Isaac D.

DE LEON EU191 B October 27, 2008

IV AB EU 051013 Dr. Martina Corrado
Human Rights Concerns in the EU Final Paper

Why a Charter on Fundamental Human Rights?

Western thought has always seen the link between and true freedom and the protection
of human dignity. Protecting fundamental human rights and creating an ideal area of freedom,
security and justice in the EU are also therefore linked. Yet, to create such an idealistic society
one has to establish a working mechanism. With the EU having these linked goals at hand, the
Charter of Fundamental Rights was proclaimed by the EU in December 2000.
As the European Union's internal borders were gradually abolished, the need to create a
genuine European area of freedom, security and justice became apparent. That was why EU
leaders approved a set of concrete measures for achieving such an ambitious goal. But this
process in turn has highlighted the need to reinforce the fundamental human rights of EU
citizens and of people living in the European Union.1
The Charter stems from the EU Treaty, European Court of Justice case-law, the EU
Member States’ constitutional traditions and the Council of Europe’s Convention of Human
Rights.

I. Pre-conditions of Rights, Peace, and Prosperity

History

Europe history is characterized by numerous wars, arms movements, genocide, and

other barbaric acts in an attempt to win control over the continent. The effects of these
atrocities and the weakening of Europe’s role in the world caused the Europeans to realize that
only peace and cooperation are the only steps they could take if they still hoped for a strong,
unified Europe. The first manifestation of this was seen in the creation of the European Coal and
Steel Community (ECSC) in the post-war years. Other trade items such as agriculture was then
added in which eventually led to the creation of a single market and the idea of a European
Union.
As the gradually came into being, it grew more from its initial goal of just being an
economic and technical collaboration between European states. In the early 1990’s, the
Community’s democratic legitimacy was considerably strengthened by the signing of the
1
EUROPA. “Respecting fundamental rights while ensuring security and justice in the European Union.” Freedom, Security, Justice. Accessed
8 Oct 2008. <http://ec.europa.eu/justice_home>
Maastricht Treaty. Twenty years since then, construction of a political union has begun and
cooperation been established on social policy, employment, asylum, immigration, police, justice,
foreign policy and a common security and defense policy.2

Rights and Principles

Article 52(5) of the EU Charter draws a distinction between ‘rights’ and ‘principles’.
In general, ‘rights’ refers to matters which are capable of immediate enforcement and
should be respected at all times. They are innate by nature and are present in all human dignity.
These must be guaranteed without exception and protected when breached. This idea is most
closely associated with civil and political rights first to be historically expressed in the French
Declaration of the Rights of Man and the Citizen 1789.
The term ‘principles,’ however, is used in the Charter to refer to economic social and
cultural rights - such as the right to work, the right to housing, the right to health care. These
principles shall not be respected at all times but rather observed as cited in the legal
explanations to the EU Charter. 3 Principles have been regarded as suitable for progressive
enforcement rather than as binding obligations. The Union and the Member States (when
implementing Union law) will only be able to challenge a principle in the courts to the extent to
which the Union has exercised competence in relation to that particular principle.

Accordingly, it has been suggested that ‘principles’ do not give rise to direct claims for
positive action by the Union’s institutions or Member States authorities. 4 ‘Rights’ on the other
hand give rise to direct claims for positive action by those bodies. Ownership of rights were of
course another problem during the drafting of the Charter, which in passing uses gender-neutral
language and guarantees equal rights to men and women.
The general principle underlying the Charter is that the rights therein are universal, held
by everyone irrespective of nationality or residence – especially those shared with the European
Human Rights Convention. However, there are some exceptions, since some rights are exclusive
to EU citizens such as political right, although not many. 5

2
EUROPA. “European Council declarations: Laeken Declaration on the Future of the European Union.” Freedom, Security, Justice. Accessed
8 Oct 2008. < http://ec.europa.eu/justice_home/unit/charte/en/declarations-laeken.html>
3
Justice. “Frequently Asked Questions.” The EU Charter of Fundamental Rights. Accessed 8 Oct 2008. < http://www.eucharter.org/home>
4
Justice. “Frequently Asked Questions.” The EU Charter of Fundamental Rights. Accessed 8 Oct 2008. < http://www.eucharter.org/home>
5
Ibid.
II. Fundamental Rights as Written General Principles of European
Community Law

In December 2001 the European Council met in Laeken, Belgium and agreed to assemble
a “Convention on the Future of Europe,” to pave the way for the next Intergovernmental
Conference. This Laeken Declaration established that one of the principle tasks of the
Convention should be to decide whether the Charter of Fundamental Rights should be included
in EU law, and whether the EU should sign up to the European Convention on Human Rights.

