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The first draft of what would eventually become Article 53 was put forward by the Praesidium in February 2000 along with a few other horizontal provisions and the first draft set of civil and political rights.26 The Chairman, Roman Herzog, former President of Germany (1994-99) and President of the German Federal Constitutional Court (1987-94), announced that the draft horizontal provisions were not submitted for discussion but were merely meant as an illustration of a possible way of solving horizontal problems closely linked to the drafting of specific rights.
The draft, called Article Z, was only concerned with the relationship between the Charter and the ECHR. It read as follows:
"Article Z. Level of protection.
No provision of this Charter may be interpreted as placing restrictions on the protection afforded, in conformity with Article 6 of the Treaty on European Union, by the European Convention on Human Rights."
In a commentary, the Praesidium pointed out that the purpose of draft Article Z was to ensure that the level of protection of human rights in the Union could not be inferior to that afforded by the ECHR, regardless of the wording of the Charter. The relationship between the Charter and the ECHR had been raised frequently during the first meetings of the Convention. Confirming the status of the ECHR explicitly would make it possible to depart from the wording of the more than 50-year old ECHR without altering the standard of protection, an exercise several Members of the Convention thought was crucial in light of the overarching purpose of the Charter: to strengthen EU human rights by making them more visible and comprehensible to the public.
The draft was, at least in part, based on a discussion note from the Secretariat on the horizontal questions, commissioned by the Chairman and distributed to the Members of the Convention in January.27 In the note, the Secretariat pointed out that the Charter would constitute a bill of rights that the Union imposes on itself, just as each state party to the ECHR has its own charter of fundamental rights. This fact does not, the note pointed out, excuse the Union from observing the ECHR as required by Article 6 TEU. The ECHR, it was underlined, constitutes a minimum standard and the Charter cannot step backwards in relation to the Convention as interpreted by the European Court of Human Rights. The note recommended the same approach with regard to "common constitutional traditions" (see 1.2. above) and suggested that the Charter should include a clause that would establish that nothing in the Charter would restrict the protection offered by the ECHR, "common constitutional traditions," and other relevant instruments.
The Praesidium and Secretariat did not follow up on their own suggestion to include a reference to "constitutional traditions" or other international instruments in the first draft Article on the level of protection, probably because the Praesidium, at this juncture, was primarily concerned with convincing Members of the Convention that the draft wording of the individual rights could legitimately differ from the wording of the parallel rights in the ECHR.
Even if the draft horizontal provisions were not submitted for discussion, draft Article Z did provoke at least two written comments. The French government representative (Vice-Chairman of the Convention, Guy Braibant) suggested omitting the reference to Article 6 TEU28, and the observers of the Council of Europe (Judge Marc Fischbach and Deputy Secretary-General Hans Christian Krüger) commented generally on the relationship with the ECHR.29 The observers stressed that the Charter could, in conformity with Article 53 ECHR, include other and/or broader rights than those found in the ECHR, and that a reference to the case law of the European Court of Human Rights would be useful, even if it could not entirely close the procedural gap between the two legal systems. The ultimate solution would be for the Community or the Union to become a Contracting Party to the ECHR. The Council of Europe therefore suggested that the Convention recommend to the IGC, as a complement to the adoption of the Charter, that the Community and/or the Union accede to the ECHR. From the beginning such proposals were, however, dismissed by Herzog as going beyond the Cologne mandate.
In its next draft of horizontal provisions, from early March, the Praesidium preserved the wording of Article Z except for a deletion of the reference to Article 6 TEU, as suggested by France. The draft article changed its name to Article Y.30 The Praesidium intended the draft only to provide material for consideration. It did not invite comments on the draft horizontal articles.
On March 16, the European Parliament adopted a resolution on the Charter process that contained several points of interests to the drafting history of Article 53.31 First of all, the Parliament noted, it is the primacy of Union law and the significant powers of its institutions to affect individuals which make it necessary to strengthen the protection of fundamental rights at the European Union level (preamble, consideration F). Second, the Parliament stressed that, like national provisions concerning fundamental rights, the Charter should not conflict with the ECHR (preamble, consideration R). Third, and perhaps most importantly in the context of Article 53, the Parliament emphasized that the Charter should not "replace or weaken Member States' provisions concerning fundamental rights" (point 12). The Parliament also suggested that the Charter incorporate standards applicable to the Union as set out in the international conventions signed by the Member States within the context of the UN, the Council of Europe, ILO and the OSCE (point 14).
