The EU Charter of Rights
L2B Autumn 2010
Blackstone Chambers’ Tom Hickman outlines 10 things you need to know about the Lisbon Treaty
The Lisbon Treaty has brought about fundamental changes to the structure of the EU. The most important change for practising lawyers in the UK is the effect given to the Charter of
Fundamental Rights of the European Union (2010/C 83/02) (the Charter).
As practitioners struggle to come to terms with the implications, here are 10 key points about the Charter to give you a head-start.
1. The Charter now has direct legal effect
Article 6(1) of the Treaty of the European Union (TEU), as amended by the Lisbon Treaty, states that the Charter has the “same legal value” as the TEU and the Treaty on the Functioning of the European Union (the amended and renamed Treaty Establishing the European Community). Although the Charter has been around in a slightly different form since December 2000 it did not previously have legal effect, and thus had no effect in UK law - although it was referred to by the European Court of Justice (ECJ) from time to time as a persuasive document.
The Charter can now be relied upon directly in disputes involving EU law as a straightforward matter of UK/EU law. This short-circuits convoluted arguments about the status of the Charter and brings it to the centre stage in UK human rights and EU law. The effect will be significant. The Charter will be invoked far more frequently by UK practitioners and courts.
2. Powerful remedies are available for breach of the Charter
One of the main reasons why UK lawyers like to rely on EU law if they can is that more powerful remedies are available. Under the Human Rights Act 1998 (HRA) courts cannot strike down Acts of the Westminster Parliament (Section 3(2)). Declarations of incompatibility made under Section 4 of the 1998 act do not affect the legal rights and obligations of the parties. The position is different if there is a violation of Charter rights. Primary legislation that is contrary to EU law will not be applied (Ex parte EOC (1995) 1 AC 1 pp26-7).
Moreover, the Francovich damages remedy for breach of EU law is more robust than the discretionary power to award damages under Section 8 of the HRA. Remedies are also available more widely under the Charter than under the HRA because there is no requirement under the Charter that claims can only be brought by ’victims’.
3. The Charter goes further than the European Convention on Human Rights (ECHR) Forget what you may have read to the contrary - the rights contained in the Charter do go further than those contained in the ECHR, reflecting other international human rights obligations and wider principles of EU law. For example, Article 1 establishes a general right to human dignity, drawing on the Universal Declaration of Human Rights; Article 8 provides a right to protection of personal data, reflecting the Data Protection Directive; there is explicit protection for freedom of scientific and academic research contained in Article 13; Article 15 establishes a right to choose an occupation; Article 16 provides a right to conduct a business; and Article 20 establishes a general right to “equality before the law”. Also particularly worthy of note are Articles 24 and 25, which enshrine the rights of children and the elderly respectively. The wider effect of the Charter is recognised by Article 52, which states that EU law may provide “more extensive protection” than the ECHR. This is one more reason whypractitioners will want to rely on the Charter rather than the HRA where they can. The lesson is that the Charter really does make a difference in practical terms.
4. The Charter only applies in EU cases
Given the importance of being able to run Charter arguments, the most important issue for practising lawyers will be determining whether the Charter applies. The Charter states that it applies to the organs of the EU and to member states, but it applies to member states “only where they are implementing European Union law” (Article 51.1). This means that whenmember states are acting pursuant to directives or regulations they must act in accordance with the Charter.
There are, however, difficulties here that are not yet worked out. The ECJ and the English courts have previously held that the actions of national authorities and the content of national law must be compatible with EU law whenever the matter is within the scope of EU law. This includes cases where authorities are acting pursuant to a provision of a regulation or directive although not implementing any obligation, and when they are acting in the field of free movement of persons, goods and services (see Lunn Poly (1998)  EULR 438). This is an important issue. Expect litigation.
5. The Charter must be read together with the ’Explanations’
A potential bear trap for practising lawyers is not cross-referring to the ’Explanations’ when citing Charter rights. This document, which was updated following Lisbon, has been prepared by the technocrats who drafted the Charter and provides a substantial gloss on many articles.
For example, Article 2 states simply “Everyone has the right to life”. The Explanations state that this right is intended to have the same effect as the more qualified protection afforded by Article 2 of the ECHR. It says the same about many other articles that on the face of it differ from those in the ECHR.
