2014
The Charter of
Fundamental Rights of
the European Union
THE EVOLUTION OF THE FIRST BILL OF RIGHTS OF THE
EUROPEAN UNION AND ITS POSITION WITHIN THE
CONSTELLATION OF NATIONAL AND REGIONAL
FUNDAMENTAL RIGHTS PROTECTION SYSTEMS
CACILIA BIANCA SCHNEIDER
Working Paper
The Charter of Fundamental Rights of the European Union:
The evolution of the first Bill of Rights of the European Union and its position
within the constellation of national and regional fundamental rights protection
systems
Cacilia Bianca Schneider
Note to Readers
In Europe human rights are protected at national, international and supranational level.
At national level the constitution of each state guarantees the promotion and protection
of Human Rights. Furthermore, states are also committed to protect fundamental rights
because they have signed and ratified international conventions and declarations, such
as the Universal Declaration of Human Rights (1948) or, at a European regional level,
the European Convention on Human rights (ECHR, 1950) of the Council of Europe.
Finally, 28 European states are part of a supranational organization, the European
Union (EU), where the protection of fundamental rights has gained growing weight
since its establishment.
In the following paragraphs we are goint to analyse the path that begun in 1957 with
the creation of the European Economic Community (EEC) towards the democratic
integration of the EU territory. The aims and scopes of the EEC at the time, and EU now,
greatly evolved since 1957. Indeed, the push and inputs stemming from the political will
to guarantee the safeguard of fundamental rights at EU level allowed the passage from a
merely economic union to a democratic integration among member-states, reaching the
goal to establish a comprehensive ensemble of fundamental rights, freedoms and
principles at EU level.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
Page |1
Working Paper
In particular, we are going to focus on the Charter of Fundamental Rights of the EU, its
evolution and its relationships with national and international systems of protection of
Human Rights in Europe.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
Page |2
Working Paper
The Charter of Fundamental Rights of the European Union: from soft law to
binding instrument
In 1957 France, Germany, Italy, Belgium, the Netherlands and Luxembourg signed the
EEC Treaty pursuing the goal to attain economic integration by establishing a common
market. The main aim of the EEC was to promote and guarantee the free movement of
persons, services, goods and capital1. The EEC Treaty, thus focusing on trade, did not
contain any specific provision guaranteeing the protection of Human Rights at European
level. Furthermore, the contracting member-states assumed that any action in the field
of fundamental rights protection – besides the principle of non-discrimination on the
basis of the nationality contained in the text of the Treaty - would be out of the scope of
the newly born European Economic Community2.
Almost a decade later, in 1969, the European Court of Justice (ECJ) in the Stauder case
stated that fundamental rights were part of the general principles of law ensured by the
Court itself. Thus, any action or measure undertaken by the European Commission had
to respect, and comply with, the fundamental rights principles. However, at that date, no
European Treaty stated the binding obligation to respect and protect fundamental
rights3.
In the late 1980s we exprerienced an increasing political demand for the definition of
the Human Rights standards in the EEC, a stong trend that widened the original
economic scope of the EEC in order to achieve a democratic unification of Europe. In
1
the European Parliament adopted the Declaration of fundamental rights and
freedoms which displayed of a comprehensive human rights catalogue of the EU 4. It
1
http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties_eec_en.htm;
Groussot C. and Pech L., Fundamental Rights Protection in the European Union post Lisbon Treaty, Fondation Robert
Schuman, European Issue n°173, 2010. Pag. 1.
3
Arestis G., Fundamental rights in the EU: three years after Lisbon, the Luxembourg perspective, Research Papers in Law
(Cooperative Research Paper) 2/2013, College of Europe, Belgium, 2013. Pag. 2. Groussot, Pech 2010:1.
4
Ehlers D., Becker U., and Et al, European Fundamental Rights and Freedoms, De Gruyter Recht, Berlin, Germany, 2007.
Pag. 15.
The text of the Declaration can be read at the following link:
http://www.europarl.europa.eu/charter/docs/pdf/a2_0003_89_en_en.pdf
2
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
was only in 1992 that the Treaty of Maastricht, establishing the European Union,
included the respect of the fundamental rights among the general principles of law
stating that 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. Therefore, the Treaty of
Maastricht integrated the case-law of the ECJ by officially recognizing that the European
Union is built on the respect of fundamental rights as included in the common legal
traditions of the member-states and as defined in the ECHR5.