At the seventh meeting of the Convention Praesidium in mid-April, the Council of Europe observers submitted amendments to the draft horizontal articles, including article Y.32 Again, the Council of Europe was primarily concerned with safeguarding the ECHR as the minimum standard and ensuring a reference to the case law of the European Court of Human Rights. Following a thorough discussion with the Council of Europe observers, the Praesidium resumed its work as a drafting committee and, together with the Secretariat (headed by a Director in the Legal Service of the Council and former professor in EU law, Jean-Paul Jacqué), reviewed the preliminary drafts of the horizontal articles. In close cooperation with the Praesidium, especially Chairman Herzog and Vice-Chairman Braibant (who took over much of Herzog's work towards the end of the drafting process when Herzog essentially withdrew from the process for family reasons), the Secretariat was "the holder of the pen" throughout the Convention, producing the initial drafts of the Charter Articles and adjusting them along the way. The Secretariat held close private consultations with the Legal Service of the Commission, not least on the horizontal articles.33
The discussions resulted in a new draft set of horizontal provisions distributed to the Members of the Convention the following day, this time with a view to discussion at a forthcoming plenary meeting.34 The proposal contained five horizontal provisions, Articles H.1 through H.5. The new draft of the-level-of-protection article, Article H.4, had changed considerably and was now obviously inspired by Article 53 ECHR. It read as follows:
"Article H.4 Level of protection
No provision of this Charter may be interpreted as restricting the scope of the rights guaranteed by Union law, the law of the Member States, international law and international conventions ratified by the Member States, including the European Convention on Human Rights as interpreted by the case law of the European Court of Human Rights."
In its statement of reasons for draft Article H.4, the Praesidium explained that the object of the provision was to maintain the level of protection currently afforded by Union law, the law of the Member States and international law. The Praesidium added that, owing to its importance, the ECHR, "which constitutes in all cases a minimum standard," was mentioned specifically.
The draft text differed from Article 53 ECHR mainly by being more explicit, e.g. by referring to Union law specifically (and not only international law or agreements ratified by Member States) and by referring to the case law of the European Court of Human Rights. But the model was clearly Article 53 ECHR.
The first plenary discussion of the horizontal clauses took place at an unofficial meeting of the Convention on May 3-4, 2000.35 At the meeting, the Dutch Government representative (Frits Korthals Altes) and a German parliamentarian (Peter Altmaier) expressed concern over the reference to "national law" in draft Article H.4. They feared that the uniform application and supremacy of Community law could be endangered by such a reference. Several Members, including a parliamentarian from Finland (Yuija Brax), supported the draft, emphasizing that the Charter should only be a set of minimum standards. The Greek government representative (George Papadimitrio) suggested a compromise by replacing the reference to "the law of the Member States" with a reference to "the constitutional law of the Member States," a proposal that would be adopted with only a slight, linguistic modification by the Praesidium in its next draft.
The reference in draft Article H.4 to the case law of the European Court of Human Rights provoked a much longer and more heated discussion. Some Members of the Convention, not least Vice-Chairman Braibant, expressed concern that the reference would muddle the distinction between legislator and adjudicator by giving carte blanche to the European Court of Human Rights. Others found it degrading to the European Court of Justice that only the case law of the European Court of Human Rights was mentioned (Alvaro Rodriguez-Bereijo, Spanish government). Yet others suggested that only a "static" reference to the case law of the European Court of Human Rights, i.e. as it stands at present, be included (Altmaier, German parliamentarian). Throughout the drafting process, active and influential Government representatives from the "Northern Dimension" of the Convention, such as Lord Goldsmith (UK), Daniel Tarchy (Sweden), Erling Olsen (Denmark), Paavo Nikula (Finland) and Michael O'Kennedy (Ireland) along with Judge Fischbach from the Council of Europe, expressed strong support for a reference to the case law of the European Court of Human Rights, in one of the Charter provisions, not necessarily Article 53. As was pointed out during the first discussion from this side, any attempt to "freeze" the level of protection as expressed in the current case law under the ECHR would run counter to Article 6 TEU (Eaton, UK government, Alternate Member).
Chairman Herzog concluded that there seemed to be general support for an Article like draft Article H.4. Important arguments, however, had been advanced to either delete or rephrase the reference to the law of the Member States. Herzog thought that the reference to the ECHR should either be in Article H.2 ("scope of guaranteed rights," Article 52 in the final version) or in Article H.4, not both. (Eventually the reference was maintained in both places, which has caused some overlap, at least in the official explanations, see 4.1. below). As to the reference to the case law of the European Court of Human Rights, Herzog suggested that it be included in what was then suggested by some Members to be a separate part B of the Charter explaining all the legal niceties. (A reference to case law, from both Courts, was eventually confined to the preamble and the explanations.)
By mid-May the Praesidium tabled a new draft set of horizontal articles.36 The level-of-protection article had been modified on the basis of the discussions in the plenary meeting, most notably by limiting the reference to national law to "constitutions" and by deleting the reference to the case law of the European Court of Human Rights. Other, subtler changes were also introduced. The draft Article, Article 49, read as follows:
"Article 49. Level of protection
Nothing in this Charter shall be interpreted as restricting or undermining human rights and fundamental freedoms recognised, in their respective fields of application, by the Member States' constitutions, international law and 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."
The subtler changes introduced in draft Article 49 included the following: (a) "Nothing ... may" was strengthened to "Nothing ... shall"; (b) "the scope of" rights was deleted; (c) the word "rights" was linguistically narrowed to "human rights and fundamental freedoms"; (d) "restricting" was broadened by adding "or undermining"; (e) "guaranteed" was replaced with the softer and broader "recognised"; (f) the rights were qualified by the new proviso, "in their respective fields of application"; (g) the reference to "Union law" was left out; and (h) the reference to international agreements of Member States was broadened, but also qualified, by referring to agreements "to which the Union, the Community or all Member States are party" (emphasis added).
