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.
Due to the accession, the status of the fundamental rights enshrined in the ECHR will differ fundamentally from those enshrined in the CFREU. In fact, at best, the rights enshrined in the CFREU have the same legal value as conflicting fundamental freedoms enshrined in the EU Treaties. Furthermore, as indicated earlier, the CFREU itself has upgraded some of the fundamental freedoms which have the potential to conflict with fundamental (workers’) rights. Thus, Article 15 CFREU has consecrated the freedom of establishment and the freedom to provide services as proper ‘fundamental freedoms’. In Viking and Laval, both freedoms were considered to justify restrictions to the fundamental right to strike and the fundamental freedom of collective bargaining. Last but not least, Article 16 CFREU has consecrated the freedom to conduct a business. The only international court to interpret the CFREU will be the CJEU. For the CJEU, it will be one among other ‘constitutional’ principles to be taken into account.
In sum, in my view, the prospects that the TFEU reference to the CFREU might provoke a shift in the way the CJEU deals or even has to deal with potential conflicts between the right to strike and so-called fundamental (economic) freedoms are extremely weak.
The prospects stemming from accession to the ECHR of changing the economic constitution of the European Union or at least adding a flavor of social governance are more promising.44 Accession to the ECHR might give some relief to the flat juxtaposition of fundamental freedoms and fundamental rights integrated into one CFREU. It puts genuine fundamental (workers’) rights at the heart of the matter. Since the ECHR is corroborated by judicial supervision, it will force all European institutions, including the CJEU, to abide by the judgments delivered in Strasbourg. As opposed to Luxembourg, Strasbourg will not dwell on the question of whether human rights can restrict fundamental economic freedoms. It will assess whether and to what extent these fundamental economic freedoms can actually restrict genuine fundamental rights. It will force the European institutions to justify restrictions to citizens’ rights, instead of forcing citizens to justify the exercise of their human rights.
43. Article 6(2) TEU.
44. In the same vein, comparing the impact of the CFREU and the accession to the ECHR, see Syrpis (n 2) pp 233–34.
The Lisbon Treaty and the Charter of Fundamental Rights of the European Union
Finally, the Charter of Fundamental Rights of the European Union (CFREU) has become legally binding. This is probably the Lisbon Treaty’s most important component with a social impact. Although this dimension of the Charter has already been explored in considerable detail,1 an analysis is needed of the long way that remains to be traversed and of the many problems that will have to be solved.
Since it stands at the crossroads of ‘rights’ and ‘principles’, the Equality Title of the Charter is dealt with in more detail later.
HISTORY OF THE CHARTER OF FUNDAMENTAL RIGHTS
The year 2009 saw the ratification of the Lisbon Treaty following numerous serious setbacks that had dogged the process from the very beginning of the ratification process of the defunct Constitutional Treaty. Similarly, the EU Charter of Fundamental Rights that was adopted and promulgated by the Presidents of the European Commission, the European Parliament and the Council of the European Union at the summit held in Nice on 7 December 2000, has been finally integrated, in the slightly revised version of 12 December 2007, in the Reform (‘Lisbon’) Treaty. Having formed Part II of the Draft Treaty Establishing a Constitution for Europe, the EU Charter of Fundamental Rights is no longer an integral part of the Treaty of European Union in the Lisbon Treaty’s version (TEU) but in the Official Journal publication it has been appended to the very end of the Lisbon Treaty, after the protocols, annexes and declarations. Nevertheless, as its principal novelty, Article 6(1) TEU states that ‘The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties’. Despite its contradictory, unclear, even questionable status in the hierarchy of norms2 the Charter of Fundamental Rights has been incorporated into the primary law of the EU, following long-drawn-out and praetorian jurisprudence of the Court of Justice of the European Union (CJEU) based on the recognition of fundamental rights as general principles of Union law. Parallel to this, institutional and legislative developments progressively led to the elaboration of different Charters on compliance with and promotion of fundamental rights, the latest and most comprehensive of which is the Charter of Fundamental Rights. In addition, the method of the Convention gave birth to a very innovative, transparent document, described as a ‘tangible witness of the superseding of “Europea mercatoria” by a political, social and ultimately human Europe’.3 However, time will tell whether the Charter of Fundamental Rights lives up to the expectation it has raised, namely to install fundamental rights at the heart of the European Union as never before and to create a European area of fundamental rights, established on a new legal basis in the Lisbon Treaty.
