Added value of the eu charter of fundamental rights to other human rights instruments

Author:Marcela Monica Stoica
Pages:86-90
SUMMARY

After almost seven years since the Charter entries into force is still not yet an explicit and regular element in the procedures applied for scrutinising the legality or assessing the impact of legislation in the EU Member States. Other international human rights instruments, such as the ECHR, tend to be more systematically included in such procedures. So, this paper aims at analyzing one of the measure that can help at strengthen the Charter’s role in the legislative processes at national level. We shall focus on Article 51 (field of application) –that could part of the assessment of the impact and legality of draft legislation. Thus, we can conclude that the Charter is a added value not only in respect with other instrument regarding the human rights but also that can be a more complete instrument for the national legislation on human rights, that bring, indeed, an “added value” in this field.

 
CONTENT
86 MARCELA MONICA STOICA
ADDED VALUE OF THE EU CHARTER OF FUNDAMENTAL
RIGHTS TO OTHER HUMAN RIGHTS INSTRUMENTS
Marcela Monica STOICA
ABSTRACT
After almost seven years since the Charter entries into force is still not yet an explicit and
regular element in the procedures applied for scrutinising the legality or assessing the impact of
legislation in the EU Member States. Other international human rights instruments, such as the
ECHR, tend to be more systematically included in such procedures. So, this paper aims at analyzing
one of the measure that can help at strengthen the Charter’s role in the legislative processes at
national level. We shall focus on Article 51 (field of application) –that could part of the assessment of
the impact and legality of draft legislation. Thus, we can conclude that the Charter is a added value
not only in respect with other instrument regarding the human rights but also that can be a more
complete instrument for the national legislation on human rights, that bring, indeed, an “added
value” in this field.
Key-words: Charter, human rights, European, national.
1. Short considerations on the evolution and history of the Charter
About the latest European document regarding the fundamental rights, and
here I refer to the Charter of Fundamental Rights, a lot of scholars, specialists in the
field of justice, defenders of the human rights, practitioners wrote and write
thousands of pages. Indeed, it has had a difficult birth, for many reasons, and it
needs almost ten years in order to entry into force. Today, The Charter is in line
with the old and specific international legal framework of human rights which
consists of a series of documents that form the International Bill of Human Rights,
such as: the United Nations Charter (UN), the Universal Declaration of Human
Rights and two UN pacts on civil and political rights, on one hand and, on the
other hand, on economic, social and cultural rights. Also, in the Europe, it stands
beside the old and well- known European Convention on Human Rights. That’s
why our source of information are provided by the official date issued by the
European institutions and agencies.
Lecturer PhD, Christian University “Dimitrie Cantemir” Faculty of Political Sciences; e-mail:
mms_stoica@yahoo.com.
Law Review vol. VI, special issue, December 2016, p. 86-90
Added value of the EU Charter of Fundamental Rights… 87
The Charter of Fundamental Rights, a mechanism for protection of
fundamental rights at EU level, was adopted by the European Council in Nice in
2000. The Charter of Fundamental Rights is part of the Lisbon Treaty which
entered into force on the 1st of December 2009. Article 2 of the Treaty establishing
European Union includes among “the fundamental values of the Union, which are
common to the Member States”, the respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights, including the
rights of persons belonging to minorities, as well as pluralism, non-discrimination,
tolerance, justice, solidarity and equality between women and men. These values
are equally binding for the EU and member states.
But till it reached to this success, the Charter was part of the Constitutional
Treaty, signed in 2004, at Rome, and as it is known the European Constitution was
rejected due to its “too much federalization”, “too much Europe” as many voices
had protested. So the Charter was undoubtedly the most—if not the only—really
“constitutional” part of the Constitutional Treaty and for this reason it has formally
been removed from the Lisbon Treaty and included in a new Declaration adopted
in Strasbourg on 12 December 2007 by the three EU legislative institutions.
Because it was not included in the Lisbon Treaty, the visibility of Charter to
citizens could be reduced and this led to the European Parliament's decision for a
solemn proclamation in order to become more visible and to increase its legal
importance (Luzárraga& Llorente, 20111, p. 145). The Charter was proclaimed for
the second time by the President of the European Parliament, Hans Pottering, the
President of the Council, José Sócrates, and the President of European
Commission, Emanuel Durão Barroso. The new legal frame is the Lisbon Treaty
signed on 13 December 2007 and entered into force on the first of December 2009.