The changes seem to reflect somewhat contradictory intentions: some of the changes broadened the scope of the provision, others limited it. In general, though, the changes did not significantly alter the meaning of the provision. Significant, however, was the insertion of the words "in their respective fields of application." There is no indication in the official record of the Convention of how, why or by whom this seemingly important qualification was inserted. Thus, Members of the Convention had to be rather alert to notice the change; it is not surprising that no questions were apparently raised in the ensuing discussions. Sources closely involved in the drafting have revealed that the proviso was inserted (along with the other changes) as a result of extensive consultations between the Legal Service of the Commission and the Secretariat (i.e. the Legal Service of the Council). The intention was to foreclose any doubt about the supremacy of Community law over national constitutions, and the understanding of the two Legal Services was that the revised wording would make it clear that national constitutions could only prevail in the (limited) sphere of exclusive national competence.37 The logic of this intended reading is debatable, especially given the fact that the Charter is only addressed to the Member States insofar as they implement Union law (Article 51(2)). The issue will be discussed further in 4.1. below.
The statement of reasons which accompanied draft Article 49 were identical with those which accompanied the previous draft, except that it was added that the reference to the ECHR "obviously means the Convention as interpreted by the European Court of Human Rights, whether now or in the future, by virtue of the principle that any interpretation is incorporated into the text interpreted." This was clearly meant to accommodate the Members who had strongly favored the now-deleted reference to ECHR case law. The statement further added that "the same holds for the case law of the Court of Justice of the European Communities with respect to Community law." The reference to the European Court of Justice and Community law in the explanations is somewhat puzzling given the fact that the reference to Union law from the previous draft Article had been omitted in draft Article 49. Eventually, the reference to Union law was reinserted in the very final draft (Article 53), but the reference to the case law of the European Court of Justice in the explanations was not repeated in later drafts or the final version. It seems possible that the exclusion of the reference to Union law in draft Article 49 (and two later draft Articles, 51 and 52, see below) was an inadvertent omission.
After tabling the draft articles in mid-May, the Praesidium invited the Convention Members to submit written proposals for changes before June 5, 2000. More than one thousand written amendments to the draft articles on economic and social rights and horizontal issues were submitted and distributed in one document.38 The Secretariat prepared an analysis and grouping of the amendments and came up with suggestions on which proposals to take on board. This document was issued in the beginning of July.39
Again positions differed on a wide spectrum. But draft Article 49 was not a highly contentious issue; most proposals relating to this provision were aimed at fine-tuning the wording rather than substantially changing it, and the bulk of proposals related to other provisions, including some of the other articles in the chapter on horizontal issues, but mainly to the individual rights and freedoms. Fewer than twenty amendments related to draft Article 49.
An outlier amendment in one end of the spectrum was a proposal to delete the entire Article, submitted by Cederschiöld, Swedish MEP (Christian Democrat Group)40, who argued, inter alia, that the reference to "constitutions" contradicted the very idea of a Charter and would imply a Europe "à la carte" in the constitutional area. On the other end of the spectrum was a proposal to vastly broaden the scope of draft Article 49, submitted by Euro-skeptic Jens-Peter Bonde, Danish MEP (Europe of Democracies and Diversities Group).41 This proposal is worth quoting for the purposes of the ensuing analysis of Article 53. In English it would read something like this: "Nothing in the law of the Union, the Treaties and this Charter can be interpreted in a way that would run against human rights as these are interpreted by The European Court of Human Rights in Strasbourg, or against the fundamental rights in national constitutions as these are interpreted by the national constitutional or supreme courts."42 The object of the amendment was clearly to limit Community powers in general and weaken, if not eradicate, the principle of supremacy. In its document de synthese, the Secretariat did not state the true gist of the proposal but only said that Mr. Bonde had proposed to include a reference to national courts in Article 49 (see note 46 below).
Among the other, more moderate proposals worth highlighting were proposals by the UK government representative, Lord Goldsmith, drawing on a comparison to Article 53 ECHR, and by Jean-Maurice Dehousse (Belgian MEP, European Socialists Group), to reinsert a reference to "the law" and not only "the constitutions" of the Member States.43 Also noteworthy was an amendment proposed by two German MEPs (Ingo Friedrich and Peter Mombaur, Christian Democrats Group), who argued that the draft could be understood as a "material norm of collision" (implying that such a reading could jeopardize the supremacy principle) even if, it was admitted, the intention was to make clear that the Charter provided minimum standards.44 The Belgian government and parliament representatives proposed to replace "constitutions" with "constitutional traditions common to the Member States" to achieve, as it was said, better harmony between Article 53 and Article 6(2) TEU.45 One amendment (by Einem and Holoubek, Austrian parliamentarians) suggested, among other things, to delete the "in their respective fields of application" clause because it was confusing and unnecessary by comparison to Article 53 ECHR.46
Several Members suggested (re)inserting a reference to the case law of the European Court of Human Rights and/or to the European Court of Justice.47 The important battle over this reference, however, was now fought under draft Article 47(2) (eventually Article 52(3)), and not draft Article 49. As earlier indicated, the opposing sides were the UK, Sweden, Denmark, Ireland, the Netherlands and Finland, which all more or less insisted on such a reference, and Spain, Italy, Greece and France, which strongly opposed any such reference (see 2.3. above).48 The other amendments were less significant.49
In its document de synthese, the Secretariat proposed, with no statement of reasons, to take only one written proposal on board. This was an amendment introduced by Gunnar Jansson (Finnish parliamentarian and one of the Vice-Chairmen of the Convention) to move the reference to the Member States' constitutions to the very end of the Article.50 The intention of Mr. Jansson was to highlight rather than weaken the reference to constitutions. The Secretariat did not attach any legal significance to the re-arrangement and was thus able to accommodate Mr. Jansson, who had tabled other amendments that could not be taken on board.51
Throughout the proceedings the Praesidium and Secretariat would often tell Members of the Convention that their amendments were offset by opposite proposals and could therefore not be taken on board. Although this was probably often the case, and one can imagine how difficult a task the Secretariat was confronted with, the point illustrates the enormous influence the draftsman exercises in such a process (see 2.6. below).
