|
|
Doc. 8846
28 September 2000
Charter of Fundamental Rights of the European Union
Opinion1
Political Affairs Committee
Rapporteur: Mr Georges Clerfayt, Belgium, Liberal, Democratic and Reformers’ Group
I. Conclusions of the committee
The Political Affairs Committee proposes the following amendments to the draft resolution and recommendation contained in the report of the Committee on Legal Affairs and Human Rights:
Amendment to the draft resolution
Insert a new paragraph 6 (the former paragraph 6 becomes 7):
"6. The new internal legal system that the Union wishes to create should reflect its global role. It must help to offset trends towards a "fortress Europe" and be at the forefront of combating racism, xenophobia and ethnic violence. In this context, consideration ought to be given to the question of the political rights of nationals of third parties established in the Union."
Amendment to the draft recommendation
Insert a new paragraph 5 with the following wording:
"5. The Assembly also recommends that the Committee of Ministers bear in mind that Europe will always be larger than the Union and will always include a certain number of non-member states of the Union. There is therefore a need for practical, organic relations between the Council of Europe and the European Union, based on complementarity and co-operation, which take account of the Council of Europe's role and distinctive features."
II. Explanatory memorandum, by the Rapporteur
I INTRODUCTION
1. Once again, the European Union is at a decisive turning point. As was the case at the time of its first enlargement, then again when the Treaty of Maastricht was adopted and, more recently, when the decision was taken to introduce the Euro, another ambitious project is taking shape, one that represents a qualitative "deepening" of the Union, at the very time when a process of quantitative change - enlargement - is already under way.
2. The debate now goes far beyond the initial proposal, which was to provide the Union with the principles needed to ensure better protection of the individual citizen's fundamental rights. Something of far-reaching significance is taking place in Europe, and the outcome is still uncertain. If the constitutionalists prevail - we had already anticipated their intentions when the last debate was held in January 2000 - the Union's supranational political character. Nothing will ever be the same again.
3. It is true that the crucial question of whether fundamental rights should be incorporated into a "declaratory" or "binding" text has not yet been settled. However, let there be no illusions on this score: principles derive their strength not only from the legal status of texts but also from the recognition given to them by states and opinion, in other words their moral significance. In any case, there is nothing to stop a declaration from subsequently becoming an integral part, or the preamble, of a constituent text. History is full of examples of this.
4. Consequently, the approach adopted so far in the Council of Europe and the Parliamentary Assembly in particular, namely consideration of the possible introduction of fundamental rights in the EU system from the angle of respect for the Council of Europe's expertise and experience in this field, a division of responsibilities and hence a concern also to avoid duplication, seems a somewhat restrictive approach. It has become apparent over the years that our frequently expressed wish that the EU should simply accede to the ECHR ought to be supported by new arguments taking into account the Union's profound need for "deepening". The debate should therefore be raised to the level of this new historic challenge where the consequences remain to be perceived fully. Above and beyond the differences of opinion on content, methods and timing, the most important thing is to work out solutions in order to satisfy the long-term interests of all Europe's citizens.
II THE POLITICAL CONTEXT
5. The "Convention" set up to frame a draft Charter is continuing its work at what might be called a rapid pace, despite its heterogeneous composition. In addition to a representative of the European Commission, it comprises 61 members, including 15 representatives of heads of state or government, 16 members of the European Parliament, 30 members of national parliaments and two Council of Europe representatives, as observers. Special working sessions have been devoted to exchanges of views with the countries applying for EU membership and also with NGOs
6. It is obvious that the work of this body should be set in a wider political context. It would be wrong to think that its deliberations are not influenced by political events, the declarations of political figures, etc. As a result, discussions on issues related to fundamental rights often overlap with those on the powers and responsibilities of the various institutions and the relations between the Union and the member states. The fate of the Charter is therefore inextricably bound up with the general debate on the future of the Union. There is a certain logic to this, but at the same time it makes the search for a result more complicated.
