(15 ) The Lisbon Treaty
How to save Europe’s centre left
THE EU CHARTER AND ITS APPLICATION AND INTERPRETATION
The EU’s New Human Rights Dimension
Rights and Principles provided for by Title III of the EU Charter
Title III on Equality contains seven Articles, from 20 to 26: equality before the law (20); non-discrimination (21); cultural, religious and linguistic diversity (22); equality between women and men (23); the rights of the child (24); the rights of the elderly (25); and the integration of persons with disabilities (26). The obviously eclectic type and nature of the provisions (rights, principles, social goals) may, in their totality, target a certain level of social equality and cohesion, but concrete definition of such a level depends very much on the meaning given to them by the institutions, authorities, administrative and judicial bodies responsible for their application and implementation.
i. Article 20 CFREU: General Principle of Equal Treatment
Article 20 CFREU declares that ‘[e]veryone is equal before the law’. This provision is, essentially, the long-awaited regulatory expression of the fundamental and general principle of equal treatment, the most decisive and broad among the principles of fundamental rights constituted by the Court of Justice first in Stauder and consistently in the subsequent 40 years or so. While the provision of Article 20 CFREU establishes a directly justiciable right of individuals to the equal application of the law, it also lays down a ‘principle’. This nature of the provision cannot be interpreted within the reduced meaning attributed to principles by Article 52(5) CFREU. Rather, this principle may support the assumption that the framers of the Charter might have in mind two different kinds of principles-principles’ and ‘general principles’ (or ‘basic principles’)126-even if the Explanations are not clear, let alone the definition of the two concepts.
According to the Court’s view, (expressed in Chatzi) the fundamental nature of ‘the principle of equal treatment, which is one of the general principles of the European Union law’, is ‘affirmed’-that is, not created-in Article 20 of the Charter. The Court also repeated its consistently followed interpretation that this principle ‘requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified’.127 Illustrating this requirement, the Court refers to Sturgeon and Others,128 in which the principle of equal treatment is applied in the case of airline passengers (comparing the situation of those whose flight was cancelled to those whose flight was delayed three hours or more). In Akzo,129 in which the principle of equal treatment was applied by comparing the situation of ‘in-house’ and external lawyers, finding that the two categories—despite certain similarities in their status-are differently situated (regarding the level of their independence), the principle of equal treatment, in this case, required different treatment.130
That-if drawn under Article 20 CFREU-shows the extent of the scope attributed to this principle: it is to be applied to unreasonable differentiation on any ground or unreasonable equalisation of any different situation.
ii. Article 21 CFREU: Prohibited Grounds of Discrimination
Article 21 CFREU is based on the earlier list of prohibited grounds of discrimination in ex-Articles 12 and 13 EC (now Articles 18 and 19 TFEU) prohibiting discrimination on the ground of nationality (ex-Article 12 EC, now Article 18 TFEU) and on the grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. While in the Treaties non-discrimination on the ground of nationality-an indispensable pre-condition of the free movement of persons and services-has been of primary significance apart from any human rights consideration, admission of the specific grounds of discrimination has been the result only of a later stage of development.
Article 21(1) CFREU prohibits discrimination on certain specified grounds. Its paragraph (1) prohibits discrimination ‘on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’. This catalogue is not only far wider than the list of protected attributes than in Article 19 of TFEU (ex-Article 13 of TEC) but exceeds the grounds regulated in Article 14 ECHR. Taking Protocol 12 to the ECHR the scope of the protection is similar, but Article 21 CFREU goes beyond that list by the addition of genetic features and disability.131 The relationship of this provision to the narrower Article 19 TFEU132 needs explanation. Although Article 21(1) CFREU is undoubtedly about rights, the Explanations routinely repeat that, while Article 19 TFEU ‘confers power on the Union to adopt legislative acts … to combat discrimination’, Article 21(1) CFREU does not create any such power; it only prohibits discrimination on those wide grounds when the institutions and bodies of the Union themselves are exercising powers conferred under the Treaties, and when the Member States are implementing Union law.
The consequence of the obvious distinction has been demonstrated by the Court in the Bartsch case in connection with age discrimination. The principle of non-discrimination on the grounds of age, as repeatedly emphasized by the Court, is a fundamental principle of Union law133 on which the Framework Directive 2000/78 prohibiting discrimination in employment on certain grounds is based. However, it is to be applied in any context of
the application of Union law but has not been considered mandatory in this case (exclusion from entitlement to a survivor’s pension under an occupational private pension scheme, allegedly in an age discriminatory way).134
Article 21(2) CFREU prohibits discrimination on grounds of nationality. As provided for by this provision, nationality is a protected attribute (only) within the scope of application of the Treaties and without prejudice to any of their specific provisions, in compliance with its former application. Since Article 18 TFEU confers the right on the European Parliament and the Council to adopt rules to prohibit such discrimination, the legal nature of Article 21(2) CFREU is not questioned. This right, therefore, seems to correspond fully to the original principle of non-discrimination on the ground of a nationality-being part of the market integration of Community law since the Treaty of Rome.
