Jean Monnet Center at NYU School of Law


1. Introduction

1.1. Purpose and Scope of Paper

This paper examines Article 53 of the recently adopted Charter of Fundamental Rights of the European Union.1 The article, entitled "level of protection," is one of the general, horizontal provisions set out in the last chapter of the Charter. It reads as follows:

"Nothing in this 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."

The aim of a provision of this kind, found in many human rights instruments, is normally to ensure that the rights and freedoms protected by the instrument are applied as minimum standards and not seen as a ceiling of protection.

The wording of Article 53 has, however, caused some concern about its legal implications in the special context of the supranational Community legal order. Some commentators have argued that if the Charter is incorporated into EU law, Article 53 could threaten the supremacy of Community law over national constitutions, and that it might reinforce tendencies of courts in certain Member States to assert a right to review Community measures against national standards of human rights.

This paper will discuss the possible legal implications of Article 53 for the Community legal order, on the assumption that the Charter, as it stands, becomes binding law. The perceived threat to Community law supremacy will be the main topic of discussion, but the paper will also consider other possible legal implications, such as: whether Article 53 could be seen as an avenue to broaden rights in the Charter or establish new rights; whether Article 53 could be interpreted to freeze the level of protection under the Charter and lead to a more static human rights doctrine of the European Court of Justice; and, finally, whether Article 53 could provide any guidance in cases involving collision of different human rights (Chapter 4).

The paper will take a close look at the drafting history of Article 53, tracking, to the extent possible, all prior drafts, amendments, discussions in the drafting body and consultations between the legal experts associated with the process (Chapter 2). The paper will also compare Article 53 with similar provisions in earlier proposed EU human rights instruments, the European Convention on Human Rights (ECHR), international human rights conventions, and, finally, the United States Bill of Rights (Chapter 3). The comparative emphasis will be on Article 53 ECHR and case law relating to this provision from the European Court of Human Rights.2

As part of the conclusion and some of the preceding chapters, the paper will briefly discuss what lessons, if any, can be learnt from the drafting of Article 53 and the proceedings of the Charter Convention. In the end, the question is asked whether Article 53 should be revised or left out, if the Charter is incorporated into EU law (Chapter 5).

1.2. Fundamental Rights in the EU at Present

The EU legal order of today includes as one of its basic tenets the protection of human rights.3 Article 6(2) of the Treaty of the European Union (TEU) specifies that the Union shall respect fundamental rights, as guaranteed by the ECHR, and as they result from the constitutional traditions common to the Member States. It was not until the Maastricht Treaty of 1992, that Article 6(2) (ex Article F) TEU was inserted into the Treaties. And only with the Amsterdam Treaty of 1997 was it formally clarified that the jurisdiction of the European Court of Justice (ECJ) under the Treaty of the European Community (TEC) applies to Article 6(2) TEU with regard to action of the EU institutions (Article 46(d) TEU).

These recent Treaty revisions were the first (incomplete) attempts to codify the EU fundamental rights doctrine, which has gradually been developed by the Court since 1969.4 It falls outside the scope of this paper to give a general account of current EU human rights law or its history.5 In the context of the Charter, it will suffice to briefly highlight three of the major horizontal issues: (1) The relationship between the supremacy doctrine and the fundamental rights doctrine, including the level-of-protection discussion; (2) The expanding reach and relevance of the Court's human rights powers vis-à-vis Member States; and (3) The relationship to the ECHR, including the possibility of EU/EC accession to this Convention.6

(1) Level of protection and the connection to supremacy.7 The Court's creation of a Community human rights doctrine is often explained as motivated by a wish to protect the well-established, but sometimes challenged, ambition of Community law to reign supreme over any norm of national law, including constitutional human rights norms. The idea is that the Court could not expect full respect for the supremacy principle from national courts unless acts of the Community institutions were subject to human rights review by the Court. To reduce the risk of conflicts between Community law and national constitutions, the Court says that it will "draw inspiration from the constitutional traditions common to the Member States." Some scholars have suggested that this ought to mean that the Court should base its human rights jurisprudence on the strictest standards and highest levels of protection found among the Member States. This is not the approach of the Court, however. When it comes to national constitutions, the Court merely draws "inspiration" from "traditions." The case law rarely involves any close, decisive analysis of national constitutions by the Court.8 Current case law focuses more on the ECHR (see (3) below). The Court sees its constitutional role as defining an autonomous level of protection within the Community sphere.9 This approach does not eliminate the possibility of tensions between national standards and Community standards, but it seems, on the whole, to work in practice. There are no cited examples of a national court of last instance setting aside a preliminary ruling from the European Court of Justice on the basis that the result would violate a human rights provision in the national constitution.10 But the Court obviously has to steer a very careful course to maintain its legitimacy and authority. It has caused some concern, from an EU perspective, that the highest courts in, inter alia, Germany and Denmark, have reserved, in general terms, a right to rule that a Community act, which has been upheld by the ECJ, is inapplicable in their respective countries if the act contravenes a national constitutional norm.11 The issue of supremacy will be further discussed in 4.1. below.