The Treaty of Maastricht put special emphasis on the ECHR of the Council of Europe and
not on other international treaties and conventions. That was the result of a long
jurisprudential practice in which the ECJ referred to the European Convention. Indeed,
the ECJ mentioned and made a special reference to the ECHR for the first time in its
judgement in the Rutili case in 19756.
So far, however, the EU continued to not have its own Bill of Rights, but oriented its
Human Rights policy in accordance to the case law of the European Court of Justice, the
member-states constitutional law and the Convention of the Council of Europe7. Few
years later this provision became Article 6(2) of the Treaty of Amsterdam which stated,
inter alia, that the EU is based on the principle of respect of fundamental rights8.
At the end of the 1990s we experienced the pressing need to accord social rights with
the same status as other rights and the will to make fundamental rights more visible,
instead of hidden or hinted in the case law of the ECJ9. In this respect, in 1999, the
5
Di Federico, G. The EU Charter of Fundamental Rights: From Declaration to Binding Instrument, Springer, Netherlands, 2010.
Page 6. Arestis 2013:6.
6
Arestis 2013:7.
7
Di Federico, G. The EU Charter of Fundamental Rights: From Declaration to Binding Instrument, Springer, Netherlands, 2010:
Pag: 6.
8
Groussot, Pech 2010:1.
9
Chalmers, D., Davies G. and Monti, G., European Union Law: Cases and Materials (2 nd Edition), Cambridge University Press,
UK, 2010. Pag 237.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
Page |4
Working Paper
Cologne European Council agreed to establish a Charter of Fundamental Rights. The
Charter, drafted as a Convention, was formally adopted by the Biarritz European
Council in 2000, being proclaimed at the Nice European Council on 7 December 2000 as
a political declaration, although not legally binding10.
The Charter was not added to member-states new obligations to those already in place
stemming from the EU and EC Treaties. However, since the charter contained a highly
innovative potential, member-states preferred to give to the Charter the form of a
solemn declaration, instead of a legally binding convention. One of the causes of this
decision could be attributed to the fact that the charter contained social and economic
rights already guaranteed by the European Social Charter, therefore subjected to a soft
system of enforcement. Their inclusion in a legally binding text was perceived as
untimely11.
The need to consolidate the Treaties of the EU led to the set up of the Convention on the
Future of Europe – a Convention established by the European Council of Laken (2001)
in order to prepare a new Treaty to follow the Treaty of Nice adopted by the Nice
European Council. In June 2003 the Convention proposed a Treaty establishing a
Constitution for Europe, replacing the existing EU and EC Treaties. On 29 October 2004
the Treaty establishing a Constitution for Europe was signed in Rome by the 25 Heads
of States and Governments. According to Article IV-447 of the Treaty, it would have
entered into force after the ratification of all the Contracting Parties, namely by the
national parliaments and in many member-states also by a referendum. The expected
date to enter into force was 1 November 2006. However, in June 2005 the referenda
held in France and the Netherlands rejected the text, thus postponing its entry into force
to a non-defined date. The Treaty establishing a Constitution for Europe, which
contained all the provisions of the Charter, would have turned the Bill of Rights of the
10
Chalmers, Davies Monti 2010:238; Groussot, Pech 2010:3.
Fontanelli F., The European Union’s Charter of Fundamental Rights two years later, Centro Studi sul Federalismo, Italy,
2011. Pag. 27.
11
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
European Union into a legally binding instrument12. Finally, in 2009 the Lisbon Treaty
was entered into force, turning the Charter legally binding after nine years since its
adoption:
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.
(Article 6.1, Lisbon Treaty)
Unlike the Treaty establishing a Constitution for Europe, the Lisbon Treaty only made a
reference to the Charter, without including the whole text in the body of the Treaty.
Nonetheless, this does not undermine the tremendous relevance of the compulsory Bill
of Rights of the European Union, which becomes a standard for judicial review of EU
measures and national measures implementing the community law and a relevant aid in
the interpretation of national and European measures13.
The Treaty also established that the European Union should accede the European
Convention on Human Rights:
The Union shall accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms. Such accession shall not affect the
Union's competences as defined in the Treaties.
