Jean Monnet Center at NYU School of Law


1. Options for the future legal status of the Charter:

The question of the possible `integration' of the Charter into the Treaties is raised and various options for this are discussed in both Professor Dutheil de la Rochère's and Professor McCrudden's contributions to this volume. Professor Dutheil de la Rochère points specifically to the likely inconsistency or incompatibility of some of the final `horizontal' clauses of the Charter with the existing EC Treaty, and both she and Professor McCrudden also discuss other possible ways of giving it a degree of legal effect, such as by leaving the question of the interpretation and effect of the Charter to be decided by the European Court of Justice, or by listing it in Article 6(1) or 6(2) of the Treaty on European Union as one of the human rights instruments which the EU and its Member States have declared themselves bound to respect.

One point which, although perhaps obvious, is nonetheless worth making is that the weaker the legal status accorded to the Charter, the less the apparent inconsistencies, incompatibilities, tensions or overlaps with provisions of the EC Treaty will matter, but at the same time the advantage of constitutional legitimation and normative commitment to these values will be reduced by the dilution of the legal effect accorded to the instrument. Conversely, the stronger the nature and degree of legal recognition given to the Charter, the more the relationship of particular provisions contained within it with existing provisions of the EC Treaty will need to be taken seriously and addressed. Not only are there likely to be tensions between the final and so-called horizontal clauses of the Charter and the existing balance established in the EC and EU Treaties, but there are also many specific provisions of the Charter which either duplicate or reflect particular `rights' provisions of the EC Treaty or which incorporate provisions which are similar although not identical to those existing under the current Treaties. These tensions are not resolved by the provision in Article 52(2) of the Charter which provides that rights recognised by the Charter which are "based on" the Community Treaties or the TEU are to be exercised under the conditions and within the limits of those Treaties, in part but not only because it is difficult to say exactly which Charter provisions are `based on' the European Treaties given that there are additions and changes made in the case of many provisions. Several of those which are not substantially amended are nonetheless worded differently, and even in the case of straightforward replication, it is clear that some amendment of either the Charter or the Treaty would be required to avoid unnecessary duplication.

Several of the citizenship rights, for example, and the provision on non-discrimination (contrast eg the broader Article 21 of the Charter with Article 13 of the EC Treaty) would require some kind of harmonisation with provisions of the EC Treaty if the Charter really were to be fully integrated into the Treaties. A more difficult example of overlap and potential conflict is in the right of collective bargaining in Article 28 of the `solidarity' section of the Charter, which includes strike action, and which would create considerable tension with Article 137 (6) of the EC Treaty which excludes Community power to act in respect of the right to strike. This would at the very least sit rather oddly with an obligation to promote the right to collective bargaining in respect of strike action contained in the Charter, even taking into account the reference to national laws in Article 28. Other curious features - which probably signify more than simply oversights or mistakes in drafting, but which may reflect some of the strained compromises and resolutions agreed in the difficult course of drafting the Charter - would clearly need to be revisited if the Charter were intended to be fully integrated into the Treaties. Many of the rights contained in the Charter which mirror or reflect existing provisions or rights contained in the EC Treaty, for example, also make express reference to the limits and conditions under which the latter are currently available (eg Article 21(2) of the Charter on nationality discrimination, Article 36 on access to services of general economic interest ) whereas various others mirror the rights but exclude any explicit reference to restrictions (eg Article 21(1) of the Charter on the broad range of non-discrimination grounds, Article 42 on the right of access to documents, Article 45 on freedom of movement and residence). Some of the rights contained in the Charter which are partly derived from enabling provisions of the EC Treaty go beyond what the Treaty currently provides and impose no explicit limits on this (eg Article 15(3) of the Charter on the right of third country nationals to equivalent working conditions with EU citizens, which loosely draws on but clearly goes further than Article 137(3) EC), while other related Charter provisions are merely reflections of the existing enabling EC provisions and do not attempt to develop these potential rights any further by reference to other international norms (eg freedom of movement and residence for legally resident third country nationals in Article 45(2)). Again, it would seem that the capacity of Article 52(2) of the Charter as an interpretative device to address and resolve the variety of differences and tensions is limited.