Fundamental Rights in the Original Institutional Setting of the EEC/EC/EU
Initially, fundamental rights were not part of the institutional setting of the EEC/EC/EU, as the European Communities in the 1950s emphasized economic and functional integration. The Treaty of Paris, which established the European Coal and Steel Community (ECSC) and-after the failure, in 1954, of the European Defence Community (EDC)-the Rome Treaties reflect a sectoral and functionalist approach. This sectoral approach became a feature of the Rome Treaties establishing the European Atomic Energy Community (Euratom) and the European Economic Community (EEC). As a consequence, the founding Treaties were set apart from any basic law of a constitutional nature incorporating a solemn declaration on fundamental rights. Fundamental rights fell within the remit of the Council of Europe that placed them centre-stage through the adoption of the European Convention on Human Rights (ECHR) in 1950 and the European Social Charter (ESC) in 1961. The economic approach adopted by the EEC/EC can be witnessed in several instances in which reference to fundamental rights was not invoked4 or was resisted.5 Although this factual repartition between the Council of Europe and the EEC/EC proceeded from the same belief that European integration can secure peace in Europe, this resistance to refer to fundamental rights in ECC/EC law and jurisprudence appeared to national courts and Member States as a potential threat to their national constitutions and the fundamental rights they refer to. In landmark rulings, the German and Italian constitutional courts6 decided to check whether the EC had infringed the fundamental rights enshrined in their respective national constitutions.
In the absence of a European Bill of fundamental rights and facing such resistance, the CJEU gradually developed a ‘narrative’7 on fundamental rights in its case law in the 1970s, building on the application of general principles of Community law8 based on common national traditions and on references to international texts ratified by Member States. The CJEU thus developed the notion that fundamental rights were an integral part of EU law in referring to a ‘European’ symbolic attachment to ‘human rights’ of the ECC/EC, based on constitutional traditions9 of the Member States, and thus inherent in the Community legal order.
An additional source of inspiration of the praetorian CJEU jurisprudence on general principles of Community law is reference to international texts. In Nold v Commission,10 the CJEU declared that international human rights treaties in which Member States collaborated, or of which they were signatories, also provided guidelines which should be followed within the framework of EU law. No measure could have the force of law unless it was compatible with the fundamental rights recognised and protected by the Member States’ constitutions. Furthermore, in Rutili11 and in Hauer v Land-Rheinland-Pfalz,12 the CJEU confirmed that the rights protected by the ECHR form part of Community law. Explicit reference to the Council of Europe’s ESC, seen as the ‘social counterpart’ of the ECHR, as well as to other international treaties-such as ILO Conventions-appeared less often in the jurisprudence of the CJEU (Defrenne).13 Instead, the common formulation used is the reference to various international treaties without further specific mention.
Indeed, it was the CJEU which first integrated the reference to ECHR into Community law and has since exerted overriding influence on their future interpretation and application.14 However, as pointed out by Lenaerts and de Smijter, the recourse to the ECHR led to a certain confusion and sometimes conflict in the protection of fundamental rights by different European courts (CJEU and European Court of Human Rights (ECtHR)). International references have been referred to in Community law via the Treaties, although the EC itself was not, at the time, and is still not a party to the ECHR or to the ESC. While the European Parliament has favoured accession to the ECHR and the ESC,15 the CJEU takes the view16 that the EC lacks a legal basis for such action.17 The Community Charter of the Fundamental Social Rights of Workers of 1989 (‘Community Charter’), signed at the time by all the EC Member States except the United Kingdom, is an additional, if particular reference, as it is the first Charter elaborated by the European Community on fundamental (social) rights. This is neither a binding legal act of the EU, nor is it a Treaty among the signatory states binding under international law. It is merely a solemn declaration by the Heads of State or Government of the Member States and as such used as an interpretative guide to the provisions of the EC Treaty, since it is referred to in the Preamble of the TEU, as well as in Article 151 TFEU and reflects views and traditions common to the Member States and thus represents a declaration of basic principles which the EU and its Member States intend to respect.
Among scholars, the leading doctrine explains the introduction of references to fundamental rights in the European Treaties by the fact that European Community activity in the economic sphere and growing Member State cooperation within the EU in internal affairs and law are such that almost all aspects of EU citizens’ lives are now affected by EU legal acts. Thus there appear(ed) to be a need for the individual to identify his or her fundamental rights, by which these acts are (were) gauged, not only in the constitution of his or her own country, but in EU primary law.18 In addition, the social consequences of the creation of the Single European Market led to a need for the formulation and implementation of a comprehensive social dimension for the 1992 Commission programme. Furthermore, the praetorian jurisprudence of the ECJ, while developing general principles of Community law and referring to the ECHR, the ESC and the Community Charter of Fundamental Social Rights, did not provide sufficient transparency. Finally, the EU would gain more credibility when demanding that other countries respect human rights and obey the rule of law if it itself clearly based its activities on these principles. In 1977, the European Parliament, the Commission and the Council signed a Joint Declaration in which they committed themselves to promoting fundamental rights arising from the two sources identified by the Court.19 In 1986, a further step was taken when, in the Preamble to the Single European Act, the Member States of the Community affirmed, for the first time in a European Treaty, their determination to ‘work together to promote democracy on the basis of the fundamental rights recognised in … the ECHR and the European Social Charter, notably freedom, equality and social justice’.
Interestingly, the reference to the ESC is absent from the Maastricht Treaty of 1992, although the Preamble reaffirmed Member States’ ‘attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law’, and Title I on common provisions, Article F(2) stated: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
The reference to the ESC was not even mentioned in the Protocol on Social Policy which read: ‘NOTING that eleven Member States … wish to continue along the path laid down in the 1989 Social Charter; that they have adopted among themselves an Agreement to this end’. Furthermore, the correct reference should have read ‘the Community Charter of the Fundamental Social Rights of Workers’.