(Article 6.2, Lisbon Treaty)
12
http://europa.eu/scadplus/constitution/introduction_en.htm
http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/treatyestablishingaconstitutionforeurope.htm
13
Chalmers, D., Hadjiemmanuil C., Monti G. and Tomkins A., European Union Law Book and Updating Supplement Pack: Text
and Materials, Cambridge University Press, UK, 2008. Pages 68-69.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
Page |6
Working Paper
Since the Entry into force of the Treaty of Lisbon in 2009 the number of cases in which
the ECJ has mentioned the Charter in its reasoning has significantly increased. Arestis
(2013) compared the figures of the references to the Charter before and after 2009 –
until 2012 - taking into account only those cases in which the Charter is mentioned in
the reasoning of the Court. The results are the following:


from December 2000 to November 2009, for a period of 9 years following the
proclamation of the Charter in Nice, only 12 judgments and 2 orders of the ECJ
referred to articles of the Charter;
for a period of 3 years following the entry into force of the Treaty of Lisbon,
between December 2009 and October 2012, the ECJ mentioned the Charter in its
reasoning in 92 judgments, 24 orders and 1 decision of review.
Comparing the aforementioned data it can be stated that the new legally binding status
of the Charter did have a major impact on the work of the ECJ. Furthermore, the figures
collected by Arestis (id) show that the Charter holds a prominent position in the EU
legal system14. Thus, as pointed out by Groussot and Pech (2005),along with the major
effect of encouraging judicial references by the ECJ to the provisions of the Charter, the
legally binding Charter has the power to guide more decisively the EU judiciary system
when adjudicating fundamental rights claims or more generally, in its task of ensuring
that in the interpretation and application of the EU treaties, the law is observed15.
14
15
Arestis 2013:3-4; 12.
Groussot, Pech 2010:5.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
Number of cases in which the ECJ has mentioned the
Charter in its reasoning
(i.e. comparison between the period before and after
the entry into force of the Lisbon Treaty)
100
90
80
70
60
50
40
30
20
10
0
92
December 2000 - Novermber
2009 (9 years)
December 2009 - October
2012 (3 years)
24
12
2
ECJ Judgements
ECJ Orders
0
1
ECJ Decision of
Review
Rights, freedoms and principles covered by the Charter
The Charter of Fundamental Rights of the EU brings together in a single document
fundamental rights, freedoms and principles protected and promoted in the EU16. The
rights included in the text have three different sources of inspiration: the rights
recognised in the EC and EU Treaties and along with them the ruling of the ECJ; the
rights recognized in the constitutions and the constitutional traditions of the memberstates; the international human rights treaties signed by the member-states, above all
the European Convention on Human Rights17.
16
17
http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm
Chalmers, Davies, Monti 2010:239 ; Groussot, Pech 2013:5.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
Page |8
Working Paper
The Charter contains both positive and negative rights divided into six titles: Dignity,
Freedoms, Equality, Solidarity, Citizens' Rights, and Justice. The following list of rights,
freedoms and principles contained in the Charter shows the broad and multifaceted
outreach of the provisions:
Title
Provisions
Human dignity (article 1), Right to life (article 2), Right to the
integrity of the person (article 3), Prohibition of torture and
Title I - Dignity
inhuman or degrading treatment or punishment (article 4),
Prohibition of slavery and forced labour (article 5).
Right to liberty and security (article 6), Respect for private and
family life (article 7), Protection of personal data (article 8),
Right to marry and right to found a family (article 9), Freedom of
thought, conscience and religion (article 10), Freedom of
expression and information (article 11), Freedom of assembly
Title II - Freedoms and of association (article 12), Freedom of the arts and sciences
(article 13), Right to education (article 14), Freedom to choose
an occupation and right to engage in work (article 15), Freedom
to conduct a business (article 16), Right to property (article 17),
Right to asylum (article 18), Protection in the event of removal,
expulsion or extradition (article 19).
Equality before the law (article 20), Non-discrimination (article
21), Cultural, religious and linguistic diversity (article 22),
Title III - Equality Equality between men and women (article 23), The rights of the
child (article 24), The rights of the elderly (article 25),
Integration of persons with disabilities (article 26).
