was facing the widest enlargement the Union has ever experienced: strengthening internal self-representation and legitimacy was of the utmost importance.
Moreover, there was widespread concern about the ability of the Central and Eastern European candidates to fully integrate into the EU legal system. Less than a decade had passed since these countries were on the other side of the Iron Curtain and their transition to democracy and a free market economy had just begun. Against this background, Member States demanded that the move towards the EU Western political model be closely monitored in order to avoid jeopardizing the achievements so painfully attained.10
Thus, a certain parallelism can be drawn between the enlargement dynamics and the progressive constitutionalisation of the EU in the field of human rights, even if the “official documents do not show that the enlargement factor played any significant role in the context of drafting the Charter.” 11 In this regard, Wojciech Sadursky points out that the European Commission’s Communication of 2000 12 “seems to be more of an after-thought [. . .] rather than a motivating factor for launching the work on the Charter.”13
The Preamble of the Charter makes no reference to the external dimension of the Union. It is stated that:
The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values [. . .]. The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe.14
The Member States share common values and are thus willing to deepen their integration precisely through their promotion. No reference is made to the neighbouring countries already involved in the accession process.15
The idea of a larger Union may, with a certain interpretative effort, be inferred from the reference to the peoples of Europe and not to the citizens of the EU. After all, it is precisely to these subjects that the Charter will apply. Nonetheless, since the EU was still undergoing an enlargement process, a short reference to “the others” would not have been inappropriate.
Of course one could argue that this circumstance does not in itself discard the idea of a “larger Union”. And yet the exclusion of any reference to candidate countries is difficult to understand given that representatives from the then ten Eastern Europe candidate countries joined the Convention called upon to draft the Charter, albeit only as “observers”.16
The fact that enlargement is not explicitly taken into consideration cannot exclude virtuous interrelations between the “widening” of the EU and this (constitutional) “deepening”. This becomes evident taking into consideration a specific facet of enlargement and integration, namely the double standard problem.
1. M. Cremona, ‘EU enlargement: Solidarity and conditionality’, (2005) 30 European Law Review 3. See also G. De Búrca, ‘On enlargement of the European Union: Beyond the Charter: How enlargement has enlarged the human rights policy of the European Union’, (2004) 27 Fordham International Law Journal 696.
2. L.S. Rossi, ‘Verso la Costituzione europea?’ in L.S. Rossi (ed.), Carta dei Diritti Fondamentali e Costituzione europea (Giuffré, 2002) 249; J.H.H. Weiler, The Constitution of Europe: “Do the new clothes have an emperor?” And other essays on European integration (Cambridge University Press, 1999).
3. And further specified in Protocol No 8 annexed to the Treaty.  OJ C 115/273.
4. Cf. Preamble of the Charter  OJ C 303/1.
5. This was the view of the European Council when deciding to draft the Charter. ‘There
appears to be a need, at the present stage of the Union’s development, to establish a Charter of Fundamental Rights in order to make their overriding importance and relevance more visible to the Union’s citizens.” Cf. Conclusions of the Presidency, Cologne European Council, 3 and 4 June 1999, accessible at http://www.consilium.europa.eu/ (accessed August 12, 2013).
6. According to the Presidency Conclusions: ‘Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy”.
7. Opinion 2/94  ECR I-1759. The Court of Justice did recall, however, that ‘fundamental rights form an integral part of the general principles of law whose observance the Court ensures” (para 33). See further, P. Allott, ‘Fundamental rights in the EU’, (1996) 3 The Cambridge Law Journal 409; G. Gaja, ‘Opinion 2/94, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, given on 28 March 1996, not yet reported’, (1996) 4 Common Market Law Review 973; L.S. Rossi, ‘Il parere 2/94 sull’adesione della Comunità europea alla Convenzione europea dei diritti dell’uomo’, (1996) 3 Il Diritto dell`Unione Europea 839; P. Wachsmann, ‘L’avis 2/94 de la Cour de justice relatif à l’adhésion de la Communauté européenne à la Convention de sauvegarde des droits de l’homme et des libertés fondamentales’, (1996) 3 Revue trimestrielle de droit européen 467; N. Burrows, ‘Question of Community accession to the European Conventiondetermined’, (1997) 1 European Law Review 58.
8.  OJ C 310/1.
9.  OJ C 115/1.
10. K. E. Smith, ‘The evolution and application of EU Membership conditionality’, in M. Cremona (ed.), The enlargement of the European Union (Oxford University Press, 2003) at 106.
11. W. Sadursky, ‘Charter and enlargement’, (2002) 3 European Law Journal 340. See also W. Sadursky, ‘The Role of the EU Charter of Rights in the process of enlargement’ in G. Bermann and K. Pistor (eds.), Law and governance in an enlarged European Union (Hart, 2004), at 61and C. Pinfell, ‘Conditionality and enlargement in the light of EU constitutional development’, (2004) 10 European Law Journal 354.
12. Commission Communication on the Charter of Fundamental Rights of the European Union. COM (2000) 559 final, para 12 states that: ‘[w]ith the Union now developing a real common foreign and security policy, in which respect for fundamental rights will play a key role, the adoption of a catalogue of rights will make it possible to give a clear responseto those who accuse the Union of employing one set of standards at external level and another internally. The Charter will provide the Union with a clear catalogue of rights that it will have to respect when implementing both internal and external policies.”
13. W. Sadursky, ‘Charter and enlargement’, n. 10 above, at 345.
14.  OJ C 303/1.
15. Neighbouring countries must be understood in a geo-political sense. No reference is made to those countries which, although involved in the Neighbourhood policy of the European Union, have no chance of becoming new members or, rather, are a priori excluded from any admission procedure. The latter statement does not apply to the Balkan countries and Turkey that are formally candidate or potential candidate states. Cf. Conclusions of the Presidency, Santa Maria Da Feira European Council, 19 and 20 June 2000, para 67.
16. They are not included amongst the observers (two representatives of the Court of Justice of the European Communities to be designated by the Court and two representatives of the Council of Europe, including one from the European Court of Human Rights), but in a separate group labelled ‘Exchange of views with the applicant States’. Cf. Annex to the Presidency Conclusions, Tampere European Council, 15 and 16 October 1999.