Doc. 8627

24 January 2000

Charter on Fundamental Rights of the European Union

Opinion1

Social, Health and Family Affairs Committee

Rapporteur: Mr Claude Evin, France, Socialist Group

Conclusions of the committee

1. The report presented by the Committee on Legal Affairs and Human Rights provides a comprehensive picture of a question which is crucial to Europe's institutional equilibrium and warrants close attention. It nevertheless raises questions which the Social, Health and Family Affairs Committee feels can be clearly and conclusively answered without an extensive examination.

2. The Social, Health and Family, Affairs Committee substantially agrees with the views expressed in the report, which welcomes the Union's initiative and determination to make human rights more visible to European citizens.

3. On the other hand, the Social, Health and Family, Affairs Committee considers that the debate ought not to centre on the sole question of the European Community's accession to the European Convention on Human Rights. The real question raised by the preparation of an EU Charter of Fundamental Rights concerns the shortcomings of the existing international legal instruments for the protection of human rights - the Council of Europe conventions included - particularly in that they do not adequately secure social rights.

4. In this respect, the committee fully endorses paragraph 7 of the draft resolution and takes the view that the inclusion in the future Charter of enforceable social rights would represent a considerable advance in citizens' protection in Europe.

5. Indeed, on the strength of the Council's long standing experience and recent work2 the Committee considers it indispensable that the rights, social rights included, should be enforceable before courts and covered by a right of individual petition before a supranational judicial authority.

Explanatory memorandum

6. Since their inception the Council of Europe as a whole and its Parliamentary Assembly in particular have been the nerve centre for furtherance of human rights in Europe. The Council of Europe has never yet abdicated its time-honoured mission of strengthening the institutions that uphold democracy and fundamental freedoms in Europe. It can therefore rightfully pride itself on its achievements in this regard at a time when the Europe of the 15 contemplates following in its footsteps.

7. The substance of the debate in hand is that the Assembly should consider and define its position on these three crucial questions:

–       whether or not the Parliamentary Assembly is in favour of the European Union's drawing up a Charter of Fundamental Rights;

–       whether or not the Parliamentary Assembly is in favour of the future Charter constituting not a plain policy statement by the Union but an integral part of the Treaties in the fullest sense, in order that the set of rights which it embodies may not only come within the remit of the European Commission, which would accordingly issue the appropriate instructions for their effective realisation by the Member States, but may also be enforceable, signifying that their infringement by the Member States would be liable to sanctions before the Court of Justice of the European Communities;

–       regarding content, whether or not the Parliamentary Assembly is in favour of the future Charter enshrining a complete and coherent body of civil and political rights and social rights, as secured in particular by the European Convention on Human Rights and the European Social Charter.

8. Any impulsive liberal-mindedness would unhesitatingly prompt affirmative replies, whereas in fact none of the answers to these questions is straightforward. The advancement of human rights in Europe, social rights included, cannot be entirely realised at the present time through the mere existence of a European Convention on Human Rights and a European Social Charter.

9. It is salutary that the European Union displays firm social ambitions. Consequently, one is bound to welcome the process initiated and to support any genuine effort by the Community institutions with the intention of effectively strengthening human rights not only within the Union and for the full benefit of the citizens of the Europe of the 15 but also – a valuable opportunity – outside the Union in its relations with its non-member partners.

10. Contrary to the previous evasiveness and hesitancy of the Union, which has not always put into practice the policy statements adopted, the present approach is more ambitious and anticipates a second Intergovernmental Conference (IGC) and a revision of the Treaties.

11. National MPs as well as MEPs have had frequent occasion to deplore the inadequacy of the human rights safeguards afforded by the Community instruments. There is no complete single text listing the civil, political and social rights which protect the citizens of the Union. The European Parliament has repeatedly advocated including in the body of the Treaty a catalogue of fundamental rights (see in particular its resolution adopting a Declaration on fundamental rights and freedoms of 12 April 1989, its resolution on the Constitution of the European Union of 10 February 1994, and its resolution on the IGC of 13 March 1996). There is of course a Community Charter of the Fundamental Social Rights of Workers dating from 1989 and now signed by all fifteen Member States albeit only with declaratory status. Yet the Amsterdam Treaty had to be awaited before definite progress occurred in objectifying the Union's social goals (references made to the European Social Charter; inclusion of Agreement on social policy forming Protocol No 14 to the Treaty establishing the European Community (Chapter 1, Title 11, new Rules 136 to 145), etc.).

12. It now proves truly indispensable to clarify the role of our respective organisations in Europe: Council of Europe and European Union. The two organisations are admittedly dissimilar in their legal foundation as well as in their procedures and their functions. The Council of Europe conventions - over 170 to date - and especially the European Convention on Human Rights and the European Social Charter are extremely fertile texts. However, the functions which have devolved on each organisation since they came into being are plainly tied to their institutional structure; the Union, because it holds supranational powers and does not strictly depend on intergovernmental co-operation, possesses a coercive authority that bears no comparison.

13. The Social, Health and Family Affairs Committee held a joint meeting in Brussels on 23 November 1999 with the European Parliament Committee on Employment and Social Affairs. Members discussed the draft Charter of Fundamental Rights, particularly the social dimension of the project.

