Charter of Fundamental Rights of the European Union

Doc. 8819 revised

27 September 2000

Charter of Fundamental Rights of the European Union

Revised report^*

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Göran Magnusson, Sweden, Socialist Group

Summary

The preparatory work on the Charter of Fundamental Rights of the European Union is now entering its final stage. Led by its wish to ensure the full enjoyment of human rights and fundamental freedoms for all persons within the jurisdiction of European Union member States, the Assembly should encourage progress in this field made by the European Union. Its main concern must, however, be to avoid the emergence of new dividing lines in Europe by defending the consistency of human rights protection across the continent and avoiding diverging interpretations of these rights.

The Assembly, together with the European Parliament, the European Commission and the European Court of Human Rights, continues to believe that the aim of the draft Charter, which is to enhance and make more visible the protection of fundamental rights in EU member states, can only be reached if institutions and bodies of the European Union are bound not only by the draft Charter, but also by the European Convention on Human Rights.

The Assembly should thus invite the European Union and its member states to ensure that both the text of the proposed Charter and its ultimate application fully reflect and preserve the protection extended by the European Convention on Human Rights and the European Court of Human Rights to every person within the jurisdiction of European Union member states. It should further propose the beginning of negotiations between the European Union and the Council of Europe without delay in order to enable the European Union to accede to the ECHR.

I. (Revised) Draft resolution

1. Following the adoption of Resolution 1210 (2000) on the Charter of Fundamental Rights of the European Union on 25 January 2000, the Assembly has continued to follow with great interest the preparatory work on the Charter, which is now entering its final stage.

2. The Assembly is led by its concern to ensure the full enjoyment of human rights and fundamental freedoms for all persons within the jurisdiction of European Union member States. The Assembly wants to encourage progress in this field made by the European Union. Its main concern is to avoid the emergence of new dividing lines in Europe by defending the consistency of human rights protection across the continent and avoiding diverging interpretations of these rights.

3. The Assembly welcomes the efforts undertaken by the European Union to enhance and make more visible the protection of human rights through the Charter. The draft Charter proposed by the Praesidium at the meeting of the "Convention" on 25 and 26 September 2000 reaffirms inter alia the European Convention on Human Rights (ECHR), the Social Charter of the Council of Europe, and the case-law of the European Court of Human Rights. Insofar as the draft Charter contains rights which correspond to rights guaranteed by the ECHR, their meaning and scope shall be the same as those laid down by the said Covention, thus guaranteeing that the draft Charter's level of protection will not fall below that of the ECHR.

4. The Assembly further welcomes the fact that the draft Charter recognises a number of rights and freedoms not included expressis verbis in the ECHR, such as the right to respect for physical and mental integrity, the prohibition of trafficking in human beings, the right to asylum, and a number of important social and economic rights. However, the Assembly regrets that the level of protection recognised by the draft Charter does not always reach the level of protection afforded by the corresponding Council of Europe instruments, in particular the Revised Social Charter and the Convention on Human Rights and Biomedicine.

5. The Assembly also regrets that the draft Charter makes no express reference to the rights of persons belonging to ethnic, religious or linguistic minorities, or indeed to the right to local and regional self-government – rights which are protected by Council of Europe instruments such as the Framework Convention for the Protection of National Minorities and the European Charter of Local Self-Government.

6. The Assembly is convinced that the aim of the draft Charter, which is to enhance and make more visible the protection of fundamental rights in EU member states, can only be reached if institutions and bodies of the European Union are bound not only by the draft Charter, but also by the European Convention on Human Rights. In a democratic society, a system of checks and balances is essential. All member states of the European Union, honouring this democratic principle, have submitted themselves to the external supervision of the European Court of Human Rights under this Convention, without endangering national sovereignty or the principle of subsidiarity. There is no legitimate reason why acts carried out on behalf of the European Union should be exempt from this fundamental external control mechanism, thus in effect withdrawing the protection of the ECHR from persons adversely affected in their fundamental rights and freedoms by Community law. As the European Commission has pointed out, the existence of a Charter does not diminish the interest in acceding to the ECHR for exactly these reasons.

7. In this connection, the Assembly welcomes the Resolution of the European Parliament, adopted on 16 March 2000, in which the European Parliament invites the Intergovernmental Conference (IGC) to enable the European Union to become a party to the European Convention on Human Rights. The Assembly further agrees with the European Commission that the drafting of the Charter does not preclude the accession of the European Union to the ECHR, and that, indeed, this accession would in no way lessen the importance of the Charter.