At an official plenary meeting on June 29, 2000, the Convention discussed the draft horizontal provisions again, along with drafts of all the substantial rights provisions. The debate on the horizontal issues focused mainly on such questions as to what extent the Charter was addressed to Member States (draft Article 46 (1), eventually Article 51(1)), whether and how to include a reference to subsidiarity, whether to include a reference to case law, and how to secure compatibility with the ECHR. Little was said about draft Article 49.52
Vice-Chairman Braibant led the discussion on the horizontal provisions. He expressed the opinion that the horizontal provisions were the most important and most difficult. But while these provisions were in many ways the key to the Charter, he said, they were also so self-evident that they were almost superfluous. Other Members, including Lord Goldsmith, objected to this characterization.
The interventions regarding draft Article 49 were few and resembled the written amendments from May. Some again objected to any mention of agreements entered into by "the Union" (which at present, unlike the Community, has no (self-defined) legal personality); others wanted to continue the discussion about a reference to the case law of the European Court of Human Rights from foregoing draft Articles; some wanted a reference to the Universal Declaration of Human Rights; and several Members emphasized the importance of presenting the Charter as a set of minimum standards, not a ceiling of protection. For most Member States (not only the less integrationist ones such as the UK and Denmark) draft Article 49 was important to proclaim for the world to see that the Charter would not replace or require changes in the national constitutional systems of human rights protection. The draft, as it stood, clearly served that purpose, at least from a public relations point of view. The European Parliament shared this view (see 2.2. above about the Parliament's March resolution). The Commission was likewise satisfied; the fingerprints it left on the draft Article through its private consultations with the Secretariat had survived.
The crucial discussion on the relationship of the Charter to the ECHR had basically moved to draft Article 47 (eventually Article 52(3)). The principal aim of this provision was to make sure that the protection of Charter rights corresponding to those found in the ECHR, but with a revised wording, would never fall below the level of protection afforded by the ECHR. The fear was that without such a provision the revised rights wording would reduce, rather than enhance, legal certainty. In many ways the real "level of protection" discussion was now focused on draft Article 47 rather than the draft Article entitled "Level of Protection." A solution under Article 52(3) was eventually found by drawing up a list in the explanations to the Charter of which rights correspond to the ECHR rights and which go further.
The Council of Europe (Judge Fischbach) expressed general satisfaction with draft Articles 47 to 49.53 However, Fischbach still supported those Members who wanted a reference to the case law of the European Court of Human Rights somewhere in the Charter. He stressed that even if, contrary to all expectations, the level of protection afforded by the Strasbourg Court should deteriorate as a result of the many new Contracting Parties, nothing would prevent the EU from giving a broader interpretation to the corresponding rights in the Charter, cf. Article 53 ECHR.
At the end of July, the Praesidium distributed a new complete draft of the Charter in two editions - one with the bare text and one with explanations to each article.54 What was to become Article 53 was now called draft Article 51 and differed from the previous text only on two points: first, the reference to the Member States' constitutions had been moved to the end of the article, as proposed by Vice-Chairman Jansson, and second, the word "undermining" had been substituted with the slightly less dramatic and broader expression "adversely affecting."
The explanations to draft Article 51 had changed slightly more since the previous commentary to then draft Article 49. First, the "it goes without saying" explanation about the inclusion of case law from the European Court of Human Rights when referring to the ECHR had been moved up under the commentary to draft Article 50(3) (eventually Article 52(3)). Second, the contingent, parallel reference to case law from the European Court of Justice as regards Union law had been deleted. Third, a new paragraph had been inserted in the end of the commentary, stating that "the level of protection afforded by the Charter may not, in any instance, be lower than that guaranteed by the Convention, with the result that the arrangements for limitations may not fall below the level provided for in the Convention" (emphasis added). It is somewhat strange why this last comment - which survived as "annexed" to Article 53 into the final version of the Charter explanations - was not incorporated under the explanations to then draft Article 50(3), now Article 52(3), which exactly deals with "limitations" instead of Article 53.
