Although at a first glance it may seem strange that the European Union does not yet have a body of human rights legislation, one must remember that the European Union as it stands today was originally created as a common market for coal and steel. The impetus that led to the European Coal and Steel Community Treaty in 1951, and to the European Economic Community Treaty in 1957 was principally economic – the aim was to avoid another conflict such as World War II by uniting Europe as a common market.

However, the European Union has evolved into a body of institutions with far wider scope, and as such today requires a system of effective human rights protection. As explained by Alan Riley , although the European Court of Justice (ECJ) does recognise established human rights doctrines as part of the “general principles of law”, the protection of human rights by the European Union is limited only to the ECJ and does not extend to the other pillars.

Thus the 28th of July, 2000 saw the publication of the final draft of the EU Charter of Fundamental Rights, which was then solemnly proclaimed at the Nice meeting in December, 2000. The Charter is an essential step in the European Union’s current process of developing an area of “freedom, security and justice”.

As explained by Ricardo Alonso Garcia , the Charter provides the Union with a “more evident” (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities.

One must assess the originality of the Charter by taking into account the purposes behind the drafting of such a Charter – these were principally to entrench fundamental rights as an essential chapter in Europe’s political conscience, to achieve a level of legal certainty in the filed of human rights and also to make the fundamental rights and freedoms included in the Charter fully visible to all citizens.


2. Elements of originality:



2.1 General elements of originality


The Charter includes several elements of originality, perhaps reflecting the essential originality of the European Union itself – as stated by Romano Prodi , the European Union is based on an institutional setup that differs from existing national models but is also distinct from any conventional international organisational structure.

One cannot examine and understand the Charter without taking into consideration its very particular context – a perhaps federal model that attempts to bring states together without stripping them of their national sovereignty. Also, one must also consider the existence of the Council of Europe, together with the European Convention of Human Rights and the European Court of Human Rights – a certain amount of overlap is perhaps inevitable, but the issue has been addressed by the Charter itself, as shall be discussed below.

One of the initial aspects of originality of the Charter was the transparency with which the Charter was drafted - as explained by Antonio Vitorino , Member of the European Commission, this meant that any interested member of the general public was granted access to the Convention’s meeting rooms or was able to obtain copies of the written documents produced by it, and a website was set up by the Council of the European Union for this purpose.

As regards the form of the Charter, the Charter was drafted in very clear, concise and legally unambiguous terms, and can be easily understood by all citizens without requiring a legal background. The wording of the text is also gender neutral, unlike previous international human rights documents.

Another element of originality is that the Charter does away with the distinction between civil and political rights on the one hand, and social and economic rights on the other, a distinction that has attracted widespread criticism when it was implemented in the United Nations Covenants. The Charter does not attempt to establish any type of hierarchy between rights – all rights are fundamental and inviolable.


2.2 Elements of originality in the contents of the charter


Although all of the rights included in the Charter already exist in different human rights documents, this is the first time certain rights have been accorded the status of fundamental rights and enshrined in a Bill of Rights. The Charter responds to the challenges posed by technological progress by including two new areas of fundamental human rights – bioethics and the protection of personal data.

However, there are also other original elements in the contents of the Charter, as shall be discussed below. I shall briefly mention some of the more original articles of the Charter, since the word limits of this assignment do not allow a more thorough examination of these articles.

As regards the preamble to the Charter, the Universal Declaration of Human Rights, as well as the Covenants, were widely criticised as promoting a purely rights based approach without referring to responsibilities, and this was perceived in some quarters as a symptom of Western libertarian traditions. On the other hand, the Preamble to the Charter makes a specific reference to responsibilities and duties towards other persons, towards the human community and towards future generations. Thus not only does the Charter reaffirm the importance of duties and responsibilities, it also specifically refers to the rights of future generations.

Article 3 of the Charter protects the integrity of the person, and defines this as including both physical as well as mental integrity. The same article also states that in the fields of medicine and biology, the following conditions are to be respected in particular;

• the free and informed consent of the person concerned, according to the procedures laid down by law,
• the prohibition of eugenic practices, in particular those aiming at the selection of persons,
• the prohibition on making the human body and its parts as such a source of financial gain,
• the prohibition of the reproductive cloning of human beings.