8. The Assembly therefore reiterates its appeal to the European Union do its utmost to safeguard the consistency of human rights protection in Europe. It thus invites the European Union and its member states to:

i. ensure that both the text of the proposed Charter and its ultimate application fully reflect and preserve the protection extended by the European Convention on Human Rights and the European Court of Human Rights to every person within the jurisdiction of European Union member states;

ii. enter into negotiations with the Council of Europe without delay in order to enable the European Union to accede to the ECHR as soon as possible by drawing up the necessary amendments to both the European Union treaties and the European Convention on Human Rights.

II. (Revised) Draft recommendation

1. The Assembly draws attention to its Recommendation 1439 (2000) on the Charter of Fundamental Rights of the European Union, adopted on 25 January 2000, in which it recommended that the Committee of Ministers of the Council of Europe support the accession of the European Union to the European Convention on Human Rights and prepare the appropriate amendments to this treaty.

2. It notes that, at its 106th session (10-11 May 2000), the Committee of Ministers stressed the need to ensure that, whatever decision the Institutions of the Union might take concerning the Charter, it did not lead to new dividing lines in Europe. The Charter should be fully consistent with, and not weaken, the system for the protection of human rights provided, under the European Convention, to all citizens of the Council of Europe's member States, including those of the European Union.

3. Although the Assembly welcomes the fact that the Committee of Ministers shares its concern that there should be no rivalry between the two systems of human rights protection in Europe, it regrets that it has not yet reached a consensus concerning the accession of the Union to the European Convention on Human Rights, an approach which, despite the technical objections of the Court of Justice in Luxembourg a few years ago (which can easily be solved), has repeatedly received the backing of the other institutions concerned: the European Parliament, the European Commission and the European Court of Human Rights.

4. The Assembly is not aware of any factor opposing accession from a legal point of view. It thus fervently hopes that the political will which, up to now, has prevented the process from going ahead, can be mustered soon.

5. With reference to Resolution … (2000) on the Charter of Fundamental Rights of the European Union the Assembly therefore recommends that the Committee of Ministers enter into negotiations with the European Union without delay in order to enable the Union to accede to the ECHR as soon as possible by drawing up the necessary amendments to both the European Union treaties and the European Convention on Human Rights.

III. (Revised) Draft order

The Assembly draws attention to its Resolution … (2000) and Recommendation … (2000) on the Charter of Fundamental Rights of the European Union and instructs its Committee on Legal Affairs and Human Rights, in co-operation with the Political Affairs Committee and the Social, Health and Family Affairs Committee, to closely follow developments regarding the Charter, and to report to it in due course.

IV. Explanatory memorandum by Mr Magnusson, Rapporteur

A. The Council of Europe and the EU Charter: new developments

1. On 25 January 2000 the Assembly adopted Resolution 1210 (2000) on the Charter of Fundamental Rights of the European Union, in which it invited the European Union:

i. to incorporate the rights guaranteed in the European Convention on Human Rights and the protocols to it into the Charter of Fundamental Rights and to do its utmost to safeguard the consistency of the protection of human rights in Europe and to avoid diverging interpretations of those rights;

ii. to decide in favour of accession to the European Convention on Human Rights of the Council of Europe and to make the necessary amendments to the Community treaties;

iii. to make sure that when social rights are referred to the revised European Social Charter of the Council of Europe is taken into account.

2. At the same time it adopted Recommendation 1439 (2000), in which it recommended that the Committee of Ministers of the Council of Europe support the accession of the European Union to the European Convention on Human Rights and prepare the appropriate amendments to this treaty.

3. Finally, in Order No. 561 (2000), it instructed its Committee on Legal Affairs and Human Rights, and its Social, Health and Family Affairs Committee, which was asked for an opinion, to carefully follow and monitor the outcome of the drafting work on the Charter of Fundamental Rights of the European Union, and to report back to it in due course.

4. The time has now come to take stock of the action taken on these texts. Since, by late May 2000, the Committee of Ministers of the Council of Europe had not replied to Recommendation 1439, I submitted a written question, No. 387, to the Committee of Ministers on behalf of the Committee on Legal Affairs and Human Rights, asking what follow-up the Committee of Ministers intended to give to Recommendation 1439 before the adoption of the Charter.