Again, the Council of Europe observers were generally satisfied with the new draft of the horizontal provisions, especially the new paragraph 3 of draft Article 50 (eventually Article 52(3)).55 The observers described the reference to case law in the explanations as vital, but still maintained that the risk of inconsistencies between the two Courts could best be remedied by accession of the Community to the ECHR.
In a communication issued in September, the Commission, which judging from the record maintained silence in all the open discussions of the horizontal issues, expressed its satisfaction with the draft horizontal provisions.56 On draft Article 51, the Commission said it fully shared the desire expressed in that provision "to prevent the Charter restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by the various laws and agreements in force in the Union" (emphasis added). The Commission also emphasized that the Charter would not require, as evidenced by the discussions within the Convention, any amendments to the Member States' constitutions. "As regards the respect for fundamental rights at national level, in its field of application, [the Charter] will clearly not replace national constitutions" (emphasis added). The Commission clearly attached importance to the clause on the "fields of application," which it had fathered together with the Secretariat.
In late September, the Praesidium distributed a revised, complete draft that had been finalized by a Legal Linguistic Working Party under the Convention.57 This was the second-to-last draft. In it, the draft "level of protection" provision was kept intact, except for a change in number to draft Article 52. The commentary to what was then draft Article 51(3) (eventually Article 52(3)) included the important draft appendix listing which Articles of the Charter corresponded to the Articles of the ECHR and which Articles had a wider scope. This made it even clearer that draft Article 51(3), not draft Article 52, was the provision that secured the consistency of the Charter with the ECHR, even if the explanations suggested (and still in the final version suggest) otherwise.
As one of the only individual Members of the Convention to submit written amendments at this late hour, Mrs. Ieke van den Burg, Dutch MEP (European Social Democrats Group), repeated her suggestion (see note 49 above) that draft Article 52 should include a reference to the European Social Charter, and that the word "all" in front of Member States, qualifying the international agreements covered by the provision, should be deleted.58 She stressed the point that this would not mean that Member States not party to the European Social Charter or other international conventions would be bound by such instruments, no more than a Member State via the Charter would be bound by another Member State's constitution. The reference would simply highlight that individual Member States might have further-reaching international human rights obligations than other Member States. Her proposal, which according to the record was not distributed by the Secretariat until October 17, more than two weeks after the Convention had concluded its work, was not adopted.59
In the final text of the Charter, distributed on October 11, Article 53 finally became Article 53.60 As mentioned earlier, the reference to "Union law" was reinserted at this late point. The birth of the Charter had been celebrated a week earlier, after nine months of labor, at a ceremony dissolving the Convention to the tones of Beethoven's Ninth Symphony.61 The draft was finalized just in time for the European Council, in Biarritz on October 13-14, 2000, to "welcome" the text. Coinciding with the opening of the final, decisive round of the IGC in Nice, on December 7, 2000, the European Council approved the Charter followed by a "solemn proclamation" by the trinity comprising the Parliament, the Council and the Commission. As the IGC discussions ended, those who had hoped for a binding Charter, integrated in the Treaties somehow, including the Commission and Parliament, were disappointed. (See 1.3. above on the current status of the Charter).
Two post festum declarations, of relevance to Article 53, are worth mentioning. On October 11, the Commission issued another communication on the Charter which once again stressed that the Charter made clear that the Member States would not have to amend their constitutions.62 In an almost Member-State-deferential tone, the Commission stated that "it might have been feared" that national constitutional amendments would have been necessary, but this had been prevented by "one of the general provisions of the draft" (an implicit reference to Article 53) and by the definition of rights the Charter sets forth. "At the end of the day," the Commission went on, "it is clear that the Charter will not replace national Constitutions in the area within [their] scope - respect for fundamental rights at national level. And it is clear that the relationship between Union primary law, which would include the Charter if it is incorporated in the Treaties, and national law will remain unchanged." The choice of words is again a clear indication of the fears for the sanctity of EU law supremacy, which the Commission harbored but addressed only in closed drafting sessions.
The Council of Europe observers also submitted comments on the final text.63 They found that Article 52(3) in conjunction with Article 53 ensured "an identity of scope and meaning between the rights contained in the two instruments [Charter and ECHR], without preventing Union law from affording wider protection than that provided by the ECHR." The recognition of the ECHR as a minimum standard "is entirely compatible with the ECHR, Article 53 of which indicates that the ECHR is not intended to impose a uniform level of protection [...], but solely to ensure a minimum standard."
The drafting history of Article 53 was initially characterized by a somewhat fumbling approach. The original draft, being focused exclusively on the relationship between the Charter and the ECHR, was gradually, almost organically, transformed into an entirely different creature, bearing close resemblance to Article 53 ECHR, but with marked differences and many interpretive questions left to ponder.
The political aim of the provision, however, was never really contested, if perhaps never clearly articulated in the wording or the title of the provision. There seems to have been near-consensus throughout the process on the need to ensure that the Charter should not necessitate constitutional amendments in the Member States, and that Article 53 should guarantee that for the world to see. Not only the Member States, but also the European Parliament (see e.g. resolution of March 16) and, at least ex post facto, the Commission (see especially the last Commission communication) shared this view. The consensus is easy to explain from a political perspective. It is perhaps more difficult to understand from a legal point of view why Member States and others feared that the Charter by itself could necessitate constitutional changes. But the political and symbolic value, indeed necessity, of the horizontal provisions is indisputable.