Workers´ rights to information and consultation within the
Title IV undertaking (article 27), Right of collective bargaining and action
Solidarity
(article 28), Right to access to placement services (article 29),
Protection in the event of unjustified dismissal (article 30), Fair
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
Title V - Citizens´
rights
Title VI - Justice
and just working conditions (article 31), Prohibition of child
labour and protection of young people at work (article 32),
Family and professional life (article 33), Social security and
social assistance (article 34), Health care (article 35), Access to
services of general economic interest (article 36), Environmental
protection (article 37), Consumer protection (article 38).
Right to vote and to stand as a candidate at elections to the
European Parliament (article 39), Right to vote and to stand as a
candidate at municipal elections (article 40), Right to good
administration (article 41), Right of access to documents (article
42), Ombudsman (article 43), Right to petition (article 44),
Freedom of movement and of residence (article 45), Diplomatic
and consular protection (article 46).
Right to an effective remedy and to a fair trial (article 47),
Presumption of innocence and right to defense (article 48),
Principles of legality and proportionality of criminal offences and
penalties (article 49), Right not to be tried or punished twice in
criminal proceedings for the same criminal offence (article 50).
It is noteworthy that the Charter reunites a wide range of rights and freedoms, far
beyond just civil, political, economic and social rights. Indeed, it includes third
generation fundamental rights, such the protection of cultural and ecological interests,
data protection, guarantees on bioethics and transparent administration. Of course, the
degree of significance of rights is nuanced, since the Charter contains in the same
document universal core rights and freedoms originating from the latest social progress
or scientific and technological achievements experienced in the continent. However, we
can state, as pointed out by Chalmes et al. (2008) that the whole Charter indicates and
orients the human needs for a good life18.
18
Chalmers, Davies, Monti 2010:239.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
Distribution of the number of articles contained in
each Title of the Charter
4
5
8
Title I - Dignity
14
Title II - Freedoms
Title III - Equality
Title IV - Solidarity
Title V - Citizens´ rights
Title VI - Justice
12
7
The provisions of the Charter address institutions, bodies, offices and agencies of the
European Union and national authorities when implementing EU law and measures.
The EU institutions are clearly bound by the Charter, thus the ECJ has inevitable role in
controlling the EU legislature’s compliance with the Charter19. All proposals for EU
legislation have to respect the Charter and EU institutions, bodies, offices and agencies
have to respect the principle of subsidiarity, i.e. decisions have to be taken as closely as
possible to the citizen and actions at Union level are only justified in light of the
possibilities available at national, regional or local level. This means that the European
Union acts in the range of its eligible actions only when and where it ensures more than
the other lower levels20.
19
20
Di Federico 2010:2.
http://europa.eu/legislation_summaries/glossary/subsidiarity_en
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
With regard to the national authorities, the Charter applies, for example, when EU
member-states adopt or apply a national law implementing an EU Directive or when
their authorities apply an EU regulation directly. In cases where the Charter does not
apply, thus for actions out of the scope of the Charter, the protection of fundamental
rights is guaranteed under the constitutions or constitutional traditions of EU countries
and international conventions they have ratified. The Charter does not extend the
competence of the EU to matters not included by the Treaties under its competence21.
Since the entry into force of the Lisbon Treaty, the Charter outlined the EU multiple
guiding principles defining the standard of the protection of fundamental rights. The
first one, as stated by article 53 of the Charter, is made up from the provisions contained
in national constitutions and international treaties signed by the Member states. Thus,
the application of the Charter does not have to violate the threshold of principles
contained in national constitutions and international treaties. The second one is
contained in Article 52(7) which declares that the Courts of the European Union and the
member-states should be oriented by the explanations of the interpretation of the
Charter drawn up by the Secretariat. The third one, contained in article 52(3), requires
that any interpretation of provisions addressing the same right contained both in the
Charter and in the European Convention on Human rights has to align to the
interpretation given by the European Court of Human rights. Of course, the Charter can
provide wider protection, but it never restricts the scope of the article contained in the
ECHR22.