6. Fundamental rights continue to exist alongside Charter rights
In the absence of a legally enforceable Charter of rights, the ECJ developed a substantial body of jurisprudence in which it had recognised human rights, particularly those protected by the ECHR, as “fundamental principles” or “fundamental rights” of EU law to which it would give effect. In a belt-and-braces approach, the TEU endorses the ECJ’s fundamental rights jurisprudence (Article 6.3). It also confirms that the ECHR represents such fundamental rights, which puts beyond doubt that the entire jurisprudence of the ECHR is regarded as expressing fundamental rights of EU law, irrespective of the Charter.
Article 6.2 of the TEU also provides that “the Union shall accede to the ECHR”. One consequence of this is likely to be that the ECJ will have to follow judgments of the Strasbourg court as the arbiter of the meaning of the ECHR under that treaty.
7. Not all Charter rights are justiciable
Article 52.5 provides that “principles”, as opposed to rights and freedoms, contained in the Charter are justiciable only insofar as they are implemented by measures taken by member states. The Explanations state that principles “do not […] give rise to direct claims for positive action by the Union’s institutions or Member States’ authorities”.
While it is therefore clear that some provisions of the Charter are not justiciable, it is far from clear which ones these are. The Explanations provide some examples, which regrettably include Article 25’s rights of the elderly (but not children (Article 24)), Article 26 on the integration of people with disabilities and Article 37 on the protection of the environment.
8. The UK does not have an opt-out
Contrary to press reports, the UK does not have an opt-out from the Charter. What exists is Protocol 30 on the application of the Charter to the UK and Poland, which purports to “clarify certain aspects of the application of the Charter”. The Court of Appeal has recently confirmed that this does not constitute an opt-out: NS (Amnesty & Ors intervening) (2010 990). Beyond this, however, its terms are ambiguous and it legal effect is dubious.
The declaration states first that the Charter does not extend the ability of the ECJ to find the UK or Poland in breach of EU law. That may lead to arguments about whether Charter rights are also “fundamental principles” of EU law, but it probably has no practical effect.
Second, it is stated that nothing in Chapter IV of the Charter creates justiciable rights in Poland or the UK save insofar as such rights are given effect in domestic law. This may well have some effect. Chapter IV constitutes a group of rights under the heading ’Solidarity’. Some of these, such as the right to “family and professional life” and the right to “social security and social assistance”, establish legal rights as well as principles (according to the Explanations). So the UK declaration could have effect here in extending the number and scope of nonjusticiable rights.
Third, the declaration states that, insofar as the Charter refers to national laws and practices, it shall only have effect insofar as the rights and principles contained in the Charter “are recognised in the law or practices of Poland or the UK”. This provision is ambiguous to say the least. It may simply emphasise that the meaning of domestic law and practice is to be determined by domestic courts.
Overall, the only firm prediction that can be made about the effect of the declaration by the UK and Poland is that it will generate litigation and lead to hours of argument in court.
9. General limitation clause
The rights contained in the Charter are subject to a general limitation clause in Article 52.1. Such general limitation clauses are found in bills of rights in other countries, most famously the Canadian Charter of Rights and Freedoms 1982.
Beware, however, that insofar as certain Charter rights are said in the Explanations to be congruent with those under the ECHR, the limitation clause contained in Article 52 may have no operative effect. Thus, for example, in relation to the right to freedom of expression, the terms and case law under Article 10.2 of the ECHR is likely to be applied and Article 52.1 is likely to be held to have nothing to add.
Moreover, Article 52.1 should not be capable of justifying interferences with absolute rights, such as the right to life and the right to be free from torture and inhuman or degradingtreatment. Here the Explanations are crucial as a controlling document.
10. Indirect horizontal effect
The Charter does not have direct horizontal effect. It will, however, affect the legal rights and obligations of private parties in a similar way to the HRA, by affecting the interpretation and application of EU legislation and implementing measures.
Therefore, even private lawyers need to be familiar with the Charter and the principles that relate to it.
Tom Hickman is a barrister at Blackstone Chambers and author of Public Law After the Human Rights Act (Hart Publishing 2010)