The Impact of the EU Charter on Fundamental Rights

The Impact of the EU Charter on The Impact of the EU Charter on Fundamental RightsFundamental Rights

An Introduction for the Equality and An Introduction for the Equality and Diversity ForumDiversity Forum

Jonathan CooperDoughty Street Chambers

Introducing the Lisbon Treaty: Introducing the Lisbon Treaty: do we have a Constitutional do we have a Constitutional Framework for Europe?Framework for Europe?

The Lisbon Treaty in a NutshellThe Lisbon Treaty in a Nutshell

• No more byzantine architecture No more byzantine architecture

• The three pillars have become The three pillars have become one. one.

• The EU has a legal personality The EU has a legal personality

• The EU becomes more supra-The EU becomes more supra-national and less inter-national and less inter-governmental. governmental.

• Enhanced democratic Enhanced democratic accountability and judicial accountability and judicial oversightoversight

• Human rights move centre stageHuman rights move centre stage

The UK’s Response in a NutshellThe UK’s Response in a Nutshell

• The UK gives up its veto on criminal The UK gives up its veto on criminal justice matters (Freedom, Security and justice matters (Freedom, Security and Justice)Justice)

• Replaced by a UK right to opt in to Replaced by a UK right to opt in to provisions relating to Freedom, Security provisions relating to Freedom, Security and Justice (FSJ).and Justice (FSJ).

• The UK has an opt out in relation to the The UK has an opt out in relation to the Courts jurisdiction over pre-existing EU Courts jurisdiction over pre-existing EU provisions relating to FSJprovisions relating to FSJ

• The UK’s Protocol to the EU CharterThe UK’s Protocol to the EU Charter

• The national veto remains for foreign The national veto remains for foreign policy and defence provisionspolicy and defence provisions

The Lisbon Treaty is a complicated The Lisbon Treaty is a complicated amending treaty. It incorporates a amending treaty. It incorporates a European Union that is made up of: European Union that is made up of:

• 3 Treaties; 3 Treaties;

• almost 40 Protocols; almost 40 Protocols;

• 2 Annexes; and 2 Annexes; and

• myriad Declarations. myriad Declarations.

The consolidated texts stretch to over The consolidated texts stretch to over 500 A4 pages.500 A4 pages.

Read together is this a Constitution?Read together is this a Constitution?

Treaties making up the EU post Treaties making up the EU post LisbonLisbon

• the Treaty of the European Union (the Treaty of the European Union (TEUTEU) = ) = democratic principles, institutions, enhanced democratic principles, institutions, enhanced cooperation, external action and common cooperation, external action and common foreign foreign and security policy of the EU; and security policy of the EU;

• the Treaty on the Functioning of the European the Treaty on the Functioning of the European Union (Union (TFEUTFEU) = “organises the functioning of ) = “organises the functioning of the Union and determines the areas of, the Union and determines the areas of,

delimitation delimitation of, and arrangements for of, and arrangements for exercising its competences” (draws heavily on exercising its competences” (draws heavily on now defunct TEC); and now defunct TEC); and

• the EU Charter of Fundamental Rights and the EU Charter of Fundamental Rights and Freedoms is given effect by becoming a Freedoms is given effect by becoming a separate separate TreatyTreaty

Transforming the Values and Transforming the Values and Objectives of the EUObjectives of the EU

• Lisbon makes human rights protection as Lisbon makes human rights protection as important as the consolidation of the Union. important as the consolidation of the Union.

• Is the guarantee of the internal market no Is the guarantee of the internal market no longer the overriding objective of the EU?longer the overriding objective of the EU?

• The EU’s values: human dignity, democracy, The EU’s values: human dignity, democracy, equality, the rule of law and respect for human equality, the rule of law and respect for human rights, including the rights of persons rights, including the rights of persons

belonging belonging to minorities. to minorities.