The EU Citizens are calling for a clear, open, effective, democratically controlled
Community approach was in mind during the proceedings. Developing a Europe which points
the way ahead for the world was the goal.

European Community Law

The European Union currently has four Treaties where the objectives, powers and policy
instruments of the Union are currently spread across. Simplicity is a prerequisite to greater
transparency of the EU government, especially since it is comprised of 27 Member States, using
different languages, and coming from different cultures.

Issues then could be categorized in this project create greater transparency through a
constitution: a. simplifying the existing Treaties without changing their content, b. possible
reorganization of the Treaties, c. Inclusion and compliance of the Charter of Fundamental Rights
in the basic treaty, d. basic features of the constitution to lead to a future adoption of it in the
Union.
The Charter of Fundamental Rights of the European Union brings together into a single,
simple text all the personal, civic, political, economic and social rights enjoyed by the citizens
and residents of the European Union. The provisions of this Charter are addressed to the
institutions and bodies of the Union with due regard for the principle of subsidiarity and to the
Member States only when they are implementing Union law.6

The EU Charter on Fundamental Human Rights as Part of Law

The Charter is part of EU law but it is not yet directly enforceable by the EU courts (the
Court of First instance and the European Court of Justice) or national courts. Despite this, the
Charter is becoming an important reference document. Since the Member States of the EU are
all members of other international organizations particular to human rights protections (e.g.
Council of Europe), the Charter, driven by the principles of the ECHR and other conventions,
guide judicial proceedings because they are based on the Member States constitutional
6
EUROPA. “The EU and Fundamental rights - The wider context.” Freedom, Security, Justice. Accessed 8 Oct 2008.
<http://ec.europa.eu/justice_home/unit/charte/en/rights.html>
traditions and are consistent with the said international organizations of human rights
protection. Advocates General of the ECJ have referred on several occasions to the Charter in
ECJ proceedings, as have judges in national courts.
The EU Charter will only become directly enforceable if and when the Treaty is ratified
by all 25 Member States. If this is achieved, the ECJ will be able to determine whether an EU
institution, agency, body or Member State has acted compatibly with the rights under the
Charter.

III. Human Rights Post-Maastricht and Amsterdam Treaty

The European Union has always stated its commitment to human rights and fundamental
freedoms and has explicitly confirmed the EU's attachment to fundamental social rights. The
Amsterdam Treaty, which came into force on 1 May 1999, established procedures intended to
secure their protection:7
 It established, as a general principle, that the European Union should respect human
rights and fundamental freedoms, upon which the Union is founded ( Art 6 TEU)
 The Union can suspend certain rights of a Member State deriving from the application of
the Treaty, if it has determined the existence of a serious and persistent breach of these
principles by that Member State.(Art 7 TEU)
 Candidate countries will have to respect these principles to join the Union (Art 49 TEU)
 It has also given the European Court of Justice the power to ensure respect of
fundamental rights and freedoms by the European institutions (Art 46 TEU)

Back in 1986, the Member States had decided to co-operate on the entry of third
country nationals into the European Community and on their rights of movement and residence
in the EC. Then in 1992 common rules for citizens of non-EU countries crossing the EU's external
frontiers and for immigration policy had been written into the Treaty on European Union or
Maastricht Treaty, which had become operational in 1993.8
Maastricht had formally recognized that JHA matters were a common concern and
created a special lawmaking structure to handle legislation linked to justice and home affairs
questions. Laws passed under the new rules were in effect intergovernmental agreements that
were legally binding on the European Union.
But while bringing justice and home affairs within the ambit of the European Union was
an important first step, lawmaking on these questions remained a slow and cumbersome

7
EUROPA. “The EU and Fundamental rights - The wider context.” Freedom, Security, Justice. Accessed 8 Oct 2008.
<http://ec.europa.eu/justice_home/unit/charte/en/rights.html>

8
Ibid.
process after Maastricht. All major JHA laws took the form of international conventions that had
to be agreed unanimously by EU governments then formally ratified by each of the EU's
national parliaments. This means that only a small handful of new laws were passed in the six
years after Maastricht.9
Equipped with their new Amsterdam tools, EU governments and the European
Commission quickly set about drawing up plans to implement the EU's modified rules for justice
and home affairs matters. At a special summit meeting in the Finnish city of Tampere in October
1999, EU governments pledged to adopt a whole series of new initiatives on asylum, fighting
crime, and co-operation between courts and police forces.