The Charter of Fundamental Rights of the European Union and national
fundamental rights protection systems
In the EU there are three distinct levels of jurisdiction guaranteeing the protection of
fundamental rights: the national level is constituted by national courts, namely the
21
22
http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm
Chalmers, Davies, Monti 2010:239-245
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
highest courts within the hierarchy of the legal jurisdiction; the ECJ is competent at EU
level for the application and enforcement of EU law and, at continental and panEuropean level, it is the European Court of Human Rights (ECtHR). With regard to
national and EU level of application of the Charter, as disclosed in the previous
paragraph, the Charter complements, but does not replace, national constitutional
systems and addresses only national authorities when implementing EU law23. Thus,
States have no obligation to comply with the Charter when they are acting out of the
scope of the European Union, namely when they are acting in the domestic domain24.
The extension and the level of protection of the Charter with regards to national
systems is outlined – and limited – in article 53, which states the following:
Nothing in the Charter shall be interpreted as restricting or adversely affecting
human rights and fundamental freedoms as recognised, in their respective
fields of application, by Union law and international law and by international
agreements to which the Union, the Community or all the Member States are
Party, including the European Convention for the Protection of Human Rights
and Fundamental Freedoms, and by the Member States´ constitutions.
(Article 53, Charter)
At the time of the drafting of the Charter, one of the main questions was to determine
how the Charter could apply to member-states. The answer was included in Article 51
which states that the text of the Charter is addressed to the member-states only when
they are implementing Union law. Furthermore, Article 51(2) states that the Charter does
not extend the field of application of Union law beyond the powers of the Union or
establish any new power or task for the Union, or modify powers and tasks as defined in
the treaties .
23
24
Arestis 2013:4; Fontanelli 2011:26; http://ec.europa.eu/justice/fundamental-rights/charter/rights-breached/index_en.htm
Fontanelli 2011:26
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
Indeed, as stated by Arestis (2013), Member States apply the provisions of the Charter
only when they are implementing EU law but their institutions, bodies, offices or organs
are bound to and their authority is also limited by the provisions of their own
Constitutions when applying provisions of their national legislation, being ultimately
subject to the control under the provisions of the ECHR. It has to be noted that the term
Member States in Article 51 covers both central authorities and regional and local
bodies as well as public organisations. Furthermore, the sentence when implementing
Union law refers to all situations independently of the fact that a member-state fulfils
an obligation under the Treaties or under secondary Union law25. In this respect, as
explicitly stipulated in Article 51(1) of the Charter, where there is no link with EU law
application, member-states can act according to their constitutional provisions and in
conformity with ECHR and the jurisprudence of the ECtHR. This means, as outlined by
Bering (2001), that the Charter is not able to restrict or adversely affect rights in
national constitutions when member-states are acting in the field of exclusive national
competence. Furthermore, as already stated above, the Charter is applied in respect of
the principle of subsidiarity26
Arestis (id) analysed the possibility of spillover of competences arising from the
application of the Charter by the ECJ in national systems of protection and promotion of
Human Rights. However, the possibility to extend the scope of the Charter is precluded
by the text of the Article 6 TEU. Indeed, the provisions of the Charter shall not extend in
any way the competences of the Union as defined in the Treaties. Furthermore, the risk
to erode national prerogatives is hindered by the fact that the ECJ in its ruling has to
balance different parameters, among which common constitutional traditions of the
member-states and national laws and practices27.
25
Arestis 2013:4.
Arestis 2013:9; Bering Liisberg J., Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law?
Article 53 of the Charter: a fountain of law or just an inkblot? Jean Monnet Working Paper 4/01, 2001. Page 35.
27
Arestis 2013:4.
26
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
P a g e | 14
Working Paper
A consequence of the fact that the Charter became legally binding is that in case of
review by EU Courts of the legality of EU measures or national measures falling within
the scope of EU law, EU legislation found contrary to the guiding principles contained in
the Charter will have to be annulled and incompatible national provisions set aside28.
The Charter of Fundamental Rights of the European Union and the regional
protection
The Charter is consistent with the ECHR adopted in the framework of the Council of
Europe and entered into force in 1950: when the Charter refers to fundamental rights
which are also protected by the ECHR, their meaning and scope are the same29. In the
following paragraphs we are going to briefly present the ECHR and the Strasbourg
system, the state of art of the path to the accession of the EU to European Convention on
Human Rights.