(2) Scope and depth of the Court's human rights jurisdiction.12 The likelihood of tension between Community and national standards of protection is related to the question to what extent Member State measures are subject to human rights review by the Court. Over the years, the Court has gradually extended its review to include not only acts of the institutions, but also acts of the Member States when they act under EU law as the executive arm of the Union or when they invoke Community derogation rules relating to the fundamental economic freedoms such as the free movement of goods. It is still a condition, however, that the national measures fall "within the scope of Community law"; an American-style incorporation of "federal" human rights into the "state" legal order has not (yet) happened.13 The problem is that "the scope of Community law" is a rather vague, amorphous concept and varies according to the specific situation of the individual invoking fundamental rights. Moreover, the scope of Community law is constantly expanding, both in leaps (such as the recent transfer of visa and asylum policy from the Third to the First pillar14), and incrementally through Community legislation, the legal bases of which are not precisely delimited. The depth of the Court's human rights scrutiny of Member State measures is not always identical with its human rights scrutiny of Community measures; the Court seems, for instance, to provide only rather general guidance to the national court when dealing with the human rights compatibility of national measures derogating from the fundamental economic freedoms.15 All in all, what emerges is a rather opaque delimitation of the scope and depth of the Court's human rights jurisdiction over Member State measures.16

(3) The relationship to the ECHR.17 The ECHR is an essential source of law in the EU human rights jurisprudence, even if the EU/EC is not a Contracting Party to the Convention. The Court generally adheres to the ECHR human rights provisions as a minimum level of protection, and often delves into close examinations of the Convention and, more recently, the case law of the European Court of Human Rights. The ECHR has "special significance" in the words of the Court. This can be seen as an attempt by the Court to avoid tension with another important instrument in the Member States, which have by now all incorporated the ECHR into domestic law. The European Court of Human Rights abstains from reviewing EU Member States' responsibility for acts within the field of Community law, referring to what it sees as the equivalent protection of human rights afforded by the European Court of Justice.18 In the eyes of many institutional actors, some Member States and several scholars, the current situation is satisfactory neither legally - as certain procedural and material lacunae persist - nor in terms of political credibility as all EU Member States are (and new ones, in practical terms, must be) Contracting Parties to the ECHR. Proposals for accession of the Community to the ECHR have been discussed on and off for almost 25 years. Accession would require both a revision of the Treaties19 and the ECHR, which at present only accepts states, not organizations, as Contracting Parties.

1.3. The Charter - Purpose, Process and Result

The idea of an EU Bill of Rights has been on the table for some years, mostly supported by the European Parliament (see 3.1. below). But it was not until 1999, on a German initiative, that the Charter process was launched with a decision of the European Council in Cologne.20 The stated purpose, as eventually reflected in the preamble, was to strengthen the protection of fundamental rights in the EU, not by changing the rights as such, but by making them more visible to the EU citizens. The Charter process should be seen in the broader context of the debate on constitutionalization of the European Union. Not only did the idea of a Charter appeal to Member States with constitutional and federal ambitions for the future of the EU; it was also welcomed by other Member States as a sensible way to bring the Union closer to the citizens and gain more popular support for the EU. Some see in the very topic of human rights a new project for the EU that could help keep up momentum in the integration process, among the peoples as well as among the governments, now that the huge projects of the 1980s and 1990s, the Internal Market and the Monetary Union, are more or less in place.21 The enlargement negotiations with 12-13 countries, including ten former members of the Eastern Bloc and Turkey, also provided a good reason to devote more energy to the topic of human rights in the EU.