• The EU’s objectives include promoting social The EU’s objectives include promoting social justice and protection, equality between justice and protection, equality between

women women and men, solidarity between generations and men, solidarity between generations and and the protection of the rights of the child, as well the protection of the rights of the child, as well

as combating social exclusion and as combating social exclusion and discrimination.discrimination.

Those objectives also include: Those objectives also include:

• ““contributing to peace, security, the contributing to peace, security, the sustainable development of the Earth, sustainable development of the Earth, solidarity and mutual respect among solidarity and mutual respect among peoples,peoples,

• free and fair trade, eradication of free and fair trade, eradication of poverty and the protection of human poverty and the protection of human rights, in particular the rights of the rights, in particular the rights of the child, child,

• as well as to the strict observance and as well as to the strict observance and the development of international law, the development of international law, including respect for the principles of including respect for the principles of the United Nations Charter.”the United Nations Charter.”

The EU Charter of The EU Charter of Fundamental Rights: Fundamental Rights: prospects, possibilities & prospects, possibilities & pitfallspitfalls

The European Union Charter of The European Union Charter of Fundamental Rights: Fundamental Rights: what is it & what is it & where did it come from? where did it come from?

The Charter was drafted by a Convention comprised of:The Charter was drafted by a Convention comprised of:• 15 representatives of heads of state or government15 representatives of heads of state or government

• 16 Members of the European Parliament16 Members of the European Parliament

• 30 members of national parliaments30 members of national parliaments

• An EU CommissionerAn EU Commissioner

““The Charter which we are drafting must one day in the The Charter which we are drafting must one day in the not-too-distant future become legally binding …. We not-too-distant future become legally binding …. We should therefore proceed as if we had to submit a legally should therefore proceed as if we had to submit a legally binding list” binding list” (Roman Herzog, President of the Convention with (Roman Herzog, President of the Convention with

responsibility for drafting the Charter, December 1999)responsibility for drafting the Charter, December 1999)

Charter proclaimed on behalf of the EU institutions in Charter proclaimed on behalf of the EU institutions in December 2000. It was decided it should be non-binding.December 2000. It was decided it should be non-binding.

The EU Charter of Fundamental The EU Charter of Fundamental Rights: Rights: where do the Rights come where do the Rights come from?from?• In the preamble it is expressly stated to reaffirm:In the preamble it is expressly stated to reaffirm:

“… “… the rights as they result, in particular, from the the rights as they result, in particular, from the constitutional obligations and international obligations constitutional obligations and international obligations common to the Member States, the Treaty on European common to the Member States, the Treaty on European Union, the Community Treaties, the European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the the Community and by the Council of Europe and the case law of the Court of Justice of the European case law of the Court of Justice of the European Communities and the European Court of Human rights”Communities and the European Court of Human rights”

Content of the CharterContent of the Charter

The Charter includesThe Charter includes civil and political rights and civil and political rights and economic and social rights thus affirming the indivisibility economic and social rights thus affirming the indivisibility of human rights. of human rights.

These rights are dividedThese rights are divided into six sections: into six sections:• Dignity Dignity • Freedoms Freedoms • Equality Equality • Solidarity Solidarity • Citizens' rights Citizens' rights • Justice Justice

The content of the CharterThe content of the Charter has been unaffected by the has been unaffected by the Lisbon Treaty, although some of the wording has been Lisbon Treaty, although some of the wording has been adapted. It is gender neutral.adapted. It is gender neutral.

NB: Check your Charter is 14/12/2007 (OJ C/303/1)NB: Check your Charter is 14/12/2007 (OJ C/303/1)

Content of the Charter: Key AdditionsContent of the Charter: Key Additions

Dignity:Dignity:

Article 1: Human dignityArticle 1: Human dignityHuman dignity is inviolable. It must be respectedHuman dignity is inviolable. It must be respected

Article 3: Right to the integrity of the personArticle 3: Right to the integrity of the person1.1.Everyone has the right to respect for his or her physical and Everyone has the right to respect for his or her physical and mental integrity.mental integrity.