The difficult and rather contentious issue of the relationship between the Charter and the ECHR was gradually relocated to other provisions in the horizontal chapter, especially Article 52(3). This provision and Article 51 (confirming that no new Community powers are created by the Charter and that the Charter is only directed to Member States when they are implementing Union law) were crucial for the adoption of the Charter.64
The Council of Europe observers played an extremely important role in the horizontal discussions, also with respect to Article 53. Apart from their early draft proposal, submitted to the Praesidium, they also shed light on the true nature of an Article 53-like provision by frequently referring to the equivalent provision in the ECHR. The rather heated debate as to what extent the Charter should refer to the case law of the European Court of Human Rights was also influenced by the Council of Europe observers, who gave weighty support to the "friends of the Strasbourg Court" among the Member States. The important role of the Council of Europe observers, even if they were not actual Members of the Convention, is not surprising, given their natural authority and expertise in the field of European human rights instruments.
It is more surprising that the concerns of the compatibility with the cornerstones of the Community legal order, including the doctrine of supremacy, were not voiced by institutional actors in the open. The issue was raised only by a handful of individual Members, either in meetings at the very early stages and in a few among thousand later, written amendments, which were not highlighted by the Secretariat (see note 46 above). Observers from the European Court of Justice refrained from taking active part in the Convention out of fear that they might prejudice later interpretation and application of the Charter. More remarkable was the silence of the Commission, the Guardian of the Treaties. The Commission did effectively assert its interests, but through behind-the-scenes amendments, such as the inclusion of the "in their respective fields of application" proviso. The reticence of the Commission seems to have been motivated by a wish to let sleeping dogs lie.
Even if the Charter process was extraordinarily open, the drafting history of individual provisions and the purpose of the incremental changes from draft to draft are far from transparent. In some ways, tracking provisions of human rights conventions drawn up at diplomatic conferences under the auspices of the United Nations is easier. The uniquely pluralistic and diverse process for the drafting of the Charter has much to be said for it, in terms of popular participation and legitimacy, especially as compared to the traditionally secretive treaty-making process of the EU. But such a process may also enhance and disguise the power of the draftsmen who lurk behind the piles of drafts and amendments, and may thus paradoxically produce less, rather than more, accountability. The process is probably not better suited than traditional diplomacy to bring about legal certainty of the end-result - especially when the work takes place under the kind of time pressure the Convention was subject to. Add to this the singularly complex legal and political questions involved in reconciling at least three distinct, yet intertwined, systems of human rights protection (at the national, regional and supranational levels), and it should be no surprise that legal scholars will be intellectually well-fed for years to come with the Charter as it stands.
As with all international instruments, the legal significance of the Charter drafting history is debatable. Given the fact that interpretation of the Charter, should it become binding EU law, would ultimately rest with the European Court of Justice, the relevance of the drafting history has to be viewed in the context of EU law, rather than ordinary public international law.
Traditionally, travaux préparatoires have played a very limited role in the case law of the European Court of Justice.65 Arguments, mostly by Member States, based on explanatory reports or minutes from drafting meetings have usually failed - and with good reason, given the secrecy surrounding the negotiations and the fact that the preparatory works are seldom publicly available. A distinction, however, must be drawn between primary rules (the Treaties) and secondary legislation (regulations and directives). The Treaty drafts, amendments and minutes of the intergovernmental discussions are generally not publicly available, whereas initial drafts of secondary legislation are published. There have been cases where the Court has referred to "soft law" preparatory sources to secondary legislation such as joint declarations and even minutes of meetings between institutions66, but it is still exceptional. Access to documents has improved in recent years and has of late become a fundamental right enshrined in the EC Treaty (Article 255) as well as the Charter (Article 42). However, most legislative deliberations, e.g. Council meetings and conciliation committee meetings between the Parliament and the Council, still take place behind closed doors. With the advent of the Amsterdam Treaty, the Council, when it acts in a legislative capacity, must now make public the results of the votes and explanations of vote as well as statements in the minutes (see Article 207(3) TEC). This development towards more openness might lead to a less restrictive approach to such supplementary sources by the Court.
Special considerations with respect to the Charter might favor a more open approach to its travaux préparatoires. The question depends to some degree on how and to what extent the Charter is made binding. Should the IGC in 2004, contrary to what is expected, reopen the Charter to incorporate some, but not all, provisions and perhaps even revise certain provisions, the work of the Convention would probably be given limited weight by the Court. If, however, the entire Charter, as is, is incorporated into EU law by reference in the Treaties or as secondary legislation, it seems more likely that the Court would be willing to look at the legislative record. Especially given the accessibility to most of the documents. The special and novel "democratic" nature of the drafting process could also, in itself, be an argument in favor of admitting evidence on the preparatory work. However, as explained in 2.6. above, the Charter Convention type of drafting process may be a double-edged sword in terms of accountability.