Nevertheless, the reversed order-putting nationality after the general list of grounds as a specific item-permits the presumption that this prohibition is now part of the human rights system of the Union and not purely or primarily an instrument of promoting integration. If so, in the future it might be applicable not only in the context of the free movement of persons but in general, and therefore not only to nationals of other Member States, but to Member States’ own citizens in contrast to the interpretation of this provision only under Article 18 TFEU (ex-Article 12 EC). Such an interpretation seems reasonable and might also have huge implications for economic and labour rights.
iii. Article 22 CFREU: Cultural, Religious and Linguistic Diversity
Article 22 declares that the Union shall respect cultural, religious and linguistic diversity. On the face of it, this text appears merely declaratory and to contain no legal rights or duties. Nevertheless, the Explanation to Article 52(5) CFREU refrains from labelling them ‘principles’, and since they are not rights either, this provision adds a question mark to the categorization of the Charter’s provisions in Article 52. Being based on Article 6 TEU-and even more being connected to Article 17 TFEU as well as to Article 167(1) and (4) TFEU-Article 22 CFREU is connected to mandatory objectives of the Union, that can and shall be promoted, through actions such as those (incentive measures, recommendations) indicated in Article 167(5) TFEU.135
The fundamental guarantee of the diversity addressed in Article 22 CFREU is, of course, the legally enforceable prohibition of discrimination on the wide range of grounds enumerated in Article 21(1) CFREU. Article 22 CFREU is able to guarantee that the already existing diversity in European countries136 would result in much more than simple tolerance and guaranteed equality; rather it could contribute to the development and enrichment of society in the long term.
iv. Article 23 CFREU: Equality between Men and Women
Article 23 CFREU does not add to and does not change existing provisions on equality between men and women. In its two paragraphs the first provides for the right to equal treatment in ‘all areas’, in other words including but not limited to employment. In its second non-numbered paragraph, Article 23 CFREU provides that [t]he principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the underrepresented sex’. This is a shortened and thereby even more unfortunate-version of Article 157(4) TFEU, which is a more specific and nuanced provision on permitting the Member States to adopt or maintain measures that are-somewhat dubiously-perceived as ‘exceptions’ or ‘derogations’ from the principle of equal treatment. This phrasing obscures the fact that, within the meaning of the fundamental principle of equal treatment, different situations must not be treated in the same way (as used consistently by the Court). What is permitted is thus primarily the due consideration of existing differences and not (exceptionally permitted) unequal treatment.137
v. Articles 24–26 CFREU: Specific Groups
Articles 24, 25 and 26 CFREU (protection of the rights of the child, the elderly and persons with disabilities) have something in common that is also shared by the previous Charter provisions. This is their double and mixed character. Regarding each of the three groups of persons, the provisions of the Charter show that the protective, paternal approach is combined with respect for and promotion of the equal freedom and dignity of the individuals belonging to those groups.
This double character is reflected in a concentrated way in the first paragraph of Article 24 CFREU, which includes protection and care of children, as well as children’s freedom to express their views and their right that their views should be taken into consideration when decisions are made concerning them. This combination, reflected by the three paragraphs in question here, also represents a paradigm of development in time. The earlier predominant paternal approach that was based rather on protective (guarding, sheltering) and social-assistance type measures permeating the national and (few) international provisions dealing with protection of these three groups have gradually given way to a more freedom-oriented human-rights approach, targeted first at the removal of barriers obstructing these persons from freely making decisions regarding their life and living conditions, from everyday living through choice of profession and occupation to an independent family and private life. The change is well demonstrated by the adoption of the 1989 UN Convention on the Rights of the Children (CRC: the most ratified convention in the world), the 2007 CRPD-both Conventions demonstrating the abovementioned shift.
