Brexit debates have started focusing on the EU Charter of Fundamental Rights, after it has become clear that the economic effects of the UK departure from the EU are likely to be negative. Michael Gove has attacked the Charter, and the CJEU case law pertaining to it, in a key Leave speech, and the Financial Times has devoted a substantial article to the subject. There is however a lot of misrepresentation going on, as I have argued elsewhere. This post aims to offer a more rounded, if still concise assessment of what the Charter is, and what it is not, and whether it really interferes with UK law, or poses a threat to UK sovereignty.
The argument against the Charter is easy to sketch. It was foisted on the UK as a mere, non-binding proclamation, in 2000. It was then incorporated in the failed EU Constitution, but the latter was simply repackaged as the Lisbon Treaty, and the effect is that the Charter acquired binding force. This is the European federalists’ Trojan horse. The Charter is, at its core, a constitutional instrument, imposing a long list of human rights and fundamental freedoms on EU Member States. If it were a mere international instrument, it would simply join the catalogue of human rights treaties and declarations with variable effectiveness. But the Charter is different, for it is enforced by the CJEU, whose judgments are binding and trump national law. Surely, the ever integration-minded CJEU will use the Charter to expand EU law, and to override national laws resulting from democratic processes. The canary in the coal mine must be the UK Protocol on the Charter, which the CJEU emasculated in NS by saying that it is not an opt-out, contrary to popular political belief.
However, this broad argument about the threat posed by the Charter does not withstand closer scrutiny, for the following reasons.
First, the Charter is, effectively, less different from the ECHR than is often presumed. It has been lauded by human-rights activists as a more up-to-date rights catalogue, in particular because it includes social and economic rights, in contrast with the ECHR. Yet 16 years into the Charter’s existence we are still to witness any meaningful impact of those social and economic rights. The CJEU has been reluctant to endorse them, both before (e.g. Viking and Laval) and after the Charter’s entry into force (see e.g. Association de mediation sociale). Many labour lawyers are very disappointed with this strand of the CJEU’s case law. It is definitely not the CJEU which is a major contributor to the recognition of labour rights as human rights. As to the other provisions of the Charter which do not replicate the ECHR, the record is also minimal. This may be due to the fact that most of them are either programmatic or a simple confirmation of basic EU law principles which copied from the EU Treaties. And on the procedural side, the differences between the effects of ECtHR and CJEU judgments are also not as stark as they are often portrayed. Yes, EU law has primacy, also over primary legislation, and the CJEU judgments are binding on national courts – whereas the Human Rights Act 1998 does not allow the courts to strike down such legislation, and the ECtHR judgments are merely to be taken into account. But the actual instances of EU law primacy leading to the disapplication of UK primary legislation are few and far between. And in many human-rights cases such disapplication is inherently ineffective, because the violation cannot be remedied in the absence of new legislation. What does the Charter really add, in such cases?
Second, the scope of the Charter is limited, and more so than its opponents are willing to recognise. As is of course well known, the Charter itself confirms that it is binding on the EU Member States “only when implementing Union law” (Art 51(1)). This is a vague principle, open to all kinds of constructions, and it is not difficult to imagine a very expansive approach. But how has the CJEU interpreted it, in the more than six years since the Charter’s entry into force? In the same way as it has interpreted the substantive Charter provisions: keen on ensuring continuity. It has opted for a broad interpretation in one sense only, namely by confirming its pre-Charter case law on derogations. Where Member States derogate from basic EU law principles, in particular in the context of the internal market, the Charter also applies – even if this is not at face value about “implementation” of EU law. But it has not used Art 51(1) to push the boundaries of EU human rights law. As Michael Dougan explains very clearly, the Charter will only apply if there is a first-order provision or principle of EU law which triggers its application. Academic analysis of the relevant case law generally finds that the CJEU’s approach is in line with the pre-Charter era (see e.g. Dougan, Sarmiento, and Lenaerts – currently CJEU President). Informed readers will point to the ruling in Åkerberg Fransson, which adopted a wide approach, at least in the legal and factual context of that particular case. The Court found that the criminal prosecution of VAT fraud in Sweden was subject to the Charter, simply because VAT is partly regulated by EU law and VAT revenues contribute to the EU’s funding. I am also critical of that judgment, but there are countervailing examples. The CJEU has not applied the Charter to EU or national austerity policies in Eurozone bail-out countries: see e.g. Pringle and Sindicato dos Bancários do Norte. It has not established a strong connection between the Charter and EU citizenship; indeed it has managed to remain as quiet as possible about the right to family life and the rights of children in the (in)famous Ruiz Zambrano line of cases, which is, at its core, about those fundamental rights. The CJEU has also not embraced expansive theories about the scope of EU human rights law and the Charter, such as the competence theory of Advocate General Sharpston, and the reverse Solange theory of Von Bogdandy and others. So the record is a cautious one.
