European Union Charter of Basic Rights: a Natural Development in a Uniting Europe?
The decision taken by the European Supreme Assembly in Cologne, in 1999 – to create the Charter of Basic Rights of the European Union (hereafter the Charter) – has been implemented today. The Charter was prepared in less than a year. Such a pace reminds one of Estonia, where in the course of the legal system reform, acts had to be written several times faster than in countries with a long tradition of democracy. The European Union (EU) neither can nor wishes to be left behind in general developments or to prevent expansion. In addition to the speed, the preparation of the Charter has been characterised by democracy and transparency. In the process of creating the Charter, interest was also shown towards the opinions of candidate states.1
The Charter consists of seven chapters: human dignity; freedoms; equality; solidarity; the rights of the Unions’ citizens; judicial adjudication; general provisions.2 The Charter was not given judicial authority at the Nice summit. This can be viewed as a compromise between those who doubt the necessity of the Charter and those who support the Charter as a legal act. From the birth of the idea of the Charter, it has been debated – whether the Charter is a natural development in Europe, which is in the process of uniting, or whether it is unnecessary competition to existing instruments, which protect human rights, particularly the European Convention of Human Rights (ECHR)? But the Charter is significantly wider than the ECHR. As an aspect of debate, it could be enquired – whether the Charter contains such rights, which are not jointly acceptable to all member states in their current form? The key question is whether social rights should be viewed as directly applicable norms or as aims.
There is also a third principled questions regarding the Charter – whether the Charter could be construed as the first stage of a European constitution? One thing, however, is certain: the Charter signifies the entry of the European Union into a new era. The EU is something more than an economic union and cannot ignore the respect for basic rights in its activities. This is increasingly important when taking into account the growing jurisdiction of the EU and the decreased overall clarity, which results from a growth in bureaucracy and expansion.
The Charter offers protection to all individuals who are in the territory of the EU, regardless of their citizenship. The exceptions are the rights concerning European Union citizenship, which are included in chapter five of the Charter. As the Charter is not a legal act, no individual can rely on the Charter alone in court, and in addition, a legal basis from the EUs founding agreement or another justice in needed. The option of restricting basic rights has been written as a horizontal clause in article 52, and applies to all rights protected by the Charter. Although the Charter does not possess legal authority, it is no less than a binding moral and political agreement between the institutions of the European Commission, the European Parliament, and the Council of the EU (soft law). The European Court has repeatedly indicated that it intends to base its interpretations on the Charter.3
The Charter places democratic principles and the legal protection of the individual at its centre. The states of Central and Eastern Europe have had to learn these constantly in the period following the restoration of democracy. Estonia has followed the development of the Charter with interest because it is of the opinion that the protection of basic rights in the European Union is important. Estonia did not, however, support the adoption of the Charter as a legal act because it was fearful that this would slow down the accession of new members to the EU. The candidate states were afraid that a binding Charter would form the basis for their evaluation. The fact that Charter codifies the principles of the European Union, which Estonia would in any case have to adopt, was ignored.
At the time when politicians and civil servants were analysing the draft of the Charter, there has been practically no wider discussion on the subject in Estonia yet. The rights contained within the Charter are generally guaranteed in Estonia through internal or international legal acts. There are, however, articles in the Charter for which no precise equivalent exists in Estonia’s constitution. Is it enough to interpret the constitution in the spirit of the Charter? On the one hand, there are legal reforms underway in Estonia, in the course of which Estonian law will be aligned to the Charter. On the other hand, Estonian legislation contains rights, which are perhaps better protected than on the Charter.
At the next intergovernmental conference of the EU in 2004, the nature of the Charter will be reassessed and it is possible that the Charter will be given juridical authority. Some opinions suggest that the Charter should be legitimised through a pan-European referendum. The question of organising a referendum is as open as the question of adding to the Charter, should it prove necessary in the future.
1During Portugal’s chairmanship the national parliaments of both member and candidate states were sent the COSAC’s (Conférence des organes spécialisés dans les affaires communautaire des palements de la Communauté Européenne = The conference of commissions dealing with the affairs of the union of European Union’s parliaments) questionnaire about the Charter of the EU’s Basic Rights. Among other things it was enquired whether national parliaments support giving the Charter legal authority.
2The text of the European Union Charter of Basic Rights can be found at: http://europa.eu.int/comm/justice_home/unit/charte/index_en.html.
3According to Barbara Brandtner from the juridical service of the European Union at a seminar in Brussels (14th-15th December 2000) organised by the TAIEX Office of the European Commission for Candidate States on the topic of the Charter.