Conference on Fundamental Rights in Future Europe Parliament of Finland, Helsinki
18-19 March, 2002
Heidi Hautala [:]
Member of the European Parliament,
Committee on Legal Affairs and the Internal Market
THE EU CHARTER OF FUNDAMENTAL RIGHTS
– THE BROADER PERSPECTIVE
Advocate General Francis Jacobs has today invited us into a fascinating discussion about the broader perspective of the EU Charter of Fundamental Rights. According to him, the present system is not a “rights-based system but rather framed in terms of obligations of Member States and powers of the institutions”. Economic rights in the internal market are stressed, fundamental rights are secondary. One could go even further and say that in the present Union the rights belong to states and economic actors, not to the citizens. Third country nationals legally residing in the EU can only dream of the rights of the EU citizens. This injustice must be corrected by the legislators.
Finally, after many decades, the citizen must be placed in the centre of the constitutional construction of the EU, instead of His or Her Majesties, Presidents of the Republic or Grand Dukes. With the latest changes in the Treaties these high contracting parties have indeed added to obscurity instead of clarity.
The three pillar structure of the Maastricht Treaty cannot address the basic requirement of democratic accountability. It is simply not acceptable that the ever higher profile of Common Security and Defence Policy is still mainly in the hands of diplomats. The recent accent on police and judicial cooperation in order to combat international terrorism is clearly not able to guarantee fundamental rights of the citizens which become targets of the measures. Needless to say, most deliberations vary between confidential and top secret. Fortunately, the courts and the Ombudsman have shown to the reluctant institutions that none of the pillars can evade the requirements of transparency.
It is now up to the Convention on the Future of the EU to acknowledge such a distortion and propose the abolition of the pillar structure. Where the EU has competence, all activities must be subordinated to judicial review.
The legal nature of the Charter
The minimum one would expect at this point of evolution is that those institutions which have proclaimed the Charter would follow it. The only institution so far doing so seems to be the Ombudsman. He has launched several own-initiative inquiries to encourage Community institutions and bodies to respect the rights contained in the Charter, those on EU officials´ freedom of expression, on age discrimination and on parental leave in the EU institutions. Recently, he has refused to sign a decision on the establishment of the EC recruitment office since it implies the continuation of age limits. According to the Ombudsman, if the Charter were to be just a political declaration and not binding to the institutions and bodies, “citizens should understand that even the most solemn promises of the politicians are not meant to be taken seriously”.
The caution of the Courts in citing the Charter is understandable with the view to the fact that its status was explicitly left open. This would imply that it is indeed necessary for the Convention on the Future of the EU to make it an integral part of whatever it is going to propose as a constitution.
The Amsterdam and Nice Treaties already oblige the Member States to respect human rights. However, should, as Mr. Jacobs asks, the extension of such obligation to the Charter indeed remain on the political level? I doubt that this would be unwise, since it might lead into a selective use or political correctness. The recent cases of Austria and Italy could prove that the risk persists.
Broad interpretation of rights, conflicting rights
With the view to economic and social rights Advocate General Jacobs states that the Charter “may encourage the Court to take a broad view of the rights already recognised by existing instruments in view of the endorsement given by the Charter to their fundamental status”.
My favourite question mark would be Article 37 on the environment. It remains to be seen whether the protection of the environment has been strengthened with the Charter or not. It would also be useful to have some clarity on how the often conflicting rights of environment and property will be balanced against one another. It seems that the ECHR has allowed relatively broad limitations of the right of property in order to protect the environment. Would this case law be applicable with the view to the Charter? I’m thinking of a possible collision between e.g. the Natura 2000 network and the right to property.
Another example of possibly conflicting rights: the right of access to documents and the right of good administration have recently collided with the right of the protection of personal data and privacy. The Commission and to some extent the Parliament seem to give an unduly broad scope to the protection of personal data, far from limiting it to the protection of privacy and family life (Art. 8 in ECHR). The Ombudsman is already dealing with several cases (e.g.”Bavarian Lager”) and has produced a special report to the European Parliament on this.
The European Convention on Human Rights
Fortunately, the Charter of Fundamental Rights is more and more perceived as complementary to the EU joining ECHR. Fundamental rights aim at limiting sovereignty and the exercise of power by states or state like entities. If the EU is to develop into a full scale state of law, joining the ECHR could be seen rather as limiting than increasing the EU´s competences.
With globalization, sovereignty and competence are moving onto transnational levels, even beyond the EU. Respect of binding norms on human rights is essential in such an order. This could be seen as one more argument to why the EU should join the ECHR while continuing to develop its internal culture of rights.
Improvement of judicial protection of citizens’ rights
One can only welcome Advocate General Jacobs’ suggestion that the time has come to give the citizens and easier access to the Community courts in order to challenge Community measures. Here I have some personal experience.
It takes years to have a remedy to a violation of a fundamental right (AG Leger has stated in the case Council vs. Hautala last year that access to documents is a fundamental right). It is also expensive, as one must be represented by an advocate, and the risk is considerable as the loosing party usually has to cover the costs. Ironically, it is through such case law that at least until very recently e.g. the body of law on access to documents has mostly developed, against the will of the reluctant institutions.
The fact that the EU is not a legal personality, is particularly severe with the view to the need to improve the protection of the rights of the individuals, a need mentioned by Mr. Jacobs. Last week, the European Parliament adopted a resolution stating that a legal personality for the EU is an “important step in the creation of an EU wide system of protection of fundamental rights” and that it would “for its part help to remedy the functional distortions of the pillar structure”.
According to the Parliament, the present dichotomy into the Union without a legal personality and the Communities equipped with it, is confusing to the Union’s external partners. The Parliament calls for a unified structure and one integral legal personality instead of adding one more to those of the Communities.
Future innovations for the citizens
According to Mr. Jacobs, in the future much will depend on “what recognition is given to the Charter, and whether it is accompanied by other measures both to improve the judicial protection of the individual and to connect the individual more effectively with the Union’s institutions”.
Here I would like suggest that, concerning the latter, the time has now come to provide the citizens with some direct rights of participation in decision-making. The Charter is virtually void of this dimension. It would be timely to look into a proposal that the Austrian and Italian governments presented already in the negotiations on the Amsterdam Treaty, i.e. right of initiative for the citizen. The latest deliberations of the Petitions Committee of the European Parliament are moving into this direction.
Another worthy step would be to introduce the proposal of the present Convention to an advisory referendum in all EU Member States. This would certainly lead to a broad debate, which would help to overcome the gap between the EU and its citizens, independently of the outcome. The convention should decide on such a proposal quite soon in order to give a clear signal to the citizens of Europe that their participation is not only a nice word but a highly serious necessity.