IV. Charter of Fundamental Rights of EU

The EU Charter intends to better equip the EU citizen’s understanding of the extent of
their rights. This is important when faced with a violation of one’s fundamental rights and when
dealing with decisions taken by the European institutions, agencies, bodies, and the Member
States when implementing EU law.
As was mentioned, the main purpose of the Charter is to make these fundamental rights
more visible and accessible to EU citizens. A catalogue of all the rights and freedoms is
important so that one would not have to look elsewhere for specific citations of rights whenever
they are needed. When implemented, it will allow someone to challenge how a Member State
has implemented a European law such as a Community Directive in that state’s own courts.
Though this could already be done through the ECJ’s case-law, things will be simpler, cheaper
and easier than taking the case before the ECJ every time.
The EU Charter also provides the EU institutions, agencies and bodies with a set of
standards against which it can measure the performance of Member States when implementing
EU Law into national laws.10 It would be much simpler since the Charter also provides a detailed
explanation for the interpretation of rights and the case-law, constitutional, and international
convention references where they were based from.
The EU Charter also goes further than the European Convention of Human rights in
conferring or guaranteeing fundamental rights because it contains both civil and political rights,
on the one hand, and economic social and cultural rights, on the other, as opposed to the ECHR
which just has the former.
The EU Charter also contains a small number of ‘third generation’ rights – rights which
protect issues of global concern, such as the right to a clean environment, and other
technology-based rights that were not even thought of in the 1950’s.

9
EUROPA. “The EU and Fundamental rights - The wider context.” Freedom, Security, Justice. Accessed 8 Oct 2008.
<http://ec.europa.eu/justice_home/unit/charte/en/rights.html>
10
Justice. “Frequently Asked Questions.” The EU Charter of Fundamental Rights. Accessed 8 Oct 2008. <
http://www.eucharter.org/home>
 Conclusion: So Why a Charter on Human Rights in the EU?

The Charter is already making its existence felt in the proceedings of the EU Courts, such
as the Court of First Instance (CFI), and among the Advocates General, who conduct preliminary
hearings of cases going to the ECJ.

At their meeting in Cologne, Germany, in June 1999, EU leaders made clear why a new
statement of rights is important. “At the present stage of development of the European Union,
the fundamental rights applicable at Union level should be consolidated in a Charter and
thereby made more evident,” they declared.11

Making EU citizens’ rights more clearly visible is the prime objective underlying the
Charter. The text does not establish new rights – that was never the intention – but assembles
existing rights that were previously scattered over a range of sources and therefore not always
easy to trace. Therefore is cannot be said to be innovative.

So what are the Charter’s aims? Most importantly, it highlights – in the clearest way
possible – the EU’s respect for the principle of democracy, for human rights and fundamental
freedoms. That has always been the rallying call of the EU since it’s realization of a need for
peace in the 1950’s—freedom, security, justice. This is not a new commitment, but the Charter
reaffirms it and makes it perfectly explicit, using vocabulary selected for its clarity in the EU
Charter of Human Rights.

REFERENCES

EUROPA. “Respecting fundamental rights while ensuring security and justice in the European
Union.” Freedom, Security, Justice. Accessed 8 Oct 2008.
<http://ec.europa.eu/justice_home>

_______. “The EU and Fundamental rights - The wider context.” Freedom, Security, Justice.
Accessed 8 Oct 2008.
<http://ec.europa.eu/justice_home/unit/charte/en/rights.html>

_______. “European Council declarations: Laeken Declaration on the Future of the European
Union.” Freedom, Security, Justice. Accessed 8 Oct 2008. <
http://ec.europa.eu/justice_home/unit/charte/en/declarations-laeken.html>
11
EUROPA. “Why Does the EU Need a Charter on Fundamental Rights?” Freedom, Security, Justice. Accessed 8 Oct 2008.
<http://ec.europa.eu/justice_home/unit/charte/en/about-need.html>
_______. “The Conventions: From one to another.” Freedom, Security, Justice. Accessed 8 Oct
2008. <http://ec.europa.eu/justice_home/unit/charte/en/conventions-one-to-
another.html>

_______. “Why Does the EU Need a Charter on Fundamental Rights?” Freedom, Security,
Justice. Accessed 8 Oct 2008.
<http://ec.europa.eu/justice_home/unit/charte/en/about-need.html>

_______. “The Charter: What’s in it for you?” Freedom, Security, Justice. Accessed 8 Oct 2008.
<http://ec.europa.eu/justice_home/unit/charte/en/about-contents.html>

_______. “The Charter: Weighing its impact?” Freedom, Security, Justice. Accessed 8 Oct 2008.
< http://ec.europa.eu/justice_home/unit/charte/en/about-impact.html>

Justice. “Frequently Asked Questions.” The EU Charter of Fundamental Rights. Accessed 8 Oct
2008. < http://www.eucharter.org/home>