Article 5: Prohibition of slavery and forced labourArticle 5: Prohibition of slavery and forced labour3. Trafficking in human beings is prohibited 3. Trafficking in human beings is prohibited

Content of the CharterContent of the CharterFreedomsFreedoms

Article 8: Protection of personal dataArticle 8: Protection of personal data

2. Such data must be processed fairly for specified purposes 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has some other legitimate basis laid down by law. Everyone has the right to access to data which has been collected the right to access to data which has been collected concerning him or her, and the right to have it rectified.concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by 3. Compliance with these rules shall be subject to control by an independent authorityan independent authority

Article 9: Right to marry and found a familyArticle 9: Right to marry and found a family

The right to marry and found a family shall be guaranteed in The right to marry and found a family shall be guaranteed in accordance with the national laws governing the exercise of accordance with the national laws governing the exercise of these rightsthese rights

Article 10: freedom of thought, conscience and Article 10: freedom of thought, conscience and religionreligion

2. The right to conscientious objection is recognised, in 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of accordance with the national laws governing the exercise of this rightthis right


FreedomsFreedoms

Article 11: Freedom of expression and informationArticle 11: Freedom of expression and information

2. The freedom and pluralism of the media shall be 2. The freedom and pluralism of the media shall be respectedrespected

Article 12: Freedom of assembly and associationArticle 12: Freedom of assembly and association

2. Political parties at Union level contribute to expressing the 2. Political parties at Union level contribute to expressing the political will of the citizens of the Unionpolitical will of the citizens of the Union

Article 13: Freedom of the arts and sciencesArticle 13: Freedom of the arts and sciences

The arts and scientific research shall be free of constraint. The arts and scientific research shall be free of constraint. Academic freedom shall be respected.Academic freedom shall be respected.


FreedomsFreedoms

Article 14: Right to educationArticle 14: Right to education

1. Everyone has the right to education and to have access to 1. Everyone has the right to education and to have access to vocation and continuing trainingvocation and continuing training

2. This right includes the possibility to receive free 2. This right includes the possibility to receive free compulsory educationcompulsory education

3. The freedom to found educational establishments with 3. The freedom to found educational establishments with due respect for democratic principles and the right of due respect for democratic principles and the right of parents to ensure the education and teaching of their parents to ensure the education and teaching of their children in conformity with their religious, philosophical and children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such with the national laws governing the exercise of such freedomfreedom


FreedomsFreedoms

Article 15: Freedom to choose an occupation and Article 15: Freedom to choose an occupation and right to engage in workright to engage in work

1. Everyone has the right to engage in work and to 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupationpursue a freely chosen or accepted occupation

3. Nationals of third countries who are authorised to 3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.working conditions equivalent to those of citizens of the Union.

Article 16: Freedom to conduct a businessArticle 16: Freedom to conduct a business

The freedom to conduct a business in accordance with Union The freedom to conduct a business in accordance with Union law and national laws and practices is recognisedlaw and national laws and practices is recognised

Article 17: Right to propertyArticle 17: Right to property

2. Intellectual property shall be protected2. Intellectual property shall be protected


FreedomsFreedoms

Article 18: Right to asylumArticle 18: Right to asylum

The right to asylum shall be guaranteed with due respect for The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28the rules of the Geneva Convention of 28thth July 1951 and the July 1951 and the Protocol of 31Protocol of 31stst January 1967 relating to the status of January 1967 relating to the status of refugees in accordance with the Treaty on European Union refugees in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’). (hereinafter referred to as ‘the Treaties’).

Article 19: Protection in the event of removal, Article 19: Protection in the event of removal, expulsion or extraditionexpulsion or extradition

1. Collective expulsions are prohibited1. Collective expulsions are prohibited

2. No one may be removed, expelled or extradited to a State 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subject where there is a serious risk that he or she would be subject to the death penalty, torture or other inhuman or degrading to the death penalty, torture or other inhuman or degrading treatment or punishment.treatment or punishment.


