Written By Pierfrancesco Maria Lanza (EST Ambassador to Italy, Reggio Calabria)

Here in Europe we slowly elaborated the most sophisticated of all the international human rights legal frameworks. This was further strengthened by the embrace by the European Union of strong human rights commitments – including in the form of the European Charter of Fundamental Rights” stated in 2017 during his speech in Poland, Michael O’Flaherty, the current director of the European Union Fundamental Rights Agency. (1)

On the occasion of the 70th birthday of Europe Day, it is necessary to call for the strengthening and unity of the European Union’s identity through the rediscovery of a crucial tool for the promotion and protection of rights guaranteed over the years by the Union: the European Charter of Fundamental Rights. Indeed, a 2019 EU survey about the “Awareness of the Charter of Fundamental Rights of the European Union”, reported that at least 57% of the population in the EU is not aware of what the Charter is (2). This means that a lot of people are not aware of one of the foundations of the European Union and that its importance must be reminded.

The Charter of Fundamental Rights of the European Union, also known as the Charter of Nice, was solemnly proclaimed for the first time on the 7th December 2000 during the Nice European Council. Before the Charter, the protection of fundamental rights had not been expressly provided for in the Treaties and was guaranteed only by the jurisprudence of the Court of Justice, which had developed over time a series of consolidated fundamental principles. As a result, the 2000 declaration took the first step towards the recognition of these values. Nevertheless, it was initially considered as a simple political declaration without legal binding because it was not included in the Treaties. It is only after an adaptation in 2007 and with the entry into force of the Lisbon Treaty in 2009 that the Charter provided the same legal value as the Treaties (3). Indeed, as established in art. 6.1 of the Treaty on European Union: “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 European Union, 1992, p.7) (4). For this reason, each EU institution, agency, office and Member State must respect the rights and principles enshrined in the Charter. This means that European laws must comply with these too or otherwise will be cancelled. Moreover, by being fully part of European Union Law, the Charter has supremacy over various national laws, forcing Member States to respect it.

However, the Charter represents something more important than a simple set of European rules. In fact, by containing 50 articles which declare a series of political, social and economic rights, it can be considered as a push for European integration as it has changed the face of the Union. The Charter has transformed the EU from a mainly economic subject to a community also based on important political and social values through the constitutionalisation of EU citizens’ rights. The goal of making the European Union feel closer to its citizens, rather than being seen as something far away and difficult to understand, was showed from the outset during the project’s preparation work. Indeed, the Charter is the result of the collaboration and dialogue between a set of representatives from all levels of the Union: representatives of the European Commission, of the European Parliament, of the Heads of States and Governments of the Member States and of national parliaments, showing the will to bring together the European Union and citizens.

Due to this dialogue, the Charter is the result of the contribution

of all the rights found in the case-law of the Court of Justice of the EU, the rights and freedoms enshrined in the European Convention on Human Rights and other rights and principles resulting from the common constitutional traditions of EU countries and other international instruments” (The European Commission, no date) (5).

