Jean Monnet Center at NYU School of Law


2. The symbolic role of the Charter: a shift in the ethic of the EU?

The second dimension on which I wish to focus is that of the symbolic role of the Charter, and more specifically in relation to the ethic or the mission of the EU. In the broadest political sense, the drafting and proclamation of the Charter both heralds and concretises a shift in the normative underpinning of the EU as a polity. Although it can be seen that Articles 6 and 7 of the Treaty on European Union after the Maastricht and Amsterdam Treaties already suggested such a change, the drafting and adoption of the Charter arguably represents a qualitative leap forward in this respect.1 The historic origins of the Union in the common market of the Coal and Steel and Economic communities have continued to play a powerful role in the normative foundation and the political shaping of the European polity, and remained its constitutional core even after the fundamental changes introduced and consolidated by the Maastricht and Amsterdam Treaties. This `influence of the historic origins' has been evident not only symbolically but also in more concrete terms, in the way in which market goals have fundamentally shaped and continue to shape the policies and laws of the EC and EU. Indeed, recent legal controversies culminating in litigation over the scope of the tobacco advertising directive2 and the biotechnology directive3 serve to underscore the dominant influence of internal market goals in the shaping of all kinds of policies in which, arguably, other non-market values and ethical or health dimensions should be paramount.

The potential symbolic significance of the Charter in articulating and crystallizing a new normative basis and a new ethic for the EU is relevant on a number of levels. Firstly on the wider symbolic level, in that it can be seen to herald a reorientation of the historic mission of the Community, so that the creation of a European common market is no longer the dominant constitutional core of the EU but stands alongside a commitment to a range of fundamental values which transcend purely market goals. The second and more concrete level at which this reorientation is relevant is in terms of its specific impact on the powers and policy competences of the EC and EU. This question depends in part on how the first issue discussed above - the future legal status of the Charter - is resolved. The stronger the legal status and force given to the Charter, the more this second dimension of policy competence will be highlighted. The broad symbolic potential of the Charter in marking a reorientation of the Community ethic will not be not affected to the same degree by whatever decision is made on the legal status of the Charter, although clearly the symbolic dimension would itself be considerably enhanced by the formal constitutionalisation of the Charter through its integration, in some form, into the Treaties.

Before addressing this question any further, the complicated picture of EU policy competence in the field of human rights to date will be set out, as a background against which to consider how various degrees of legal integration of the Charter might alter or strengthen that. It should also be pointed out, however, that it is not only a question of seeing whether the EC and EU might gain stronger legislative powers to act to promote human rights, but also whether the existing legislative and other powers of the EU are likely to be re-oriented and infused with a range of different values and considerations by the enactment of the Charter as a constitutional instrument.

There has been a constant tension in recent years between the economic power of the EU, its expanding size and status as an international player and the responsibilities and expectations which that generates, on the one hand, and the internal and constitutional forces of restraint on the other. This can be seen in the repeated calls for clearer limits to the powers and competences of the EU over the past ten years, but more clearly than ever in the context of this current high-level political debate on the constitutional `finalité' or otherwise of the EU, and on the issue of division of competences, which is highlighted as one of the questions on the post-Nice agenda in the Declaration on the Future of the Union attached to the Nice Treaty. It was also seen reflected, for example, in the cautiously drafted competences of the previous two treaties of Maastricht and Amsterdam (such as the provisions on education, culture and health in Articles 149, 151 and 152 of the EC Treaty ) and in the promotion of subsidiarity as both a legal (see Article 5 EC) and a political principle (as reflected inter alia in the Amsterdam Treaty protocol).

The political anxiety which is manifested in this debate on the finalité politique of the EU reflects the fact that, despite its growing power and strengthening identity as a political as well as an economic organization, the European Union remains an ambiguous entity which eludes satisfactory definition, whether in conceptual, legal or constitutional terms. If the EU continues to be conceived of as a special interest organization or association (to establish a well-functioning European market etc), the starting point for analysis is to ask what its function or purpose is, what its powers are and what it is designed to achieve. If, on the other hand, it is conceived of as a constitutional polity, the assumption is that its function is a more general one of political ordering and government. Clearly, the EU still lies somewhere between these two paradigms, and this explains something of the complexity and uncertainty of its powers and functions. It reflects and contains elements of a special interest organization, and certainly in its inception as the Coal and Steel Community it most closely fitted this paradigm. However, as it has evolved and grown it has developed characteristics, powers and an institutional form which are those of a more developed, although inchoate and partial constitutional polity.