EqualityEquality

Article 20: Equality before the lawArticle 20: Equality before the law

Everyone is equal before the lawEveryone is equal before the law

Article 21: Non-discriminationArticle 21: Non-discrimination

1. Any discrimination based on any ground such as sex, race, 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or of a national minority, property, birth, disability, age or sexual orientation shall be prohibitedsexual orientation shall be prohibited

Article 23: Equality between men and womenArticle 23: Equality between men and women

… … The principle of equality shall not prevent the The principle of equality shall not prevent the maintenance or adoption of measures providing for specific maintenance or adoption of measures providing for specific advantages in favour of the under-represented sexadvantages in favour of the under-represented sex


EqualityEquality

Article 24: The rights of the childArticle 24: The rights of the child

1. Children shall have rights to such protection and care as is 1. Children shall have rights to such protection and care as is necessary for their wellbeing. They may express their views necessary for their wellbeing. They may express their views freely. Such views shall be taken into consideration on freely. Such views shall be taken into consideration on matter which concern them in accordance with their age and matter which concern them in accordance with their age and maturitymaturity

2. In all actions relating to children, whether taken by public 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interest authorities or private institutions, the child’s best interest must be a primary concernmust be a primary concern

3. Every child shall have the right to maintain on a regular 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interestsor her parents, unless that is contrary to his or her interests


EqualityEquality

Article 25: The rights of the elderlyArticle 25: The rights of the elderly

The Union recognises and respects the rights of the elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate to lead a life of dignity and independence and to participate in social and cultural lifein social and cultural life

Article 26: Integration of persons with disabilitiesArticle 26: Integration of persons with disabilities

The Union recognises and respects the right of persons with The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure disabilities to benefit from measures designed to ensure their independence, social and occupational integration and their independence, social and occupational integration and participation in the life of the communityparticipation in the life of the community


SolidaritySolidarity

Article 28: Right of collective bargaining and actionArticle 28: Right of collective bargaining and action

Workers and employers, or their respective organisations, Workers and employers, or their respective organisations, have, in accordance with Community law and national laws have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their conflicts of interest, to take collective action to defend their interests, including strike action.interests, including strike action.

Article 33: Family and professional lifeArticle 33: Family and professional life

1. The family shall enjoy legal, economic and social 1. The family shall enjoy legal, economic and social protectionprotection


SolidaritySolidarity

Article 35: Health careArticle 35: Health care

Everyone has the right of access to preventative health care Everyone has the right of access to preventative health care and the right to benefit from medical treatment under the and the right to benefit from medical treatment under the conditions established by national laws and practices. A conditions established by national laws and practices. A high level of human health protection shall be ensured in high level of human health protection shall be ensured in the definition and implementation of all Union policies and the definition and implementation of all Union policies and activities activities

Article 37: Environmental ProtectionArticle 37: Environmental Protection

A high level of environmental protection and the A high level of environmental protection and the improvement of the quality of the environment must be improvement of the quality of the environment must be integrated into the policies of the Union and ensured in integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.accordance with the principle of sustainable development.

Article 38: Consumer protectionArticle 38: Consumer protection

Union policies shall ensure a high level of consumer Union policies shall ensure a high level of consumer protectionprotection


Citizens’ RightsCitizens’ Rights

Article 41: right to good administrationArticle 41: right to good administration1. Every person has the right to have his or her affairs 1. Every person has the right to have his or her affairs

handled impartially, fairly and within a reasonable time by the handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. institutions, bodies, offices and agencies of the Union.

2. This right includes:2. This right includes:

(a) the right of every person to be heard, before any (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is individual measure which would affect him or her adversely is taken;taken;

(b) the right of every person to have access to his or her (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;and of professional and business secrecy;

(c) the obligation of the administration to give reasons (c) the obligation of the administration to give reasons for its decisions. for its decisions.

