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Monday, November 4, 2013

Impact of the European Charter of Fundamental Rights After Its Integration in the 2009 Treaty of Lisbon by Rojen Salditos

I. Introduction

In December 2013, it will be three years since the Lisbon Treaty came into force, and so does the integration of the Charter of Fundamental Rights of the European Union, hereinafter referred to as “the Charter” for brevity. Being embedded in its values, clearly stated in Article 2 of the Treaty on European Union (TEU), that the “Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities” (Borchardt, 2010, p.19), the Charter is legally binding as the treaties themselves. This was not the case before 01 December 2009. Now that the Charter’s legally binding effect has been set forth for almost 3 years now, this paper will briefly examine its impact in general. Before the impact will be discussed, a brief information about the Charter will be introduced first.

The impact, without examining further, only from the understanding of the Charter’s objectives already denotes a positive sign. This is simply the first impression though. Did something really change? Is it for the better? For worse? As a primer, it is worth noting here that the Charter sets out all the rights recognised today by the EU’s member states and their citizens. “Shared rights and values create a feeling of kinship between Europeans” (Fontaine, 2010 p. 11).  One very notable impact of the Charter is the abolition of the death penalty in all EU countries.

II. A Brief History how the Charter became an integral part of the EU Treaties

As explained in the European Commission (hereinafter referred to as the Commission for brevity) website, under subheading “Justice”, the Charter was initially solemnly proclaimed at the Nice European Council on 7 December 2000 but did not have legal binding effect until the Lisbon Treaty, on 01 December 2009 when it became legally binding on the EU institutions and on national governments, just like the EU Treaties  themselves. The members of the College of Commissioners swore a solemn declaration to uphold the Charter as well as the Treaties in May 2010, The Charter strengthens the protection of fundamental rights by making those rights more visible and more explicit for citizens. Is this necessary?

Because of the fact that the rights of each European Union citizen or  individual within the EU were established at “different times, in different ways and in different forms” according to the European Commission, the situation necessitates to “clarify things and to include them all in a single document which has been updated in the light of changes in society, social progress and scientific and technological developments”. This document was the Charter.

III. What’s in the Heart of the Charter?
So EU has the Fundamental Rights Charter? What is it exactly? How can it affect the EU individuals? And how? As detailed in the Commission’s website, and as a summary, the Charter:
a. contains rights and freedoms under six titles:
1. Dignity
2. Freedoms
3. Equality
4. Solidarity
5. Citizens' Rights, and
6. Justice.
b. with the aim to fortify and defend the rights of EU individuals, it entrenaches:
1. all the rights found in the case law of the Court of Justice of the EU;
2. the rights and freedoms enshrined in the European Convention on Human Rights; and
3. other rights and principles resulting from the common constitutional traditions of EU countries and other international instruments.
c. sets a series of individual rights and freedoms
d. is a very modern codification and includes 'third generation' fundamental rights, such as:
1. data protection;
2. guarantees on bioethics; and
3. transparent administration.
e. is consistent with the European Convention on Human Rights (ECHR) adopted in the framework of the Council of Europe, thus, when the Charter contains rights that stem from the ECHR, their meaning and scope are the same.
f. applies to the following, as addressed in its provisions:
1. the institutions and bodies of the EU with due regard for the principle of subsidiarity; and
2. the national authorities only when they are implementing EU law. When EU countries adopt or apply a national law implementing an EU directive or when their authorities apply an EU regulation directly.
g. does not extend the competence of the EU to matters not included by the Treaties under its competence

In cases where the Charter does not apply, the protection of fundamental rights is guaranteed under the constitutions or constitutional traditions of EU countries and international conventions they have ratified.
IV. The Charter’s Impact
How the words of the Charter turn into actions and make them felt by the EU citizens? How do EU Institutions and national courts of the Member States (MS) make individual’s fundamental rights a reality to them? How did the react? What do they think about it? How it impacted them? The 2012 Report on the Application of the EU Charter of Fundamental Rights by the European Commission gives a summarised answers to these questions. Main points, as claimed by the reports, can already be noted as an impact of the binding effect, legally, of the Charter.