The constituent European Treaties at present do not actually contain a great deal, particularly not of an enabling or empowering nature, on the subject of human rights. Since the Community legal system - as now confirmed by Article 5 EC is a system of limited, attributed competence whereby all legal powers must be traced back to the constituent treaties, this fact could appear to provide a fairly decisive answer to the question whether the EC has policy competence to act in the field of human rights. However, the issue does not end there for a number of reasons. First, as is very well known, the ECJ has long declared respect for fundamental human rights to be part of the Community legal system, binding both on the EC institutions when they act and also on the member states when they are acting within the field of EC law.4 This development occurred not just with the support of, but indeed at the instigation of member state courts, since it was seen not as an expansion of Community competence but as imposing normative limits on the EU's own powers by subjecting them to a kind of test for conformity with human rights values. This unwritten catalogue of rights has been held to be a kind of negative constraint on EU lawmaking and policymaking, but it remains open-ended - inspired by the European Convention on Human Rights, by national constitutional traditions and by other international treaties which the states have signed - even after the proclamation of the Charter. The ECJ jurisprudence from which it originated had already, prior to the Charter's adoption, been politically approved and a kind of loose codification of the case law was enshrined in the form of Article 6 of the Treaty on European Union, which declares that the Union is `founded on' the principles of liberty, democracy and respect for human rights and fundamental freedoms.

In addition to the principles developed in the case law and confirmed by later acts of political approval, the two clearest and most concrete legal bases in the Treaty for EC action in the field of human rights are Article 177 existing since the Maastricht Treaty which concerns development policy agreements, and Article 13 existing since the Amsterdam Treaty which goes beyond the gender equality provisions of Articles 3(2) and 141 EC to enable other forms of anti-discrimination legislation to be adopted by the Community legislature. Finally, Article 7 TEU, as is (to be) amended by the Nice Treaty, contains a less explicit but suggestive Treaty provision with potential to justify significant European Union intervention in the field of human rights within its member states. This article, which follows the commitment of the EU and its member states in Article 6 TEU to respect human rights and fundamental freedoms, provides for the possibility of suspending the rights of a member state which is found to be in serious and persistent violation of these principles. Although the implications of the existence of this apparently drastic sanction were not seriously considered until the fracas over the coming into power of the FPÖ in Austria in 2000, they were made somewhat more explicit in the proposed amendment of Article 7 TEU by the Nice Treaty, so that the power of the EU to investigate the internal policies of any member state so as to monitor compliance with human rights is now spelt out more clearly.

All of the above - the legal principles developed and extended by the Court, the formal legal bases in development policy and anti-discrimination, the commitments to principle in Article 6 and the powers in Article 7 TEU, and now the promise of the Charter - appear to add up in legal-constitutional terms to a significant degree of competence in the field of human rights. However, this reality co-exists with a considerably more cautious `official' or institutional view of the limits of the Community's human rights competence, in particular in the internal sphere, and this tension requires further explanation and understanding.

A first restraining influence is normally traced to the ruling given by the Court of Justice in Opinion 2/94, in which it declared that the Community lacked competence to accede to the European Convention on Human Rights.5 One reading of the case is to say that it provides a fairly conclusive answer (particularly given the Court's constitutional role in interpreting the extent of Community powers under the Treaty) to the effect that, apart from its specific external development policy powers, the Community has no real powers or competence to act in the field of human rights, the provisions of the Treaties are exhaustive of the powers of the Community and there is no power given by any explicit Treaty provision to enact general rules in the field of human rights. However, quite apart from the subsequent changes introduced by the Amsterdam and Nice Treaties, to leave it at that would be to ignore the room for interpretation left by the Court in its Opinion,6 (something which Prof McCrudden, although sceptical in his comments, does not deny) particularly in relation to a question which the Court neither expressly accepted nor rejected, viz. whether the protection of human rights is in itself an independent objective of the Community, which could bring Article 308 of the EC Treaty into play. It would also ignore the fact that when legal texts are open-ended and ambiguous, as is the case with many parts of the EC and EU treaties including those which mention human rights, including the residual powers clause of Article 308, the question whether the Community has competence cannot realistically be characterized as a purely `technical' legal one. Rather it is also a political and constitutional question which centres on the willingness of the various legal and political actors involved to develop and defend a human rights policy, and a more philosophical question concerning the justification for an entity such as the EU developing or not developing such a policy.