3. Every person has the right to have the Union make 3. Every person has the right to have the Union make good any damage caused ... good any damage caused ...


Citizens’ RightsCitizens’ Rights

Article 42: right of access to documentsArticle 42: right of access to documents

Any citizen of the Union, and any natural or legal person Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.and agencies of the Union, whatever their medium.

Article 43: OmbudsmanArticle 43: Ombudsman

Any citizen of the Union and any natural or legal person Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has residing or having its registered office in a Member State has the right to refer to the Ombudsman of the Union cases of the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Institutions, bodies maladministration in the activities of the Institutions, bodies or agencies of the Union, with the exception of the Court of or agencies of the Union, with the exception of the Court of Justice and the Court of First Instance acting in their judicial Justice and the Court of First Instance acting in their judicial rolerole


JusticeJustice

Article 47: right to an effective remedy and to a fair Article 47: right to an effective remedy and to a fair trialtrial

Everyone whose rights and freedoms guaranteed by the law Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions remedy before a tribunal in compliance with the conditions laid down in this Article …laid down in this Article …

Legal aid shall be made available to those who lack sufficient Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective resources insofar as such aid is necessary to ensure effective access to justiceaccess to justice

Article 48: Presumption of innocence and right of Article 48: Presumption of innocence and right of defencedefence

2. Respect for the rights of the defence of anyone who has 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteedbeen charged shall be guaranteed


JusticeJustice

Article 49: Principles of legality and Article 49: Principles of legality and proportionality of criminal offences and penaltiesproportionality of criminal offences and penalties

3. The severity of penalties must not be 3. The severity of penalties must not be disproportionate to the criminal offencedisproportionate to the criminal offence

Article 50: Right not to be tried or punished twice Article 50: Right not to be tried or punished twice in criminal proceedings for the same criminal in criminal proceedings for the same criminal offenceoffence

The role of the Charter within the The role of the Charter within the EU Post Lisbon: how it works EU Post Lisbon: how it works

TEU, Article 6(1)TEU, Article 6(1): : The Union recognises the The Union recognises the rightsrights, , freedoms freedoms and and principles principles set set out in the Charter of Fundamental Rights of the European Union out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the 2007, which shall have the same legal value same legal value as the Treaties. as the Treaties.

The provisions of the Charter shall not extend in any way the The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.competences of the Union as defined in the Treaties.

The The rightsrights, , freedoms freedoms and and principles principles in the Charter shall be in the Charter shall be interpreted in accordance with the general provisions in Title VII interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and of the Charter governing its interpretation and application and with due regard to the with due regard to the explanations explanations referred to in the Charter, referred to in the Charter, that set out the sources of those provisions.that set out the sources of those provisions.

The EU Charter: how it worksThe EU Charter: how it works

Article 51Article 51

1. The provisions of this Charter are addressed to the 1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the due regard for the principle of subsidiarity and to the Member States only when they are implementing Union Member States only when they are implementing Union law. They shall therefore law. They shall therefore respect respect the the rightsrights, , observe observe thethe principles principles and and promote promote the application thereof in the application thereof in accordance with their respective powers and respecting accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the limits of the powers of the Union as conferred on it in the Treaties.the Treaties.

2. The Charter does not extend the field of application of 2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and new power or task for the Union, or modify powers and tasks as defined in the Treaties.tasks as defined in the Treaties.

Rights Rights and and PrinciplesPrinciples: : What is a right? What is a right?

What is a principle?What is a principle?

Why this distinction?Why this distinction?

The EU Charter: how it works The EU Charter: how it works (continued)(continued)

Article 52Article 52

1. Any limitation on the exercise of the rights and 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and by law and respect the essence of those rights and freedoms. Subject to the principle of freedoms. Subject to the principle of proportionalityproportionality, , limitations may be made only if they are necessary and limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and by the Union or the need to protect the rights and freedoms of others.freedoms of others.

