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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?

Jonas Bering Liisberg ^**

• Abstract:
• 1. Introduction
  • 1.1. Purpose and Scope of Paper
  • 1.2. Fundamental Rights in the EU at Present
  • 1.3. The Charter - Purpose, Process and Result
• 2. The Drafting History of Article 53
  • 2.1. First Tentative Drafts - Only Concern is ECHR
  • 2.2. Article 53 Begins to Take Shape - Reference to National Law Inserted
  • 2.3. Consultations Between Secretariat and Commission Behind Closed Doors
  • 2.4. Amendments from the Convention Members
  • 2.5. Relocation of ECHR Compatibility Discussion - Debate on Article 53 Fades Out
  • 2.6. The Final Text
  • 2.7. Characteristics of the Drafting History
  • 2.8. Legal Significance of the Drafting History
• 3. Comparison to Similar Provisions in Other Human Rights Instruments
  • 3.1. Earlier Draft European Parliament Instruments
  • 3.2. The European Convention on Human Rights
    • 3.2.1. Text of Article 53 ECHR
    • 3.2.2. Case-law
    • 3.2.3. Theory
    • 3.2.4. Conclusion on Article 53 ECHR
  • 3.3. International Conventions on Human Rights
  • 3.4. The United States Bill of Rights
• 4. Legal Implications of Article 53?
  • 4.1. A Threat to the Supremacy of Community Law?
  • 4.2. An Avenue for New or Wider-ranging Rights in the EU?
  • 4.3. Does Article 53 Freeze the Current Level of Protection in the EU?
  • 4.4. A Tool to Solve Cases Involving Collision of Different Human Rights?
• 5. Conclusion
  • 5.1. The Chronicle of an Inkblot Foretold
  • 5.2. Should Article 53 be revised or left out?
• Annexes
  • 1. Bibliography
  • 2. List of Cases
  • 3. List of Instruments
  • 4. Special Abbreviations

^* This paper was awarded the Mancini Prize for 2001 established in honor of Federico Mancini, a judge of the European Court of Justice. The Mancini Prize is awarded annually for the best student essay, written during the current academic year, relating to the law of the European Union.

^** Head of Section in the Legal Service of the Danish Ministry of Foreign Affairs. The paper is an LL.M. paper submitted to and supervised by Professor Joseph Weiler at Harvard Law School during the spring of 2001. I am greatly indebted to Professor Weiler not only for his support and supervision but also for planting the seed to the paper through a question on Article 53 of the Charter in his winter exam on EU law. I gratefully acknowledge comments from Professor Laurence Tribe, Ambassador Tyge Lehmann, Ole Spiermann, Lars Steen Nielsen and Andrew Hammel. Officials closely involved in the drafting of the Charter have provided me with invaluable information, without which the ensuing account of Article 53 would have been misleadingly different. I also wish to thank these officials, who prefer to remain anonymous. Needless to say, any mistakes are my sole responsibility, and views expressed are strictly personal.

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© Jonas Bering Liisberg 2001