The Lisbon Treaty gives full legal value to the Charter. A new Article 6 of the
TEU affirms (paragraph 1) that the Charter “shall have the same legal value as the
Treaties”, specifying that it does not extend the competences of the European
institutions. The Charter of Fundamental Rights of the European Union (Charter)
complements national human rights legislation and the European Convention on
Human Rights (ECHR). According to the Court of Justice of the European Union,
Member States are bound by the Charter whenever they act within the scope of EU
law.
The European Agency for Fundamental Rights (FRA) did a lot of analysis of
this document and shows that the Charter is still not yet an explicit and regular
element in the procedures applied for scrutinising the legality or assessing the
impact of legislation in the EU Member States. However, other national human
rights instruments, including the ECHR, tend to be more systematically included
in such procedures (Summary Report- FRA- Charter-Workshop- 18 OCT-2016).
Since the end of 2009, the EU has its own legally binding bill of rights: the
Charter of Fundamental Rights of the European Union, which complements
national human rights and the European Convention on Human Rights (ECHR).
88 MARCELA MONICA STOICA
Whereas national human rights and the obligations under the ECHR are binding
on EU Member States in whatever they do, the Charter is binding on them only
when they are acting within the scope of EU law. While the EU stresses the crucial
role of national actors in implementing the Charter, it also underlines the need to
increase awareness among legal practitioners and policymakers to fully unfold the
Charter potential. FRA therefore examines the Charter’s use at national level (FRA
Fundamental Rights Report 2016).
2. The Charter and the Legislative process
In autumn 2015, the European Parliament stressed that “national authorities
(judicial authorities, law enforcement bodies and administrations) are key actors in
giving concrete effect to the rights and freedoms enshrined in the Charter”
(European Parliament (2015), Resolution of 8 September 2015 on the situation of
fundamental rights in the European Union (2013–2014) 2014/2254(INI)),
Strasbourg, 8 September 2015, apud FRA Fundamental Rights Report 2016)..
Indeed, it is mainly at the national level that fundamental rights, as reflected in the
Charter, have to be respected and protected to make a difference in the lives of
rights holders.
Unfortunately, awareness of the Charter’s content remains low and this aspect
is shown in a Flash Eurobarometer from February 2015. The survey did show that
general awareness of the Charter’s existence has increased, with 40% having heard
of the Charter in 2007 and 65% having done so in 2015. But this can hardly be said
about the public’s understanding of what the Charter is really about: in 2015, only
14 % of respondents said that they were “familiar with the Charter” and knew
“what it is” – compared with 11 % in 2012 and 8 % in 2007. This signals a need for
awareness raising.
Legal practitioners particularly have to be familiar with the Charter’s rights if
these are to be implemented in practice. In June 2015, the Council of the European
Union noted that it is “necessary to continue promoting training and best practice
sharing in the field of judiciary at national and EU level thus enhancing mutual
trust” (Council of the European Union (2015), Council conclusions on the
application of the Charter on Fundamental Rights in 2014, Brussels apud FRA
Fundamental Rights Report 2016).
Therefore, one of the conclusion imposed is that one measure to strengthen
the Charter’s role in the legislative processes at national level is a more consistent
‘Article 51 (field of application) – screening’. This would allow to better integrate
the Charter in the assessment of the impacts and legality of draft legislation. Such
screening might also help the legislator mainstream fundamental rights in EU
relevant national legislation.
Added value of the EU Charter of Fundamental Rights… 89
3. Other human rights sources and the Charter: joining up rights from
different layers of governance
Even the Charter is not so well known among the European citizens, in this
part of the paper we want to see how its provision could join to other layers of
governance. The next analysis is based on a review of 68 court decisions issued in
26 EU Member States, mostly by constitutional, supreme, cassation, high and
supreme administrative courts. The decisions were selected based on the relevance
of the Charter references.
The review focused on court decisions that use the Charter in their reasoning
and cases in which judges simply refer to the fact that parties cited the Charter
were not taken into account. Up to three court decisions per EU Member State
were considered (FRA Fundamental Rights Report 2016, pp39-40). (The proposed
documents for comparison were ECHR, UN instruments, European Social Charter,
National constitution, National fundamental rights instruments CJEU decisions EU
directives EU general principles of law EU treaties).