14. The discussions held on that occasion raised the following points:

–       human rights protection signifies a very different approach for the Council of Europe and the European Union; the Council of Europe acts as a pioneer in the human rights field, whereas the Community has a far lower profile on that score;

–       the two organisations have legal instruments of a vastly different nature;

–       the content of the Council of Europe texts, chiefly the European Convention on Human Rights and the European Social Charter, can enhance the Union's approach;

–       the machinery for supervising enforcement of rights is very go-ahead in the Council of Europe as citizens can apply directly to the European Court of Human Rights;

–       a legal instrument like the EU Charter of Fundamental Rights should be given great prominence, and so it is imperative to include this catalogue of rights in a new Treaty;

–       the Charter should answer the purpose of enhancing the Union's social dimension and should therefore include a complete set of social rights;

–       the Charter would be rendered virtually ineffective were it not binding on the Union institutions and Member States; the adoption of the Charter necessarily entails radical reform of the judicial control machinery, in order that every citizen may have direct access to the Court of Justice.

15. To advance reflection in the matter, the two committees decided to set up a joint working group whose task will be to ensure that the social rights as defined in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers are included in the EU Charter of Fundamental Rights.

16. As to the substance of the draft Charter of Fundamental Rights, it will quite conceivably be the subject of lengthy discussion in the Charter drafting body and the various institutions of the Union. It is equally certain that the principal Council of Europe legal instruments (European Convention on Human Rights, European Social Charter and revised Charter, European Code of Social Security and revised Code, etc.), by virtue of their substance, effective application and quality, can provide legal models and references and inform the Union's reflection. They are moreover evolutive instruments that move with the times and adjust to Europe's new political, economic and social challenges.

17. It is indispensable that the future Charter embody a complete range of social rights, relating to protection not only of workers but also of the family, women and children, freedom to form and join trade unions, collective bargaining, social security, health, housing, child welfare, etc.

18. In any event a widening of the gulf between the two Europes must be avoided. The aforementioned body should therefore be instructed to apply itself to drawing up a list of identical rights to those which the States have already undertaken to uphold as parties to the European Convention on Human Rights or the European Social Charter.

19. The legal scope of the future Charter of Fundamental Rights also remains to be considered. Given the present position of Community law and practice, it is only possible to point out the inadequacies of the supervisory machinery.

20. Nonetheless, the Charter's proposed integration with the Treaties means that it will be endowed with a dual supervisory system for verifying the due application of these rights at national level: on the one hand the European Commission's authority to issue Directives could allow a purposive Community policy to be framed; on the other hand, respect for the rights would be supervised under the Community judicial system.

21. This requires a clear commitment by the Community institutions, the European Commission in particular, to ensure that the States make the rights genuinely applicable and do not settle for vague token declarations.

22. Ultimately the future will reveal the reality of the Union's political intention to make a radical reform of its institutions and judicial machinery, as it remains to be seen whether the Union will allow its citizens the possibility of bringing direct individual petitions before the Court of Justice of the Communities when their rights are violated.

23. There is no point in drafting a Charter of Fundamental Rights unless it establishes civil, political, economic and social rights that are credible and concrete, as well as guaranteeing their reality and applicability for all persons. It is not a matter of securing their proclamation and promotion alone; effective safeguards must be introduced.

24. The Rapporteurs of the European Parliament Committee on Constitutional Affairs, MM A. Duff and J. Voggenhuber, have stated their support for conferring binding force on the Charter of Fundamental Rights and ensuring that citizens have direct access to the Court of Justice of the European Communities3.

25. Lastly, the current debate surrounding the Union's Charter of Fundamental Rights should not leave out of account the need to continue the effort to promote and improve the existing Council of Europe conventions and their supervisory machinery.

26. The Social, Health and Family Affairs Committee recalls in this connection that in April 1999 it presented the Parliamentary Assembly with a report on an additional protocol to the European Convention on Human Rights concerning fundamental social rights, in which it recalled that if democracy was to be firmly rooted in Europe, greater effectiveness and greater enforceability of social rights must be guaranteed. It therefore requested that consideration be given to the possibility of incorporating into the European Convention on Human Rights certain rights set forth in the revised European Social Charter.

27. The studies made by the Committee for some years and just recently show that is vital that there should exist at European level a body of social rights which are enforceable and which carry a right of individual petition to a supranational judicial authority.

28. In any case, also having regard to the technicality of the questions at issue, it is plainly imperative that a clear position be stated by the Council of Europe, which has observer status in the EU Charter drafting body. It will also need to impress upon the Union and the Union Member States its matchless experience built up over more than 50 years in the furtherance and protection of human rights in their entirety.

Proposed amendments

29.       The Social, Health and Family Affairs Committee wishes to put forward the following amendments to the draft resolution and the draft order:

Amendment No 1:

Amendment No 2:

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Reporting committee: Committee on Legal Affairs and Human Rights (Doc. 8611)

Committee for opinion: Social, Health and Family Affairs Committee

Reference to committee: Doc. 8542, decision of the Bureau on 13.12.99, modifying Reference No. 2440, 24.9.99

Opinion approved by the committee on 24 January 2000

Secretaries to the committee: Mrs Meunier and Mrs Clamer

1 Doc. 8611 - report, draft resolution, draft recommendation and draft order adopted by the Committee on Legal Affairs and Human Rights on 10 January 2000.

2 Recommendation 1415 (1999) on an additional protocol to the European Convention on Human Rights concerning fundamental social rights (Doc. 8357)

3 See working document EP 232.397 of 7 December 1999