2. Rights recognised by this Charter for which provision is 2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.conditions and within the limits defined by those Treaties.


Article 52 cont.Article 52 cont.

3. In so far as this Charter contains 3. In so far as this Charter contains rightsrights which which correspond to rights guaranteed by the Convention for the correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those the meaning and scope of those rights rights shall be the same shall be the same as those laid down by the said Convention. This provision as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive shall not prevent Union law providing more extensive protection.protection.

4. In so far as this Charter recognises fundamental rights 4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in to the Member States, those rights shall be interpreted in harmony with those traditions.harmony with those traditions.


Article 52 cont.Article 52 cont.

5. The provisions of this Charter which contain 5. The provisions of this Charter which contain principlesprinciples may be implemented by legislative and executive acts may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are Union, and by acts of Member States when they are implementing Union law, in the exercise of their implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their in the interpretation of such acts and in the ruling on their legality.legality.

6. Full account shall be taken of national laws and 6. Full account shall be taken of national laws and practices as specified in this Charter.practices as specified in this Charter.

7. The 7. The Explanations Explanations drawn up as a way of providing drawn up as a way of providing guidance in the interpretation of this Charter shall be guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the given due regard by the courts of the Union and of the Member States.Member States.

The Charter’s Scope in a NutshellThe Charter’s Scope in a Nutshell

Article 51Article 51: : The Charter cannot create new areas of competence for The Charter cannot create new areas of competence for the EU but EU institutions must comply with itthe EU but EU institutions must comply with it

Is existing EU competence required for the Charter to Is existing EU competence required for the Charter to apply within a Member State? How much is required?apply within a Member State? How much is required?

Article 52Article 52: : Rights are directly enforceableRights are directly enforceablePrinciples are justiciable in the circumstances Principles are justiciable in the circumstances identified in Article 52(5)identified in Article 52(5)Article 52(5): how is the distinction to be drawn? Article 52(5): how is the distinction to be drawn?

Failure of the Charter and its Explanations to spellFailure of the Charter and its Explanations to spellout clearly which of the Charter articles involveout clearly which of the Charter articles involverights and which principles. rights and which principles.

The role of the CJEUThe role of the CJEU

The UK Protocol to the EU The UK Protocol to the EU CharterCharter

The UK Protocol to the EU CharterThe UK Protocol to the EU Charter

Is it an opt out? Or an interpretive protocol? Is it an opt out? Or an interpretive protocol?

The Protocol is not an opt-out from the Charter. The The Protocol is not an opt-out from the Charter. The Charter will apply in the UK, even if its Charter will apply in the UK, even if its interpretation may be affected by the terms of the interpretation may be affected by the terms of the Protocol.Protocol.

The Protocol is a belt-and-braces approach of theThe Protocol is a belt-and-braces approach of theGovernmentGovernment

““[the Protocol] puts beyond doubt what should[the Protocol] puts beyond doubt what shouldhave been obvious from other provisionshave been obvious from other provisions” ” ((JackJackStrawStraw))

The House of Lords in its impact assessment of the The House of Lords in its impact assessment of the Lisbon Treaty concluded:Lisbon Treaty concluded:

““The Protocol should not lead to a different The Protocol should not lead to a different application of the Charter in the United Kingdom ... application of the Charter in the United Kingdom ... when compared with the rest of the Member States. when compared with the rest of the Member States. But to the extent that the Explanations leave some But to the extent that the Explanations leave some ambiguity as to the scope and interpretation of the ambiguity as to the scope and interpretation of the Charter rights, and as to the justiciability of the Title Charter rights, and as to the justiciability of the Title IV rights especially, the Protocol provides helpful IV rights especially, the Protocol provides helpful clarification. We would not be surprised if, in clarification. We would not be surprised if, in considering the scope of the Charter in future, EU and considering the scope of the Charter in future, EU and domestic courts had regard to the terms of this domestic courts had regard to the terms of this Protocol in order to assist interpretation of the Protocol in order to assist interpretation of the Charter's horizontal articles.... given that... it is an Charter's horizontal articles.... given that... it is an interpretative Protocol rather than an opt-out, it is interpretative Protocol rather than an opt-out, it is perhaps a matter of regret, and even a source of perhaps a matter of regret, and even a source of potential confusion, that it was not expressed to potential confusion, that it was not expressed to apply to all Member States.”apply to all Member States.”