5. On 31 May 2000, the Committee of Ministers adopted a reply in which it referred to the Communiqué which it had adopted at the end of its 106th Session (Strasbourg, 10-11 May 2000):

“With regard to the proposed European Charter of Fundamental Rights, the Ministers underlined the need to ensure that, whatever decision the Institutions of the Union may take concerning the Charter, it does not lead to new dividing lines in Europe. The Charter should be fully consistent with, and not weaken, the system for the protection of human rights provided, under the European Convention, to all citizens of the Council of Europe's member States, including those of the European Union.”

6. It appended to its reply the statement made before the Ministers' Deputies on 7 March 2000 by Mr Wildhaber, President of the European Court of Human Rights, in which he set forth the arguments in favour of the European Union's accession to the Convention, pointing out that the debate on the Charter offered an excellent opportunity to reopen the whole question of the Community's accession to the Convention and that the Council of Europe ought to have no misgivings about seizing this opportunity without hesitation.

7. I nevertheless regretted that the Committee of Ministers had not replied to the main question addressed to it in Recommendation 1439, and so once again put a question to the Chair of the Committee of Ministers on 27 June 2000, asking him to state clearly whether the Committee of Ministers intended to come out in favour of accession.

8. The Chair of the Committee of Ministers replied that if there was no consensus among the fifteen member states of the European Union, there could be no consensus on this question within the Committee of Ministers either.

9. It should be noted, however, that the European Parliament adopted a resolution on 16 March 2000, in which it invited the Intergovernmental Conference (IGC) to enable the Union to become a party to the European Convention on Human Rights (ECHR). With the exception of the Court of Justice in Luxembourg, which raised some technical objections a few years ago (that can easily be solved), the proposal that the Union accedes to the ECHR has thus repeatedly received the backing of all the other institutions concerned: the European Parliament, the European Commission, the European Court of Human Rights and, of course, the Assembly. I would indeed maintain that only through this accession can new dividing lines in Europe be avoided, as well as a weakening of human rights protection across the continent.

B. Developments within the European Union

10. Within the European Union, the “Convention”, the name adopted by the body set up at the European Council meeting in Tampere, has nearly finished drafting the Charter. The “Convention” is made up of fifteen representatives of the Heads of State or Government, one representative of the European Commission, sixteen members of the European Parliament and thirty representatives of national parliaments. Two representatives of the Court of Justice of the European Communities and two representatives of the Council of Europe, one of whom is a judge at the European Court of Human Rights, have observer status.

11. The “Convention” worked very intensively, with several meetings per month, and invited the Economic and Social Committee, the Committee of the Regions and the European Ombudsman to give their views. Countries applying for accession to the Union were also invited to a hearing and NGOs had the opportunity to make their views known. This shows that there is, within the “Convention”, a determination to ensure the transparency of the discussions.

12. The “Convention” is chaired by Mr Roman Herzog, former President of the Federal Republic of Germany. As Vice-Chair, the group of representatives of Heads of State or Government elected the representative of the rotating presidency of the Council of the European Union. The group of representatives of the European Parliament elected Mr Mendes de Vigo and the Group of National Parliaments elected Mr Gunnar Jansson, Chair of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly.

13. The Praesidium of the “Convention” proposed a draft Charter (Convent 47) with an addendum and an explanatory memorandum (Convent 48)², which was discussed by the plenary “Convention” at its last meeting on 25-26 September 2000 in Brussels, and is due to be formally approved at its final meeting on 2 October 2000 in Brussels.

14. The draft Charter is composed of a Preamble, and seven Chapters: Chapter I “Dignity”, Chapter II “Freedoms”, Chapter III “Equality”, Chapter IV “Solidarity”, Chapter V “Citizenship”, Chapter VI “Justice”, and Chapter VII “General Provisions”. Not counting the preamble, there are 53 articles all in all.

15. The draft Charter reaffirms inter alia the ECHR, the Social Charter of the Council of Europe and the case-law of the European Court of Human Rights. Laudably, the draft Charter recognises a number of rights and freedoms which are not included expressis verbis in the ECHR, such as the right to respect for physical and mental integrity, the prohibition of trafficking in human beings, the right to asylum, and a number of important social and economic rights. However, it is regrettable that the level of protection recognised by the draft Charter does not always reach the level of protection afforded by the corresponding Council of Europe instruments, in particular the Revised Social Charter and the Convention on Human Rights and Biomedicine.

