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The binding nature of the Charter
The life of the EU Charter of Fundamental Rights began in December 2000 at the Nice European Council Summit, when the Charter was politically approved after having been solemnly proclaimed by the European Commission, the Parliament and the Council. For nine years the Charter lived only as a declaration. The Court of Justice of the EU referred to it on a few occasions, but its presence never actually affected the outcome of any case. The Charter was never used in a controversial manner and never with clear legal implications. As a result, human rights in the EU continued to be protected as unwritten ‘general principles of law’, presupposed to be common to constitutional traditions of the Member States of the EU or embodied in certain international instruments, the most important of which was the Strasbourg Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, in the UK the Strasbourg Convention had a double life – on the one hand, it was transposed by the Human Rights Act 1998, and on the other, it served as a source of ‘general principles’ of EU law, enforceable in UK courts in a manner envisaged by the European Communities Act 1972 and the doctrines of EU law.
The Treaty of Lisbon which entered into force on 1st December 2009 has changed the legal landscape of human rights protection in the EU. The amended Article 6(1) of the Treaty on the European Union states that:
The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The above statement is of course very ambiguous. On the one hand the Charter does not form part of the Treaties, but on the other it is attributed the same legal value as the Treaties. In that sense it should be regarded as part of ‘primary law’ of the EU with which EU legislation should be in compliance. Equally, the Charter should form part of the concept of ‘the Treaties’ as referred to by the European Communities Act 1972, now amended by the European Union (Amendment) Act 2008. This means that all rights to which the Charter gives rise to, if in accordance with EU law they are meant to be given legal effect, ‘shall be recognised and available in law, and be enforced, allowed and followed accordingly’ in the UK (s. 2(1) of the 1972 Act).
The UK/Polish Protocol to the Charter
However, the UK and Poland have decided to add a protocol to the Treaty of Lisbon which is intended to regulate the effects of the Charter within their domestic legal orders. Interestingly, the first article of that protocol stipulates that the Charter does not extend the ability to find inconsistency between UK and Polish laws and the Charter, a qualification that not only applies to Polish and UK courts, but also to the Court of Justice of the EU. The formulation of this article is a bit unfortunate. It does not specify in comparison with what the ability of the courts should not be extended. The EU Court has never had the formal competence to assess national laws and practices. In practice the EU Court reviews national provisions only indirectly, by interpreting the Treaties, the EU legislation, and now also the Charter. This power has not been taken away from the EU Court by the Protocol with respect to UK and Polish laws, and will undoubtedly be exercised by that Court if an opportunity arises. As for the consequences of finding incompatibility of domestic rules with EU law, as an implication of a particular interpretation of the Charter taken by the EU Court, these are specified by ‘general’ EU law. They can range from disapplication of the conflicting national rule (the so called Simmenthal effect, which English law has had the chance to feel quite dramatically in the Factortame case), through the alternation of traditional interpretation of national law to make its meaning compliant with EU law (the so called indirect effect), to application of EU norms in the place of conflicting provisions of national law. Because doctrines which lay down the above consequences pre-exist the Lisbon Treaty, their use by UK courts will not require any ‘extension’ of their ability to review domestic laws and practices. Other consequences of incompatibility of national laws with EU rights are regulated by the principle of ‘national procedural autonomy’, and, subject to the requirements of non-discrimination and practical possibility, remain within the province of national legal orders. In that regard the Charter only confirms the long-established principle of ‘effective judicial protection’ in the form of a right to an effective remedy (Article 47). Given the wording of Article 1(1) of the Protocol it would be difficult to maintain that it was this provision and its consequences for national autonomy with respect to remedies and procedures available to victims of EU rights violations, from which the UK and Poland wished to derogate.
What follows is that for all practical purposes Article 1(1) of the Protocol seems to be empty of content. Because reviewability of national laws and practices had never been regulated by the ‘written’ sources of EU law (the Treaties, protocols, etc.) and the Charter says nothing specifically about this issue, it may not affect the pre-existing unwritten systemic principles of EU law, and the Protocol which concerns only the Charter is equally unable to control the Charter’s consequences in that matter. For this reason the Charter is likely to have in the UK exactly the same force as any other EU act of primary law, and its practical effects will depend on the content of Charter provisions and the general doctrines of EU law.
From among the substantive provisions of the Charter, those included in Title IV entitled ‘Solidarity’ have received special attention of the UK and Polish governments. Section 2 of Article 1 of the Protocol states that ‘nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.’ Title IV contains inter alia such rights as the right to collective bargaining and action, to protection in the event of unjustified dismissal, to fair and just working conditions and to preventive health care. The Union also recognises in other provisions of this Title the prohibition of child labour, the protection of family life and the entitlement to social benefits.