Even if the Court would be willing to examine the drafting history to clarify the meaning and purpose of individual provisions, reference to the legislative record will probably only rarely be helpful. The previous discussion of several points relating to Article 53 suggests that the record will often be either silent or confusing. The helpfulness of the travaux préparatoires will vary from case to case depending on several factors, such as the factual context, the degree of doubt emanating from the provision in question and the generality or specificity of the evidence sought. Time is probably also a factor, in the sense that cases to be decided many years from now are less likely to depend on old drafting documents.
A related question is what significance the Court would give to the explanations of individual Charter provisions prepared by the Secretariat of the Convention.67 The explanations are preceded by a disclaimer according to which they have "no legal value and are simply intended to clarify the provisions of the Charter." The fact is, however, that the explanations were crucial for many Members of the Convention, perhaps most importantly in relation to the list of corresponding and non-corresponding rights and the reference to case law of the European Court of Human Rights. An argument could therefore be made that the explanations should have special significance as travaux préparatoires. The disclaimer is quite unequivocal, though, but if the Court would be willing to look at other non-binding preparatory acts and minutes from the Convention, the explanations should certainly also be included in this group.68
It has been suggested that unfortunate, negative conclusions will likely
be drawn from the huge legislative record and the endless number of amendments
that were not adopted.69
There is some precedent for such inferences from negative legislative
history, most notably the Comitology case, but the cases have been rare
- not least, it seems, because of the secret status of legislative history in
the EU until recent times.70 The issue will be discussed further in 4.3.
below.
26 See Document 4123/1/00 Rev 1, CONVENT 5, of February 15, 2000. A general comment on the document references: what is referred to here as "Document" followed by a number, is formally preceded by a "CHARTE." There are a two main categories of CHARTE documents: CONVENT (in the beginning, BODY), mainly official documents from the Secretariat and Praesidium, e.g., the drafts of the Charter, and CONTRIB, which are contributions from individual Members of the Convention and others, distributed through the Secretariat. See the Council database at http://ue.eu.int/fr.
27 See Document 4111/00 BODY 3, of January 20, 2000.
28 See Document 4135/00 CONVENT 7, of February 21, 2000.
29 See Document 4136/00 CONTRIB 29, of February 28, 2000.
30 See Document 4149/00 CONVENT 13, of March 8, 2000.
31 See Document 4199/00 CONTRIB 80, of April 5, 2000, report by MEPs, Mr. Duff and Mr. Voggenhuber.
32 See Document 4305/00 CONVENT 31, of May 12, 2000. The amendment proposed by the Council of Europe was close to draft Article Y, but stressed the need for a reference to the case law of the European Court of Human Rights (See Document 4178/00 CONTRIB 61, of March 28, 2000; not available in database).
33 Based on information from participants in the Convention, see further 2.3. below.
34 See Document 4235/00 CONVENT 27, of April 18, 2000.
35 There is no official record of this meeting available from the Council database. The account here is primarily based on minutes from the meeting drawn up by staffers to the representatives from the Danish Parliament, in a note addressed to the Danish Parliamentary Committee on European Affairs (Info-note I 147 (99/00)), publicly available, in Danish, on the web site of the Danish Parliament (http://www.eu-oplysningen.dk/folketinget/europaudvalget).
36 See Document 4316/00 CONVENT 34, of May 16, 2000.
37 Based on information from EU officials closely involved in the drafting.
38 The document, more than a thousand pages long, is not available through the web-based Council collection of documents, but may be available on request from the Council. Excerpts of the document were provided to me by participants in the Convention.
39 See Document 4383/00 CONVENT 41, of July 3, 2000. In the following the document will be referred to as the document de synthese. It was accompanied by the following notice: "This purpose of this document, drawn up by the Secretariat at the request of the Convention, is to group the amendments to Article 31 to 50 (CHARTE 4316/00) according to topic. This analysis does not cover drafting and linguistic amendments. These will be subject to separate examination."
40 Amendment No. 425, as referred to in the document de synthese of the Secretariat, note 39 above. It is striking that the Secretariat did not indicate why this radical proposal was made; see thoughts on this issue in note 46 below.
41 Amendment No. 328, see note 39 above.
42 My translation from Danish as quoted in E. Olsen and J.P. Bonde, EUs Charter: Menneskerettighedserklæring eller Forfatning for Europas Forenede Stater? (The EU Charter: Declaration of Human Rights or a Constitution for the United States of Europe?), 2000, p. 18. Mr. Bonde was one of only three Members of the Convention who did not positively endorse the final draft of the Charter at the final meeting on October 2, 2000. Mr. Bonde opined that the Charter was like the cheese in a mousetrap, the mousetrap being a federal constitution of a United States of Europe.
43 Amendments No. 429 and No. 426, see note 39 above.
44 This amendment is not referred to in the Secretariat document de synthese section on draft Article 49. For a possible explanation, see note 46 below.
45 Amendment No. 436 (Dehaene, Belgian government representative, De Gucht and Lallemand, Belgian parliamentarians), see note 39 above.
46 Amendment No. 440. Again it is worth to note that the Secretariat did not refer to this element of the proposal in its document de synthese, see also notes 40, 42 and 44 above, about the Cederschiöld, Bonde, and Friedrich/Mombaum amendments. Based on the missing or incomplete references to these four amendments, which were the only amendments to, one way or the other, touch on the supremacy issue, it might be suspected that the Secretariat, by its selections, pursued a "let sleeping dogs lie" strategy in relation to this sensitive question. It would be regrettable if such a deliberate suppression of the issue did in fact occur.