16. I also find it very regrettable that the draft Charter makes no express reference to the rights of persons belonging to ethnic, religious or linguistic minorities, or indeed to the right to local and regional self-government – rights which are protected by Council of Europe instruments such as the Framework Convention for the Protection of National Minorities and the European Charter of Local Self-Government. 1

17. Indeed, while I would support the draft Charter as a whole – and I think that consecutive drafts have improved considerably - I am still somewhat reticent on the balance struck between “traditional” human rights and more modern, social and economic rights. The latter are often elaborated at great length and detail in the draft Charter, while such important “traditional” human rights as the right to life, the presumption of innocence and the right of defence are kept extremely short, with all detail relegated to the explanatory memorandum. With certain rights, such as the right of access to free placement services and to services of general economic interest, I do ask myself if they are really so fundamental that they should stand side by side with such universally recognised human rights as the right to be protected from torture and the freedom of expression and assembly, implying their equal weight and importance.

18. In my first version of this report, I severely criticised the general provisions in the last chapter, the so-called “horizontal clauses” for having been drafted exceedingly widely. In fact, I still harbour some doubts on the exact meaning of “objectives of general interest being pursued by the Union” in draft Article 51.1. However, the potential danger posed by this very wide formulation is now fully assuaged by draft Article 51.3., which reads “Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. …”. Draft Article 52 plays an equally important role in this respect. I think it is fair to say that the level of protection recognised by the draft Charter as it currently stands should not fall below the standards of the ECHR.

19. Of course, this text is not yet final, as it remains to be formally approved by the “Convention”. After the European Parliament has given its opinion on the final version, it will then be the task of the European Council, Parliament and Commission to solemnly proclaim the Charter in December 2000 in Nice, and to decide upon its legal nature. However, without anticipating the ICG's decision, the Chair of the “Convention” has opted for a form of wording which makes it possible for the Charter to become a binding instrument.

C. Accession of the European Union to the ECHR

20. It has always been the Council of Europe’s – and this Assembly’s – stance that the best way to guarantee universal and comprehensive human rights’ protection across Europe would be the accession of the European Union to the European Convention on Human Rights³.

21. The European Parliament, for its part, came out in favour of accession to the European Convention on Human Rights in a Resolution adopted as recently as on 16 March 2000, in which it invited the IGC to:

a. put the incorporation into the Treaty of the Charter of Fundamental Rights on its agenda;

b. enable the Union to become a party to the ECHR so as to establish close co-operation with the Council of Europe, whilst ensuring that appropriate action is taken to avoid possible conflicts or overlapping between the Court of Justice of the European Communities and the European Court of Human Rights;

c. add a reference to the European Social Charter and to the appropriate ILO and UN conventions to the reference to the European Convention on Human Rights in Article 6 of the Treaty on European Union.

22. On 13 September 2000, the European Commission issued a communication on the Charter of Fundamental Rights, in which it stated that the Charter neither required nor precluded accession to the European Convention on Human Rights. It noted that the existence of a Charter did not diminish the interest in joining, as accession would effectively establish external supervision of fundamental rights at Union level. Moreover, accession to the ECHR would in no way lessen the importance of drawing up a European Union Charter. The question of the Union’s accession to the ECHR not being covered by the mandate of the “Convention”, most recently the government of Finland made an official proposal to the Intergovernmental Conference (IGC) to amend the European Community Treaty to grant the Community the competence to accede.

23. It is now up to the European Union to give its opinion on accession to the European Convention on Human Rights, whether the Charter is adopted or not and irrespective of whether it is binding.

24. There is no need at this point to repeat all the reasons for acceding, which were examined in the previous report (Doc 8611), and there has been absolutely nothing to show that this is not the right approach. Suffice it to say that I am convinced that the aim of the draft Charter, which is to enhance and make more visible the protection of fundamental rights in Europe, can only be reached if institutions and bodies of the European Union are bound not only by the draft Charter, but also by the European Convention on Human Rights. In a democratic society, a system of checks and balances is essential. All member states of the European Union, honouring this democratic principle, have submitted themselves to the external supervision of the European Court of Human Rights under this Convention, without endangering national sovereignty or the principle of subsidiarity. There is no legitimate reason why acts carried out on behalf of the European Union should be exempt from this fundamental external control mechanism, thus in effect withdrawing the protection of the ECHR from persons adversely affected in their fundamental rights and freedoms by Community law.

