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› John Morijn

›Senior human rights adviser, Ministry of the Interior (NL)

›University lecturer, Groningen University Department of Law

A binding EU Charter of Fundamental RightsHitting the ground running?

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Outline

› Research questions• What are the legal consequences of the 2009 upgrading

of the Charter to a legally binding text?• What practice has already been developed since 2000 in

referring to the Charter at EU, Council of Europe and MS level, and how can this practice be characterised?

› 1. A legally binding Charter: 5 legal issues › 2. EU, Council of Europe and Member States’

practice of referring to the (non-binding) Charter since 2000

› 3. Concluding observations

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› ˝The Charter and the Treaty of Lisbon lack a coherent plan and a clear idea about how they fit with previous structures .. Together they form a patchwork, the work of an amateur bricoleur, the by-product of Ikea-like constitutional design: flashy, cheap and ephemeral, full of redundancies, of cross-references to other legal texts, of repetitions, contradictions and confusing instructions”

› Julio Baquero Cruz (2008)

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1. A legally binding Charter (1/7)› Some general observations about the

Charter’s ‘legal upgrade’› (Most was already binding anyways)

› But, noteworthy that Charter:• Not mentioned in preamble of TEU.• Art. 6 TEU: ‘same legal value as’ Treaties.• One of several sources of hr; not prioritised.• Only source with explicit EU origin.

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1. A legally binding Charter (2/7)› A. Does the Charter bind all institutions? If so, what

are possible implications?• Article 51(1) Charter (provisions Charter ‘addressed to

institutions’), Article 13 TEU, fact that Charter was twice solemnly proclaimed by just three institutions.

• Does it matter that ECJ is bound by the Charter qua institution ex Article 13 TEU?

• Institutionally: e.g. will/should that impact its internal organisation (e.g., Emesa Sugar re. AG position)?

• Interpretationally: Will it be obliged to refer to the Charter? • If so, problem or opportunity for the Court?

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1. A legally binding Charter (3/7)

› B. Does the full Charter bind all Member States?

• Full Charter: rights/principles debate (see below).• All Member States: ‘Opt-out’ for UK, Poland, Czech

Republic?• Protocols and declarations.• UK, Polish, Czech ‘opt-out’?• Shaw: ‘Declaration masquerading as a protocol’.• Conclusion: no opt-out.

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1. A legally binding Charter (4/7)› C. When are Member States ‘implementing EU

law’?• 51-1 Charter: “only” when they are

implementing..• Relevance:

• Source of great confusion - e.g. Benes Decrees-saga.• Possibly most important for practical impact of Charter.

• Wording of ‘implementing’ more narrow than ‘acting within scope’?

• Will the ECJ – in line with earlier case law - refer to it when a MS derogates from EU law to check the plausibility of the reasons given to derogate?

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1. A legally binding Charter (5/7)› D. What is the legal significance of the Explanations?

• Art. 6(1)-3 TEU; 52(7) Charter. • Important to ‘clarify Charter’s sources’ (i.e. ‘choices’)

- ‘Expert’s clarification of a layman’s clarification’.• ‘Not status of law’ (according to Explanations).• Explanatory memorandum; according to VCLT Arts.

31/32 legal status as part of context anyway. • Presumably limited impact in debate on substantive

rights (soon outdated – also judicially ignored), but perhaps on horizontal clauses.

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1. A legally binding Charter (6/7)› E. EU accession to the ECHR

› 1. ECHR as a civ/pol. rights document• Implied reintroduction of distinction between

civil/political rights and economic/social rights (no accession to ESC envisioned).

• Undoing apparent indivisibility? (reference to case law of ECSR in Charter preamble missing) + 52(5) Charter.

• See also UK Protocol.• See however practice (below).

› 2. Consequence of possibly time-consuming accession: forced greater judicial focus on Charter? [Jacobs]

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1. A legally binding Charter (7/7)› Drawing some lines from legal analysis:

› 1. Four (!) different ways (Art. 6(1)-2 TEU, Charter 51(2), Protocols/Declarations, Art 6(1)-3 TEU reference to Explanations) to make very same point: the Charter’s scope needs to coincide with the current scope of application of EU law. • Political Goal: curtailing judicial activism by ECJ. • Goal reached? Probably not, because:

• According to hr case law hr obligations imply positive action by EU/MS – i.e. such action is inherent in protecting hr aspects of EU competencies, and therefore not an “extension” of these competencies.

• If ECJ will not itself move, the judicial activism will simply move away from ECJ to other courts (ECHR). Then ECJ will still need to follow.

• (Below) record: activism is more EU institutional than judicial.› 2. Redivision of indivisible rights?

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2. Charter reference practice (1/4)

› EU level policy reference• Commission

• Charter Communications, upcoming Communications on fundamental rights

• Speech new Fundamental Rights Commissioner: Charter as ‘compass’ for all EU policy-making; possibly basis for infringement procedures.

• EP• Reactions to Commission Communications.• Rules of Procedure.

• Council

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2. Charter reference practice (2/4)› EU level policy reference (continued)• Other institutions: Committee of the Regions.• Agencies: Fundamental Rights Agency.

•Took Charter as explicit point of reference in legal opinion re. PNR.

•Promotes awareness of Charter, e.g. as a ‘poem’ to make rights ‘more understandable’.

› EU level judicial reference• ECJ now refers to Charter, but only alongside

other sources.

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2. Charter reference practice (3/4)› Council of Europe

• Venice Commission and ECtHR case-law

› Member States• Germany: Bundesverfassungsgericht Lisbon ruling• Netherlands

• Council of State: EU Const. Treaty and Lisbon advices.• Curious phrasing: presumption that legal status of Charter is not

determinant of its legal impact?• No reference in legislative proposals; limited reference in

parliament’s assessment of EU proposals; reference in legislative testing framework.

• Possible effect of modern content of Charter on discussions on modernising Dutch Constitution’s human rights catalogue.

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2. Charter reference practice (4/4)› Drawing some lines from analysis of practice

of reference:• Political debate of limited impact to practical

implication.• Practice particularly on EU policy level; more

limited in EU judicial practice, and minimal on national judicial and policy level.

• In reference practice, no distinction made between types of rights.

• Often exclusive reference: just shorthand, or presumption of sufficiency?

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3. Concluding observations (1/2)

› Some legal consequences of the legally binding status of the Charter to be clarified; clauses stress a fear of judicial activism.

› EU level policy practice in referring to Charter transcends (ignores?) legal nuance: human rights indivisibility and trend towards exclusive mentioning.

› Pre-2009 EU level policy and judicial reference was not mirrored at Member State level (although some ‘reflexive effect’ already).

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3. Concluding observations (2/2)› EU level policy practice of exclusive and prioritised

reference, while legally it has not been prioritised and cannot be understood on its own: paradox or tension?• A new ‘as if’? From ‘as if legally binding’ to ‘as if

useful/self-explanatory’?• Danger of judicial (non-)activism or forced reactivism?

› So far, near monopoly of EU level Charter reference.• Hitting the ground running with one leg? • Will bottom-up perspective of Member State Charter

application necessitate changes in EU level policy reference, or influence judicial reference?

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› Thank you for your attention!• j.morijn@rug.nl