The Protocol’s Scope in a NutshellThe Protocol’s Scope in a Nutshell

Article 1(1)Article 1(1): : Is the mirror image of Article 51(1) of the Charter. The Is the mirror image of Article 51(1) of the Charter. The Charter cannot be used to interpret the meaning of Charter cannot be used to interpret the meaning of pure UK law. It only applies to the implementation of EU pure UK law. It only applies to the implementation of EU law. No new rights are created by it.law. No new rights are created by it.

Article 1(2)Article 1(2): :

The Charter’s solidarity rights (Chapter IV) are onlyThe Charter’s solidarity rights (Chapter IV) are only

justiciable by reference to the Charter if UK law alreadyjusticiable by reference to the Charter if UK law already

recognises these as rights. There is no reference torecognises these as rights. There is no reference to

principles. principles.

Article 2Article 2::Where the Charter refers to “national laws andWhere the Charter refers to “national laws andpractices”, for the right to be implemented in the UK, practices”, for the right to be implemented in the UK, national laws and practices must be in place. Again,national laws and practices must be in place. Again,there is no reference to principles. there is no reference to principles.

The Application of the The Application of the Charter in 10 Easy StepsCharter in 10 Easy Steps

The Application of the Charter in 10 The Application of the Charter in 10 Easy StepsEasy Steps

Step 1Step 1: The Charter does not apply to pure : The Charter does not apply to pure domestic law and practice domestic law and practice

Step 2Step 2: The Charter will only apply when : The Charter will only apply when EU law is implementedEU law is implemented

Step 3Step 3: What level of engagement is : What level of engagement is required for the Charter to kick in? Simple required for the Charter to kick in? Simple competence?competence?

Step 4Step 4: Does the test of subsidiarity apply? : Does the test of subsidiarity apply? Are the issues under review more Are the issues under review more appropriately addressed at the national appropriately addressed at the national level?level?


Step 5Step 5: If Union law is implemented, what : If Union law is implemented, what is the nature of the right at issue? Is it a is the nature of the right at issue? Is it a right or a principle? right or a principle?

Step 6Step 6: For clarification refer to the : For clarification refer to the ExplanationsExplanations

Step 7Step 7: Is the interference with the Charter : Is the interference with the Charter necessary and proportionate?necessary and proportionate?

Step 8Step 8: If a right is involved that mirrors : If a right is involved that mirrors the rights contained in the ECHR, then the the rights contained in the ECHR, then the same interpretation of that right must be same interpretation of that right must be given as the one that is provided by the given as the one that is provided by the Strasbourg Court.Strasbourg Court.


Step 9Step 9: Similarly, if the right is guaranteed : Similarly, if the right is guaranteed by one of the EU Treaties it must be by one of the EU Treaties it must be interpreted consistently with that Treaty interpreted consistently with that Treaty provision.provision.

Step 10Step 10: In a UK context, reference should : In a UK context, reference should be had to the UK’s Protocol. Does this be had to the UK’s Protocol. Does this affect the outcome?affect the outcome?

Pleading human rights within EU law post Pleading human rights within EU law post Lisbon: (i) EU law relied upon (ii) TEU (iii) Lisbon: (i) EU law relied upon (ii) TEU (iii) TFEU (iv) EU Charter (v) ProtocolTFEU (iv) EU Charter (v) Protocol

The Impact of the EU Charter on Fundamental Rights

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Transcript of The Impact of the EU Charter on Fundamental Rights