25. The two official observers of the Council of Europe to the “Convention”, Deputy Secretary General Krüger and Judge Fischbach, have also emphasised that accession to the ECHR would have the advantage of ensuring consistency in the protection of fundamental rights in Europe without lessening the Charter’s usefulness. Firstly, the Charter would be seen as complementing, not being an alternative, to the ECHR, in keeping with Article 53 of the ECHR. That would underscore the fact that the Charter did not affect the universality of human rights or uniformity of standards in Europe. Secondly, the European Court of Human Rights would be able to review the interpretation of those provisions of the Charter that were based on the ECHR, thus ensuring perfect consonance between the two instruments in the interests of the clarity and legal certainty to which European citizens aspire. Lastly, it would enable Community institutions to be a party to proceedings before the European Court of Human Rights that concerned the effects of Community provisions in the legal orders of member States.

26. Some people argue that the Charter of the European Union as an autonomous legal text will make the accession of the European Union to the ECHR superfluous. I do not think that is the case. Many national constitutions also recognise human rights and fundamental freedoms, but their existence has not made it meaningless for the member States to become parties to the ECHR.

27. In short, I would find it difficult to accept the European Union’s claims that it wishes to improve the protection of European citizens' rights while it refuses to submit its own institutions to scrutiny and opens up the possibility of diverging interpretations of human rights by two different Courts. In fact, only the decision of the Court of Justice of Luxembourg in 1996 continues to be used as an argument for not ratifying the Convention. Yet there is nothing to prevent the European Council from remedying the situation by deciding to amend the Treaty on European Union to enable ratification to take place.

28. This is why the Assembly should propose, for the sole purpose of ensuring that Europe does not have two systems of human rights protection and to avoid the inconsistency which would inevitably ensue, that the European Union and its member states be invited to:

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Order No 561 (2000)

Draft resolution, draft recommendation and draft order adopted unanimously by the Committee on 27 September 2000

Members of the committee: MM Jansson (Chairperson), Bindig, Frunda, Mrs Err (Vice-Chairpersons), Mrs Aguiar, MM Akçali, Mrs van Ardenne-van der Hoeven, MM de Aristegui, Arzilli, Attard Montalto, Bal, Bartumeu Cassany, Bruce, Bulavinov, Clerfayt, Contestabile, Demetriou, Derycke (alternate: Vanoost), Dimas, Enright, Floros, Mrs Frimansdóttir, MM Fyodorov, Gustafsson, Holovaty, Mrs Hren-Vencelj, Mrs Imbrasiene, MM Jaskiernia, Jurgens, Kelemen, Lord Kirkhill, MM S. Kovalev, Kresák, Mrs Krzyzanowska, Mr Le Guen, Mrs Libane (alternate: Mr Cilevics), MM Lintner, Lippelt, Loutfi, Magnusson, Mrs Markovic-Dimova, MM Marty (alternate: Mrs Nabholz-Haidegger), McNamara, Moeller, Nastase, Mrs Ninoshvili, MM Pavlov, Pollo, Mrs Pourtaud (alternate: Mr Bordas), MM Rodeghiero, Mrs Roudy, Mrs Serafini, MM Simonsen, Skrabalo, Solé Tura (alternate: Mrs Lopez Gonzalez), Solonari, Spindelegger, Svoboda, Symonenko (alternate: Mr Khunov), Tabajdi, Tallo, Vera Jardim, Mrs Vermot-Mangold, Mr Vyvadil, Mrs Wohlwend, Mrs Wurm

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge

^* This report replaces the report adopted on 7 September 2000 (Doc 8819).

² The explanatory memorandum will probably not be formally approved by the Convention.

³ I have deliberately chosen the word “European Union” and not “European Community” or “European Communities”. While I am aware of the debate on the powers and the legal identity (or non-identity) of the Union, personally I am convinced that if the European Union does not already have a legal identity, it will acquire it sooner or later. I thus see no reason why the process of negotiating and adopting the necessary amendments to European treaties should be gone through twice, only to make it possible for first the “Community/ties” and then the “Union” to accede. If, however, this is the Union’s wish, so be it. In that case, “European Union” should be read to encompass “European Community/ties” in this text.