The European Convention on Human Rights
After the horrific human rights violations occurred during World War II, an
international movement started to demand the codification of the core fundamental
rights that should have never been violated again in the future. Under this pressure the
newly born United Nations wrote the Universal Declaration of Human Rights (1948)
and several regional movements spread to defend Human Rights, namely in Latin
America and in Europe30.
In 1949 ten European countries (i.e. Belgium, Denmark, France, Ireland, Italy,
Luxembourg, Norway, the Netherlands, United Kingdom and Sweden) signed the Statute
of the Council of Europe, a pan-European international organisation -(i.e. other than the
European Union, they do not have to be confused!) -whose main goals were the
28
Groussot, Pech 2010:5.
http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm
Raimondi G., Il Consiglio d'Europa e la Convenzione europea dei diritti dell'uomo, Napoli, Editoriale scientifica, 2008, pp.XVXVIII; Zanghì C., La protezione internazionale dei diritti dell’uomo, Torino, Giappichelli Editore, 2006.
29
30
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
protection and promotion of Human Rights, democracy and the rule of law. Nowadays
the Council of Europe counts 47 member-states, all the countries of the European
continent, except Belarus31.
The ECHR was signed in 1950 and entered into force in 1953. It can be stated that the
text is a regional transposition of the main principles contained in the Universal
Declaration of Human Rights and it is revolutionary in this kind: it is a powerful
instrument which allows member-states to protect and guarantee the human rights of
every person under their jurisdiction32. Indeed, Conforti (2006), an Italian expert in
International Law, defined the Strasbourg system as the first experiment which promotes
and protects Human Rights, also from a juridical point of view33.
The Strasbourg system – the set of provisions guaranteeing the protection of
fundamental rights - set up the ECtHR which has the power to rule upon appealing,
stemming from every person under the jurisdiction of a member-state who complains
that his or her rights have been violated by a member-state who signed the ECHR. The
ECHR and the ruling of the ECtHR are legally binding and every member-state has the
obligation to respect its decisions. The success of the Strasbourg system is not the fact
that it covers a wide range of rights; its success relies on the fact that it established a
Court which is a juridical institution with powerful instruments of inspection when
compared to other regional or international courts. This is true, especially concerning
the fact that it allows individuals – also non-citizens of one of the High Contracting
Parties of the Council of Europe, but who need to be under the jurisdiction of one of
31
Conforti, B., Diritto Internazionale, Napoli, Editoriale Scientifica, 2006, p.160.
To read the text of the ECHR please refer to the following link: http://conventions.coe.int/Treaty/ita/Treaties/Html/001.htm .
32
Pedrazzi M., La Convenzione europea sui diritti umani e il suo sistema di controllo, in Pineschi L., La tutela internazionale dei
diritti umani: norme, garanzie, prassi, Milano, Giuffré, 2006, p.283; Mole N., Asylum and the European Convention on Human
Rights, Council of Europe Publishing, 2008; p.12; http://www.echr.coe.int.
33
Conforti 2006:160
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
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them - to start a proceeding against a state, resorting to an international and
independent Court after having exhausted domestic means34.
The ECHR, signed by all the states of the Council of Europe, contains 14 fundamental
rights and freedoms, to which many other have been added through the ratification of
Protocols. In the following table we are going to present the fundamental rights and
freedoms guaranteed by the ECHR and the related rights and titles contained in the
Charter:
ECHR
Article 1: Obligation to
respect human rights
Article 2: Right to life
Article 3: Prohibition of
torture
Article 4: Prohibition of
slavery and forced labour
Article 5: Right to liberty and
security
Article 7: No punishment
without law
Charter
Article 2: Right to life
Article 3 Right to the
integrity of the perso
Article 5 Prohibition of
slavery and forced labour
Article 6: Right to liberty and
security
Article 48: Presumption of
innocence and right of
defense
Article 8: Right to respect for Article 7: Respect for private
private and family life
and family life
Article 9: Freedom of Article 10: Freedom of
thought, conscience and thought, conscience and
Title of the Charter
Dignity
Dignity
Dignity
Freedoms
Justice
Freedoms
Freedoms
34
Raimondi 2008:98; 105; Starace V., Art. 32. Competenza della corte, pp.537-531 in Bartole S., Conforti B. e Raimondi G.,
Commentario alla Convenzione europea per la tutela dei diritti dell'uomo e delle liberta fondamentali, Padova, CEDAM, 2001,
pag. 540.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
religion
Article 10: Freedom of
religion
Article 11: Freedom of
assembly and association
Article 12: Rights to marry
FREEDOMS
Article 13: Right to an
effective remedy
Article14: Prohibition
discrimination
religion
Article 11: Freedom of
expression and information
Article 12: Freedom of
assembly and of association
Article 9 Right to marry and
right to found a family
Article 47: Right to an
effective remedy and to a fair
trial
of Article
21
Nondiscrimination
Freedoms
Freedoms
Freedoms
Justice
Equality
The accession of the European Union to the European Convention on Human
Rights
The accession of the European Union to the ECHR would constitute a remarkable step
towards a higher level of degree of protection and promotion of Human Rights in EU28.