The prospect of full integration of the Charter into the Treaties therefore inevitably raises the question of the need to adapt, reconcile and amend, and the issue then becomes whether it should be the overlapping or conflicting provisions of the existing Treaties or instead the provisions of the new Charter itself which would be amended. Here, as Prof Dutheil de la Rochère points out, the unusual and very significant process by which the Charter was adopted suggests that to amend it without reconvening a Convention of the same sort would undoubtedly be problematic, and the legitimacy and support gained by the novel process could well be impaired or lost. A second concern associated with the prospect of amending the Charter, apart from the significance with which the original process of its adoption has by now been invested (and the choice of a similarly-composed Convention body to discuss options for future constitutional reform of the EU preceding the 2004 Intergovernmental Conference clearly points to this significance), is the fact that it represented a difficult and delicate compromise between very different political and constitutional interests and visions. Accordingly, to amend certain parts which were agreed as part of a carefully balanced package risks undermining the particular compromise agreed and thereby doubly damaging the legitimacy of the instrument which emerged from that process. The alternative to this would be to amend not the Charter but rather those provisions of the EC Treaty which are duplicated in, which overlap with, or which potentially conflict with the provisions of the Charter. This however raises equally difficult questions, since it seems improbable that those who participated in the (unusually expeditious) process of drafting were actually envisaging the Charter as a partial replacement for parts of the EC or EU Treaties, nor that they contemplated the likelihood that their work might be implicitly amending those Treaties. The complex picture which emerges from the mandate and the conclusions of the Cologne and Tampere European Councils as well as from the drafting process itself seems to be that this document was envisaged as a creative distillation of the existing fundamental rights-commitments from the fluid EU acquis, from European human rights law, and to some extent with inspiration from international human rights instruments and national constitutions. To give precedence to the concrete terms of the text eventually adopted over similar or overlapping provisions of the EC and EU Treaties would be likely to alter the acquis in ways which were unlikely to have been worked through or even contemplated. At this point, I would simply suggest that if the route of full integration into the Treaties of the Charter is to be taken, a careful and thorough process of comparison would seem to be required, so that the relevant tensions and potential conflicts between the existing Treaty provisions and the Charter may be identified and that the implications of amendment or repeal of existing provisions fully understood.

In between the option of full Treaty integration on the one hand and leaving the status of the Charter as it currently stands (i.e. as a significant symbolic instrument which is being treated as legally relevant by several of the political institutions and by Advocates General, even if the Court of Justice is conspicuously refraining from commenting on its status at present) on the other, there are a number of intermediate options, several of which are identified by Professors Dutheil de la Rochère and McCrudden in their papers. For example, the Member States in 2004 could decide to leave the status of the Charter entirely to be determined by the Court of Justice. This could be an attractive option in terms of simplicity and in terms of the integrity of the Charter (in the sense that it would not need to be amended nor made strictly compatible with overlapping provisions of other EU treaties and instruments). It could however weaken somewhat the symbolic commitment which the entire process of drafting an EU Charter seems to have been intended to represent, and would result in a diluted constitutional status for the document. On the other hand, not only does it have the merit of simplicity, but this option would be continuous with the gradualist pattern of constitutional evolution (and in particular with evolution of the `fundamental rights' law and jurisprudence of the EU) which the Community and the Union have known to date. However, if the dominant political mood in 2004 and the sense of the democratic debate which it is hoped will take place between now and then is in the direction of a stronger and more formal constitutional future for the EU, then the option of leaving the Charter's nature and scope to be determined over time by the Court of Justice would seem considerably less desirable.

This, to some extent, would also be true of the option of including a reference to the Charter in Article 6(2) of the Treaty on European Union, along with the current references to the European Convention on Human Rights and national constitutional traditions. While it would strengthen slightly the positive legal role of the Charter within the constitutional framework of the EU, it would certainly fall short of the classical constitutional model of a Bill of Rights situated at the heart of the written constitution, which is at least one of the possible scenarios being contemplated at present. As in the case of the first option of leaving the status of the Charter to be defined by the ECJ, the potential for tension, incompatibility or inconsistency could more easily be avoided by a softer form of constitutionalisation of this kind, just as confrontation of the existing tensions and incompatibilities between e.g. national constitutional traditions and the ECHR or between international human rights instruments and some of the EC's fundamental economic liberties is currently avoided by the practice of the institutions and the Court of Justice. While this may still remain a favourite topic for academic debate, the actual number of instances of direct confrontation between national constitutional commitments to specific fundamental rights, or between a concrete application of a provision of the Convention on Human Rights, and a provision of EU law are rare, and there is no reason to expect that this pluralistic situation would change dramatically if the Charter were added to the list of instruments of reference in Article 6 TEU.

A further variant on this option, if the Charter were to mentioned in Article 6(2) would be for it to be contained in its full form (inconsistencies, tensions and all) in an Annex to the EU Treaties, possibly in the form of a declaration. The difficulty with seeking to strengthen its status further by annexing it in a protocol to the Treaties (as in the case of the subsidiarity and proportionality protocol added at the time of the Amsterdam Treaty) would once again be that this would raise all the problems of full integration into the Treaties which were discussed above. Since a protocol has the same legal status and force as all other provisions of the Treaty, the questions of duplication, incompatibility and overlap would have to be more directly addressed and could not so easily be accommodated or avoided.



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