The composition of the drafting body, what became known as the Convention, and the working method, as laid out in an annex to the Conclusions of the European Council in Tampere, in October 1999, were truly unique. The body was composed of 62 Members representing the Heads of State and Government, the President of the European Commission, the European Parliament and the national parliaments. The European Court of Justice and the Council of Europe, including the European Court of Human Rights, were allowed to participate as observers. The Convention and its Praesidium, comprising Members from each of the four categories of representatives, was assisted by a Secretariat staffed by the Legal Service of the Council. The hearings held by the Convention and documents submitted at such hearings should, according to the mandate, "in principle" be public during and after the process.22 Along the way NGOs, independent experts and the applicant countries were consulted. Another significant feature of the drafting process, especially given its inclusiveness and the size of the drafting body, was the time pressure the Convention worked under. The draft had to be ready within one year for the European Council in Nice in December 2000.

The rights provisions contained in the Charter are basically a restatement or compilation of existing rights. The Cologne terms of reference made clear that the Convention should base itself on the jurisprudence of the Court, including the ECHR and the common constitutional traditions. The final list of rights is quite broad and innovative, including such rights as the right to a clean environment, bioethical rights, a right to protection of personal data and the rights of the disabled. Arguably, these are not new rights and already enjoy some protection under various Community instruments, but they have hitherto generally not been regarded as fundamental rights in the EU context. Some traditional rights, e.g. the right to an effective remedy, provide a slightly higher level of protection than the corresponding rights in the ECHR.

The crucial and contentious question of "whether and, if so, how the Charter should be integrated into the Treaties" was left by the Cologne Council to be decided at or after the European Council in Nice in December 2000. For the ensuing analysis of Article 53, it is important to note that the Convention Praesidium early on indicated that the task was to draft a Charter that could become binding without any changes, should the Heads of State and government wish so. It is therefore possible to subject the Charter to a legal analysis on the hypothesis that it has become binding. A revision is not foreseen. At the European Council in Nice no agreement could be reached on the final legal status of the Charter, so it was decided to postpone a decision until the next Inter-Governmental Conference (IGC) in 2004. Today the Charter has the status of a non-binding "soft law" instrument in the Community legal order.23 As such it has already been cited in two opinions by Advocates General of the Court.24

The political and public reception of the Charter in the Member States has so far been relatively quiet, awaiting the decision on the final status of the document. Governments assure skeptics that the Charter simply reaffirms existing rights and is not a binding document (and perhaps never will be) while enthusiasts confirm each other in the belief that the Charter represents a major political step towards more integration and popular support for the EU. No broad popular debate has yet occurred. For legal scholars, however, the Charter is red meat, and the steady trickle of articles and comments that is starting to run will no doubt soon become a roaring river of ink.25

1 Hereinafter just the Charter or the EU Charter of Fundamental Rights. See [2000] OJ C 364/01.

2 A note of caution: The connection between the EU human rights system and the ECHR may cause some terminological confusion. First, the parallel to Article 53 in the ECHR is incidentally also called Article 53. Throughout this paper, any reference to Article 53 of the ECHR will be followed by "ECHR," except in sections that deal exclusively with the ECHR. Second, the Charter drafting body named itself "the Convention," a term that may be used as shorthand for the ECHR or other conventions. Third, when this paper just refers to "the Court," it will normally be the European Court of Justice in Luxembourg unless the context clearly indicates otherwise. Fourth, the European Council should not be confused with the Council of Europe (the ECHR framework organization comprising 41 European countries). Finally, as to the Members of the drafting Convention, when this paper refers to parliamentarians it is members from national parliaments and not Members of the European Parliament (referred to instead as MEPs).

3 In the EU context, human rights are most often referred to as "fundamental rights." No major conceptual difference is involved, and the terms will be used interchangeably in this paper. The distinction between fundamental (human) rights (not listed in the Treaties) and fundamental (economic) freedoms (listed in the Treaties) is relevant, however. Some consider the economic freedoms to be human rights, but that is not the generally accepted view, see A. von Bogdandy, "The European Union as a Human Rights Organization?," 37 CML Rev. 1307 (2000), p. 1326.

4 Note that Article 46(d) TEU only refers to actions of the institutions, not of the Member States, which according to the case law are also subject to ECJ human rights review when they are within the scope of Community law, see below. K. Lenaerts, "Fundamental Rights in the European Union," 25 E.L. Rev. (2000), pp. 575-600, discusses this apparent anomaly but is convinced that no legal change was intended, even if it might be a signal that the ECJ should move with caution vis-à-vis Member States in this field, pp. 588-91. The reference in Article 6(2) TEU to general principles of "Community law," not "Union law," is also somewhat misleading given the (limited) human rights jurisdiction of the Court in matters under the TEU, e.g., Title VI on Police and Judicial Cooperation in Criminal Matters, see Article 46(b) and (d) in conjunction with Article 35 TEU.