47 Amendments No. 433 (Tarchys, Swedish Government representative), No. 434 (Voggenhuber, Austrian MEP, The Greens/E.F.A. Group), and No. 426 (Dehousse, Belgian MEP, European Socialists Group), see note 39 above.
48 Based on overall research of the official record and on information from participants in the Convention.
49 They were the following: Amendments No. 427 (Rodriguez-Bereijo, Spanish government representative) and No. 428 (Solé Tura, Spanish parliamentarian) suggesting deletion of the reference to international conventions to which the "Union" was party (Tarchy, Swedish government, also supported this deletion, although it is not apparent from the document de synthese); Amendment No. 438 (Barros Moura and Azevedo, Portuguese parliamentarians) suggesting inclusion of a reference to the UN Covenants, ILO Conventions and the Social Charter; Amendment No. 435 (van den Burg, Dutch MEP, European Social Democrats Group) suggesting addition of a reference to jurisprudence in general (She also strongly urged that a reference to the Social Charter be included, but this was not reflected in the document de synthese); Amendment No. 439 (Berès, French MEP, European Socialist Group) suggesting addition of a new subparagraph authorizing the establishment or maintenance of stronger national protection measures; Amendments No. 265 (Meyer, German parliamentarian) and No. 440 (Einem and Holoubek, Austrian parliamentarians) suggesting, in the summary of the Secretariat, addition of a paragraph on the interpretation of economic and social rights by reference to the Treaties and to international agreements (see note 40 above about other parts of their proposal).
50 The document de synthese does not refer to the number of Mr. Jansson's amendment or, more importantly, the accompanying reasons, see note 39 above. The Secretariat indicated in its note that Article 49 would thereafter be renumbered to Article 46, but no official draft Charter is available with that numbering, although there is some evidence that the Article was referred to as Article 46 during the plenary meeting of the Convention on June 29, 2000, see below. This paper will refer only to draft Article 49.
51 Based on information from EU officials closely involved in the drafting.
52 There is no official record of this meeting available from the Council database. The account here is based on information from participants in the Convention and on minutes from Danish parliamentarians, (Info-note I 188 (99/00), see note 35 above.
53 Intervention during the meeting on June 29, 2000, also submitted in writing, see Document 4411/00 CONTRIB 268, of July 13, 2000.
54 See Document 4422/00 CONVENT 45 (Draft Charter), of July 28, 2000, and Document 4423/00 CONVENT 46 (Draft Charter with explanations), of July 31, 2000.
55 See Document 4475/00 CONVENT 45, of September 19, 2000.
56 See Document 4477/00 CONTRIB 328, of September 20, 2000, by which the Secretariat distributed Commission Communication (COM(2000) 559 final) to Members of the Convention.
57 See Document 4470/1/00 REV 1 CONVENT 47, of September 21, 2000.
58 See Document 4953/00 CONTRIB 353, of October 17, 2000. The contribution was dated September 20, 2000.
59 Even if Mrs. van den Burg's amendment had been distributed earlier, the proposal on the European Social Charter would most likely have been vetoed by Member States not party to the new revised European Social Charter.
60 See Document 4487/00 CONVENT 50 (Charter text), of October 11, 2000, and Document 4473/00 CONVENT 49 (Charter text with explanations), of October 11, 2000.
61 The story goes that the music was turned on and the champagne bottles uncorked just as some of the few "recalcitrant" Members of the Convention were about to express their disapproval of the Charter.
62 See COM(2000) 644 final of October 11, 2000.
63 See Document 4961/00 CONTRIB 356, of November 13, 2000.
64 Confirmed by participants in the Convention.
65 See, e.g., Weatherhill and Beaumont, EU Law, (1999), pp. 186-190.
66 See Weatherhill and Beaumont, note 65 above, at p. 189 with reference to Case C-106/96, UK v. Commission, [1989] ECR I I-1279.
67 See Document 4473/00 CONVENT 49 (Final Charter text with explanations), of October 11, 2000
68 In a small number of cases concerning the EC Brussels Convention, the Court has been influenced by the explanatory reports to the Convention, which are published in the Official Journal. See Weatherhill and Beaumont, note 65 above, p. 189.
69 The point was made by Professor Joseph Weiler in a lecture on the Charter given at Harvard Law School on November 14, 2000.
70 The Comitology judgment did not relate to human rights, but rather institutional rights, namely locus standi of the Parliament before the Court. In refusing to give the Parliament locus standi, the Court expressly referred to the fact that the Member States had considered, but decided not to include the Parliament in the list of possible plaintiffs under Article 230 (ex Article 173) TEC at the IGC in 1985. See Case 302/87, European Parliament v. Council, [1988] ECR 5615, 5644. Later, however, the Court reversed its decision and accorded the Parliament limited locus standi, despite the clear wording of the Treaty provision and the travaux préparatoires. See Case C-70/88, European Parliament v. Council (Chernobyl), [1990] ECR I-2041.