Since the establishment of the EEC, as stated above, Fundamental Rights have been
protected by the jurisprudence of the ECJ, but until the adoption of the Charter in 2000
the absence of a complete EU Bill of Rights was considered a major lack. Already back in
the late 1970s the European Commission, backed by the European Parliament,
proposed the accession of the Community to the ECHR; yet this proposal remained
unaccomplished35. During almost 30 years (ie. 1970s-1990s) there was a political will to
draft a comprehensive text which could clearly define the Fundamental Rights in the
European Community, but the outcome was re-defined by politically non-binding
recommendations. Notwithstanding, in those years the European Commission
presented two project in order to enable the accession of the EU to the ECHR (18) 36. As
35
36
Ehlers 2007:14-15.
Di Federico 2010:18.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
a result, all member-states of the EU were High Contracting Parties of the ECHR, but not
the EU itself. Inin 2009, with the entry into force of the Lisbon Treaty, the accession of
the EU as unified body became a legal obligation. Indeed the Treaty established that the
EU should accede the European Convention on Human Rights:
The Union shall accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms. Such accession shall not affect the
Union's competences as defined in the Treaties.
(Article 6.2, Lisbon Treaty)
Initially designed to be ratified exclusively by the member-states of the Council of
Europe, through the adoption of Protocol N. 14, the ECHR changed its provisions in
order to allow the accession of a international organization. Indeed, the legal basis for
the accession of the EU in the ECHR is provided for by Article 59, paragraph 2, which
states that the EU may accede to this Convention. Protocol N. 14 entered into force in
201037.
The main ratio underlying the will to accede the ECHR by the EU is the fact that it would
avoid a duplication of European Human Rights standards allowing the establishment of
a single institutional mechanism of control of the standards exercised by the European
Court of Human rights in Strasbourg38. In this respect, and since their establishment,
Strasbourg and Brussels developed separated legal order, where the ECtHR and the ECJ
are the highest courts. As stated above, whereas all EU member-states are also High
Contracting Parties of the ECHR, the EU itself is currently not. Although the EU is
founded on the respect of Fundamental Rights, the ECHR and its judicial mechanism do
not apply to EU acts. Therefore, all member-states of the EU, as High Contracting Parties
37
38
http://hub.coe.int/en/what-we-do/human-rights/eu-accession-to-the-convention/
Ehlers 2007:14.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
of the ECHR, have an obligation to respect the ECHR also when applying or
implementing EU law. This situation could find a legal solution with the accession of the
EU to the ECHR. The EU's accession would strengthen the protection of Human Rights in
Europe, by submitting the EU’s legal system to independent external control. This
accession, as stated on the website of the ECHR, would also close gaps in legal protection
by giving European citizens the same protection vis-à-vis acts of the EU 39.
So far, the member-states of the EU are discussing in several hearings the process of
accession of the EU to the ECHR. The negotiations, where the representatives of the 47
Council of Europe member-states and of the EU are taking parts, have finalised the draft
accession agreement of the EU to the European Convention on Human Rights. Now the
official accession of the EU to the ECHR should only be a matter of time40.