In its Strategy for the effective implementation of the Charter by the European Union , the Commission announced that it will report each year on the concrete steps undertaken for the effective implementation of the Charter.. Through these reports, the Commission meets the longstanding and legitimate expectations of placing fundamental rights at the heart of EU policies, which have been voiced in particular by the European Parliament.

Notably, EU is actively devising ways and strategies to enforce the legality of the Charter and making sure that the citizens are benefited by the related implementation of policies. Through these actions and efforts, EU will be able to have a solid base for the necessary dialogue between all EU institutions and MS when needed, especially on the implementation of the Charter, which shall be the reference point when making policies. After this, what happens when the policies are there? What’s the course of action from the citizens?

Three years in force, let’s examine the impacts. This paper divides the impact into main categories:
a. The impact to EU Institutions
b. The impact to EU MS
The first tackles the actions undertaken by the EU Institutions and MS to be compliant with the Charter when drawing policies, and if the Charter’s effects have reached the EU individuals or citizens already. And if yes, indicate some specific instances, in terms of related cases.

a. The impact to EU Institutions and MS
The EU Institutions are primarily responsible in ensuring respect for fundamental rights as a legal
requirement based on the binding Charter. As a result, concrete steps to implement the Charter have fostered a fundamental rights reflex. These are:
1. Strengthening the protection of fundamental rights through EU legislation
Compliance with the Charter is not enough. EU Institutions have to be proactive themselves. If and when the action falls within EU competence, the Commission can also propose EU legislation that gives concrete effect to the rights and principles of the Charter. One concrete example is in the field of technology, emphasizing the respect for Citizens’ Rights (Charter title 5). “In order to give full effect to the Charter in the digital age, the Commission has proposed a major reform of the EU's rules on the protection of personal data.” As emphasised  in the 2012 Report:

Europe's historical experience has led to a common understanding in Europe that privacy is an integral part of human dignity and personal freedom. This is why the Charter recognises both the right to private life (Article 7) and the right to the protection of personal data (Article 8). The Treaty (Article 16, TFEU) gives the EU complementary legislative competence to establish harmonised EU data protection laws.

Another concrete example is on Safeguarding procedural rights, which obviously protects the rights of the citizens, guaranteeing  that victims are recognised and treated with respect when they come into contact with the police, prosecutors and the judiciary while giving  them the procedural rights to be informed, supported and protected and at the same time ensuring that they can actively participate in criminal proceedings.

The Directive on the right to information in criminal proceedings, adopted on 22 May 2012, requires that anyone arrested is informed about their rights in a language that they understand. In addition, the new Directive establishing minimum standards on the rights, support and protection of
victims of crime, adopted on 25 October 2012, ensures that victims are given nondiscriminatory minimum rights across the EU, irrespective of their nationality or country of residence.
The EU Agency for Fundamental Rights has also been established in order to provide objective, reliable and comparable data on the respect of fundamental rights in the EU as the basis of the latter's policies and legislation

Furthermore, actions related to  title 3 of the Charter on Equality, as highlighted in the 2012 Report,  the  Commission took a pro-active approach to accelerate progress towards a better gender balance on the corporate boards of European companies listed on stock exchanges.  While this legislative proposal is a milestone in EU legislation on gender equality, it also takes positive action in promoting the under-represented (minority)  sex.

The proposal sets an objective of 40% for the minimum share of the under-represented sex among non-executive board members of such companies by 2020 (by 2018 for listed companies which are public undertakings). In order to meet the 40% objective it obliges listed companies with a lower percentage of the under-represented sex among non-executive directors to make appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate. This will be achieved by applying pre-established, clear, neutrally formulated and unambiguous criteria; and in case

2. The fundamental rights dimension of the EU external actions
Leadership by example has still its powers. EU is conscious of this and it applies the Charter to all its actions not only within the EU but also in the field of external relations.Specific action in this field include:
(1) the Council adopted a Strategic Framework on Human Rights and Democracy and an Action Plan designed to improve the effectiveness and consistency of EU human rights policy as a whole in the next years;
(2) the rejection by the European Parliament (EP), on 4 July 2012, the draft Anti-Counterfeiting Trade Agreement (ACTA) which aimed at improving global standards for the enforcement of intellectual property rights to more effectively combat trade in counterfeit and pirated goods, applying the Charter when exercising its new prerogatives on international trade agreements; and
(3) Annulment by the Court concerning the freezing of assets of a company and its majority shareholder case, previously decided by the Council in the framework of common foreign and security policy.  The Court enforced Article 47 of the Charter, upholding that the principle of effective judicial protection.