7. The European political scene is alive with ideas and proposals. The prospect of an imminent enlargement certainly has something to do with this revival of interest, but the political situation in Austria has also helped to relaunch the debate. In the former case, there is a clear desire to re-affirm and strengthen the principles and common values on which the Union is founded; in the latter, the hope is that improvements to texts and institutions will help to keep the member states "on the rails". The spectacular proposals made by the German Minister for Foreign Affairs, Mr Fischer, concerning the election of a European president by universal suffrage and the drafting of a constitution by 2006, provoked numerous reactions, including that of Mr Ciampi, the President of Italy, who, despite reserves and subtleties pointed out by President Chirac, said that the debate on a constitution should no longer be a question of "if", but of "when" and "how". He proposed a constitution in two parts: the Charter of Fundamental Rights and the division of powers and responsibilities between the Union and the member states. Ideas have also been put forward concerning a "core" or "pioneer" group of states, with the aim of making more rapid progress in this direction.
8. In the course of the Convention's discussions, the NGOs have shown themselves to be resolutely in favour of the idea of a Charter in the most binding possible form, if possible comprising new rights which are not covered by the ECHR, related for example to the environment, consumer affairs or biotechnology. In contrast, the positions of the applicant countries are less clear-cut and more varied: some (Latvia, Malta, Slovenia, Turkey and the Czech Republic) consider the ECHR to be effective and fear that the two texts might overlap . Others (Bulgaria, Estonia and Hungary) might initially accept the idea of a non-binding "political document". Some countries are hesitant to include specific rights for "minorities1. European Report, 21 June 2000". Lastly, most of these countries think that a stepwise approach is preferable to a headlong rush, but are in agreement with the principle of greater visibility of fundamental rights for citizens. It could be pointed out, however apprehensively, if such an undertaking would not raise the level of admission requirements to the European Union, and if it does not constitute, in fact, a reinforcement of the Copenhagen Criteria.
9. The governments of the EU member states have not all adopted the same positions, neither as regards the content of the document nor on the question of whether or not it should be binding. Some governments are against the inclusion of economic and social rights. There is a current of opinion which takes the opposite view and which holds that it would be better to dispense with a charter altogether if economic and social rights were not included in it. According to these commentators, this would be a step backwards rather than a sign of progress.
III THE PROS AND CONS OF A CHARTER ?
10. Last January, as rapporteur for the opinion, I included the following paragraph in the conclusions of the document which had been presented first to the committee, then to the Assembly: "The European Union, which has now become a world power in all sectors, and which will soon be enlarged, can no longer govern itself by a multitude of treaties; rather it deserves a single constituent text incorporating the principles of democracy, the rule of law and human rights. The European Union should provide itself with an internal legal system which corresponds to its world role and its requirements in its relations with non-member countries. This new strategy should reduce the trend towards 'fortress Europe' which is hostile to foreigners; it should include a new approach to combat the evils of racism, xenophobia and ethnic violence; it should also incorporate the results of a reflection on new information technologies and communications and their impact on society. It should be comprehensive, contemporary and effective3".
11. I still firmly subscribe to this point of view. Provided it is not a watered-down declaration but a document designed to have a positive influence on the way Europeans live, a European Charter of Fundamental Rights is something that could weld the Union more closely together and give it a stronger position at world level, eg in relation to its main competitor, the USA.
12. Each of us has often heard, or even used, the expression "Europe of traders" with reference to the European Union, whose origins go back to the concept of economic liberalism and which still has very strong economic connotations today. The European Union currently has before it a unique opportunity to transcend this basic philosophy and also gain greater legitimacy and acceptance throughout Europe and the world. With a Charter representing the link towards a constitutional union, political union will complete economic union.
13. The Charter is a project which clearly involves a certain number of dangers: firstly, there is the issue of fundamental rights in a context of sovereign power. Hitherto these rights have been guaranteed either by the state authorities or by international conventions. In the Union these rights will be exercised in a different legal and political context, one that has no equivalent anywhere else in the world. The balance of power between the Union and its member states will therefore be altered and some people might be tempted to take advantage of this situation to "control" states by transgressing the principles of subsidiarity. As a the result of the new Charter the implementation of Human Rights will be more widespread and uniform thus the subsidiarity principle will cease to apply.
14. Secondly, the equation enlargement/institutional reform/Charter of Fundamental Rights is fragile and needs to be handled wisely and with care. Political leaders must establish priorities and then decide on the order in which they are to be implemented. Excessively wide differences of opinion on the content and legal status of the Charter, for example, might weaken the unity of the member governments and jeopardise the enlargement process as well as the reform of the institutions. This is why a progressive approach is likely as regards the binding character of the Charter.