It is apparent that the institutional response to Opinion 2/94 and to developments since then, including the Charter, has been a cautious one, emphasizing the limits to the Community's competence in the human rights field, and warning against any attempts to erode the constitutional limits to its powers. This cautious approach to internal legal competences in particular was exemplified by the opinion given by the Council legal service on the proposed Commission regulation on democratization and human rights in 1997.7 It is very apparent also, however, in Article 51 of the Charter, which provides that the Charter "does not establish any new power or task for the Community or the Union, or modify any of the powers and tasks defined by the Treaties". The explanatory memorandum to the Charter emphasizes this fact further. In other words, the Charter does not present itself as a source of or basis for positive legislative action, but simply as a codified or supplemented form of what already exists under the jurisprudence of the Court of Justice: i.e. a broad set of standards against which EU action and member state action within the scope of existing EU policies and powers is to be judged.

The question is whether this perspective is a convincing one and can be maintained if the legal status of the Charter is enhanced, and it is either annexed in some form to the Treaties, or listed in Article 6(2) TEU, or at its strongest, actually integrated into the Treaties. Quite apart from the symbolic significance of having drafted and adopted a rich and wide-ranging new human rights instrument by a novel and experimental political process, it seems difficult to imagine, in spite of the declaration in Article 51(2), that the policy competences of the Community and Union will not in various ways be affected by the further constitutional and legal strengthening of the Charter. In what sense can Article 51(1) of the Charter impose an obligation on the Member States and the European Union to "promote the application" of the rights contained within it, when many of the rights (especially the social rights) declared and contained within it are at best only weakly recognised as interests or entitlements at present, (or even, as in the case of the right to strike, explicitly excluded from EC powers of action) without implying that the powers of the Union - indeed arguably the obligations of the Union - have altered? This is a powerful tension which in my view cannot be circumvented or wished away but which will inevitably have to be addressed over time in the practice and application of the Charter. It seems difficult to maintain that the competences and powers of the Community will not at the very least be altered (such as in the orientation of its internal market and other legislation powers), but more significantly, that they are likely to be expanded in certain respects. There is a clear tension between Article 51(2) and other dimensions and provisions of the Charter, and it remains to be seen whether this tension will be interpreted and addressed in a conservative way which preserves the status quo, or in a more dynamic way which is continuous with the evolving nature and influence within EU and EC law of its human rights jurisprudence to date. If there is an obligation on the EU positively to promote the rights contained in the Charter, can it really still be said that promotion of human rights is not an objective of the Union, also for the purposes of Article 308 EC? The high-profile commitment to the rights embodied in the Charter and to the set of objectives and values which those represent inevitably seem to point not just to a reorientation of the EC's and the EU's normative project and mission, but also to a change in the ways in which the EU pursues that project. To deny that this will inevitably involve change, (and indeed is already having effects, given the express determination of the Commission and the Parliament to treat the Charter as relevant in all of its policy-making even before any decision as to its future legal status is made) whatever the legal limiting clauses which have been written on to the new Charter, seems an unrealistic approach. Returning to the first point which was addressed in this paper, it is sufficient to say at this point that the significance of the change in the nature of the EU's powers and competences which are likely to be brought about by the Charter will be determined in part, but not entirely, by the strength and degree of legal status which is conferred upon it.

1 For some interesting papers discussing various aspects of the Charter and its significance, see the collection in E. O. Eriksen, J.E. Fossum and A. J. Menendéz, The Chartering of Europe: The Charter of Fundamental Rights in Context (Arena Report no. 8/2001).

2 Case C-376/98 Germany v Parliament and Council [2000] ECR I-

3 C-377/98, Netherlands v Council, judgment of 9 October 2001.

4 See A. Clapham, "A Human Rights Policy for the European Community" (1990) 10 YBEL 309; P. Craig and G. de Búrca, EU Law (2nd ed, 1998) ch.7.

5 Opinion 2/94 on accession to the ECHR [1996] ECR I-1759.

6 This can be seen in the differing views expressed in the many commentaries published on the Opinion - see e.g. J.H.H. Weiler and S. Fries, "A Human Rights Policy for the European Community and Union: the Question of Competences" in P. Alston, M. Bustelo and J.Heenan The EU and Human Rights (OUP, 1999); N. Burrows (1997) 22 ELRev 58; G. Gaja (1996) 33 CMLRev 973; S. Peers (1998) 35 CMLRev 539; O. de Schutter and Y. Lejeune (1996) CDE 555 and A. Dashwood and A. Arnull in C.E.L.S. Occasional Paper no. 1, and C. Vedder, Europarecht (1996), 309.

7 See the discussion of this opinion in J.H.H. Weiler and S. Fries, ibid. The proposal in question subsequently evolved and was adopted in 1999 as two separate regulations with different legal bases in the Treaty, one on development cooperation and the second on other forms of cooperation. See Regulations 975/1999 and 976/1999, OJ 1999 L 120 1, 8.



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