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The Future of the EU Charter of Fundamental Rights

Christopher McCrudden ^*

• I. How we got to here
  • 1. Origins of the Charter
  • 2. Relevance of history
• II. What we have at the moment
  • 1. A plethora of justifications
  • 2. Limits on the form and content of the Charter
  • 3. Compromises and ambiguities
  • 4. Drafting process
• III. Some options for the future
  • 1. Redrafting the Charter?
  • 2. Legal status?
  • 3. Role of the European Court of Justice?
  • 4. Standing?
  • 5. Human rights policy?
  • 6. Enforcement of "solidarity" rights?
  • 7. Relationship to ECHR
  • 8. Effect on Member States?
• IV. Some deeper issues underlying debate about the future of the Charter
  • 1. "Integrationist" function of the Charter of Rights?
  • 2. The Charter of Rights and the European social model?
  • 3. Rights as foundational to European political participation?
  • 4. Rights as intrinsically important?
  • 5. Human rights law as autonomous?
  • 6. Coping with ambiguity?
• V. Conclusion

The main aim of this paper is to identify some options for the future of the EU Charter of Fundamental Rights ("the Charter"). The most immediate reason for doing so at this time lies in the Laeken European Council in December 2001. This Council established a "Convention" charged with considering the future of the European Union prior to the next European Council in 2004. The Convention is composed of the main parties involved in the debate on the future of the Union. Its task is to consider the key issues arising for the Union's future development and to try to identify the various possible responses.

The Laeken Declaration set out the issues that the European Council expected the Convention to consider.¹ In the section of the Declaration headed "Towards a Constitution for European citizens", the Declaration identified several questions that should be considered, including the need to consider the simplification and reorganisation of the Treaties. In this context, the Declaration says that "[t]hought would also have to be given to whether the Charter of Fundamental Rights should be included in the basic treaty and to whether the European Community should accede to the European Convention on Human Rights."² It continues: "The question ultimately arises as to whether this simplification and reorganisation might not lead in the long run to the adoption of a constitutional text in the Union. What might the basic features of such a constitution be? The values which the Union cherishes, the fundamental rights and obligations of its citizens, the relationship between Member States in the Union?"

This paper has the limited aim of considering the issue of the future status of the Charter of Fundamental Rights, and some of the related questions surrounding accession by the Community to the European Convention on Human Rights. Part I considers how we got to where we are and why that affects the debates about the future of the Charter.³ Part II comments on what we have at the moment, in particular the status, role and content of the existing Charter. Part III looks at some of the options for the future of the Charter. Part IV examines some of the deeper issues underlying the debates about these options. Part V offers a brief conclusion.

* Professor of Human Rights Law, Oxford University; Fellow, Lincoln College, Oxford; Overseas Affiliated Professor of Law, University of Michigan Law School. Earlier drafts of this paper were presented to conferences or seminars in Brussels, Oxford and London. I am also grateful to Eric Stein, Rob Howse, Don Herzog, Daniel Halberstam, and Stephen Weatherill for comments on earlier drafts. E-mail address: <christopher.mccrudden@law.ox.ac.uk>

1 "The Future of the European Union", Laeken Declaration, 15^th December 2001, accessible at http://ue.eu.int/Newsroom/LoadDoc.cfm?MAX=1&DOC=!!!&BID=76&DID=68758&GRP=4056&LANG=1.

2 Ibid.

3 The material in the part of the paper is drawn from the evidence submitted to the House of Lords, European Committee by Christopher McCrudden, Sandra Fredman and Mark Freedland, House of Lords, Select Committee on the European Union, EU Charter of Fundamental Rights (Session 1999-2000, 8^th Report), HL Paper 67 (2000). I am grateful for the permission of my colleagues to use our submission in this way. See also, Sandra Fredman, Christopher McCrudden and Mark Freedland, An E.U. Charter of Fundamental Rights, [2000] Public Law 178.

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© Christopher McCrudden 2001