The rights included in this Article are included in the Convention on Human Rights and Biomedicine, adopted by the Council of Europe.

Article 8 of the Charter concerns the protection of personal data, and although the principles contained herein were already included in other treaties and directives, this Article raises the right to the protection of personal data to the status of a fundamental right.

Article 10, protecting the freedom of thought, conscience and religion, also specifically includes the right to conscientious objection.

Article 11 protects the rights of freedom and expression. Although these rights are protected by the Universal Declaration and by Article 10 of the European Convention on Human Rights, Article 11 of the Charter also protects the freedom and pluralism of the media, a right that has emerged from European Court of Justice case-law.

Article 13 protects the freedom of art and of scientific research, and also protects academic freedom.

Article 17, which protects the right to property, specifically protects intellectual property, and this reflects the ever growing importance and value of such intellectual property.

Article 19 crystallises the principle, emerging from ECJ case law, that no person shall be extradited to a State where he or she runs the risk of being given the death penalty, or of being subjected to torture or other inhuman or degrading treatment.

Article 21, prohibiting discrimination, includes interesting possible grounds for discrimination, including genetic features and sexual orientation (apart from sex).

Articles 27 to 32 of the Charter protect workers and their rights, and this Chapter gives workers several fundamental rights that had previously only been included in national legislation or in Community law. These rights include the rights to information and consultation, the right to collective bargaining and action, and the right to protection from unjustified dismissal.

Article 41 is particularly interesting as it sets certain limits and obligations on the European Union institutions themselves – the obligation to handle affairs relating to citizens impartially, fairly and within a reasonable time, the obligation to give reasons for decisions and the obligation to make good any damage caused by an institution or its servants.

As regards the overlap between the EU Charter and the European Convention on Human Rights, Article 52 (3) of the Charter states that as a general rule, when the particular rights granted by the Charter reflect those rights included in the European Convention of Human Rights, the scope of the rights shall be that afforded by the Convention. However, this does not prevent the rights being eventually given a more extensive interpretation by the Charter, if this leads to the right providing more protection to individuals.

One of the Articles that has caused some controversy is Article 53, which states:

“Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.”

This Article has been perceived in certain quarters as in some way limiting the supremacy of EU law - some commentators have argued that if the Charter is incorporated into EU law, Article 53 could threaten the supremacy of Community law over national constitutions, and that it might reinforce tendencies of Courts in certain Member States to assert a right to review Community measures against national standards of human rights.


3. The legal nature of the Charter


The Charter was drawn up by using the Convention method, although it is not yet legally binding, and Antonio Vitorino points out that with support from the Commission and at President Herzog’s instigation, the Charter has been drafted “as though” it were to be integrated into the Treaties.

The final question regarding the Charter, and particularly relevant to its originality, is the exact legal nature that the Charter will eventually be bestowed. Will it be included within the Treaties and given binding legal force, will it be included in the Constitution or will it remain as a Charter with mere declaratory effect?

Significantly, the latest draft of the Constitutional Treaty includes the Charter in whole in Part II of the Treaty, and would make the Charter legally binding. Draft Article 7 allows the EU to seek to accede to the European Convention on Human Rights and the same Article would render fundamental rights “general principles” of EU law.




4. Conclusion – the future of the Charter

One may attempt to predict future developments in regards to the Charter. Assuming that the Charter is accorded legal status and thus becomes legally binding, will the rights be enforced by the ECJ or will a different forum, such as a European constitutional court be set up? Also, will an individual be able to able to go directly to Community courts alleging a human rights infringement by a Member State or by an Institution?

Christopher McCrudden raises another interesting question – will rights relating to solidarity be enforceable by Community courts? However, McCrudden also adds that even if solidarity rights are not eventually enforceable in a court of law, they may still be enforceable through other means - the Council of Europe's European Social Charter is enforced by an obligation on contracting parties to submit reports on their implementation of the Social Charter, and Governments are required to carry out a regular audit of their achievements under specified heads and to account for themselves to an independent committee.

Finally, one may conclude by noting that whatever the legal future of the Charter, the very existence of a Charter of Fundamental Rights of the European Union, even if merely declaratory at present, is a significant step forward in so far as it is a logical and necessary step towards consolidating the aim with which the vision of a united Europe set out in 1951 – economic integration as a means towards reducing conflict through unity.