5 The literature on this topic is extensive. Recent comprehensive works include the two anthologies, Alston (Ed.), The EU and Human Rights, (1999), and Neuwahl and Rosas (Eds.), The European Union and Human Rights, (1995).

6 Other important horizontal issues include external relations, access for individuals to the ECJ, and whether the EU needs a comprehensive human rights policy and bureaucracy. On the last point, see P. Alston and J.H.H. Weiler, "An `Ever Closer Union' in Need of a Human Rights Policy," in Alston (Ed.), note 5 above, pp. 3-66.

7 This section is primarily based on B. de Witte, "The Role of the ECJ in the Protection of Human Rights," in Alston (Ed.), note 5 above, pp. 878-881, and J.H.H. Weiler, The Constitution of Europe, (1999), pp. 102-129.

8 See B. de Witte, note 7 above, p. 881. A case where the Court did take a relatively close look at national constitutions is Case 155/79, AM & S v. Commission, [1982] ECR 1575, regarding the attorney/client privilege.

9 The two most important cases involving human rights review of Community measures of a legislative nature are Case 4/73, Nold v. Commission, [1974] ECR 491, and Case 44/79, Hauer, [1979] ECR 3727, both originating in Germany and both concerning the right to property.

10 Two judgments involving unsuccessful direct challenges of Community acts before the ECJ have been severely criticized by German scholars for falling below the German level of protection, see Joined Cases 46/87 and 227/88, Hoechst v. Commission, [1989] ECR 2859 (The ECJ ruled that legal persons did not enjoy the right to a home), and the so-called Banana Cases, one of which is Case C-280/93, Germany v. Council, [1994] ECR-I 4973 (By German standards, the ECJ applied a rather lenient proportionality test under the right to property and the freedom to pursue a trade or profession).

11 See the Maastricht case from the German Federal Constitutional Court, Brunner, [1994] 1 CMLR 57, which followed on the earlier German cases, Solange I, [1974] 2 CMLR 540, and Solange II, [1987] 3 CMLR 225, and has been clarified in a somewhat more supremacy-friendly direction in a recent case from June 2000, see A. von Bogdandy, note 3 above, pp. 1322-23. See also the Maastricht Case from the Danish Supreme Court, Carlsen, 3 CMLR 854 [1999]. Courts in other Member States, most notably Italy (see the Frontini case [1974] 2 CMLR 372), have also taken reservations as to the supremacy of EU law over their national constitutions, see for brief survey, B. de Witte, "Direct Effect, Supremacy and the Nature of the Legal Order," in Craig and de Búrca (Eds.), The Evolution of EU Law, (1999), pp. 198-205. Contrary to the German cases, the reservation in the Danish Supreme Court judgment is not primarily concerned with the perceived democratic deficit of the EU or with potential human rights conflicts (in practical terms, the ECHR, not the Constitution, serves as the bill of rights in Denmark), but rather with the limits on transfer of sovereignty prescribed in Section 20 of the Danish Constitution.

12 This section is primarily based on B. de Witte, note 7 above, pp. 869-874, Craig and de Búrca, EU Law, (1998), pp. 327-331, Due and Gulmann, "Community Fundamental Rights as Part of National Law," in Scritti in Onore di Mancini, (1998), Volume II, pp. 404-422, and A. von Bogdandy, note 3 above.

13 The important cases are Case 5/88, Wachauf, [1989] ECR 2609 (implementation measures), Case C-260/89, ERT, [1991] ECR I-2925, and Case C-368/95, Bauer Verlag, [1997] ECR-I 3689 (measures restricting common market freedoms based on treaty provision and case law doctrine, respectively). For two recent cases that fell outside the scope of Community law, see Cases C-299/95, Kremzow, [1997] ECR I-2629, and C-309/96, Annibaldi, [1997] ECR I-7493.

14 See Title IV TEC on Visas, Asylum and Immigration. The jurisdiction of the Court in relation to Member State measures under this Title is limited, however, see Articles 68(2) and 64(1). See for a critical comment on this "gap" in the EU human rights protection, J. Cooper and R. Pillan, "Through the Looking Glass: Making Rights more Visible," in K. Feus (Ed.), The EU Charter of Fundamental Rights, (2000), pp. 111-128, at p. 114. See also note 4 above.