The European Union Fundamental Rights Agency
In 1997, the EU established the European Monitoring Centre on Racism and Xenophobia
(EUMC), whose headquarters are in Vienna, Austria. The goals of the EUMC were to
study the extent and development of the phenomena and manifestations of racism,
xenophobia and anti-Semitism, analyse their causes, consequences and effects and
examine examples of good practice. In order to carry out its tasks, it collected, recorded
and analysed information communicated to it by research centres, member-states,
community institutions, NGOs and international organisations. The EUMC also
coordinated the European Racism and Xenophobia Information Network. In particular,
the EUMC monitored the phenomena of racism and xenophobia in the following areas:
free movement of persons within the Community; media and other means of
communication; education, vocational training and youth; social policy, including
employment; free movement of goods and culture41.
39
http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/default_en.asp
http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/default_en.asp
41
http://europa.eu/legislation_summaries/other/c10411_en.htm
40
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
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Working Paper
The European Council in Cologne (1999) discussed for the first time the possibility to
create a European Agency specifically dealing with questions related to Human Rights42.
The adoption of the Charter in December 2000 constituted a powerful political push to
the creation of an agency of this type43. Indeed, the winter European Council decided to
broaden the scope of the EUMC in order to create a more comprehensive human rights
agency. Subsequently, in 2005, the European Commission adopted a proposal for a
Council regulation establishing the Agency and a decision empowering it to act within
the third pillar matters44. After this developmen, in 2007 the EU created the European
Union Agency for Fundamental Rights (FRA), an independent EU agency which replaced
the EUMC. The headquarters are in Vienna as well45.
The aim of the FRA is to provide EU institutions and EU member-states -when
implement EU law- with the necessary assistance and expertise relating to fundamental
rights. As described on the webpage of the FRA, the main task of the Agency is to collect
and disseminate objective, reliable and comparable data on the situation of fundamental
rights in all EU member-states within the scope of EU law. Furthermore, the FRA is also
carrying out activities in order to raise awareness about fundamental rights.
Concerning its competences, the FRA has the power to act exclusively in relation to
matters related to the implementation of Community Law and, whenever its actions
concern the third pillar, the Union Law. However, in case of a threatened or actual
serious breach of fundamental rights, it can make its expertise available to the Council,
as established by article 7 TEU46.
42
House of Lords, Human Rights Protection in Europe the Fundamental Rights Agency Report With Evidence 29th Report of
Session 2005-06: House of Lords Papers 155 2005-06, UK, 2006. Pages 11.
43
Alston, P. and De Schutter, O., Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights
Agency, Hart Publishing, Oxford and Portland, Oregon (USA), 2005. Page 189.
44
House of Lords 2006:11.
45
http://ec.europa.eu/justice/fundamental-rights/agency/index_en.htm
46
House of Lords 2006:13.
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
The Agency is not a Court, thus it has not the power to examine individual complaints,
exercise regulatory decision-making powers or carry out systematic and permanent
monitoring of EU countries47. The work of the FRA is guided by the Multi-annual
Framework established by the EU, which defines the thematic areas which have to be
tackled. This means that the political institutions of the EU have the possibility to decide
on which topics the FRA has to focus on, thus confining its scope and extend of the
activities. For example, the Framework covering the period 2007-2012 outlines a rather
wide area of interest for the Agency, but did not included issues such as social rights,
bioethical rights and war on terror48. To sum up, although independent, the FRA has to
comply with the political decision reflected in the draft of the Multi-Annual Framework
of the EU.
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__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
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Working Paper
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__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
P a g e | 23
Working Paper
Pedrazzi M., 2006. La Convenzione europea sui diritti umani e il suo sistema di controllo,
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Websites:
http://www.europarl.europa.eu/charter/pdf/text_en.pdf
http://ec.europa.eu/justice/fundamental-rights/charter/application/index_en.htm
http://hub.coe.int/what-we-do/human-rights/eu-accession-to-the-convention
http://ec.europa.eu/justice/fundamental-rights/charter/rights-breached/index_en.htm
__________________________________________________________________________________
Cacilia Bianca Schneider is Project Associate at Bridging Europe
Bridging Europe working papers offer policy-oriented analysis into topical issues of European Affairs,
with the aim of enriching policy-making and contributing to the ongoing debate.
The views expressed are attributable to the author (s) in a personal capacity and not to any
institution with which he is associated.
Available for free downloading from Bridging Europe website (www.bridgingeurope.net)
© Bridging Europe 2014
P a g e | 24