This seems, however, to have been a short intermezzo, as the reference to the ESC reappeared in the Preamble of the Amsterdam Treaty of 1997 that stated in its third recital that the Members States: ‘[confirm] their attachment to fundamental social rights as defined in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers’. The reference is also to be found in the Title on Social Provisions, ex-Article 136 EC (now Article 151 TFEU): The Community and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonization while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.
The reference to the ECHR appeared in ex-Article 6(2) EU (now Article 6(3) TEU):
The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. However, the amendments introduced by the Maastricht Treaty in respect of recognition of fundamental rights and their integration into the Treaty were far from the proposal submitted to the European Commission by a ‘Comité des Sages’ in a report of 1996.20 The Committee had suggested including in the Treaty a range of civil, political and social rights and duties to strengthen the sense of citizenship and democracy in the European Union by treating civil and social rights as indivisible, as well as the importance of formulating rights reflecting technological change and environmental concerns.
Rather than establishing a list of fundamental rights in the form of a Bill of Rights, the Amsterdam Treaty established a procedure to secure their protection (for example, in case of discrimination ex-Article 13 EC, now Article 19 TFEU) and empowering the CJEU to ensure that the European institutions respect fundamental rights (ex-Article 6(2) EU, now Article 6(3) TEU). A range of deficiencies and inconsistencies were pointed out in the report of the Expert Group on Fundamental Rights of 1999, among others the confusing and counterproductive system of references.21 Furthermore, despite the fact that ex-Article 136 EC, now Article 151 TFEU, refers to the ESC and the Community Charter, the European Union is prevented from acting on its own to protect social rights traditionally protected by national constitutions, national law and international treaties, as ex-Article 137(6) EC, now Article 153(5) TFEU, explicitly excludes from the European Union’s field of competence the right of association, the right to strike and the right to impose lock-outs. Finally, the selection of the references to a few international documents in the Treaties or by the CJEU often referring to the ECHR and other Conventions, bring confusion in respect of their legal status and practical impact. Such inconsistencies and deficiencies led the Expert Group on Fundamental Rights to conclude that the current system of references ‘[did not] secure equal respect for all fundamental rights’.22
1. B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, 2006
2. B Bercusson, ‘The Lisbon Treaty and Social Europe’ (2009) 10 ERA-Forum 87–105.
3. B Lebaut-Ferrarese and M Karpenschif, ‘La constitutionalisation de la Charte: un acte fondamental pour l’Union européenne’ in C Philip and P Soldatos (eds), La Convention sur l’avenir de l’Europe. Essai d’évaluation du project de traité établissant une Constitution pour l’Europe (Bruylant, 2004) 125, 161.
4. For example, there was no initial reaction on the part of the six Member States to the intention of Spain under Franco to join the EEC. DC Thomas, ‘Constitutionalization through enlargement: the contested origins of the EU’s democratic identity’ (2006) 13(8) Journal of European Public Policy 1196.
5. CJEU case law considering that there was no community competence to deal with infringements of national constitutional principles: Case 1/58 Stork  ECR 17 and Case Sgarlata 40/64  ECR 215.
6. Bundesverfassungsgericht Solange I  2 CMLR 54, 549–50; C-Frontini (judgment of 27 December 1973), see (1974) Common Market Law Report 372.
7. S Smismans, ‘The European Union’s fundamental rights myth’ (2010) 48(1) Journal of Common Market Studies 45–66.
8. CJEU Case C-29/1969 Stauder  ECR 419; the case questioned the validity of a decision of the Commission, addressed to all Members, on making the reduced price sale of butter to some welfare beneficiaries dependent on revealing their name to the sellers; for more detail see (in particular in respect of ‘principles’) below section III.A.
9. CJEU Case C-11/70 Internationale Handelsgesellschaft  ECR 1125.
10. Case C-4/73  ECR 491.
11. Case C-36/75  ECR 1219.
12. Case C-44/79  ECR 321.
13. Case C-149/77  ECR 1365.
14. K Lenaerts and E De Smijter, ‘The Charter and the Role of the European Courts’ 2001) The Maastricht Journal of European and Comparative Law 90–101.
15. European Parliament Resolutions of 1973, 1976 and 1989 (European Parliament, Resolution on the establishment of the Charter of Fundamental Rights: B5-0110/1999,  OJ C 54/93.
16. Opinion C-2/94 [ECR] I 1759 (28 March 1996).
17. Since the entry into force of the Lisbon Treaty (1 December 2009) the European Union has been granted legal personality obliging it to accede to the ECHR (Article 6(2) TEU).
18. European Commission, Report of the Expert Group on Fundamental Rights, ‘Affirming Fundamental Rights in the European Union—Time to Act’ p 13 (February 1999)
19. Joint Declaration by the European Parliament, the Council and the Commission concerning the protection of fundamental rights and the European Convention for the protection of human rights and fundamental freedoms,  OJ C103/1.
20. Smismans (n 7) pp 45–66.
21. See above (n 18).