The Charter of Fundamental Rights of the European Union

Part A : Social and Economic Rights

Prof. Dr. Monika Böhm

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Why adopt a written Charter?

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Part A: Social and Economic Rights – Work, Health and Education

I. Introduction

II. Overview of the Charter

III. Dispute about the adoption of the Charter

IV. Discussion: Visibility and guidance for the ECJ versus national sovereignty

V. Dispute about the scope of social and economic rights

VI. Work

VII. Health

VIII. Education

IX. Discussion: Importance and meaning of social and economic rights in the Charter of Fundamental Rights

X. Protocol on the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom

XI. Conclusion

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II. Overview of the Charter

1. Preamble

“The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future

based on common values.

….

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II. Overview of the Charter1. Preamble

….

The Union contributes to the preservation and to the development

of these common values while respecting ….. the national identities

of the Member States ….

….

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II. Overview of the Charter

1. Preamble….

To this end, it is necessary to strengthen the protection of

fundamental rights in the light of changes in society, social progress

and scientific and technological developments by making those rights

more visible in a Charter.

….

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II. Overview of the Charter

1. Preamble

….

The Union therefore recognizes the rights, freedoms and principles set

out hereafter.”

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II. Overview of the Charter

There are not only rights but freedoms and principles as well.

What does that mean for the scope of social and economic rights and for the competences of the EU and the Member States?

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II. Overview of the Charter

2. Contents

Title 1 Dignity (Art. 1-5)

Title 2 Freedoms (Art. 6-19)

Title 3 Equality (Art. 20-26)

Title 4 Solidarity (Art. 27-38)

Title 5 Citizens`Rights (Art. 39-46)

Title 6 Justice (Art. 47-50)

Title 7 General Provisions Governing the Interpretation and Application of the Charter (Art. 51-54)

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III. Dispute about the adoption of the Charter- civitas.org.uk -

1. Arguments FOR the Charter

•The Charter makes the rights of EU citizens visible and brings them together in one document.

•The Charter provides judges with an explicit guide to fundamental rights, rather than leaving them to interpret vaguely worded agreements.

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III. Dispute about the adoption of the Charter- civitas.org.uk -

2. Arguments AGAINST the Charter

When the CFR became legally binding, the EU acquired jurisdiction over many aspects of employment and social life that had previously been considered to be the responsibility of elected national governments. Many rights would be better dealt with by elected politicians, who have a mandate to determine their country´s priorities, rather than unelected judges.

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IV. Discussion:

Visibility and guidance for the ECJ versus national sovereignty

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V. Dispute about the scope of social and economic rights

There is a difference between

“individually justiciable classic rights” (civil and political rights) and new social and economic rights which are not justiciable in the same way.

(Lord Goldsmith QC, UK Government´s representative in the Convention)

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V. Dispute about the scope of social and economic rights

…

Such principles “only give rise to rights to the extent that they are implemented by national law or, in those areas where there is such competence, by Community law”.

(Lord Goldsmith QC, UK Government´s representative in the Convention)

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VI. Work

1. Article 15 CFR Freedom to choose an occupation and right to engage in work

(1) Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.….

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VI. Work2. Article 16 CFR Freedom to conduct a business

The freedom to conduct a business in accordance with Union law and national laws and practices is recognized.

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VI. Work3. Articles 27-34 CFR

Art. 27: Workers´ right to information and consultation within the undertaking

Art. 28: Right of collective bargaining and action

Art. 29: Right of access to placement services

Art. 30: Protection in the event of unjustified dismissal

Art. 31: Fair and just working conditions

Art. 32: Prohibition of child labour and protection of young people at work

Art. 33: Family and professional life

Art. 34: Social security and social assistance

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VII. Health1. Articles 2 and 3 CFR (Right to life/to the integrity of the

person)

Art. 2 (1): Everyone has the right to life.

Art. 3 (1): Everyone has the right to respect for his or her physical and mental integrity.

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VII. Health 2. Article 35 CFR (Health Care)

Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Unions`s policies and activities.

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VII. Health - Discussion:

Guarantee of minimum rights or mere reference to national laws and practices?

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VIII. Education1. Article 14 CFR Right to education

(1) Everyone has the right to education and to have access to vocational and continuing training.

(2) This right includes the possibility to receive free compulsory education.

(3) The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected in accordance with the national laws governing the exercise of such freedom and right.

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VIII. Education2. Article 2 of the Protocol to the ECHR

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

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VIII. Education - Discussion:

Similarities and Differences between the Charter and the ECHR

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VIII. Education

4. UK-Government (DIUS and DCSF)

(1) The Charter right is expressed as a positive right, whereas the ECHR right was expressed as a negative right “Right not to be denied education”.

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VIII. Education

5. The right to education and the European Court of Human Rights

Positive right to education, notwithstanding its negative formulation or right to just distribution (of places at university)?

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IX. Discussion: Importance and meaning of social and economic rights in the Charter of Fundamental Rights

Rights or guiding principles for the legislator (and the other EU-institutions, for example the European Central Bank – impact of monetary policy on employment)?

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X. Protocol on the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom

Article 1:

(1) The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

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(2) In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or for the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

X. Protocol on the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom

Article 1:

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XI. Conclusion

Visibility

Guidance

Field of Application?

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