The content of Section 2 of Article 1 of the Protocol suggests that Title IV provisions in fact may possess the status of ‘justiciable rights’ in EU law and that only in the UK and Poland, due to the Protocol, they will be limited by the content of UK and Polish laws. Yet, the view that Title IV actually includes any provisions guaranteeing ‘rights’ is quite contentious. In order to understand this we need examine the classifications used in the Charter. In the Charter provisions are divided into two categories: those which contain ‘rights’ or ‘freedoms’, and those which contain only ‘principles’. According to ‘Explanations Relating to the Charter of Fundamental Rights’, in itself a document of a dubious legal force, ‘principles’ are different from ‘rights’ in that they ‘do not (…) give rise to direct claims for positive action by the Union’s institutions or Member States authorities’. This suggests that only ‘rights’ and ‘freedoms’ should be used as grounds for domestic causes of action. According to Article 52(5) of the Charter, principles are ‘judicially cognisable’ only in the interpretation of the acts adopted by Union institutions in order to implement them and as grounds of review of their legality. It follows that ‘principles’ can not be used against the Member States unless the contested acts of national authorities fall within the scope of Union acts adopted to implement the ‘principles’. Thus, the classification of a Charter provision as possessing a ‘right’, rather than a mere ‘principle’, is of crucial significance for its effects in the laws of the Member States. If the EU Court finds that Title IV of the Charter contains not only ‘principles’ but also ‘rights’ (as suggested by ‘Explanations’) the UK/Polish Protocol could in fact operate to exclude some uses of the Charter before a UK court. Yet, neither the Charter, which uses the language of ‘judicial cognisability’, nor the Protocol, which employs the term ‘justiciability’, prevent the use of the Charter in the interpretation of EU acts, which may in turn affect interpretation of national law on matters covered by Title IV.
What the Charter does not say
The Charter does not deal with the relationship between the old methods of protecting human rights in the EU and the post-Lisbon arrangement. It is clear that the Charter does not supersede ‘general principles of law’ which have been protecting human rights in EU law since the early seventies. These ‘general principles’ remain a distinct category because of the wording of Article 6(3) TEU:
Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
Thus, the more controversial extensions of EU law and its effects on national law when it comes to the domestic protection of human rights could still be carried out by means of the old concept of ‘general principles’. How far these could go could be seen in such cases as Johnston, Carpenter or Mangold. They can lead to inapplicability of domestic rules on evidence, restrict the Member States’ competence to deport third country nationals and require national courts to set aside conflicting national legislation in a purely horizontal situation. But ‘general principles’ have also some advantages for the Member States over those provided by the Charter. While the Charter says nothing on whether national governments can use its provisions to derogate from free movement provisions of the Treaty, it is an established doctrine of EU law that such use can be made of ‘general principles’ of fundamental rights (see Schmidberger and Omega Spielhallen, recently also Viking Line and Laval). Yet, it is only the general principles, and not the Charter provisions, which could be extended to apply also in horizontal situations (the Charter is addressed only to EU institutions and the Member States). So if anything we are likely to observe the subsumption of the new method into the old, and thereby the broadening of EU law claims on domestic protection of rights. Neither the Treaty or the Charter, which both apparently lay down that the Charter does not establish any new power or task for the EU, nor the UK/Polish Protocol will be able to prevent this expansion. Will UK courts because of the Charter have to take even more decisive steps in order to adapt UK laws to the rights first incorporated in the UK by the Human Rights Act? Much will depend on how the Charter and the obligations stemming from it for national courts will be interpreted by the Court of Justice of the EU. In substantive terms, EU human rights law should now approach the Strasbourg case law, leading to greater coherence in the standards of protection (Article 52(3) of the Charter). But the methods of enforcing EU rights in national courts are much sharper than those envisaged by the Human Rights Act for the Strasbourg Convention. This may encourage applicants to plead their human rights as ‘EU’ rather than ‘Convention’ rights, which will in turn increase the role of the Charter in domestic litigation.
Dr Dorota Leczykiewicz is Leverhulme Trust Early Career Fellow at the Faculty of Law and at Trinity College, University of Oxford.
Some of the issues discussed in the piece above are further elaborated upon in her two articles -“Effective Judicial Protection” of Human Rights After Lisbon (2010) 35 European Law Review 326-348, and The Charter of Fundamental Rights and Member States’ Derogations from Internal Market Obligations, forthcoming in PM Huber and K Ziegler (eds), The EU and National Constitutional Law (2011).