Consequently, the Charter identifies 6 titles in which the fundamental values ​​of the European Union are stated: Dignity (art. 0-5), Freedom (art. 6-19), Equality (art. 20-26), Solidarity (art. 27- 38), citizenship (art. 39-46) and Justice (art. 47-50). Most of the recognized rights are granted to “everyone”, regardless of nationality but regarding their importance, such as the freedom of thought, conscience and religion (art.10). But there are also rights reserved for EU citizens such as the right to vote and to stand as a candidate for the election of the European Parliament (art.39). Others are economic and social rights, especially related to the right to work. In addition, due to the constant changes that affect the modern society, the Charter of Nice also identifies other fundamental rights, the so-called “third-generation” rights, which include data protection and matters related to the spread of the Internet, guarantees on bioethics which are reflected for example in art.3 about “the prohibition of eugenic practices, in particular those aiming at the selection of persons” (The European Union, adapted in 2007) (6), and rights concerning transparent administration. This particularity makes it a very innovative Charter. As a matter of fact, unlike the other international conventions (e.g. the Universal Declaration of Human Rights) that outline the rights and freedoms of every single person in the world, the Charter of Fundamental Rights of the European Union makes these rights more practical and closer to the European reality, while expanding them. Indeed, the Charter addresses the specificities of the EU, for instance, it considers the freedom of movement and of residence (art.45) or the right to a good administration within the EU institutions and bodies (art.41), which are only related to the Member States. Secondly, the language used is very simple to understand and reflects its own meaning, without having to refer to further explanations. However, there is one thing that could appear difficult to understand: the Charter is indeed a legal bond for all the Member States, but not always, in fact, they must respect its statements only when they are acting within the scope of the European Union law. In other words, Member States must respect the Charter only when they are implementing EU law, for instance when they have to apply an EU regulation directly. Therefore, when they act on their own as part of their exclusive competences that do not depend on the Union, they have no obligation to respect the Charter. Nevertheless, national constitutions and other international conventions ratified by the Member States very often guarantee the protection of fundamental rights even outside the EU law in cases where the Charter does not apply (7). If one Member State fails to comply with the duties of the Charter, it must report to the Court of Justice of the European Union (CJEU), which monitors the obedience to it and the rest of European Union law, and must annul the conflicting national laws. However, not all the EU countries are bounded to the Charter. For example, the United Kingdom (before Brexit), Poland and Czech Republic have chosen to remain excluded from its application by applying the “opt-out” clause, a tool that allows a country that does not want to join an agreement with the others not to participate, while allowing the rest to continue integrating and avoid impasses.

As explained by this article, the Charter plays a fundamental role in the life of the European Union and its adoption by all Member States is desirable. All this is even more remarkable as an Agency has been set up to help the EU bodies and institutions to promote and protect human rights in the EU. It is the EU Agency for Fundamental Rights (8). The need for a body capable of spreading the knowledge of European fundamental rights reflects, even more, the importance that the Charter has and must have for the Union and for all its citizens. It also can be said that the Charter of Nice has spread the new fundamental rights culture in the EU, placing it as a centre for their protection and that of its citizens, as has been demonstrated by the intense work of the CJEU and all national courts regarding many law cases.

In conclusion, the Charter could be seen as the demonstration of unity and values ​​shared by the Member States to change the face of the European Union and to give it a more “human” side. Thus, it is strictly desirable that it can regain relevance in order to face with the perceived disunity and to increase the trust of citizens in an EU made up of people and not just money, power or simple agreements.


References

1) O’Flaherty M. (2017), “Protecting human rights in today’s Europe” speech, Poznan, retrieved from

<https://fra.europa.eu/en/speech/2017/protecting-human-rights-todays-europe>

2) The European Union, (2019), “Awareness of the Charter of Fundamental Rights of the European Union” survey, retrieved from 

< https://op.europa.eu/en/publication-detail/-/publication/096795a7-8d89-11e9-9369-01aa75ed71a1>

3) The Council of the European Union, (2019), “10th anniversary of the Charter of Fundamental Rights: Council reaffirms the importance of EU common values”, retrieved from

<https://www.consilium.europa.eu/en/press/press-releases/2019/10/07/10th-anniversary-of-the-charter-of-fundamental-rights-council-reaffirms-the-importance-of-eu-common-values/>

4) The European Union, (1992), “Treaty on European Union”, art. 6.1, p.7

5) The European Commission, (no date), “Why do we need the Charter?”, retrieved from

<https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/eu-charter-fundamental-rights/why-do-we-need-charter_en>

6) The European Union, (adapted in 2007), “Charter of fundamental rights of the European Union

7) The European Commission, (no date), “When does the Charter apply” retrieved from

<https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/eu-charter-fundamental-rights/when-does-charter-apply_en>

8) The European Union Agency for Fundamental Rights, (no date), “About FRA”, retrieved from 

<https://fra.europa.eu/en/about-fra>