15. Thirdly, economic and social rights are still a major bone of contention. Which of them are chosen and how they are formulated will be decisive factors in the search for a consensus. In some countries such as the United Kingdom, one section of opinion is virulently opposed to the idea of entrusting the interpretation of social and economic rights to the Court of Justice in Luxembourg, which, according to these sources, has a unifying role, with a tendency to favour the supranational authorities. Others believe that a rigid interpretation of these rights might undermine the European Union's economic and commercial competitiveness at world level. This is a sensitive point. Without social and economic rights the Charter does not add any new rights. On the other hand, some think if they were included in the Charter it would be difficult to make it a binding instrument.
16. The draft Charter, which is still in preparation, has not been made public. However, if the text remains unchanged, the controversial but unavoidable issue of the political rights of foreign nationals who have settled in the European Union but who are not "citizens" of the Union will not be resolved other than the right to asylum, which is very little. It is to be hoped that the European Union, which has played a pioneering role in many areas, will be able to find a solution worthy of its aspirations - namely, inter alia, to provide a model for the defence of the fundamental rights of solidarity and participatory democracy. In summary, will the Charter permit the impression to be erased that the European Union is building a "fortress Europe" hermetically closed to the rest of Europe. The question remains. The same question concerns people coming from other parts of the world.
17. Whatever its legal status, the Charter of Fundamental Rights will have no political significance unless it enshrines new rights which are not included in the ECHR, and, moreover, unless it gives some binding force to the economic and social rights which are already contained in the European Social Charter but whose ratification is optional and the choice of provisions left to the discretion of states. The difficulties involved in reconciling in the same text rights which are enforceable against states and rights which are not enforceable under domestic law (such as the "right to work") must not be overlooked. We shall no doubt shortly be finding a detailed analysis of all the new rights contained in the draft Charter, in the Legal Affairs Committee's report. This new draft represents an added value, nonetheless, those who seek maximum protection (NGO's and trade unions) may be disappointed.
IV CONCLUSIONS
18. This is a complex and multi-faceted issue. The question of the Charter of Fundamental Rights has to be viewed in a historical and political context, due account also being taken of its implications for institutional reform and the European Union's future enlargement; the remedy suggested by the Council of Europe, namely the European Union's accession to the ECHR to preserve the universality of human rights and to prevent possible conflicts in the interpretation of these rights by two different courts should be maintained with the view to preserve the coherence of the human rights protection system. Nonetheless, one should realize that this could only provide a partial solution to an issue on a much wider scale and that new steps must be taken to complete it. The Union will increasingly become a pole of attraction to non-member countries. The role and structure of the council of Europe must be redesigned.
19. In this document I have attempted to draw a comprehensive and objective picture of all the arguments in favour of a Charter, and the drawbacks and difficulties involved in its fulfilment. In an earlier opinion last January (Doc. 8615) I attempted to outline the different stages in the development of the European Union, showing the Charter to be, in a sense, the culmination, or at least a very important stage, of a long political process leading to a strengthened Union. Ten months ago the Charter was merely a proposal; today it is in the process of becoming a reality. However, the heads of state and government will have the final say at the Intergovernmental Conference next December, as regards the legal status of the Charter, ie whether or not it will take the form of a binding instrument. Inevitably, the gradual progression of the Charter will cause new delays.
20. The Council of Europe must take advantage of this possible delay in order to redefine its mission and its fields of competence. Europe will always remain larger than the European Union; some countries may soon become members, others do not seek membership. It is important that Europe is correctly structured, within the framework of the Council of Europe, to the benefit of both candidate states of the Union as well as others.
Reporting Committee : Committee on Legal Affairs and Human Rights (Doc. 8819)
Committee for opinion : Political Affairs Committee
Reference to committee : Order No. 561
Opinion approved by the committee on 28 September 2000
Secretaries to the committee : Mr Perin, Mrs Ruotanen, Mr Sich, Mrs Hügel
1 See Doc. 8819 revised of the Committee on Legal Affairs and Human Rights)