Similarly, the new or rephrased provisions of the 1996 RESC reflect this shift from care and shelter (necessarily always subject to limitations) to an approach that is aimed at promoting the fullest possible autonomy for persons with difficulties in creating it for themselves. The change from the benign and helpful, but today considered less dignifying attitude in Article 15 ESC (1961) that guaranteed ‘[t]he right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement’, the new title of Article 15 RESC (1996) guarantees ‘[t]he right of persons with disabilities to independence, social integration and participation in the life of the community’. Similarly, Article 25 CFREU is based on Article 23 RESC, a new provision, granting the elderly the right to remain full members of society for as long as possible, to choose their lifestyle freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, and when living in institutions the appropriate support must respect their privacy and participation in decision making. While the three provisions might appear to frame mere ‘principles’ within the secondary meaning used by Article 52(5) CFREU-that is, soft guidelines and benevolent desires to be realised depending on the will of the lawmaking
powers (with eternal reference to the scarcity of means)-the teeth of such ‘soft’ norms when coupled with the principle of equal treatment within the full meaning developed by the Court-is shown by the Chatzi decision on the right to receive an increased parental leave payment in case of twins. While the Court declined to consider this case as an equal treatment case under Article 24 CFREU, it added the following:
Observance of the principle of equal treatment, which is one of the general principles of European Union law and whose fundamental nature is affirmed in Article 20 CFREU, is all the more important in implementing the right to parental leave because this social right is itself recognised as fundamental by Article 33(2) CFREU. This principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.138
The peculiar situation of an increasingly important and powerful supranational entity without a fundamental rights framework for its citizens has come to an end: the legally binding Charter of Fundamental Rights puts the Union ‘back on earth’ and opens up new dimensions in respect of the Union as a whole.
The analysis of the sometimes very difficult process, starting from the beginning, via elaboration, adoption, ‘adjustment’ and ratification to the decisive point of entry into force of the Charter, as well as of the complex system of references and interdependencies within the Charter, the Treaties, international instruments and so on, and the important example of equality as one of the main pillars of the Union’s fundamental principles bordering on concrete fundamental rights, has shown how many elements have to be taken into account when trying to give the fundamental (social) rights a real content and impact in everyday situations. The Charter’s effective implementation will depend on the permanent and extensive use of its provisions in political debates and probably even more in strategic litigation. This contribution hopefully offers a useful approach.
126. The Explanations declare that this provision ‘corresponds to a general principle of law which is included in all European constitutions and has also been recognised by the Court of Justice as a basic principle of Community law’. Adding to the puzzles produced by the Explanations, while there are numerous decisions of the Court-in part referred to above-involving the clear application of the principle of equal treatment, the examples brought forth by the Explanations to illustrate the recognition of principles by the Court are (in part made unavailable through the database of the Court) unrelated to human rights, and instead deal with economic regulation of agricultural products, such as Case C-292/97 Karlsson and Others (n 72). The latter is also referred to by the Explanations to Article 51(2) CFREU, and needs some conceptual extension to classify it as an equal treatment case.
127. Case C-149/10 Chatzi [2010], paras 63 and 64.
128. Joined Cases C-402/07 and C-432/07 Sturgeon and Others [2009] ECR I-10923.
129. Case C-550/07 P, Akzo Nobel Chemicals [2010] (not yet reported).
130. Ibid paras 56, 58 and 59.
131. It is notable that mention of Protocol 12 is cautiously avoided, although the Explanations to 51(3) explicitly define that ‘reference to the ECHR covers both the Convention and the Protocols to it’, despite the fact that it is already in force and applied by the European Court of Human Rights. See also above (n 1).
132. Covering sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation only with regard to authorisation to combat discrimination.
133. Cases C-144/04 Mangold [2005] ECR I-9981 at 75, and C-555/07, Kücükdeveci [2010], paras 43, 55 and 56.
134. Case C-427/06 Bartsch [2008] ECR I-7245, paras 18 and 25.
135. According to Article 167(5) TFEU, in order to contribute to the achievement of the
objectives of Article 167 TFEU, the European Parliament and the Council, acting in accordance with ordinary legislative procedure and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States. The Council, on a proposal from the Commission, shall also adopt recommendations.
136. See R Blanpain, ‘Diversity, equality and integration. An introductory study’ in R Blanpain (ed), Diversity, Equality and Integration. Beyond the Law. A Comparative Study (Vander Broele Publishers, 2008) 16–18 and 28–30.
137. A further comment might be made on the mistaken perception of a situation deriving
from the simplified phrasing of the Charter: ‘underrepresented sex’. Underrepresentation in certain positions and situations might be a result of a socially advantaged position that does not justify specific advantages, whereas the overrepresented sex might need compensation for the disadvantages that result in overrepresentation in certain positions. This provision of the Charter-which does not differ much in Article 157(4) TFEU-is based on a mistaken symmetrical approach to the issue of sex discrimination. See D Schiek, ‘A new framework on equal treatment of persons in EC law?’ (2002) 8(2) European Law Journal, especially 309.
138. See Chatzi (n 127) paras 63 and 64.
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