Third, the cautious record is confirmed when one looks at cases involving UK law, referred to the CJEU by UK courts. Most of those CJEU judgments are concerned with the interpretation of EU legislation, in light of the Charter – none of them in a way which leads to a genuine interference with UK primary legislation: e.g. Williams (working-time airline pilots), Alemo-Herron (transfer of undertakings), and NS and MA (asylum). NS is in fact very interesting, as it is clear that the CJEU was actually reluctant to accept that the human rights of asylum seekers can interfere with the system of the Dublin Regulation; a theme which recurred in Opinion 2/13 on accession to the ECHR. There are couple of judgments on the principle of national procedural autonomy, completely in line with established case law: East Sussex County Council and David Edwards. Perhaps the most significant intervention is ZZ, on the conditions which EU law imposes for the handling of secret evidence, in deportation cases involving national security. But it is not an intervention which overrules the UK system.
The central objective of the EU Charter is to ensure that the EU respects and protects fundamental rights in the various spheres of its policies and laws. The CJEU implements that objective, as shown by its willingness to strike down EU legislation or other significant EU acts (see e.g. Test-Achats, Digital Rights Ireland, and Schrems). The objective could not be achieved if the Member States were also not bound by the Charter where they act as the agents of EU law. Conceptually, this requires the general test of Åkerberg Fransson: where EU law applies, and a case is “within the scope” of EU law, the Charter must also apply. But it cannot be said that, overall, the CJEU is applying this test too broadly. Nor can it be said that the CJEU’s case law on the Charter is integrationist. This may have as much to do with the fact that the protection of human rights is not always well-suited for political integration purposes, as it is explained by the CJEU’s cautiousness. Protection of human rights is often counter-majoritarian, and it is a check on government, not a stimulus. Rights can be divisive, as the US federal history amply demonstrates. The CJEU has itself struggled with how rights interfere with the integration project: see the Viking/Laval saga, NS and the resistance to accession to the ECHR. Besides, if a common standard of rights protection were so integrationist, why is it that the pan-European ECHR and the ECtHR have failed to integrate the continent, particularly as the ECHR rights are generally applicable, and not confined to a separate, supranational legal order? It is great, in my view, to have the articulation of shared European values which the Charter offers, but whether that articulation itself leads to further integration is not at all clear.
There are of course ways to use rights-protection to achieve further integration, but the CJEU is clearly not taking the main integrationist route: that of linking the Charter to EU citizenship. A wide approach to the protection of the fundamental rights of EU citizens benefiting from free movement would indeed produce strong integrationist effects, as I have analysed elsewhere. The main one is that it would become untenable to limit those rights to EU citizens who have made use of free-movement rights, and not to extend them to everyone. But, as mentioned above, the CJEU has been very cautious in this respect. And if its case law on EU citizenship has had expansionist traits, there is a clear reversal in recent judgments such as Dano, on the politically salient issue of benefits. Application of the Charter was also refused there.
The conclusion is that the real record of the Charter does not confirm that it constitutes a new threat to national sovereignty. In fact, Eurosceptics should welcome the Charter, because it simply makes the EU institutions, and the Member States when they apply EU law, more accountable.
Piet Eeckhout is Professor of European Law and Vice-Dean of the Faculty of Laws, UCL.
(Suggested citation: P. Eeckhout, ‘The Real Record of the EU Charter of Fundamental Rights’, U.K. Const. L. Blog (6th May 2016) (available at https://ukconstitutionallaw.org/))