15 See, e.g., ERT, note 13 above, para. 42, and note 160 below, and J.H.H. Weiler, note 7 above, pp. 124-126.

16 Article 51(1) of the Charter, a crucial provision in the horizontal chapter, says that the provisions of the Charter are addressed to the Member States only insofar as "they are implementing Union law." The language does not fit very well with the broader approach in the case law of the Court. Two possible ways of reconciling Article 51(1) with the current case law could be imagined: (1) to give a liberal interpretation to the word "implementing," or (2) to simply continue the current practice in relation to Member State measures, but base it on precedent and general principles rather than a formal application of the Charter. Compare note 4 above about the omission of a reference to Member State measures in Article 46(d) TEU.

17 This section is primarily based on K. Lenaerts, note 4 above, pp. 575-600, D. Spielmann, "Human Rights Case Law in the Strasbourg and Luxembourg Courts," in Alston (Ed.), note 5 above, pp. 757-780, J.P. Jacqué, "The Convention and the European Communities," in Macdonald et al. (Eds.), The European System for the Protection of Human Rights, (1993), pp. 889-907, and I. Cannor, "Primus Inter Pares. Who is the Ultimate Guardian of Fundamental Rights in Europe?," 25 E.L. Rev. (2000), pp. 3-21.

18 See, e.g., the European Commission of Human Rights decision in M. and Co. v. FGR, App. No. 13258/87 (1990), 64 DR 138. The European Court of Human Rights has recently decided that it can assess Member State responsibility for Community measures, which are beyond the review of the ECJ, e.g., provisions of the Treaties, see Matthews v. UK, (1999), Reports 1999-I, and I. Cannor, note 17 above.

19 See Opinion 2/94, [1996] ECR I-1759, in which the ECJ held that the Community does not, as the law stands, have any competence to accede to the ECHR. The Court did not rule on the institutional compatibility issue, as there was no draft treaty to consider, but said, as part of the competence reasoning, that accession would "entail a substantial change of the Community system for the protection of human rights," which would be of "constitutional significance." See for a critical comment, J.H.H. Weiler and S. Fries, "A Human Rights Policy for the EC and the EU: the Question of Competences," Harvard Jean Monnet Working Paper 4/99, pp. 2-6.

20 See European Council Conclusions from Cologne, Annex IV, "Decision on the Drawing up of a Charter of Fundamental Right of the European Union," dated June 3-4, 1999.

21 See discussion in A. von Bogdandy, note 3 above, pp. 1337-38.

22 See Point B(ii) of Annex to the European Council Conclusions from Tampere, "Composition, Method of Work and Practical Arrangements for the Body," dated October 15-16, 1999. The "in principle" reservation and the fact that only documents submitted at hearings of the Convention would be covered by this transparency provision is problematic, see 2.6., 4.3., and 5. below.

23 In a recent article, Judge Melchior Wathelet of the ECJ briefly discusses various ways the Court might use the Charter as it stands. Most noteworthy is his idea that the ECJ might regard the Charter as a binding inter-institutional agreement, see "La charte de droits fondamentaux: un bon pas dans une course qui reste longue," 36 Cahiers de droit européen, (2000), vol. 5-6, pp. 585-593, at p. 591.

24 See opinion of March 22, 2001, by Advocate General Jacobs in Case-270/99 P, Z. v. European Parliament, para. 40 ("The [Charter], while itself not legally binding, proclaims a generally recognised principle" on the right to have affairs handled by the institutions within a reasonable time; used to support conclusion), and opinion of February 8, 2001, by Advocate General Tizzano in Case C-173/99, BECTU, paras. 26-28 ("[F]ormally, [the Charter] is not in itself binding [but] it includes statements which appear in large measure to reaffirm rights which are enshrined in other instruments. [...] Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right.") Both opinions are available at the web site of the Court ( Reference to the Charter is also said to have been made in recent decisions by judicial authorities in Spain and France. See also P. Eeckhout, "Some Reflections on the Legal Effect," in K. Feus (Ed.), note 14 above, pp. 97-110, at pp. 104-105.

25 See bibliography (Annex I) for academic articles and comments on the Charter so far. Apart from these sources, this section of the paper has primarily been based on news reports, information from the web sites of the institutions (see and information from participants in the Convention.



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