Only five of the 68 cases analysed in 2015 referred to the Charter alone. All
other cases referred to the Charter and to other legal sources. Twelve of the
analysed decisions referred to the Charter and to the European Convention on
Human Rights (ECHR); eight decisions also addressed national constitutional
provisions; and 14 decisions referred to the Charter in combination with both
national human rights legislation and the ECHR. Twenty-four decisions used the
Charter in combination with other EU law sources, such as general principles of
EU law or secondary EU law. Many decisions mention the Charter in combination
with sources from different layers of governance, combining references to the
Charter with international human rights law and EU law.
These findings are in line with previous FRA Annual reports and confirm that
national constitutional law and the ECHR play a prominent role in cases referring
to the Charter. Similarly, the ECHR remains the legal source most often referred to
in decisions using the Charter.
4. Instead of Conclusions. FRA opinions
To increase the use of the EU Charter of Fundamental Rights in EU Member
States and foster a more uniform use across them, FRA considers that the EU and
its Member States could encourage greater information exchange on experiences
and approaches between judges and courts within the Member States but also
across national borders, making best use of existing funding opportunities such as
under the Justice programme. This would contribute to a more consistent
application of the Charter.
Also, FRA considers that national courts when adjudicating, as well as
governments and/or parliaments when assessing the impact and legality of draft
legislation, could consider a more consistent ‘Article 51 (field of application)
screening’ to assess at an early stage whether a judicial case or a legislative file
90 MARCELA MONICA STOICA
raises questions under the EU Charter of Fundamental Rights. The development of
standardised handbooks on practical steps to check the Charter’s applicability – so
far only in very few Member States the case – could provide legal practitioners
with a tool to efficiently assess the Charter’s relevance in a case or legislative file.
FRA (Fundamental Rights Report 2016, p. 52).
Under Article 51 of the EU Charter of Fundamental Rights, EU Member States
are under the obligation to respect and observe the principles and rights laid down
in the Charter, while they are also obliged to actively “promote” the application of
these principles and rights. In light of this, one would expect more policies
promoting the Charter and its rights at national level. Such policies as well as
Charter-related training activities are limited in quantity and scope, as 2015 FRA
findings show. Since less than half of the trainings address legal practitioners, there
is a need to better acquaint them with the Charter.
The Charter is a codification of minimum standards and fulfills a
complementary role to the protection of fundamental rights given to citizens at the
national level. The novelty that this legal document brings is a further guarantee of
the rights of European citizens Thus,, the Charter of Fundamental Rights is a
complement to the European Convention on Human Rights and Fundamental
Freedoms, a document that gives legitimacy to European integration by
establishing rights and responsibilities for citizens, reiterating the political and
democratic character of the Union (Stoica, 2012, p. 89).
References
1. Making the Charter of Fundamental Rights a living instrument (by the
Ludwig Boltzmann Institute of Human Rights): http://bim.lbg.ac.at/en/making-
charter-fundamental-rights-living-instrument
2. 2015 Report on the Application of the EU Charter of Fundamental Rights,
Brussels, 19.5.2016, COM(2016) 265 final.
3. European Commission annual report on the application of the Charter:
http://ec.europa.eu/justice/fundamental-rights/charter/application/index_en.htm
4. FRA Fundamental Rights Report 2016. See Chapter 1 EU Charter of
Fundamental Rights and its use by Member States: http://fra.europa.eu/sites/
default/files/fra_uploads/fra-2016-fundamental-rights-report 2016-2_en.pdf
5. 2015 report on the application of the EU Charter of Fundamental Rights.
European Commission — Directorate-General for Justice and Consumers,
Luxembourg: Publications Office of the European Union, 2016.
5. Luzárraga, Francisco Aldecoa. Llorente, Mercedes Guinea (2011). The Europe
of Future. Lisbon Treaty, Iaşi: Polirom.
6. Stoica, Marcela Monica. (2012). European Mechanisms for the Protection of
Human Rights. Charter of Fundamental Rights of the European Union – a
Historical and Legal Perspective, Cogito. Vol. IV, no. 1 / March, 2012, pp. 81-89.