3. The Court's control of EU acts for compliance with the Charter
Aside from the above sample noted, there were various court ruling touching the Charter. either concerning the compliance of EU acts, or the Court giving guidance on how to take into account fundamental rights in the EU's legislative work and all other acts of the EU, which have legal effects.

Concrete examples highlighted in the 2012 Report include:
(1) The Court made clear that the Charter must be taken into account when the legislator decides to delegate powers to the Council or to the Commission. It annulled a Council implementing decision on surveillance of the external sea borders of the EU on the basis that the adoption of rules conferring enforcement powers on border guards entails political choices falling within the responsibilities of the European Union legislature and that these rules were likely to affect personal freedom and fundamental rights to such an extent that the involvement of the European Union legislature is required;
(2) The Court examined whether the EU institutions actually respect the principle of nondiscrimination in their recruitment policy. As a result, the  Court annulled the notices of several open competitions to become a civil servant of EU institutions which have been published in full only in three  official languages. The Court found that a potential candidate whose mother tongue was not one of the languages of full publication of the contested competition notices was at a disadvantage compared to a candidate whose mother tongue was one of those three languages. That disadvantage was the consequence of a disproportionate difference in treatment on the ground of language, prohibited by Article 21 of the Charter.
(3) The Court controlled the application of the principle of good administration by the EU institutions (Article 41 of the Charter), resulting ot the annulment of the decision of the Commission to reject an offer in the context of an invitation to tender for public service procurement, because the Commission did not provide sufficient justification for its decision. The Court established a link between Article 41 (good administration) and Article 47 (access to justice) of the Charter,
(4) Several rulings given by the Court in the past years triggered adaptations to EU legislation resulting to the incorporation by, the European Parliament, the Council and the Commission the Court's case law when negotiating on the new ‘Dublin Regulation’ on the conditions for the transfer of asylum seekers in the EU. As a result, under the newly agreed rules, asylum seekers cannot be sent back to a Member State where there is a serious risk of violation of their fundamental rights. Instead, the responsibility to give quick access to an
asylum procedure should be exercised by another Member State. The Commission also incorporated the Court's case law when preparing its modified proposal on the publication of the beneficiaries of European agricultural funds. The new proposed rules are based on a revised detailed justification, centred on the need for public control of the use of European agricultural funds in order to protect the Union's financial interests.

The above detailed the impacts of the Charter on EU Institution, which is the first layer in the system. The second layer is comprised of the member states’ (MS) constitutions and international legal obligations,
such as the European Convention on Human Rights (ECHR). It is worth noting that the Charter complements existing systems for the protection of fundamental rights and does not replace them. Following are the various impacts on MS of the Charter as highlighted in the 2012 Report. They are

(1) The limits of the scope of application of the Charter have been underlined by the Court.
It declared inadmissible a preliminary reference from a Bulgarian Administrative Court concerning the right to a judicial remedy in respect of decisions imposing criminal sanctions for certain breaches of road traffic regulations, referring to settled case law, which is that the requirements flowing from the protection of fundamental rights are binding on Member States whenever they implement EU law (CJEU, Case C-27/11, Vinkov, 7.6.2012);

(2) The important implications of the Charter are to be seen in the increasing number of requests for a preliminary ruling of national jurisdictions received by the Court. For example, in the field of asylum the Court upheld that whenever an application for asylum is lodged at the border or in the territory of a Member State, that Member State is obliged to grant the minimum conditions for reception of asylum seekers laid down in EU law regardless of whether a Member State is responsible for examining the application for asylum under EU law (CJEU, Case C-179/11). In particular, the need to uphold fundamental principles of human dignity (Article 1) and the right to asylum (Article 18) means that, the obligation under EU law (Council Directive 2003/9/EC)  to provide an asylum seeker with housing, food, clothes and a daily expenses allowance, and the subsequent financial onus, are to be borne by the requesting Member State until the asylum seeker is
transferred to the Member State responsible for examining their application.

Furthermore, affirmative actions related to the implementation and/or compliance of the Charter in MS include the following:
a. Actions taken by the Commission to ensure the respect of the Charter by the Member States.
(1) In 2012, the Commission was called upon to take infringement cases to the Court of Justice, which concerned the non-compliance of a Member State with key provisions of the Charter. As summarised in the 2012 Report.

Hungary adopted several laws – some of them so-called cardinal laws adopted directly under its new constitution – which raised important fundamental rights concerns and also came under the scrutiny of the Council of Europe. The Commission carried out its legal analysis on those points where there was a link with EU law, in accordance with the scope of application of the Charter (Article 51) and the Commission's role as guardian of the Treaties. Following first warning letters in the end of 2011, the Commission decided on 7th June 2012 to bring infringement procedures before the Court. The Commission firstly challenged interferences with the independence of the Hungarian data protection authority, on the ground that the “complete independence” of national data protection authorities is a requirement under the 1995 Data Protection Directive and is recognised explicitly in Article 16 TFEU as well as in Article 8 of the Charter. In a second infringement proceeding, the Commission contested the early retirement of around 274 judges and public prosecutors in Hungary caused by a sudden reduction of the mandatory retirement age for this profession from 70 to 62. The basis for the Commission's action was Directive 2000/78/EC on equal
treatment in employment which prohibits discrimination at the workplace on grounds of age. This also covers the dismissal for age related reasons without an objective justification. This case thus helps to implement the general prohibition of discrimination, including on grounds of age, as guaranteed by Article 21 of the Charter. The Court's ruling of 6 November 2012 upheld the Commission's assessment according to which the mandatory retirement age for judges, prosecutors and notaries within a very short transitional period is incompatible with EU equal treatment law. Hungary will have to change these rules to comply with EU law.

(2) in August 2012, about developments in France on the dismantling of Roma settlements and about returns of Roma to their home country, the Commission wrote to the French authorities and discussions took place enabling to clarify the facts and the legal framework. The situation has changed considerably in the last few years. Further to the Commission's action in 2010 to guarantee the application of free movement directive by all Member States, and to put in place a European Framework for National Roma Integration Strategies, France modified its law to guarantee full compliance with the free movement directive, notably as concerns procedural safeguards related to expulsions of EU citizens, and adopted its national Roma Integration Strategy. On the basis of this new Strategy, close cooperation and enhanced efforts on Roma inclusion is taking place with the active participation of France.

(3) Launching of infringement proceedings against Malta on the grounds of its failure to correctly implement the EU free movement rules and more particularly the right of same-sex spouses or registered partners to join EU citizens in Malta and reside there with them. As a result of the Commission's action, the Maltese
legislation was modified and is now compatible with EU rules on the rights of EU citizens to free movement and non-discrimination.

b. Development of national case law on the application of the Charter by the MS
So far, immigration and asylum are the majority of the Charter cases involving the MS. However the analysis provided by the EU Agency for Fundamental Rights, according to the 2012 Report, on information provided by some MS on case law on the Charter also shows that the implications of the Charter go well beyond this area, and concern very diverse areas such as regulations on financial markets, labour law, consumer protection, environment law and children's custody.

V. Conclusion
Three years and the Charter is already in full force. Actions and strategies from the EU Institutions are apparent and several cases have already been decided. In general, the Charter has a positive effect, knowing that it gives back to the EU citizens what’s inherent to their existence: their fundamental rights and freedom!


Borchardt, K. D. 2010. The ABS of European Union Law. Publications Office of the European Union. Luxembourg.

Fontaine, P. 2010. Europe in 12 Lessons. Publications Office of the European Union. Luxembourg.

European Commission. Justice, EU Charter of Fundamental Rights last retrieved 03 November 2013 from http://ec.europa.eu/justice/fundamental-rights/charter/

COMMITTEE OF THE REGIONS. 2012 Report on the Application of the EU Charter of Fundamental Rights. Brussels. May 2013.

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